Business Law Final

UCC: acceptance of goods (Conforming or non-conforming

-Acceptance of an offer to buy, sell, or lease goods generally can be made in any reasonable manner and by any reasonable means. The UCC permits acceptance of an offer to buy goods "either by a prompt promise to ship or by the prompt or current shipment of conforming or nonconforming goods If the acceptance to a sales contract between non-merchants includes terms different from those in the offer, no contract is formed under the UCC. FALSE Clean Clinic offers to buy from Dental Supplies Company a specific quantity of a certain type of floss for a stated price. Dental can accept the offer by- a promise to ship or a prompt shipment of the goods. A buyer will be deemed to have accepted delivered goods if, after a reasonable opportunity to inspect the goods, the buyer does not reject them. TRUE

First Amendment

-George burns a U.S. flag in his backyard. He films the activity and posts the video on YouTube.com. George's conduct is most likely protected by the 1st amendment -Pros in Politics, a bookstore in Capitol City, sells publications that criticize government actions and policies. The city enacts an ordinance prohibiting the sale of such materials in the interest of preserving public tranquility. This ordinance is most likely an unconstitutional restriction of speech. Defamatory statements made via the Internet are not actionable because they are protected by the First Amendment's guarantee of freedom of speech FALSE Political speech by corporations falls within the protection of the First Amendment TRUE

U.S. Constitution

-The basis of all law -Congress has the power to regulate every commercial enterprise in the U.S. -the federal government has the power to regulate commercial activities among the states. This grant implies that the regulation of such activities is not within the authority of the states - FALSE even if it conflicts with the U.S. Constitution, a state constitution is supreme within that state's borders The need to protect intellectual property is recognized in the U.S. Constitution TRUE The system of checks and balances in the U.S. Constitution allows each branch of government to limit the actions of the other branches TRUE

Accord and Satisfaction

-parties agree to accept performance that is different from the performance originally promised. An accord is a contract to perform some act to satisfy an existing contractual duty that has not yet been discharged. A satisfaction is the performance of the accord agreement. -Rene contracts with Scot to pay him $5,000 for repairs to Rene's lake cabin. After Scot performs, Rene tells him that she cannot pay him in full immediately. They sign an agreement in which Rene promises to pay $2,500 now instead of $5,000 later. This is- an accord and satisfaction

Jurisdiction

-refers to a geographic area in which a court has the power to apply the law -FALSE Jurisdiction refers to the right of a citizen to bring a case before a court. -FALSE any court can exercise jurisdiction over any property wherever it is located. -Gilbert wants to initiate a suit against Healthways Insurance Company by filing a complaint. The complaint should include a statement alleging the facts showing the court has jurisdiction. -Tyler, a citizen of Utah, files a suit in a Utah state court against SeaCoast Sales Corporation, a Washington state company that does business in Utah. The court has original jurisdiction, which means that the case is being heard for the first time. -Kari and Lillian, who are citizens of Mississippi, are involved in a case related to the adoption of their child. Over this case, Mississippi state courts have exclusive jurisdiction In a case involving Internet transactions, jurisdiction over the defendant is proper only when the defendant conducts substantial business in the jurisdiction. online FALSE One party wants to file a suit against another. For a court to hear the case- the court must have jurisdiction

Negligence Elements

1. Duty 2. Breach 3. Causation 4. Damages When someone suffers injury because of another's failure to live up to a required duty of care, negligence occurs TRUE

Unmerchantability

A bar of soap is unmerchantable if stepping on it would cause its user to slip and fall. FALSE

UCC: revocation of acceptance

A buyer can revoke his or her acceptance if it was predicated on a reasonable assumption that the goods' nonconformity would be cured, and the nonconformity was not cured. TRUE A buyer can revoke his or her acceptance if, despite assurances by the seller that the goods would conform, the buyer was aware of their nonconformity before acceptance. FALSE

Copyrights (broad)

A copyright owner who sells a copy of a work retains the right to control the further distribution of that copy FALSE France and the United States are signatories of the Berne Convention. Alain, a citizen of France publishes a book first in rance and then in the United States. Alain's copyright must be recognized by- all of the signatories of the Berne Convention To be protected under the Copyright Act, a work must be -original and fixed in a durable medium To obtain copyright protection under federal law, a work must be original TRUE Skye posts excerpts from comics and graphic novels on social networking sites without the permission of the owners of the copyrights to the illustrations and stories. this is- copyright infringement Digital sampling can constitute copyright infringement TRUE Dana downloads music into her computer's RAM without authorization. This is - copyright infringement

Specific Performance

A court will grant specific performance as a remedy only when the legal remedy is adequate. FALSE Jill enters into a contract to buy a certain office building from Kim. At the closing, Kim refuses to transfer title. In a suit for breach, Jill should seek specific performance to- obtain the exact bargain promised in the contract. Erma enters into a contract to buy a tract of lakefront property from Forest Acres to build and sell a residential development. Forest Acres fails to close the sale. Erma's remedy is most likely- specific performance.

Rights of accused (criminal defendants)

A criminal defendant has the right to confront accusers and to present his or her own witnesses TRUE If the evidence of a defendant's guilt was obtained improperly, it normally cannot be used against the defendant in court. TRUE

Commercial impracticability

A doctrine that may excuse the duty to perform a contract when performance becomes much more difficult or costly due to forces that neither party could have foreseen at the time the contract was formed.

Mistake of fact (Criminal)

A mistake of fact can often excuse criminal responsibility TRUE

Strict Liability in Tort

A seller who introduces into commerce a harmful or defective product may be subject to a tort action for strict liability TRUE Tho elements of an action in strict product liability include that a plaintiff must incur harm by the use or consumption of a product TRUE

Acceptance of offer

Acceptance is timely if it is effective before the offer is terminated TRUE Domestic Gas Company offers to sell Energy Ltd. a certain quantity of liquified natural gas. If Energy sends an acceptance via Domestic's authorized mode of communication, it will be effective when it is- sent

UCC: Usage of Trade

Any practice or method of dealing that is so regularly observed in a place, vocation, or trade as to justify an expectation by the parties that it will be observed in their transaction is a usage of trade

Trademark - (broad) (jurisdiction/dilution/infringement/secondary meaning)

Berry Good LLC registers its trademark with the U.S. Patent and Trademark Office, and uses it to market a distinctive line of ice cream products. Crabannie inc uses the mark without Berry's consent to sell imitation frozen desserts. Berry has a cause of action against Crabapple Once a manufacturer's trademark is established, another manufacturer may use it without permission FALSE Sea Coast Cafe uses the trademark of Tacos del Mar without permission. This use of the mark is actionable as trademark infringement- if consumers are confused Trademark dilution cannot occur online FASLE Without permission. Race Runners Inc. uses a trademark that is similar to the registered mark of Swiftfoot Inc. This use of the mark constitutes trademark dilution- if the use diminishes the distinctive quality of the mark Under the federal law protecting trademarks "bad faith intent" is one element of a claim of illegal cybersquatting TRUE Call Talk Corporation, a phone-time seller, uses its mark "calltalk" as its domain name. Later, Converse Inc. uses the domain name callltalk without CallTalk's authonzation to sell sexually explicit phone conversations. This is- Trademark dilution

Larceny

Bud works at Cheap Stuff Store from which, without authorization, he takes merchandise that he has not paid for home for his own use Larceny involves force or fear, but robbery does not FALSE

Ethics (importance/code of conduct/duty-based ethics/cost-benefit/utilitarian, etc.)

Duty based ethical standards -focuses on the obligations of the corporation and deals with standards for behavior that traditionally were derived from revealed truths, religious authorities, and philosophical reasoning -ethics is the study of what constitutes right or wrong behavior. Has to do with the fairness, justness, rightness, or wrongness of an action. Cost-benefit analysis -A decision-making technique that involves weighing the costs of a given action against the benefits of that action. Once a law is passed to codify an ethical requirement, the ethical action is no longer important FALSE The first step in making an ethical decision is to understand the problem TRUE Business ethics looks at whether business decisions- are right or wrong Duty-based ethical standards are most likely derived from- philosophical reasoning When adopting duty-based ethics corporations often demonstrate the duties they owe- in their mission statements and strategic plans

Appellate court's functions

Gina and Harry present their case to an Idaho state court for resolution. The court defers to a different Idaho court's findings of fact in the case, and focuses on the application and interpretation of the law to the dispute. The court currently deciding Gina and Harry's dispute is an appellate court A question of law is generally the focus of an appellate court TRUE An appellate court can modify a trial court's decision, in whole or in part TRUE

Contract conditions

If a person expresses contract terms with such uncertainty that the terms are not definite, the promise is illusory but the deal is enforceable. FALSE A contract involving property of any kind must be in writing to be enforceable FALSE Donald is a minor. He can enter into any contract an adult can, provided- the contract is not one prohibited by law for minors

Misrepresentation: innocent mistake/fraudulent

In entering into a contract with Marc for the sale of a cold storage warehouse, Nan fails to reveal the fact that the freezers do not consistently maintain a proper temperature. Most likely, this is fraudulent misrepresentation if- the fact is a serious defect known to Nan but not to Marc. For purposes of fraudulent misrepresentation, scienter clearly exists if a party asserting a fact knows it is not as stated. TRUE

Trade Secrets (broad)

Information that may be protected as trade secrets includes- all: pricing info, customer lists, and marketing. techniques Tapping into a competitor's computer to obtain confidential business data is not a theft of trade secrets FALSE

Signature needed to enforce a contract

Maya and Nick enter into a contract. To be enforceable the contract must include- the signature of the party against whom enforcement is sought

Contract offer

One element necessary for an effective offer is the terms must be reasonable FALSE A request to negotiate is an offer FALSE An offer must express reasonably definite terms to be effective- no term may be reasonably inferred FALSE The offeror can revoke the offer only by expressly repudiating it. FALSE The offeree must accept the offer without adding or changing any terms TRUE Rejection of an offer is effective only when it is actually received. TRUE

Crimes

One of the purposes of criminal law is to compensate the victims FALSE In a criminal case, the object is to obtain a remedy FALSE

"But for" test

One of the standards used to determine whether the defendant's negligence caused the plaintiff's injury; "but for" the fact that the defendant was negligent, the plaintiff would not have been injured. Proximate cause exists if "but for" a wrongful act, an injury would not have occurred FALSE

Undue influence

Persuasion that is less than actual force but more than advice and that induces a person to act according to the will or purposes of the dominating party. Forcing a party to enter into a contract under the fear of threats constitutes undue influence FALSE Persuasion that induces a person to act according to the will of a dominant party is undue influence. TRUE

UCC: rejection of nonconforming tendered goods

Precise Parts, Inc., and Quality Auto stores enter into a contract for a sale of auto parts that meet certain specifications. Precise Parts ships goods that do not comply. Quality Auto- can reject the entire shipment. ABC Hardware Store orders one hundred power hand-drills from Best Tools Inc. When the hand-drills are delivered, they are all missing pieces. ABC rejects the shipment. To exercise a right to cure, Best Tools must- a. promptly notify ABC of the intent to cure.

Damages

Repair Service enters into a contract to fix washing machines in Soapy Suds Company's coin-operated laundries. Repair breaches the contract. Soapy is awarded compensatory damages. The purpose is to- provide Soapy with funds for its loss of the bargain The standard measure of compensatory damages is the value of the breaching party's actual performance. FALSE The measure of compensatory damages does not vary by type of contract. FALSE An innocent party who does not suffer harm as a result of a misrepresentation can nevertheless collect damages. FALSE In a successful tort suit, an individual is awarded compensatory damages to put him or her in a better position than the party who committed the tort FALSE

Typosquatting

Ross registers a domain name_sweetfriedpotatos.com - that is a misspelling of a popular brand- sweetfriedpotatoes.com. This is- typosquatting

Licensing patents/software/trademarks

Rue obtains permission from Saga Company to use the firm's game app on Rue's mobile devices. but Rue does not obtain ownership rights in the app. This is - a license A license may limit the use of a software application to a specific device. TRUE

UCC: Warranties (broad)

Text & Talk Corporation sells phones. Under most circumstances, Text & Talk will be presumed to have warranted that its title to the goods is- good and valid If a creditor repossesses goods from a buyer who bought the goods knowing they were subject to a prior claim, the buyer can recover from the seller for breach of warranty. FALSE An implied warranty can arise as a result of a well-recognized trade custom that a court could infer the parties intended to apply to their contract. TRUE

Cybersquatting

The act of registering a domain name that is the same as, or confusingly similar to, the trademark of another and then offering to sell that domain name back to the trademark owner. Outsourcing Inc. registers a domain name that is the same as the trademark of Resourcing LLC and offers to sell the name to the mark's owner. This is- cybersquatting

Unconscionability (contracts or contract terms)

unconscionable contract is one that is so unfair and one-sided that it would be unreasonable to enforce it. Under the UCC, if a court deems a contract or a clause to have been unconscionable at the time it was made, the court can do any of the following: Refuse to enforce the contract. Enforce the remainder of the contract without the unconscionable part. Limit the application of the unconscionable term to avoid an unconscionable result. An excessive price for the goods and unequal bargaining power can indicate to a court that a sales contract is unconscionable. TRUE

Usury laws

laws that impose an upper limit on the interest rate that lenders can charge With respect to different types of transactions, including ordinary loans, the purpose of a usury statute is to- set a maximum rate of interest

Fraud in contracts

The first element of proving fraud in contracting is to show that the innocent party is not easily fooled FALSE

UCC: tender of nonconforming goods

The prompt shipment of nonconforming goods constitutes both an acceptance, which creates a contract, and a breach of that contract.

Alternate dispute resolution (arbitration/mediation/negotiation)

more than 90 percent of cases are settled before trial through some form of ADR Arbitration- an arbitrator (a neutral third party or a panel of experts) hears a dispute and imposes a resolution on the parties (award) Negotiation- the parties attempt to settle their dispute informally, with or without attorneys to represent them Mediation- a neutral third party acts as a mediator and works with both sides in the dispute to facilitate a resolution FALSE Negotiation requires the use of a neutral third party to facilitate a settlement Liz and Moss disagree over the amount due under their contract. To avoid involving any third party in the resolution of their dispute, Liz and Moss could resolve their dispute through negotiation The simplest form of alternative dispute resolution is mediation FALSE Arbitration differs from other forms of alternative dispute resolution in that a third party hearing a dispute makes a decision for the parties TRUE

Contracts (very broad)

A preliminary agreement can constitute a binding contract if the parties have agreed on all essential terms TRUE If a person was sufficiently intoxicated to lack mental capacity, his or her contracts are void. FALSE

Complaint (document)

*Jurisdiction. The facts necessary for the court to take jurisdiction. *Legal theory. A brief summary of the facts necessary to show that the plaintiff is entitled to relief (a remedy). *Remedy. A statement of the remedy the plaintiff is seeking. -Gilbert wants to initiate a suit against Healthways Insurance Company by filing a complaint. The complaint should includes a statement alleging the facts showing the court has jurisdiction. A complaint contains a brief summary of the facts necessary to show the party filing the complaint is entitled to relief TRUE

Novation

A novation occurs when both of the parties to a contract agree to substitute a third party for one of the original parties. The requirements of a novation are as follows: A previous valid obligation. An agreement by all parties to a new contract. The extinguishing of the old obligation (discharge of the prior party). A new contract that is valid.

Discharge of agreement by parties

10-2C

Lease

a transfer of the right to possess and use goods for a period of time in exchange for payment

Proximate cause

Foreseeability is the test for proximate cause TRUE Proximate cause exists if "but for" a wrongful act, an injury would not have occurred FALSE

Statute of Frauds (broad)

Under the Statute of Frauds, a contract involving an interest in land must be in writing to be enforceable TRUE Any confirmation, invoice, sales slip, check, or e-mail may constitute a writing that satisfies the Statute of Frauds TRUE

Duties/delegation

When the performance of a contract depends on the personal skill of the obligor, a delegation of the duty is prohibited TRUE Business Center Inc. and Catering LLC enter into a contract. Later, they agree to rescind it and enter into a new contract. If the first contract was subject to a preexisting duty, the new contract will most likely be- invalid

Anticipatory repudiation

before the time for contract performance, one party clearly communicates to the other the intention not to perform

Merchant

someone who is in the business of buying or selling particular goods and who possesses or uses an expertise specifically related to those goods.

First sale doctrine

the doctrine that allows purchasers of a copyrighted work to resell it or rent it out Leigh buys Masters of Business, a copyrighted book. Under the first sale doctrine Leigh can legally- sell the book to another person