BLAW- exam 2

The special relations giving rise to an affirmative duty to aid or protect another include

(1) a common carrier with its passengers, e.g airline or train(2) an innkeeper with its guest,(3) an employer with its employees,(4) a school with its students,(5) a landlord with its tenants with respect to common areas under the landlord's control,(6) a business open to the public with its customers, and(7) custodian with those in its custody including parents with their children

Disaffirmance

A minor may disaffirm a contract at any time before reaching the age of majority, and in some cases within a reasonable time after reaching the age of majority, if they did not first ratify the contract after becoming of age

Liability on Contracts

A minor's contract, whether executory or executed, is generally voidable at their option

Superior Skill or Knowledge

A person who is qualified to practice a profession or trade that requires special skill and expertise is required to use the same care and skill normally possessed by members of that profession or trade. Therefore, is used in determining the application of the reasonable person standard

'but for

A person's conduct is a cause of an event if the event would not have occurred (i.e., in the absence of) the person's negligent conduct .Example: but for stopping to tie your shoe, you would not have missed the train and would not have been mugged

Novation

A substituted contract which relieves one party to a contract of performance obligations while replacing this individual with a new third-party promisor or promisee

Abnormally Dangerous Activities

Activities considered abnormally dangerous involve a high degree of risk of serious harm that cannot be eliminated by the exercise of reasonable care and are not a matter of common usage.

Superseding

All superseding causes are intervening causes but not all intervening causes are superseding.

Common Law

An acceptance must be a mirror image of the offer, knownas the Mirror Image Rule.

example #2

An act or failure to act on the part of the plaintiff that is also negligent and contributes toward the resulting injury.• In other words, the plaintiff helped to harm themselves. In the few states following this rule, it is a complete defense and prevents any recovery by the plaintiff

Fraud inducement

An intentional misrepresentation of material fact by one party to another, who then consents to a contract in justifiable reliance on the misrepresentation

Duty to Invitees

An invitee is a person invited upon land as a member of the public or for a business purpose

Official offer

An offer must have these elements: 1) Communication 2) Intent 3) Definiteness

Rejection

An offeree may accept or reject an offer as they desire. In its simplest form, rejection is the refusal to accept an offer

Yes

An unexcused violation of a statute or regulation is negligence in itself, or negligence per se if the court adopts the statute as defining the conduct of a reasonable person

Fraud

Fraud prevents agreement from being knowingly given. There are two distinct types:(1) fraud in the execution(2) fraud in the inducement.

Strict Liability

In some instances a person may be held liable for injuries he has caused even though he has not acted intentionally or negligently.• Such liability is called "strict liability," "absolute liability," or "liability without fault."• The doctrine of strict liability is not based on fault of the defendant, but rather on the nature of the activity in which he is engaged

The doctrine of Promissory Estoppel

Includes as a requirement that there has been justifiable reliance on the promise

Foreseeability

Injury must be foreseeable - no liability if defendant could not reasonably have anticipated injuring the plaintiff or a class of persons to which the plaintiff belongs.

breach of a contract

Is a wrongful failure to perform its terms. Breach of contract always gives rise to a cause of action for damages by the non-breaching (injured) party If, on the other hand, the breach is not material, the non-breaching party is not discharged from the contract, although they may recover money damages.

Revocation

Is done by the offeror, generally at anytime prior to its acceptance by the offeree.

Factual Cause

Liability for the negligent conduct requires not only that the conduct actually caused injury, but also that it was the proximate cause of the injury

Comparative Negligence

Majority Rule - Has replaced contributory negligence in almost all states. Also called comparative fault or comparative responsibility, damages are divided between the parties in proportion to the degree of fault or negligence found against them

Res Ipsa Loquiter

Meaning "the things speaks for itself," this rule of circumstantial evidence allows a jury to infer both negligent conduct and causation simply because an event happened which would not occur unless someone has been negligent

Contributory Negligence

Minority Rule - act or failure to act on the part of the plaintiff to exercise reasonable care for his own protection ,which in a few States prevents the plaintiff from recovering anything.Ex

Elements of Contracts

Mutual assent is usually made through an offer and an acceptance, both of which can take the form of either words or conduct. Thus, even if there is no definite spoken or written offer or acceptance, but there is some action by both parties which indicates that they recognize the agreement, it can be a legalcontract.3

Duration of offers

Otherwise, an offer will remain open for a reasonable period of time, depending on the circumstances.15

Preexisting Contractual Duty

Performance of a preexisting contractual duty is not consideration. A contractor, ABCConstruction, is halfway through building a house for a homeowner, Derek, under a contract that specifies a set price

Mergner Clause

Prior or contemporaneous representations that contradict the written contract cannot be used to vary the terms of a valid written agreement purporting to contain the entire agreement of the parties

Promissory Estoppel

Promissory estoppel is a legal principle that allows an individual to recover on a promise, even in the absence of a formal contract, under certain circumstances. This doctrine is invoked to prevent one party from suffering an injustice due to their reliance on the other party's promise

Counteroffer

Sometimes, after receiving an offer, the offeree may let the offeror know they are interested and willing to contract, but on terms or conditions different from those proposed by the offeror.

Undue influence

Taking unfair advantage of a person, by reason of a dominant position based on a confidential relationship, renders a contract voidable, and the dominant party is liable in restitution as necessary to avoid unjust enrichment

Duty of care

The Second Restatement provides for varying duties depending on the status of the entrant on the land, ie. Trespasser, Licensee or Invitee

Legality

The consideration must be legal. An exchange of something illegal does not qualify as valid consideration and therefore does not result in a legally enforceable contract.

Reasonable Person Standard

The degree of care expected of a reasonable person in similar circumstances. Age, physical ability, superior skill or knowledge, and emergencies may affect the level of conduct expected of a reasonable person.

Catamount Slate Products, Inc. v. Sheldon

The manifested intent of the parties to be bound to a contract is determined by an objective standard of what a reasonable person would have believed based on the words and conduct of the parties.

Good faith

Under the Uniform Commercial Code (UCC), "good faith" is defined as honesty in fact and the observance of reasonable commercial standards of fair dealing. This definition can vary slightly depending on the specific UCC article in question

Contracts Under Seal

Under the common law, a promise under seal, bond, deed, or solemn promise, was binding without consideration.

Agreements

Voluntary of free will• Knowing, aware and consent to agreement• Legal subject matter• Parties with legal capacity

The Rule

When a contract that is intended to be the complete agreement is expressed in writing, the parole evidence rule excludes prior or contemporaneous oral or written negotiations or agreements that may vary, alter, or change the written contract. Only subsequent oral or written agreements modifying the original agreement can be used

physical duress

When a party compels another to agree to a contract through actual physical force (such as holding a knife their throat) - renders the agreement void and the party exerting the duress is liable in restitution as necessary to avoid unjust enrichment

unenforceable contract

a contract for the breach of which the law provides no remedy

Unenforceable Contract

a contract for the breach of which the law provides no remedy.

Bilateral Contract

a contract in which both parties exchange promises. Each party is both a promisor and a promisee

Unilateral Contract

a contract in which only one party makes a promise in exchange for anact.19

Implied in Fact Contract

a contract in which the agreement of the parties is inferred from their conduct.

Executory Contract

a contract that has yet to be fully performed (example bankruptcy implications)

Voidable Contract

a contract, but because of the way it was formed, the law permits one or more of the parties to avoid the legal duties the contract creates, making the contract unenforceable

Promissory Estoppel Definition

a doctrine enforcing some noncontractual promises to preventinjustice.26

Accord and satisfaction

a legal concept used to settle a dispute by agreement to a performance different from what was originally owed under a contract. It is a form of compromise where the creditor agrees to accept less than the full amount or a different performance in full satisfaction of the original debt or obligation

Contract

a promise or set of promises for the breach of which the law gives a remedy or the performance of which the law in some way recognizes as a duty

Express Contract

an agreement that is stated in words, either orally or in writing, and in which the terms have been definitely and specifically stated and agreed upon.

Intervening cause

an event or act that occurs after the defendant's negligent conduct and with that negligence causes the plaintiff's harm. If the intervening cause is deemed a superseding cause, it relieves the defendant of liability for that harm

Superseding Cause

an intervening act that relieves the defendant of liability

Mutal Mistake

both parties have a common but erroneous belief forming the basis of the contract.• Renders the contract voidable by either party.• In addition, the adversely affected party is entitled to restitution as necessary to avoid unjust enrichment

Quasi Contracts Definition

contract implied in law. A quasi contract is not actually a contract because it is based neither on an express nor on an implied promise

Void Contract

contract is an agreement that does not meet all of the requirements of a binding contract; it is not actually a contract but merely a promise or agreement with no legal effect

Void Contract

contract is an agreement that does not meet all of the requirements of a binding contract; it is not actually a contract but merely a promise or agreement with no legal effect example contracts entered into by a person declared incompetent

Promissory Estoppel

doctrine that prohibits a party from denying her promise when the promisee takes action or forbearance to his detriment reasonably based upon the promise

Requirements of contracts

he promise is made under circumstances that should lead the promisor reasonably to expect that the promisee would take a definite and substantial action or forbearance in reliance on the promise and the promisee takes such action or forbearance, and is injured

Violation of Statute

he reasonable person standard of conduct may be established by legislation in a statute, with civil liability imposed on unexcused violators of such statute. Referred to a Negligence Per Se9

Material Breach

nonperformance that significantly impairs the aggrieved party's rights under the contract

Adequacy

not required where the parties have freely agreed to the exchange.• Legal sufficiency has nothing to do with adequacy of consideration

Negligent Misrepresentation

occurs when a statement is not true and is made without any reasonable belief in its truth. The party imparting the information will either have done so:• In a careless manner; or• Having no reasonable grounds on which to believe that the statement is true

Quantum Meruit

one party may recover the reasonable value of the benefit they conferred upon the other party, such as quantum meruit ("as much as he deserves") to allow for the recoupment of the reasonable value of services rendered.34

Bilateral Contract

promise exchanged for a promise; both promises must be supported by consideration.• Thus, each party is both a promisor and a promisee

Preexisting Public Obligations

public duties such as those imposed by tort or criminal law are neither a legal detriment nor a legal benefit.

statute of frauds

requires that certain types of contracts bein a particular form to be enforceable.• Original source: 1677 English law "An Act for the Prevention of Frauds and Perjuries." "For prevention of many fraudulent Practices which are commonly endeavored to be upheld by Perjury and Subornation of Perjury.

Factual cause

that the defendant's failure to exercise reasonable care in factcaused the harm the plaintiff sustained. i.e. what actually happened in-fact

Harm (Damages)

that the harm sustained is of a type protected against negligent conduct

Scope of liability

that the harm sustained is within the "scope of liability," which historically has been referred to as "proximate cause".

improper threats

using economic and social coercion, leaving the victim with no reasonable alternative to agreeing with the more powerful party; threat may be explicit or inferred from words or conduct. More common than physical compulsion

Elements of Common Law

1) legal Duty owed to another (2) Breach of that duty (3) Damages proximately caused by the breach.

To enforce: Promissory Estoppel

1. A clear and definite promise by the promisor .2. Reasonable reliance on the promise by the promise, definite and substantial action or forbearance in reliance on the promise 3. The Promisee's reliance was expected and foreseeable by the promisor

Elements of fraud inducement

1. A false representation 2. of a fact (not just an opinion) 3. that is material (relating to something of importance to the contract) "Materiality" 4. made with knowledge of its falsity and the intention to deceive, and 5. which representation is justifiably relied on. "Justifiable Reliance

Two types of statues of fraud

1.Contracts involving interests in land: This includes agreements to transferownership or other interest in real property. For example, if a person agrees to sell apiece of land to another, that contract must be in writing to be enforceable. 2.Contracts that cannot be performed within one year: These are agreements that, by their terms, cannot be completed within one year from the day after the contract is made. For instance, a two-year lease agreement would fall under this category

Requirements of quasi

A court will impose a quasi contract when: (1) the plaintiff confers a benefit upon the defendant ,(2) the defendant knows or appreciates the benefit, and (3) the defendant's retention of the benefit is inequitable.33

Intoxicated Persons

A contract entered into by an intoxicated person is voidable if the unintoxicated party has reason to know that, because of intoxication, the other person is unable to understand the nature and consequences of his actions or is unable to act in a reasonable manner

Lapse of time

A contract offer will remain open for a reasonable period of time unless a specified time is stated.

Mutual exchange

Consideration involves a mutual exchange, where each party must provide something of value to the other. This can be in the form of a service, money, an object, a promise to perform an action, or a promise to refrain from performing an action (such as not competing in business)

Sufficiency but Not Adequacy

Consideration must be sufficient, meaning it must be something legally sufficient to form the basis of a contract. However, it does not need to be adequate or equal in value to what the other party is offering

person under guardianship

Contracts made by a person placed under guardianship by court order are void

Liability for Necessaries

Contractual in capacity does not excuse a minor from paying for the reasonable value for necessaries ,such as those things that reasonably supply personal needs, such as food, shelter, medicine, text book sand basic clothing, this has also been extended by some states to include Bank Accounts and Student Loans.8

Example

Courts will consider unforeseeable consequences and superseding causes in determining limitations on the causal connection between the defendant's negligence and the plaintiff's injury

Restitution

Disaffirmance of an executory contract releases the minor from any liability on the contractual obligation

Consideration

Each party toa contract must intentionally exchange something of value, such as a legal benefit or incur a legal detriment, as an inducement to the other party to make a return exchange

Mutual Assent

The parties must show by words or conduct that they have agreed to enter into a contract. The usual method of showing mutual assent is by offer and acceptance.

example#3

The rule was adopted to mitigate the harsh results contributory negligence imposed on plaintiffs who were slightly negligent.

Satisfaction

This is the actual performance of the new agreement. Once the accord is executed, the original obligation is considered satisfied

Accord

This is the new agreement made between the parties to settle the dispute. It specifies the terms of the settlement, including what will be given or done in place of the original obligation.

Definition of Contract

a binding agreement that the courts will enforce.

business visitor

is an invitee who enters the premises for a purpose connected with business with the possessor of the land, such as shopping in a store or entering a residence to make repairs.

public invitee

is its the land as a member of the public for a purpose for which the land is intended, as with a public park or a public government office

Fraud execution

misrepresentation that deceives the other party as to the nature of a document evidencing the contract.

Legal Capacity

the parties to a contract must have contractual capacity. Some persons, such as adjudicated incompetents (persons placed under guardianship by a court order), have no legal capacity to contract, while others, such as minors, Non adjudicated incompetent persons, and intoxicated persons, have limited capacity to contract.

Legal Capacity

the parties to a contract must havecontractual capacity

Legality of Object

the purpose of a contract must not be criminal, tortious, or otherwise against public policy