Business Law Final

Contracts within the Statute of Frauds

(1) Electronic Records (2) Suretyship Provision - promises to pay debt of another (promise cannot be made to debtor) (3) Executor-Admin. Provision (4) Marriage Provision (does not include mutual promises to marry (5)Land Contract Provison (6) One-year Provision (contracts that cannot be performed within a year (7) Sales of Goods of over $500 (8) Admission in court proceedings (9) Specially Manufactured Goods (10) Delivery or Payment and Acceptance validates thje contract only for the goods that have been accepted or for which payment has been accepted. (No further definitions) pb

Effect of Noncompliance

(1) Full Performance Statute does not apply to executed contracts (2) Restitution is available in quasi-contract for benefits conferred in reliance on the oral contract (3) Promissory Estoppel oral contracts will be enforced where the party seeking enforcement has reasonably and justifiably relied on the promise and the court can avoid injustice only by enforcement.

Permits one Party to Recover

(1) Party withdrawing before performance,(2) Party protected by Statute, (3) Party not equally at fault, (4)Excusable Ignorance, (5) Partial Illegality. (no further definitions on these) pb

General Contract Provisions - the writings or records must

(1) Specify the parties to the contract (23) Specify the subject matter and essential terms (3) Be signed by the party to be charged or by her agent.

Law

"A rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong"

Parol Evidence Rule - Exceptions

(1) A contract that is not an integrated document. (2) Correction of a typographical error. (3) Showing that a contract was void or voidable (4) Showing whether a condition has in fact occurred (5) Showing a subsequent mutual rescission or modification of the contract.

Sale of Goods - Writings or Records must

(1) Be sufficient to indicate that the contract has been made between the parties (2) Be signed by the party against whom enforcement is sought or by her authorized agent, (3) Specify the quantitiy of goods to be sold

Parol Evidence Rule - Supplemental Evidence May Be Admitted

(1) Course of Dealing - previous conduct between the parties (2) Usage of Trade - practice engaged in by the trade or industry (3) Course of Performance - conduct between the parties concerning performance of the particular contract and (4) Supplemental consistent evidence

To be effective, an offer must:

be sufficiently definite and certain, manifest an intent to enter into a contract, and be communicated to the offeree.

A __________ is an obligation imposed by law to avoid injustice.

bilateral contract, quasi contract, contract implied in law.

Concurrent Condition

conditions that are to takw place at the same time.

Express Condition

contingency explicity set fourth in language

Rights of copyrights

copyright protection provides for the exclusive rights to (1) reproduce the copyrighted work, (2) prepare derivative works based on the work, (3) distribute copies of work, and (4) perform or display the work publicly.

Specific Performance

court degree ordering the breaching party to render promised performance.

Incidental Damages

damages arising directly out of the breach of contract

Consequential Damages

damages not arising directly out of a breach but arising as a forseeable result of teh breach.

Certainty of Damages

damges are nto recoverable beyond an amount that can be established with reasonable certainty.

Civil dispute resolution Answer

defendants pleading in response to the plaintiff's complaint.

Out of Pocket Damages

differnce between teh value given and the valued received.

Benefit of the Bargain Damges

differnce between the value of the fraudualent partys performance as represented and the value the defrauded party received.

Bankruptcy

discharge avilable to a debotor who obtains an order of discharge by the bankruptcy court

Satifactions

exoress condition making performance contingent on one party's approval of the others performance.

Party in default

for any benefit conferred in excess of the loss caused by the breach

An intentional misrepresentation of a material fact made with knowledge of the falsity and intention to deceive and which a party justifiably relies upon to his detriment is known as:

fraud in the inducement

Inferior Courts

hear minial criminal cases such as traffic offenses and civial cases involving small amounts of money and conduct preliminary hearings in more serious criminal cases.

Subsequent Illegality

if performance becaomes illegal or impratical as a result of a change in the law, the duty of performance is discharged.

Election of Remedies

if remedies are not inconsistent, a party injured by a breach of contract may seek more than one remedy.

party injured by breach

if the other party totally breaches the contract by nonperformance or repudiation.

Defenses against beneficiary

in an action by the intended beneficiary to enforce the promise, the promisor may assert any defense that would be available to her if that action had been brought by the promisee

Requirments of an Assignment

include intent but not consideration

Mitigation of Damages

injured oarty may not recover damges for loss he could have avoided by reasonable effort.

Civil dispute resolution Complaint

intial pleading by the plantiff

Invasion of privacy consists of

intrusion, public disclosure of private facts, and appropriation

Assignee Notice

is not required but is advisable.

Third Party Beneficiary Contracts

is one in which one party promises to render a performance to a third person (beneficiary)

Defense of Obligor

may be asserted against the assignee

Assignability

most contract rights are assignable except: Assignments that materially increse the duty, risk, or burden upon the olbligor. Assignment of personal rights Assignment of expressly forbidden by the contract Assignment prohibited by law

Rights of Assignee

the assignee stand in the shoes of the assignor.

The Supreme Court

the nation's highest court, whose principals function is to review decisions of the federal courts of appeals and the highest state courts.

Jurisdiction over the parties

the power of a court to bind the parties to a suit.

Subjective Impossibilty

the promisor but not all promisors cannnot perform; does not discharge the promisor

Intended beneficiaries

third parties intended by the two contacting parties to receive a benefit from their contract

Donee Beneficiary

third party intended to receive a benefit from the contract as a gift

Delegatee

third party to whom the delegators duty is delegated.

Incidental Beneficiary

third party whom the two parties to the contract have no intention of benefiting by their contract and who aquires no rights under the contract.

District Courts

trail courts of general jurisduction that can hear adn decide most legal controversies in teh federal system.

partial assignment

transfer of a portion of contractual rights to one or more assignees

Delegation

transfer to a third party of a contractual obligation

Loss of Value

value promised performance minus value of actual performance

Steven makes a material misrepresentation of fact regarding his motorcycle to Thelma who agrees to buy the motorcycle based upon the misrepresentation. This contract is:

voidable.

Assignment of rights

voluntary transfer to a third party of the rights arising from a contract so that the assignors right to performance is extinguished.

Revocability of Assignment

when the assignee gives consideration, the assignor may not revoke the addignment without the assignees consent.

Statue of Frauds

where a contract is unenforceable because of the statue of frauds, a party may recover the benefits conferred on the other party in reliance on the contract

Offer - Unauthorized Means

Acceptance effective when received, provided that it is received within the time within which the authorized means would have arrived.

Adam wants to buy a six-passenger car. The salesman tells him that the two-seat sports car Adam sees on the car lot would be just perfect for six people. Adam test drives the car and then buys it. In this case:

Adam was not justified in relying upon the salesman's representation that the car would seat six people.

Statue of Limitations

After the statue of limitations run, the debt us not discharged, but the creditor cannot maintain an action against the debtor.

Illusory Promise - Requirements contract

Agreement to buy all of one's needs from a single producer.

Ilusory Promise - Output Contract

Agreement to sell all of one's production to a single buyer.

Treaties

Agreements between or among independent nations.

Corrupting Public Officials

Agreements that corrupt public officials are not enforceable.

Expertise

Although a corporation may have a high level of expertise in selling its goods and services, there is absolutely no guarantee that any promotion of social activities will be carried on with the same degree of competence.

Bargained For Exchange - Past Consideration

An act done before the contract is made is NOT consideration.

Mutual rescission

An agreement between the parties to terminate their respective duties under the contract.

Express Contract

An agreement that is stated in words either orally or in writing

Tortious Conduct

An agreement that requires a person to commit a tort is unenforceable.

Employment Contracts

An employment contract prohibiting an employee from competing with his employer for a reasonable period following termination is enforceable provided the restriction is necessary to protect legitimate interst of the employer.

Fraud in the Inducement - Fact

An event that occurred or thing that exists. VOIDABLE

Conditions

An event whoe happening or nonhappening affets a duty of perdormance.

Anticipatory Repubdiation

An inability ot refusal to perform, before performance is due, that is treated as a breach, allowing the nonrepudiating party tp bring suit immediately.

Trespass to Personal Property

An intentional taking or use of another's personal property

Superseding Cause

An intervening act that relieves the defendant of liability.

Quasi Contract

An obligation not based upon contract that is imposed by law to avoid injustice; also called an implied in law contract.

Mistake

An understanding that is not in accord with existing fact.

Trade names

Any name used to identify a business, vocation, or occupation

Personal Property

Any property other than land.

Subjective satisfaction

Approval based on a partys honestly help opinion

Objective Satisfation

Approval based on whether a reasonable person would be satisfied.

Law and Morals

Are different but overlapping; law provides sanction while morals do not.

Punitive Damges

Are generally no recoverable for a breach of contract

Law and Justice

Are seperate and distinct concepts; justice is the fair, equitable, and impartial treatment of competing interests with due regard for the common good.

Contract - UCC

Article 2 of the UCC governs the sales of goods

Ethical Relativism

Asserts that actions must be judged by what individuals subjectively feel is right or wrong for themselves.

Act Utilitarianism

Assesses each seperate act according to weather it maximize pleasure over pain.

Novation

Asubstituted contract involving a new third party promisor or promisee.

Cal sprayed pesticide on his crops in a very careful manner on a windless day. Nevertheless, some of the pesticide spray fell on his neighbor's side of the fence and contaminated the cornmeal for the chickens. The chickens died and the neighbor sues. What is the likely result?

Cal is liable because spraying pesticides is an abnormally dangerous activity.

Duress - Physical Compulsion

Coercion involving physical force renders the agreement VOID.

Definition of trade secret

Commercially valuable, secret information.

Two Types of Judical Law

Common law and Equity law

Definition of Negligence

Conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm.

Negotiations

Consensual bargaining process in which the parties attempt to reach an agreement resolving their dispute without the involvement of third parties.

Legal Sufficiency of Consderation

Consists of either a benefit to the promisor or a detriment to the promisee.

Conduct of trail

Consists of opening statements by attorneys, direct and cross-examination of witness, and closing arguments.

Sources of Law

Constitiutional law, judicial law, legislative law, and administrative law.

Implied in law conditon

Contingency not contained in the language of the contract but imposed by law; also called constructive condition.

Implied in fact condition

Contingency undestood by the paties to be part of the agreement, though no expressed.

Voidable Contract

Contract capable of being made void.

Compensatory Damages

Contract damages palcing the third party in a position as good as the one he would have held had the other party performed; equals loss of vaule minus loss avoided by injured party plus incidental damages plus consequential damages.

Unenforceable Contract

Contract for the breach of which the law provides no remedy.

Bilateral Contract

Contract in which both parties exchange promises.

Unilateral Contract

Contract in which only one party makes a promise.

Option Contracts

Contract that binds offeror to keep an offer open for a specified time.

Executed Contract.

Contract that has been fully performed by all of the parties.

Executory Contract

Contract that has yet to be fully performed.

Implied in Fact Contract

Contract where the agreement of the parties is inferred from their conduct.

Reliance Damages

Contrcact damages placing the injured party in as good as position as she would have been in had the contract not been made.

An artist would like to protect one of her original oil paintings from being sold as original prints. She may protect her painting by applying for a

Copyright

Long-Run Profits

Corporate involvement in social caused created goodwill, which simply makes good business sense.

Offer - Counteroffer

Counterproposal to an offer that genearlly terminates the original offer.

Reformation

Court order correcting a written contract to confirm with the intent of the contracting parties.

Injunction

Court order prohibiting a party from doing a specific act

Unilateral Mistake

Courts are unlikely to grant relief unless the error is known or should be known by the nonmistaken party.

Harm to Legally Protected Interest

Courts determine which interests are protected from negligent interference.

Remedies for trade symbols

Damages and injunctions are available if infringement occurs.

Remidies for trade names

Damages and injunctions are available if infringement occurs.

Comparative Negligence

Damages are divided between the parties in proportion to their degree of negligence; applies in almost all states.

The tort of __________ is a false communication, which injures a person's reputation and good name by disgracing him and diminishing the respect in which he is held.

Defamation

Fraud in the Inducement - Justifiable Reliance

Defrauded party is reasonably influenced by the misrepresentation.

Reasonable Person Standard

Degree of care that a resonable person would exercise under all the circumstances.

Delegation

Delegator is still bound to perform original obligation.

Trail

Determines the facts and the outcome of the case.

Appeal

Determines whether the trail court committed prejudical error.

Collection Marks

Distinctive symbol used to indicate membership in an organization.

Trademarks

Distinctive symbol, word, or design that is used to identify a provider's service.

Certification Mark

Distinctive symbol, word, or design that is used with goods or services to certify specific characteristics.

Federal Courts

District courts, Courts of Appeals, The Supreme Court, Special Courts.

Promissory Estoppel

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

Offer - Defective Acceptance

Does not create a contract but serves as a new offer.

Legal Detriment

Doing an act one is not legally obligated to do or not doing an act that one has a legal right to do.

Jury Selection

Each party has an unlimited number of challenges for cause and a limited number of peremptory challenges.

Consideration

Each party to a contract must intentionally exchange a legal beneft or incur a legal detriment as an inducement to the other party to make a return exchange.

Usury Statutes

Establish a maximum rate of interest.

Offer Mirror Image Rule

Except as modified by the code, an acceptance cannot deviate from the terms of the offer.

Forseeability

Excludes liability for harms that were sufficiently unforseeable at the time of the defendant's tortious conduct that they were not among the risks that made the defendant negligent.

Federal Jurisdiction

Exclusive and Concurrent

Definition of Copyright

Exclusive right, usually for the author's life plus seventy years, to original works of authorship.

Samuel Tate enters into a contract with Bill Smith under the terms of which Smith is to pay Tate $7,000 and Tate is to build a garage, repair a boat, and build a doghouse. If the doghouse has not yet been built, which term describes the type of contract in existence?

Executory contract.

Express Warranty

Explicitly made contractual promise regarding contract rights transferred.

Assumption of Risk

Express assumption of risk is a defense to an action based upon strict liability; some states apply implied assumption of risk to strict liability cases.

Infliction of Emotional Distress

Extreme and outrageous conduct intentionally or recklessly causing severe emotional distress.

Contributory Negligence

Failure of a plantiff to exercise reasonable care for his own protection, which in a few states prevents the plantiff from recovering anything.

A person who falls asleep while driving would not be liable for any resulting injury since it would be an unavoidable accident

False

Al owns a farm that he believes is worth $150,000. Betty knows that there is oil under the farm and offers Al $160,000 for it. Al accepts and sells the farm to Betty. Al later realizes that the land was worth more than $160,000. Al can have the contract avoided based upon fraud.

False

Electronic surveillance for the purpose of acquiring trade secrets is permissible under the law of unfair competition.

False

Nathan's father promises to give him a car for his twenty-first birthday. Nathan can legally enforce this promise because it created a moral obligation.

False

One way of a trade sercret is to obtain a paten on it

False

Sam goes to the movies one Friday evening. The movie is boring and Sam falls asleep. At 2 a.m., the security guard locks the building. Sam awakens the next morning when the cleaning crew opens the door. Sam can sue for false imprisonment.

False

Defamation

False communication that injuries person's reputation.

Exclusive Jurisdiction

Federal courts have sole jurisdiction over federal crimes, bankruptcy, antitrust, patent, trademark, copyright, and other special cases.

Criminal Penalties

Federal law imposed penalties for the theft of trade secrets.

Summary Judgement

Final ruling by the judge in favor of one party based on the evidence disclosed by discovery.

Directed Verdict

Final rulings by the judge in favor of one party based on the evidence introducced at trail.

Offer - Acceptance Following a Prior Rejection

First communication received by the offeror is effective.

Social Ethics Theories

Focus on a person's obligations to toher members in society and on the individual's rights and obligations within society.

Patent remedies

For infringement of a patent are (1) injunctive relief; (2) damages; (3) treble damages, when appropriate; (4) attorney's fees; and (5) costs.

Fraud in the Inducement - Materiality

Fraudulent information having sustantial importance. VOIDABLE

Unless one of the parties contractually assumes the risk, the __________ discharges a contract if supervening circumstances make fulfillment of the purpose which both parties had in mind impossible.

Frustration of purpose doctrine

Performance

Fulfillment of a contractual obligation resulting in a discharge.

Constitutional Law

Fundamental law of a government establishing its powers and limitations.

Communication of Acceptance

General Rule - acceptance effective upon dispatch unless the offer specifically provides otherwise of the offeree uses an unauthorized means of communication.

Offer - Effective Moment

Generally upon dispatch.

Offers - Revocaton

Generally, an offer may be terminated at any time before it is accepted, subject to the following exceptions: (1) Option Contract (2) Firm Offer (3) Statutory Irrevocability (4) Irrevocable Offer of Unilateral Contracts (5) Promissory Estoppel (all are broken down separately into definitions. paula)

Offer - Silence as Acceptance

Generally, does not indicate acceptance of the offer.

Venue

Geographical area in which a lawsuit should be brought.

Regulation of Business

Governmental regulation has been necessary because all the conditions for perfect competition havenot been satisifed and free competition cannot by itself achieve other societal objectives.

Illusory Promise - Exclusive Dealing Contract

Grant to a franchisee or licensee by a manufacturer of the sole right to sell goods in the defined market.

Trail Courts

Have general jurisdiction over civil and criminal cases

Special Courts

Have jursidication over cases in a patricular area of federal law and include the U.S. Court of Federal Claims, the U.S. Tax Court, the U.S. Bankrutcy Courts, and teh U.S. Courts of Appeals for the federal circuit.

Courts of Appeals

Hear appeals from the district courts and and review orders of certain administrative agencies.

False Light

Highly offensive and false publicity about another.

Public Disclosure of Private Facts

Highly offensive publicity of private information.

Deontology

Holds that actions must be judged by their motives and means as well as their results.

Scott, a minor, sells his digital camera to Megan, who then sells it to Sherry. Under these circumstances:

If Sherry is a good faith purchaser for value and she buys the camera before Scott elects to rescind, no rescission is permitted.

Copyright remedies

If infringement occurs after registration, the following remedies are avilable: (1) injunction, (2) impoundment and possible destruction of infringement articles, (3) actual damages plus profits or statutory damages, (4) costs, and (5) criminal penalties.

Superior Skill or Knowledge

If person has skills or knowledge beyond those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the person has acted with reasonable care.

Vesting Rights

If the beneficiary rights vest, the promisor and promisee may not therafter vary or discharge these vested rights.

Violation of Statute

If the statue applies, the violation is negligence per se in most states.

Duress - Improper Threats

Improper threats or acts, including economic and social coercion, render the contract VOIDABLE.

Motions Challenging Verdict

Include motions for a new trail and a motion for judgement notwithstanding the verdict.

Appellate Courts

Include one or two levels, the highest court's decisions are final except in those cases reviewed by the U.S. Supreme Court.

Fraud in the Inducement - Knowledge of Falsity and Intention to Deceive (SCIENTER)

Includes (1) actual knowledge (2) lack of belief in statement's truthfuless (3) reckless indifference to its truthfulness.

Essentials of an Offer

Indications of willingness to enter into a contract.(1) Communication - offeree must have knowledge of the offer and the offer must be made by the offeror or her authorized agent to the offeree. (2) Intent - determined by an objective standard of what a resaonable offere would have believed. (3) Definiteness - offer's terms must be clear enough to provide a court with a basis for giving an appropriate remedy.

Ethical Fundamentalism

Individuals look to a central authority or set of rules to guide them in ethical decision making.

Good Person

Individuals should seek out and emulate good role models

State Courts

Inferior Trail Courts, Trail Courts, Special Trail Courts, Appellate Courts.

False Imprisonment

Intentional confining of a person against his or her will.

Conversion

Intentional exercise of control over another's personal property.

Assault

Intentional infliction of apprehension of immediate bodily harm or offensive contact.

Battery

Intentional infliction of harmful or offensive bodily contact.

Interference with Contractual Relations

Intentionally causing one of the parties to a contract not to perform.

The duty of a possessor of land to persons who come on the land usually depends on whether those persons are

Invitees, trespassers, or licensees

Adminsitrative Law

Is created by adminsitrative agencies in the form of rules, regulations, orders, and decisions to carry out the regulatory powers and duties of those agencies.

Contributory Negligence

Is not a defense to strict liability.

Jonah, a businessman, has no connection with Harvard University, but he has a new line of computer software that he would like to market to university students and faculty under the name of "Havard Software".

It is unlikely that Jonah will be able to register the name "Harvard Software," because it falsely suggests a connection to an institution.

For a mark to be protected under federal law

It must be registered with the Patent and Trademark Office

Jury Instructions

Judge gives the jury the particular rules of the law that apply to the case.

In Personam Jurisdiction

Jurisdiction based on claims against a person, in contrast to jurisdiction over property.

In rem Jurisdiction

Jurisdiction based on claims against property.

Attachment Jurisdiction

Jurisdiction over a defendant's property to obtainpayment of a claim not related to the property.

Choosing an Ethical System

Kolberg's stages of moral development is a widely accepted model

Real Property

Land and anything attached to it.

Substantive law

Law creating rights and duties

Public Law

Law dealing with relationship between government and individuals.

Civil Law

Law dealing with rights and duties, the violation of which constitutes a wrong against an individual or other legal entity.

Criminal Law

Law establishing duties that, if violated, constitute a wrong against the entire community.

Private Law

Law governing the relationships among individuals and legal entities.

Executive Orders

Laws issued by the president or by the governor of a state.

Consideration - Elements

Legal sufficiency and bargained for exchange.

Nell gives Al $50 in return for Al's promise to defame Sara. Nell hopes to ruin Sara's chances at a promotion. Nell finds out that Al did not hold up his end of the agreement. Which of the following statements is true?

Legally, Nell can neither get the money back nor force Al to do as he promised.

Definition of Strict Liability

Liability for nonintentional and nonnegligent conduct.

Scope of Liabilities (Proximate Cause)

Liability is limited to those harms that result from the risks that made the defendant's conduct tortious.

Regulatory License

Licensing Statute that is intended to protect the public against unqualified persons; an unlicensed person may not recover for servicdes he has performed.

Revenue License

Licensing Statute that seeks to raise money; an unlicensed person may recover for services he has performed.

Cost Avoided

Loss or costs the injured party aviods by not having to perform.

Mark is out sailing in his boat one evening when he hears a young girl crying for help in the middle of the lake.

Mark must help the girl if he begins to resue her and increases her danager.

Promise to Pay Debt Discharged in Bankruptcy

May be enforceable without consideration.

Protection for trade names

May not be registered under the Lanham Act, but infringement is prohibited.

Nancy, who lives in Birdville, wants to open a McHenry Roast Chicken franchise. Mark, a representative of McHenry, told Nancy, "If you will buy a lot and build a building in River City, we will give you a franchise." Nancy bought the lot and built the building as instructed only to discover that McHenry had awarded the franchise to a large corporation. McHenry claims no liability to Nancy since there was no consideration. Which statement best describes the situation?

McHenry is liable to Nancy based on the concept of promissory estoppel.

Nonfrudulent Misrepresentation - Negligent Misrepresentation

Misrepresentation made without due care in ascertaining its truthfuless; renders agreement VOIDABLE

Nonfrudulent Misrepresentation - Innocent Misrepresentation

Misrepresentation made without knowledge of its falsity but with due care; renders contract VOIDABLE

Summary Jury trail

Mock trail followed by negotiations.

_________ are the most frequently granted remedy for breach of contract.

Monetary damages

Utilitarianism

Moral actions are those that produce the greatest net pleasure compared with net pain.

Delegability

Most contract duties may be delgated execpt: Duties that are personal Duties that are expressly nondelegable Duties whose delegation is prohibited by statue or public policy.

Contract - Common Law

Most contracts are primarily governed by state common law, including contracts involveing employment, services, insurance, real property (land and anything attached to it), patents, and copyrights

Children

Must conform to conduct of a reasonable person of the same age, intelligence, and experience under all the circumstances.

Unenforceability

Neither party may recover (unenforceable) under an illegal agreement where both parties are in PARI DELICTO (in equal fault)

Promise to Pay Debt Barred by the Statute of Limitations

New Promise by the debtor to pay the debt renews the running of the statute of limitations for a second statutory period.

Voidable Promises

New promise to perform a voidable obligation that has not been previously avoided is enforceable.

Void Contract

No contract at all; without legal effect

Object Impossibility

No promisor is able to perform; gernalyy discharged the promisor

material breach

Non performance that significantly impairs the injured party rights under the contract and discharges the injured party from any furthur duty under the contract.

Mediation

Nonbinding process in which a third party acts as an intermediary between the disputing parties and propses solutions for them to consider.

Conciliation

Nonbinding process in which a third party acts as an intermediary between the disputing parties.

Mini-trail

Nonbinding process in which attorneys for the disputing parties present evidence to managers of the disputing parties and a neutral third party, after which the manafer attempt to negotiate a settlement in consultation with the third party.

Promissory Estoppel

Noncontractual promise that binds the promisor because she should reasonably expect that the promise will induce the promisee (offeree) to take action in reliance on it.

Arbitration

Nonjudical proceeding in which a netural third party selected by the disputed renders a binding decision (award).

Effect of Fault upon Mistake

Not a bar to AVOIDANCE unless the fault amounts to a failure to act in good faith.

Adequacy of Consideration

Not required where the parties have freely agreed to the exchange.

Duty to Trespassers

Not to injure intentionally.

Legal Benefit

Obtaining something to which one had no prior legal right.

Infrigement of trade symbols

Occurs when a person withour authorization uses a infringement:injunctive relief, profits, damages, destruction of infringing articles, costs, and, in exceptional cases, attorneys' fees.

Patent infringement

Occurs when anyone without permission makes, uses or sells a patented invention.

Copyright infringement

Occurs when someone exerises the copyright owner's rights without authorization.

Statutory Irrevocability

Offer made irrevocable by statute.

Offers - Lapse of Time

Offer remains open for the time period specified or, if no time is stated, for a reasonable period of time.

Situational Ethics

One must judge a person's actions by first putting oneself in the actor's situation.

Valid Contract

One that meets all the requirements of a binding contract.

Substantive Unconscionability

Oppressive or grossly unfair contractual terms.

Modifications or Rescission of Contracts witin the Statute of Frauds

Oral contracts modifying existing contracts are unenforceable if the resulting contract is within the Statute of Frauds.

Damages of Misrepresentation

Out of pocket damages and benefit of the bargain damages.

Protection

Owner of a trade secret may obtain damages or injunctive relief when the secret is misappropriated (wrongly used) by an employee or a competitor.

Availability of Restitution

Party injured by breach, Party in default, statue of frauds, voidable contracts.

Assignor

Party making an assignment

Patent procedure

Patents are issed upon application to and after examination by the U.S. Patent and Trademark office.

Settlement of an Undisputed Debt

Payment of a lesser sum of money to discharge an undisputed debt (ones whose existence and amount are not contested) does NOT consititue legally sufficient consideration.

The Code greatly alters the common law doctrine of material breach by adopting what is known as the:

Perfect tender rule.

Impossibility

Perforamance of contract cannot be done

Preexisting contractual Obligation

Performance of a preexisting contractual duty is not consideration. (1) Modification of a preexisting contract (2) Substituted contracts (3) Settlement of an Undisputed Debt (4) Settlement of a disputed Debt. (These have separate definitions. pb

Res Ispsa Loquitur

Permits the jury to infer both negligent conduct and causation.

Burden of Proof

Plaintiff must prove that defendant's negligent conduct caused harm to a legally protected interest.

Assumption of Risk

Plaintiff's express consent to encounter a known danager; some states still apply implied assumption of the risk.

Civil dispute resolution Reply

Plaintiffs pleading in response to the defendants answer

Enforcement

Planitiff with an unpaid judgement may resort to a writ of execution to have the sheriff seize property of the defendants and to garnishment to collect money owed to the defendant by a third party.

Offer Requirements

Positive and unequivocal expression of a willingsness to enter into a contract on the terms of the offer.

Fraud in the Inducement - False Representation

Positive statement or conduct that misleads. VOIDABLE

Frustration of Purpose

Principal purpose of a contract cannot be fulfilled because of a subsequent event.

Civil dispute resolution Pretrail Procedure

Process requiring the parties to disclose what evidence is available to prove the disputed facts; disigned to encourge settlement of cases or to make the trail more efficient.

Arguments against Social Responsibility

Profitabiltiy, unfairness, accountability, expertise

Gambling Statutes

Prohibit wagers, which are agreements that one party will win and the other lose depending on the outcome of an event in which their only interest is the gain or loss.

Moral Obligation

Promise made to satisfy a preexisting moral obligation is generally unenforceable for lack of consideration.

Illusory Promise

Promise that imposes no obligtation on the promisor; the following promises are not illusory. (1) Output Contract (2) Requirements Contract (3) Exclusive Dealing Contract (4) Conditional Contract (These have separate definition pages.) pb

Contracts Without Consideration

Promises tro Perform Prior Unenforceable Obligations

Sale of Goods

Provides a general method of compliance for all parties and an additional one for merchants. (written confirmation)

Preexisting Public Obligations

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

Disparagement

Publication of false statements about another's property or products.

Cost-Benefit Analysis

Quantifies the benefits and costs of alternatives.

Liquidated Damages

Reasonable damages agreed to in advance by the parties to a contract.

Offer - Rejection

Refusal to accept an offer terminates the power of acceptance.

Copyright procedure

Registration is not required but provides additional remedies for infringement.

Undue Influence - Effect

Renders contract VOIDABLE.

Fraud in the Inducement

Renders the agreement VOIDABLE if the following elements are present: (1) False Representation (2) Fact (3) Materiality (4) Knowledge of Falsity and Intention to Deceive (5) Justifiable Reliance (each of these have separate definitions.) paula

Licensing Statutes

Require formal authorizaton to engage in certain trades, professons, or businesses.

Restitution

Restoration of the injured party to the positon she was before the contract was made.

In addition to the four basic requirements of a contract, which of the following must also occur in order to have a valid contract?

There must be an absence of invalidating conduct, such as duress.

Patentability

To be patentable, the invention must be (1) noval, (2) useful, and (3) not obvious

Registration of trade symbols

To be registered and thus protected by the Lanham Act, a mark must be distinctive and not immoral, deceptive, or scandalous.

Duty of Invitees

To exercise reasonable care to protect invitees aganist dangerouse conditions possessor should know of but invitees are unlikely to discover.

Functions of Law

To maitain stability in the social, political, and economic system through dispute resolution, protection of property, and the preservation of the state, while simultaneously permitting ordered change.

Duty of Licensees

To warn of known dangerous conditions licenses are unlikely to discover for themselves.

Misuse of Legal Procedure

Torts of malicious prosecution, wrongful civil proceeding, and abuse of process that protect an individual from unjustifiable litigation.

Intellectual property consists of

Trade secrets, trade symbols, and patents

Types of trade symbols

Trademarks, service marks, certification marks, collection marks.

Special Trail Courts

Trail courts, such as probate courts and family courts, which have jurisdiction over a particular area of state law.

Two types of Legislative Law

Treaties and executive Orders

A duty to act is imposed on those whose innocent conduct has injured another and left him helpless and in danager of further harm.

True

Disparagement differs from dafamation in that defamation pertains to personal reputation, whereas disparagement pertains to business interests.

True

Implied-in-fact conditions must fully and literally occur, and they are understood by the parties to be part of the agreement.

True

Sandy's private secretary promises not to disclose the contents of a letter she typed if Sandy will give her the next day off with pay. If the secretary takes the day off, Sandy does not have to pay her for the day.

True

The law does not provide a remedy for the breach of an unenforceable agreement.

True

Two absolute defenses to the tort of defamation are

Truth and privilege

Appropriation

Unauthorized use of a person's indentity

Modification of a Preexisting contract

Under the common law a modificaton of a preexisting contract must be supported by mutual consideration; under the code a contract can be modified without new consideration.

Procedural Unconscionability

Unfair or irregular bargaining.

Unconscionable Contracts

Unfair or unduly harsh agreements are not enforceable

Intrusion

Unreasonable and highly offensive interference with the seclusion of another.

Common Law Restraint of Trade

Unreasonable restraints of trade are not enforceable.

When does acceptance of an offer to enter into a unilateral contract generally occur?

Upon full performance by the offeree.

Corporate Governance

Vast amounts of wealth and power have become comcentrated in a small number of corporations, which in turn are controlled by a small group of corporate officers.

The contracts of a person who is adjudicated insane and placed in care of a guardian are

Void

Unfairness

Whenever corporations engage in social activities, such as supporting the arts or education, they divert funds rightfully belonging to shareholders and/or employees to unrelated third parties.

Commerical Impracticability

Where performance can be accomplished only under unforeseen and unjust hardship, the contract is discharged under the code and the restatment performance, breach, and discharge.

Contracts under Seal

Where still recognized, the seal acts as a substitute for consideration.

In which situations would a minor be unable to disaffirm a contract which he had made?

Where the minor wishes to perform part of a contract and disaffirm another part of the same contract.

Libel

Written or electronically transmitted defamation.

Duress

Wrongful act or threat that overcomes the free will of a party.

Trespass to Real Property

Wrongfully entering on land of another

On March 1, Tammy, a student, received a telephone call from Watterson, Inc. offering her a job for one year beginning on June 15, after completion of the school year. According to the personnel manager, she will have to move to California and be ready to start work at 8:00 a.m. on June 15. Should Tammy ask for a letter confirming the telephone conversation if she accepts the offer immediately?

Yes, because the job offer is for longer than one year from March 1.

Judgement on Pleadings

a final ruling in favor of one party by the judge based on the pleadings.

Voidable Contract

a party who has avoided a contract is entitiled to restitution for any benefit conferred on the other party.

Intuitionism

a rational person possesses inherent power to assess the correctness of actions

Novation Contract

a substitited contract to which the promisee is a party, which substitutes a new promisor for an exisiting promisor, who is consequently no longer liable on the oringinal contract and is not liable as a delegator.

Creditor Beneficiary

a third person intented to receive a benefit from the contract to satisfy a legal duty owed to him.

Discharge by breach

a wongeful failure to perform the terms of a contract that fives rise to a right to damages by the injured party.

Condition Precedent

an event that terminates a duty of performance

Rights of Intended Beneficiary

an intended donee beneficary may enforce the contract against the promisor; an intended creditor beneficiary may enforce the contract against either or both the promiser and the promisee.

An ad in a newspaper or a circular describing goods and stating prices would generally be considered:

an invitation to buyers to make an offer to buy goods.

Subject Matter Jurisdiction

authority of a court to decide a particular kind of case

Concurrent Jurisdiction

authority of more than one court to hear the same case; state and federal courts have concurrent jurisdiction over (1) federal question cases that do not involve exclusive federal jurisdiction and (2) diversity of citizenship cases involving more than $75,000.

Firm Offer

A merchant's irrevocable offer to sell or buy goods in a signed writing that ensures that the offer will not be terminated for up to three months.

Fraud in the Execution

A misrepresentation that deceives the other party as to the nature of a document evidencing the contract; renders agreement VOID

Bargained For Exchange

A mutually agreed upon exchange.

Substituted Contract

A new contract accepted by both partied in satifaction of the parties duties under the original contract.

Nuisance

A nontrespassory interference with another's use and enjoyment of land.

In which of the following cases will an oral contract for the sale of goods of $750 be enforceable without a writing?

A party admits in an answer to a complaint in a lawsuit that the contract was made, Delivery and acceptance of the goods has been made, and The goods are to be specially manufactured for the buyer and the seller has made a substantial beginning of their manufacture.

Assumption of Risk or Mistake

A party may assume the risk of a mistake.

Duty to Act

A person is under a duty to all others at all times to exerise reasonable care for the safety of the others' person and property; however, except in special circumstances, no one is required to aid another in peril.

Nominal damages

A small sum awarded where a contract has been breached but the loss is negligible or unproved.

Irrevocable Offer of Unilateral Contracts

A unilateral offer may not be revoked for a reasonable time after perforande is begun.

Steve purchases a four-wheel drive truck from Belk Auto Sales. Steve is only 17 years of age. He wrecks the vehicle and attempts to disaffirm the contract and have Belk repay him all that he has paid. In the majority of jurisdictions, what would happen?

Steve may simply return the vehicle and get his money.

Libertarians

Stress Market outcomes as the basis for distributing society's rewards.

Distributive Justice

Stresses equality of opportunity rather than results.

Abnormally Dangerous Activity

Strict liability is imposed for any activity that (1) creates a forseeable and highly significant risk of harm and (2) is not one of common usage.

Keeping of Animals

Strict liability is imposed for wild animals and usually for trespassing domestic animals.

Ethics

Study of what is right and good in a business

Business Ethics

Study of what is right and good in a business setting.

Offer - Subsequent Illegality

Subsequent Illegality of the purpose or subject matter of the offer terminates the offer.

Classification of Law

Substantive and Procedural, Public and Private, and Civil adn Criminal.

_________ contracts immediately discharge the original contracts.

Substituted contracts

Accord and Satisfaction

Substituted duty under a contract (accord) and the discharge of the prior contractual obligation by performance of the new duty (satifaction)

Rule Utilitarianism

Supports rules that on balance produce the geratest for society.

Undue Influence

Taking unfair advantage of a person by reason of a dominant position based on a confidential relationship.

UCC - Goods

Tangible personal property (personal property is all property other than an interest in land).

Offer - Destructions of Subject Matter

Terminates the offer.

UCC Article 9 requires

That contracts creating certain types of security interests be in writing.

Offer - Authorized Means

The Restatement and the code provided that, unless the offer provides otherwise, acceptance is authorized to be in any reasonable manner.

PAROL EVIDENCE RULE

The Rule when parties express a contract in a writing that they intended to be the final expression of their rights and duties, evidence of their prior oral or written negotiations or agreements of their contemporaneous oral agreements that vary or change the written contract as NOT ADMISSIBLE.

Copyright ownership

The aurthur of the copyrighted work is usually the owner of the copyright, which may be transfereed in whole or in part.

For how long does a copyright last

The author's life plus 70 years

In the Zelnick v. Adams case, the Supreme Court of Virginia found:

The case must be remanded for further proceedings, including the taking of evidence on the issue of the factual determination of necessity under all of the circumstances.

Offer - Stipulated Provisions in the Offer

The communication of acceptance must conform to the specifications in the offer.

Exculpatory Clauses

The courts genearlly disapprove of contractual provisions excusing a party from liability for his own tortious conduct.

Violations of Statutes

The courts will not enforce agreements declared illegal by statute.

Factual Cause

The defendant's conduct is a factual cause of the harm when the harm would not ahve occured absent the conduct.

Patents

The exclusive right to an invention for twenty years from the date of application for utility and plant patents; fourteen years from grant for design patents.

Consideration

The inducement to enter into a contract.

Verdict

The jurys decision based on those facts the jury determines the evidence proves.

Successive Assignment of the same right

The majority rule is that the first assignee in point of time prevails over later assignees; majority rule is that the first assignee to notify the obligor prevails.

Substituted Contracts

The parties agree to rescind their original contract and to enter into a new one; rescission and new contract are supported by consideration.

Capacity

The parties to a contract must have contractual capacity

Mutual Assent

The parties to a contract must maniferst by words or conduct that they have agreed to enter into a contract.

Quasi Remedy

The plaintiff recovers the reasonable value of the benefit she conferred upon the defendant.

Sale of a Business

The promise by a seller of a business not to compete in that particular business in a reasonable geographic area for a reasonable period of time is enforceable.

Legality of Object

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

Emergencies

The reasonable person standard applies, but an unexpected emergency is considered part of the circumstances.

Agruments in Favor of Social Responsibility

The social contract, less goernment regulation, long run profits.

UCC - Sale

The transfer of title from seller to buyer.

Contract - Rules of Interpretation

*All the circumstances are considered and the principal purpose of the parties is given great weight. *A writing is interpreted as a whole. *Commonly accepted meanings are used unless the parties manifest a different intention. *Wherever possible, the intentions of the parties are interpreted as consistent with each other and with course of performance, course of dealing or usage of trade *Technical terms are given their technical meaning. *Speific terms are given greater weight than general language. *Separately negotiated terms are given greater weight than standardized terms or those not separately negotiated. *The order for interpretations is 1-express terms, 2-course of performance, 3-course of dealing and 4-usage of trade. *Where a term has several possible meanings, the term will be interpreted against the party who supplied the contract or term. *Written provisions are given preference over typed or printed provisions and typed provisions are given preference over printed provisions. *If an amount is set forth in both words and figures and they differ, words control the figures.

Promissory Estoppel Requirements

A Promise made under circumstances that should lead the promisor reasonably to expect that the promise would induce the promisee to take definite and substantial action, and the promisee does take such action.

Loss of Power of Avoidance

A aprty with the power to avoid a contract may lose that power by:'affirming the contract Delaying unreasonably in exercising the power of avoidance Being subordinated to the interviewing rights of third parties

Contract

A binding agreement that the courts will enforce.

Pretrial Conference

A conference between the judge and the attorneys to simplify the issues in dispute and to attempt to settle the dispute without trail.

Illusory Promise - Conditional Contract

A contract in which the obligations are contingent upon the occurrence of a stated event.

Accountability

A corporation is subject to less public accountability than public bodies are.

Promissory Estoppel Remedy

A court will enfoce the promise to the extent necessary to avoid injustice.

Quasi Contract Requirements

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.

Physical disability

A disabled person's conduct must conform to that of a reasonable person under the same disability.

Promissory Estoppel

A doctrine enforcing some noncontractual promises.

Fraudulent Misrepresentation

A false statement, made with knowledge of its falsity, intended to induce another to act.

A reasonable person, as used in the law of torts, is

A fictitious individual who is always careful, prudent, and never negligent.

Material Alteration of written Contract

A material and fraudulent alteration of a written contract by a oarty to the contract discharges the entire contract.

Mental Disability

A mentally disabled person is held to the reasonable person standard of a reasonable person who is not mentally deficient.

Corporations as Moral Agents

Because a corporation is a statutorily created entity, it is not clear weather it should be held morally responsible.

Profitability

Because corporations are artificaial entitiles established for profit-making acitivities, their only social obligation should be to return as much money as possible to shareholders.

The Social Contract

Because society allows for the creation of corporations and gives them special rights, uncluding a grant of limited liability, corporations owe a responsibility to society.

Social Egalitarians

Believe that society should provide all its members with equal amounts of goods and services regardless of their relative contributions

Sale of Goods - Written confirmation - Merchants

Between merchants, a written confirmation that is sufficient against the sender is also sufficient against the recipient unless the recipient gives written notice of his objection within ten days.

Equity

Body of law based upon principles distint from common law and providing remedies not avaliable at law.

Common Law

Body of law developed by the courts that serves as precedent for determination of later controversies.

Mutual Mistake

Both parties have a common but erroneous belief forming the basis of the contract; renders the contract VOIDABLE by either party.

Less Government Regulation

By taking a more proactive role in addressing society's problems, corporations create a climate of trust and respect that has the effect of reducing governement regulation.

Discovery

Right of each party to obtain evidence from the other party.

Procedural Law

Rules for enforcing substantive law

Civil dispute resolution pleadings

Series of statements that give notice and establish the issues of fact and law presented and disputed.

Promises Made Enforceable by Statute

Some gratuitous promises have been made enforceable by statute; the Code makes enforceable (1) contract modifications (2) renunciations and (3) firm offers

Comparative Negligence

Somes states apply that this doctrine to some strict liability cases.

Bartow signed a contract to coach baseball for Washington High for a period of three years. After two years he is offered and accepts an assistant coaching position at State University. Contract law will not allow Washington High to ask for:

Specific performance of his contract.

Types of remedies in Equity

Specific performance, injunction, reformation.

Miller made a contract to sell his condominium to Jefferson for $80,000. Two days later Miller changes his mind after discovering that he could have sold the property to another buyer for an additional $20,000. Jefferson sues and asks the court to have the property conveyed to him at the price of $80,000. Jefferson is seeking:

Specific performance.

Slander

Spoken defamation

Stan doesn't like having neighborhood teenagers walk across his yard at night. He rigs an animal trap on the path the teenagers usually use to cross his land. One night, Tim and his friends are walking across the yard when Tim gets caught in the trap. He is taken to the hospital for his injuries.In this case:

Stan is not free to inflict intentional injury on a trespasser.

Perfect tender rule

Standard under the UCC that a sellers performance under a sale contract must strictly comply with contractual duties and that any deviation discharges the injured party.

Exclusive State Jurisdiction

State courts have exclusive jurisdiction over all mattes to which the federal judicial power does not reach.

Legislative Law

Status adopted by legislative bodies

Civil dispute resolution Summons

notice given to inform a person of a lawsuit against her.

Implied Warranties

obligation imposed by law upon the assignor of a contract right.

Offer - Death or Incompetency

of either the offeror or the offeree terminates the offer.

Prevention of performance

one party substantial interference with or prevention performance by the other consititues a mterial breachand discharges theo ther party to the contract.

Remedies in Equity Availability

only in cases when there is no adequate remedy at law

Delegator

party delegating his duty to a third party

Obligor

party owing a duty to the assignor under the orginial contract.

Obligee

party to whom a duty of performance is owed by the delegator and delegatee.

Assignee

party to whom the contract rights are assigned.

Obligee

party whom a duty of performance is owed under a contract

Substantial Performance

performance that is incomplete but that does not defeat the purpose of the contract; does not discharge the injured party but entitles him to damges.

Foreseeability of damages

potential loss that the party now in default had reason to know of when the contract was made.

UCC Revised Article 8, which all states have adopted

provides that the statute of frauds does not apply to contracts for the sale of securities.

Discharge

termination of a contractual duty