LEGL 2700 Test 2

Warrantless inspection

-Commercial premises is reasonable -Presenting oneself at an airport checkpoint -Need probable cause -Have the right to search the immediate area where the person was arrested -Exited circumstances allow the cops to come in without a warrant and the evidence not be immiscible. -Example: Airport security - waived your rights/volunteer search

Exceptions to the writing requirement categories:

-Part Performance -Rules Involving Goods -Judicial Admissions

Post v. UGA

-Posted about the UGA coach and the Bama coach saying that someone overheard a phone call between the two of UGA coach telling the Bama coach all of our defensive plays and then Bama went on to win the National Championship -However, it could have been just a normal conversation asking for a an exchange of videos -UGA asked the coach to resign; The coaches sued and proved the allegations of defamation and actual malice against them.

Fifth Amendment

-Protects the accused from being compelled to testify against self -Does not protect: -Against being required to produce physical evidence -A person who is required to produce business records -Corporations -Exception: sole proprietorship business -Miranda v. Arizona -Individuals cannot be tried twice by the same governmental entity for the same crime "double jeopardy" -Does not prevent two prosecutions, one in state court and one in federal court

Personal Property

-applies to movable resources, those things that people do not annex to the land -includes tangible, intangible

eminent domain

-if the federal government claims part of your property for military purposes

Basic Concepts of Criminal Law

-key is to prove some type of intent (willfully or knowingly) by the perpetrator -public part of law

Real Property

-law that applies to ownership to land and interests in land such as mining right or leases -also knowns as real estate or reality

Prosperity and Power

-property creates maximum conditions known for producing and sustaining prosperity

White Collar Crime

-Any illegal offense that occurs in a business or professional setting -Committed to harm the business or for personal gains -Examples would be not having a fishing license when you fish or accounting fraud, bribery, and false statements; punishments are a likely hefty fine.

Originally Possessed

-resources refer to what come from you, like your work or expressions

Material Breach

A Level of performance below what is reasonably acceptable. A party that has materially breached a contract cannot sue the other party for performance and is liable for damages arising from the breach -Complete breach of contract; leaves the seller unable to demand any compensation from the buyer. -The court will accept some legit excuses from the breaches then they won't be held reliable.

Minors

Anyone under the age of 18. o Usually cannot be legally bound to contractual promises unless those promises involve necessaries of life such as food, clothes, shelter, medical care, etc. o A minor can DISAFFIRM the contract and legally recover any consideration given to the other party, even if the minor cannot return the consideration he or she received. o If the minor fails to disaffirm within a reasonable time frame, they have said to RATIFY the contract.

Promissory Estoppel

Arises when a promise justifiably relies on a promisor's promise to his or her economic injury. The promisor must know that the promise is likely to rely on the promise. o May be used when the facts of a business relationship do not meet the requirements of an express or implied contract. o Liability for an employer that withdraws a job offer is a common issue

Secured Transactions

Article 9. Involves a creditor who has sold something on credit or made a loan to a debtor who agreed to give the creditor a security interest in a valuable object, called COLLATERAL

Waiver

Company has right to come after you for not performing but they are merciful and execute a _______ and do not sue (after contract)

under uniform commercial code, contracts for the sale of real estate can leave open none quantity to decide at a future time.

False (UCC is for the sale of goods not real estate)

Unsolicited Ideas

Ideas which two people or a person and a company may have in common. These ideas cannot be sued for breach of implied-in-fact-contracts.

Lost Profits

If a defendant fails to pay but plaintiff makes a replacement sale for lower price; compensatory

Unenforceable Contract

If a nonperforming party has a justifiable reason for noncompliance with a promise, the result is an unenforceable contract.

Assumption of Risk

If contributory negligence involves failure to use proper care for ones own safety, this arises from the plaintiffs knowing and willing undertaking of an activity made dangerous by the negligence of another. - applied by circumstances; defense to negligance

Deficiency

If foreclosure and auction do not produce enough money, the creditor-mortgagee can sue the debtor for the balance owed.

Judicial Admissions

If one party sues another party for failing to perform promises that are made orally, the defendant might argues that the contract cannot be enforced since it must be in writing under the statute of frauds. This defense asks the judge to dismiss the lawsuit. Based on the historical background of the statute of frauds, a judge does not want the burden of an oral contract.

Option contract

In contracts that are not between merchants selling goods, a promise to keep an offer open for a certain time period must be supported by the offeree's consideration. o OPTION: An agreement to not revoke an offer o Real Estate

Silence not Acceptance

In general, an offeree's failure to reject an offer does not imply acceptance. Another way to say this is that silence alone is not acceptance. The offeree has no usual duty to reply to the offer even if the offer states that the offeror will treat silence as acceptance.

Equitable Remedies

Including specific performance (parties are compelled to perform their promised acts), injunction (Court order for a party to do something or refrain from doing something. Deals with intellectual property most often), and rescission (Requires each party to return the consideration given the other. Often used in fraud, misrep, or mistake cases.)

Confidentiality Agreement

Many companies require employees to sign contractual confidentiality agreements which they promise not to disclose certain things they learn during their employment.

Recording Statues

Mortgages and deeds of trust must be registered in a recording office in the county where the land is located. Recording gives notice of the security interest to potential buyers of the land and to potential lenders who will then consider that fact in determining whether or not to buy the and/or loan money. o If mortgagees fail to record mortgages, new buyers of the lands who are unaware of mortgages will take the lands free and clear of the mortgages, although the debts will still be owed by the mortgagers

False Imprisonment and Malicious Prosecution

Most common when dealing with shoplifting. ♣ Malicious prosecution is often called false arrest and arises from someone being arrested without proper grounds and when it is done simply to harass someone.

Financing Statement

Names, addresses of the creditor and debtor, a reasonable description of collateral, and the signature of debtor. o Expire 5 years after signing unless a maturity date is states and are usually filed in the county where the collateral is located or with an office of the state government.

Promise to make a gift

The promise to give something to another - in other words, a promise to make a gift - is not binding as a contract because no bargained for consideration supports the promise. o A true gift can be enforceable as a property transfer , but it requires delivery of the item o A promise to make a gift may be enforceable under a non-contract theory called PROMISSORY ESTOPPEL

Enforceable Contract

The ultimate purpose of a contract is the creation of an agreement that courts will order parties to perform or to pay consequences for the failure of performance. When court uphold the validity of such promises, the resulting agreement is an enforceable contract.

Incidental Beneficiary

Third party who unintentionally benefit from a contract. The ______________ has no rights under a contract.

Andrew wants lily to fetch a book for $3. Is this a unilateral contract?

True

The meaning of a contract is a question of law?

True

Novations

a three or more party contract wherein the original contracting parties agree to relive the obligor from liability by substituting an assignee in the place of this party. • Typically, an assignor who delegates duties under a contract is not automatically relieved of future liability.

Law of Assignment

a transfer of rights under a contract

Deed

document of title that transfers ownership of land

Leanord v. Pepsi Co

o "Course of dealing" o Pepsi advertised gifts people could obtain by getting pepsi points by drinking pepsi. Commercial feature youth arriving at school and a boy sends her pepsi points to get a harrier jet. o An advertisement which a reasonable person would not take seriously and refers to other material is not an offer o Was there an offer of a Harriet Jet? o NO!! o Get other prizes

Property

o "Something that is owned" o "Ownership" o Legal right to exclude others from resources that are originally possessed or are acquired without force, theft, or fraud. o ABSOLUTE but NOT INFINITE (cannot use the legal fence forever) o Boundaries are AMBIGUOUS (where one person's boundaries stop and yours begin are not clear) o A bundle of stick like rights, and if you have property, you have the right to possess some resource, to control it, and to use it in various ways \, to transfer it, and to gain income from it, etc. o ****Central to the legal environment of business**** • Market is essentially "Free", but really not because not everyone can protect what he or she holds all of the time.

Prosperity and Power; 3 way

o 1. Promotes incentives by allowing people to keep and benefit from what they produce, property motivates effort in a way that is natural to humans. Also, people are more willing to produce when they don't have to spend a ton of time. When people are likely to steal, there is a fine line of risk taking. - 2. property helps generate prosperity by establishing the conditions necessary for capital formation. 3. Divisibility

Ianelli v. Burger King

o A restaurant has a duty of reasonable care to those who are eating in the restaurant, but protecting them from assault does not normally fall within the duty owed to diners. o When warning signs that someone may be in danger arise, the manager has a duty to take action and try to prevent injury. o The court found that a duty to protect diners from assault might exist if a restaurant employees become aware of the danger and do not take basic measures to prevent it.

Popov v. Hayashi

o Baseball that was caught by one man but then a mass mob took over to get it and finally another man picked it up. o Divided ownership of the ball - sold and proceeds were split

US v. Causby

o Before this case, air rights went up to heaven and down to hell o Planes flying over Causby's home because of a new military air field as low as 83 feet and he claimed this was scaring his chickens to death literally. o He won and the rule became that the air above 500 ft was not owned by anyone.

Lenders are willing to loan money at affordable rates because property law guarantees:

o Borrowers house is on an identifiable piece of land o The state recognizes a borrowers claim to the house o The state permits lenders to enforce the mortgage agreement through the courts and sell a borrower's house to satisfy the loan if the borrower fails to repay.

Drone Slayer

o Bullet County, KY o Boggs - Phantom 3 drone owner o William Meredith shot it down o Boggs did receive payment for the drone o Meredith claimed air rights

East Capitol View Community Development Corp v. robinson

o Capitol Hired Robinson with a one year written contract. Before the end of that term, she was terminated early due to lack of funding. o Sued o Capitol not entitled to a defense of impossibility, Robinsons employment contract went on o Courts are reluctant to excuse performance due to impossibility or impracticability o The court specifically distinguished between objective impossibility and personal impossibility. Only the former excuses performance. o Contracting parties have the ability to allocate known risks in the contract. For that reason, impossibility must be an unexpected occurrence.

Chrysler Group LLC v. Walden

o Car crash that killed a 4 year old Walden. o Truck hit the back of jeep grand Cherokee, gas tank punctured and vehicle caught fire. o Sued for disregard of human life in design and sale of jeep. o Awarded 120 Million for wrongful death and 30 million in damages for pain and suffering o Chrysler appealed

Cyber Crime

accessing certain parts of athena you aren't allowed to access would be an example

Aiding and abetting

accessory to a crime, reworking numbers if your boss asks you to

Flexibility

agree to literally anything that is not illegal or against public policy

Conspiracy

agreement among two or more people, mutual understanding to accomplish a unlawful crime, crime is the agreement

Right of Redemption

allows mortgager to get back the land upon payment of the full amount of the debt including all interest and costs. - the person whos home was being foreclosed paid full amount and they have the right to get their house back.

Proximate Causation

also known as LEGAL CAUSE - the proposition that those engaged in activity are legally liable only for the foreseeable risk that they cause. o Foreseeable - plaintiff must have been one whom the defendant could reasonably expect to be injured by a negligent act. o Proximate Cause Doctrine requires the injury to be caused DIRECTLY by the defendant's negligence. o Causes of injury that intervene between the defendant's negligence and the plaintiff's injury can destroy the necessary proximate causation.

Negative Easement

an adjoining landowner cannot do anything that would cause your land to cave in or collapse

Bilateral contract

an agreement containing mutual promises -two rights, two promises, two duties -Most businesses use this

Unilateral contract

an agreement with only one promise, and only one party is committed to perform o The maker of such contract seeks an action rather than a promise in return. o If that action does not occur, then there is no breach. o One promise, one duty, one right

Bailment

an owner puts an object protected by personal property into the intentional possessing of another person with the understanding that the other person must return the object at some point or otherwise dispose of it o Owner=Bailor o Object=Bailee o Fall into 3 categories: ♣ For the sole benefit of the Bailor ♣ For the sole benefit of the Bailee ♣ For the mutual benefit of both parties - most common in businesses - Semoon v. The Wooster School Corp

Fixtures on Land

and object of personal property that has become an object of real property by either physical annexation to the land or its buildings OR because its use has become closely associated with the use to which the land is put. o Decided differently for each piece of land o Ex. Manufacturing equipment, carpeting, etc.

Malum in se

apparently wrong/dangerous crimes

intangible property

applies to nonphysical things, particularly various types of valuable information -examples are intellectual property, patents, copyrights, trademarks, and trade secrets

Tangible Property

applies to things one can touch

Securities Market

are not possible without law enforcing the property interests in what these markets sell

Express contracts

arise from interactions in which parties actually discuss the promised terms of their agreement. o Ex. A negotiated purchase of land for construction of a manufacturing plant

Implied in Fact Contracts

arise from the conduct of the parties rather than from words. o Asking a person such as an accountant for professional advice IMPLIES a promise to pay the going rate for this advice even though you do not make an EXPRESS promise to pay for it. -Montz v Pilgrim Films Television Inc. *Courts will try to fill in the gaps the parties fail to expressly state

Production Defects

arise when products are not manufactured to a manufacturers own standards. - defective breaks on a new car are an example.

Perfection

arises when a security interest has attached and the creditor has taken all proper steps required by Article 9

Confusion

arises when fungible goods (goods that are identical) are mixed together

Easement by Prescription

arises when one person has used another's land, such as by crossing it openly, wrongfully, and continuously for a period of years, and once this expires, a titleholder of the land can no longer prevent a person from continuing to use the land by crossing it

Recession

asking the judge to act like there is no contract If you pick recession, then you give up the other options. You can't move around. You have to be careful or you will back yourself into a hole.

Land Sales Contract

the owner of land sells it by contract subject to the condition that the seller retains title to the land until the buyer pays the purchase price

oferee

the person who the offer is made

Comparative Responsibility

the plaintiffs contributory negligence does not bar recovery. IT merely compares the plaintiffs fault with the defendants and reduces the damage award proportionately; defense to negligance

Contributory Negligance

barred the plaintiff from recovery if the plaintiffs own fault contributed to the injury in any degree, however slight; defense to negligance

Health Care Fraud

billing for services they did not provide

Concurrent Ownership

both personal and real property interests can have concurrent owners

Estate

bundle of rights and powers of land ownership

Breach of Contract

complete lack of performance

Offer

contains a specific promise and specific demand

Affirmative Defenses

defendant must specifically raise these defenses to take advantage of them; defense to negligance

Leasehold Estate

the property right granted to tenants by a landlord May lease or a definite duration (for 2 years) or indefinite duration (monthly or at will) o 30-60 days' notice for termination of lease.

Defamation

the publication of untrue statements about another that hold up that individual's character or reputation to contempt and ridicule. ♣ Because of the First Amendment, special rules regarding ____________ apply to the news media. Media is not liable for the defamatory untruths they print about public officials and public figured unless plaintiffs can prove that the untruths were published with malice or evil intent.

Mitigtion

the purposeful reduction of damages; it usually is the responsibility of the non-breaching party. o Ex. If a renter moves out early, the owner must try to find a new renter before they are out of a lot of money • The victim of a contract breach must MITIGATE damages when possible

Capital Formation

the quality of resources that produces new or different resources

Public Property

the states right under various circumstances to exclude people from state monuments, buildings, equipment, land, etc.

Course of Dealing

the way they have done business in the past

Conversion

the wrongful exercise of dominion (power) and control over the personal (nonland) resources that belong to another. Deprives the owners of their lawful right to exclude others from such resources. ♣ Purchasing something that was stolen Stealing something from an employer

Miranda v. Arizona

this brought about the miranda rights; "you have the right to remain silent...."

Adhesion Contracts

those that are drafted by one party and presented to another without a substantial opportunity for revision.

Trespass

to enter another's land without consent or to remain there after being asked to leave -variation occurs when something is placed on another's land without consent

Tender Performance

to offer to perform. When the consultants offer to send a team to your plant next week, they are tendering performance. A reasonable response is to permit this work to begin by allowing the consultants access to your facility. Once work begins, the contract's provisions on when payment is owed will govern your performance.

Unconscionable Contracts

unenforceable as illegal. Said that terms or circumstances that are so unfair that they shock the conscience of the court should not be enforces against the innocent party

larceny

unlawful taking of personal property

Counterfeiting

use of unauthorized devices, printing money, false bank card

conversion

use or control of someone else's property

Bankruptcy Fraud

weaseling away assets that should be apart of the bankruptcy process

Subject matter illegality

when a change in the law renders the agreement illegal, acceptance is no longer possible

Discharged

when a party is relieved form all further responsibility of performance; when performance is not completely fulfilled, many legal issues arise

Right of Survivorship

when one dies the other gets full ownership

Issuory

when one party is not truly bound to a contract

Accession

when something is added to something, the person still owns the whole thing

Subject Matter Destruction

when the object of the contract is destroyed or legally eliminated

Lapse of Time

when the offeree fails to accept by a deadline defined in the offer or after a reasonable period of time

counteroffer

when the offeree makes a counterproposal. Due to the mirror image rule, a counteroffer has the effect of rejecting the original offer and sending back a new offer for a different contract

rejection

when the offeree rejects the offer; terminate offer

Offferor Death of Insanity

when the offeror no longer has the capacity to make the offer

Revocation

when the offeror retracts the offer before the acceptance; terminate offer

Pass Title

when the title transfers ownership they have said to _________

Precision

with careful thinking you can make another agree to exactly the requirements that accomplish even a very complex business purpose -example is confidentiality agreement

Libel

written defamation

thomas ask alicia for advice and she gave it to him. Does he have to pay her?

yes because implied in fact contract

Divisibility of Performance

• A contract may call for both sides to perform concurrently rather than one after another. • Contracts can be divided into segments or installments. • Many contracts at first appear divisible but are not.

Acceptance to offer

• ACCEPTANCE: necessary to create a valid, enforceable contract. • Unilateral Contracts are accepted by performing a requested act, not by making a promise. • The language of the offer determines whether acceptance should be a promise resulting in a bilateral contract or an act resulting in a unilateral contract.

Exclude

• Can have the police or courts keep someone from interfering with what is yours. o Legal fence that surrounds and protects resources the law recognizes as belonging to you.

Branham v. Ford Motor

• Car accident where no one was wearing seatbelts and a child was injured so they sued ford for rollover tendency and seatbelt sleeve o Found that ford and hale were responsible and awarded Branham 16 mil in actual damages.

Creditor Beneficiary

• Carl owes terry for work but carl works for chris and so carl contracts to have chris pay terry, terry is the creditor beneficiary and can sue chris for the money owed.

Coastal Oil & Gas Corp. v. Garza Energy Trust Et Al.

♣ Coastal was sued for infringing on their property rights by removing natural gas beneath their land known as Share 13. Salinas said that Coastal wasn't extracting fast enough and that coastal was frilling on neighboring land that it owned and extracting gas from beneath. ♣ Court determined that the extraction by was legal due to the LAW OF CAPTURE

Semoon v. The Wooster School Corp.

♣ Court determines that the bailment is one of mutual benefit because both parties gained from the transaction. The school received the cultural enhancement of the sculpture, and the artist received the exposure. ♣ Bailee owes reasonable care to the bailor. ♣ A presumption arises against the Bailee if the property is damaged in its care.

Rule against perpetualities

limits all exercise of property over resources to a duration of "lives in being plus 21 years"

Quit Claim Deed

makes no guarantee other than the grantor surrenders all claim against the land

Fee Simple Defeasible

may have a condition attached to its conveyance (transfer) for fee simple

Security Interests

mortgages and secured transactions under article 9 of the uniform commercial code

Isla mails taylor offering to sell her house at a reasonable price do we have a contract?

no

Prior Consideration

no consideration; performance made before the parties discuss their argument does not count

Gift

no mutual exchange of resources occurs and instead, a donor who owns something gives it to a donee, who becomes the new owner o Owner must intend to gift it o Owner must deliver the gift by physical transfer to the donee

taxation

taxes support public services and limit the right of private property and suggest that property's claim to promoting the common good is not absolute

Attachment

takes place when o A secured party has given value o The debtor owns the collateral o A security agreement is given

Termination of Offer

The offree's legal power to bind the offeror ends. o Can terminate due to explicit act of one of the parties. o Means that either the offeror or offeree has done something before the acceptance to destroy the offer.

Preexisting Obligation

a party to an agreement doesn't give consideration by promising to do something that he or she is already obligated to do

offeror

a person making the offer -must intend to make the offer by making a commitment to the offense

Fraud

can be criminal in nature, fine or prison, knowing or willingly provide a false statement, was it important to a reasonable person, falsify a statement to investors, half truth is also a whole lie

Private Nuisance

Any unreasonable use of one's property so as to cause substantial interference with the enjoyment or use of another's land establishes a common law

Doctrine of Partition

can force the separation of these concurrent ownerships

Motgage

- agreement to put up houses to secure loans

Resources

- anything that someone may need or want - includes land, widgets, and other physical things, but also includes the uses of those things.

Obstruction of Justice

cannot do things to obstruct legislative or judicial process

Dram Shop Acts

tavern owners for injuries to third parties caused by intoxicated patrons

Large Scale Businesses

capitalized by selling stock shares, which are legally organized property interests in corporations

Fraud/Deceit

An intentional misrepresentation of a material fact that is justifiably relied upon by someone to his or her injury. -white collar crime

Trespass

- someone goes on your property without permission

Ehling v. Monmouth-Ocean Hospital Service Corp

-Elling had a facebook page and she posted about a shooting in the DC holocaust museum. -She is a nurse and basically said she would have let the shooter die and criticized the paramedics. -Her nursing license was yanked and she sued; doctors and nurses have an oath to not let anyone die not matter what. • Questions of privacy. • Plausible claim to invasion of privacy

Res ispa Loquitor

-Facts speak for themselves -Jump to the end -Skip from presenting facts to the damages -With these facts, the damages could only have happened if there was negligence

Grand Jury

-Fifth amendment to the US constitution -Before a trial for capital or infamous crime there must be presentment or an indictment by a grand jury -Comprised of 23 citizens -Serve as an investigative body -functioning depends upon secrecy of the proceedings (key to grand jury proceedings) -low standard

Riley v. California

-Go arrested for driving with an expired tag; then the cops found weed in his car and then also his phone; thought that he may be linked to gang activity. -Cops looked through his phone and thought that his contacts were linked to gang activity; found pictures of guns and such that linked him to gangs. -Lawyer said that the man was violated of his 4th amendment rights; looking through his phone. -Supreme court said that in general the cops must obtain a warrant to search a cell phone unless someone's life is in peril and or some extreme circumstance. -You can take the phone without a warrant just not search it

Please in Criminal Cases

-Guilty, not guilty, or nolo contendere ("no contest") -Criminal conviction may be basis for civil damages suit. -If you plea nolo; the judge can sentence you as if you plead guilty but not with any other proceedings

Rules Involving Goods

-The UCC creates a number of situations that allow the enforcement of oral agreements involving sale of goods. In essence, the law strives to facilitate transactions involving goods as long as the parties cannot deceive the judge who is asked to determine a contracts validity. • Contract for good specially manufactured for the buyer on which performance has begun • Contract for goods for which payment has been made and accepted or that have been received and accepted • Contract for goods which the party being sued admits in court or pleadings that the contract has been made • Contract for goods between merchants in which the merchant sued has received a written notice from the other merchant confirming the contract and in which merchants sued does not object to the confirmation within 10 days.

Crimes

-Wrongs against society Criminal law punishes wrongdoers who affect the ownership of property -Federal and state penal codes define criminal acts and omissions -Examples would be rape and stuff

Divisibility

-capital formation and how property permits resources to be broken into parts and used in many ways while the owner still retains a property in each part ♣ Can sell part of it outright ♣ Can sell another part of it on credit and hold a mortgage to ensure payment ♣ Lease part of it to tenants who pay rent ♣ Incorporate part of it and sell shares to investors ♣ Secure a loan against part of it in order to start an Internet Business.

Strict Liability

catchall phrase for the legal responsibility for injury causing behavior that is neither intentional nor negligent -assumption of risk defense

Intentional Interference with contractual relations

-most common is one company raiding another for employees -If u interfere with the merge of one company with another -If you take the employees of one company -Ex: You have a law firm, big health care litigation team. They are all under contract. Another law firm, sets out to poach the team. They go after them and give them incentives. And the litigation team comes. The original law firm has a claim for intentional interference with contractual relations because the other firm knows they have a contract but goes after them anyways.

Common Property

-the rights we all have to common resources like air, rivers, oceans, etc. -the private ownership by two or more people of a specific resources such as a piece of land

Expectation of Privacy

-warrantless inspection -taken for granted -If a cops asks to search your car they are doing that because they do not have probable cause so if you say yes that's your fault if you get caught for something. -When you turn something over to a third party company, you waive your rights for searching.

Acquiring resources through possession

Rule of First possession -the first person to reduce previously unowned things to possession becomes their owner o If someone has abandoned what they own, someone else can take it if there was intent to abandon.

Frank is the fresh produce supplier for a restaurant one day he fails to deliver the meat. The delay in shipment makes the restaurant lose money. How much is the award compensation?

2500

Contract Law in Private Enterprise

A contract DOES NOT have to be a formal, written document, nor have to use the word contract when the agreement is made. o Ex. Contract law says that a restaurant makes an implied "promise" that its food is fit to eat and if they give someone food poisoning, the restaurant can be liable for breaking its promise -enables private agreements to be legally enforceable -law of contracts is vital for private enterprise companies -Helps buyers and sellers do business together -provides enormous flexibility and precision in business dealings

Complete Performance

A contracting party has fulfilled every duty required by the contract. A party that performs completely is entitled to a complete performance by the other party and may sue to enforce this right

Breach of Contract

A party that does not live up to the obligation of contractual performance is said to _________

Capacity

A person's ability to be bound by a contract. Courts have traditionally held the following three classes of persons to lack capacity to be bound by contractual promises: o Minors o Intoxicated Persons o Mentally Incompetent Persons

Implied Warranties

Additional promises within contracts that are dictated by statute. o Sale of goods: ♣ MERCHANTABILITY: if the seller is a merchant, the goods will be of fair average quality and conform to any labeling. ♣ FITNESS FOR A PERTICULAR PURPOSE: the goods are suitable for the buyers purpose if the seller is aware of it.

Willful and Wanted Negligence

Aggravated negligence, shows extreme lack of due care. Ex drunk drivers.

Voidable Contract

An agreement when at least one party has the right to withdraw from the promise made without incurring any legal liability. That party has the power to end the enforcement of a voidable contract. o Contract can be voidable by both parties o Enforceable in court until someone decides to void the contract.

Notice of Assignment

Assignee should notify the obligor when an assignment is made. Otherwise, the obligor may perform for the oblige-assignor. o A dishonest or careless assignor may assign the same contract rights to two or assignees. Notification law says that the first one to notify the obligor has priority.

Contracts that cannot be Assigned

Assignment that increases the burden of performance to the obligor cannot be assigned • Most states regulate the assignment of wages. Limit the amount of wages a wage earner can assign to protect wage earners and their families. • A party to a contract cannot assign performance of duties under a contract when performance depends on the character, skill, or training of that party.

Causation in Fact

Before a person is liable to another for negligent injury, the person's failure to use reasonable care must actually have "caused" the injury. o Courts leave questions of cause in fact to juries as long as the evidence reveals that a defendants alleged carelessness could have been a substantial, material factor in bringing about an injury. o Carelessness of two or more tortfeasors contributes to cause of the plaintiff's injury, then each is jointly and severely liable for the entire judgement. o 40 states have limited joint and several liabilities in certain cases.

Sources of Contract Law

COMMON LAW: Comes from judges decisions. o Courts have developed principles controlling contract formation, performance, breach, and remedies. o Effects many types of contracts including: ♣ Real property ♣ Service ♣ Employment ♣ General Business Contracts LEGISLATION: o Various states have enacted common law rules in statutes. o In some cases, legislatures have replaced common law rules with different statutory requirements. UNIFORM COMMERCIAL CODE (UCC): ♣ Article 2- covers sale of GOODS: Tangible, movable items of personal property. ♣ Applies to individuals as well as firms

Legality of Purpose

Contracts that require commission of a crime or tort or violate accepted standards of behavior are void. Courts will generally take o action on void contract, and they will leave the parties to a contract where they have put themselves. • Courts may take action if there were some legal and some illegal aspects • May take action to allow an innocent party to recover payment made to a party who knows that the contract is illegal. • May take action by allowing a person to recover compensation under quasi-contract for services performed on illegal contract.

Objective Intent

Courts measure intent from a reasonable person's perspective in the position of the offeree.

Negligent infliction of mental distress

EX. your kid gets crushed by a bus on accident by you see it; some states say you need to be in the actual zone of danger to receive damages.

Money Damages

Ex: If you bring the widgets and they say no I don't want them anymore. Then the seller will ask for the money they decided on in the contract cuz they fulfilled their part. They did not breach.

Express Conditions

Explicitly mentioned in the contract governing performance

When a "meeting of minds" is lacking

FRAUD: Involves an intentional misstatement of fact that induces another to enter into a contract to which they would not otherwise agree. o MISREPRESENTATION OF FACT o Intent to Deceive ♣ One of most important elements. o Justified reliance on the misstatement by the innocent party o Injury resulting from the reliance • Fraud can be explicit • Can arise from a deceptive act by a party, such as tampering with the odometer on a car. • Silence does not constitute fraud • Failing to disclose a material fact that creates a dangerous condition may rise to fraud. • INNOCENT MISREPRESENTATION: when a party misrepresents a material fact without intent to mislead, harm still occurs. o Voidable by innocent party

Mirror Image Rule

For an acceptance to create a binding contract, standard contract law requires that the acceptance must "mirror" the offer, that is, must match it exactly.

Zoning Ordinances

Generally laws that divide counties or municipalities into use districts designated residential, commercial, or industrial. o Height, size, number, location of buildings that can be built on land. o Aesthetic requirements -Cook v. Sullivan

Rules of Interpretation

Handwritten Terms Control TYPED terms Control Pre-printed terms/forms

Harper v. Winston County

Harper was fired and Harper claimed assault and battery in grabbing her arm and jerking her arm trying to force her to go to Wrights office. • Harper was not physically injured, but she still can claim batter if she was touched in an offensive or hostile way, like being grabbed and pulled • The trail court ruled that wright was touching merely to gain control of harper. However, there is no legal exception for offensive touching to gain control of an employee, like there may be for a merchant detaining a shoplifter • The appeals court ruling in favor of harper does not mean that she prevailed on her battery claim. The case can go back to trail court so that harper has an opportunity to prove her claim of battery at trial

Compensatory Damages

Have to mitigate damages; not a lottery win. If I'm a farmer, and i made a deal with this grocer. I'll bring you a load of watermelons for $1,000. The grocer goes I don't want them anymore. So now the farmer has to find another shop and that shop says I'll give you $600 so you say fine. The original grocer now only owes you $400. You may make small claims saying that you need money for the extra gas you spent but based on profit $1,000 is what you are owed. What about difference between market price and contract price? Ex: Contract price = $1500 Market price = $2500 You have to mitigate your losses. So you only get $1000 in damages from the breaching party because you originally would have paid the $1500

Acquiring Resources through exchange:

Rules of Contract -the rules under which people exchange resources in a property system

Parol Evidence Rule

Influences the form of contracts. States that parties to a complete and final written contract cannot introduce oral evidence in court that changes the intended meaning of the written terms. o Applies only to evidence of oral agreements made at the time of or prior to the written contract. o Does not apply to oral modifications coming after the parties have made the written contract. o Exception to this rule allows evidence of oral agreement that merely explains the meaning of written terms without changing the terms. Also, oral evidence that changes the meaning of written terms can be given if necessary to prevent fraud.

If pepsi released a statement that coke causes cancer; Coke could for sure

Injurious Falsehodd

Hustler Magazine v. Jerry F

Jerry went after hustler for their horrible acts or morality Hustler did a parody of Jerry to get back of him Parody is protected by the first amendment; Jerry did not win the case due to this

Delivery

Legal term referring to the transfer of possession from the seller to the buyer. The buyer and seller may presume to know implicitly how and when the goods will be delivered. o Seller obligation is to tender delivery of the goods and the buyers duty is to accept and pay for them.

Contract

Legally enforceable PROMISE or an exchange of promises. o A Promise or Commitment to do or not to do something o Without contracts and the court systems to enforce contracts, buyers and sellers would not be able to account for future risks or have confidence in exchanging valuable property interests. o Most important for supporting private enterprise

Anna offers cory a vacuum for $300 by cory rejects it. Cory comes back a day later and says he wants to buy the vacuum. Does she have to sell it to cory?

No he rejected the original contract; Legal detriment

Implied conditions

Not explicitly mentioned but can be read into the party's obligations to perform

Undue Influence

Occurs when one is taken advantage of unfairly through a contract by a party who misuses a position of relationship or legal confidence. Contracts voidable because of _______________ often arise when persons weakened by age or illness are persuaded to enter into a disadvantageous contract.

Third party beneficiaries

One or more of the original parties to a contract may intend for their agreement to benefit a third party • In general, people not in a contract have no rights to sue to enforce the contract or to get damages for breach of contract. • However, a ____________ can sue if the parties to the contract intended to benefit that person.

Void Contract

One that appears to be an agreement but lacks an essential requirement for validity and enforceability. o Ex. An apparent agreement that has an illegal purpose.

Concurrent Conditions

Parties have a simultaneous duty of performance

Third Parties Rights

Parties usually negotiate and enter into contracts for personal or organizational reasons. Sometimes third parties can become involved in performance of the contract.

Sixth Amendment

Provides multiple protections that offer the right to: -Speedy and public trial -Trial by jury -Be informed of the charge against oneself -Confront the accuser -Subpoena witnesses in one's favor -Have the assistance of an attorney -Its for criminal cases; possible incarceration

When does the language used in negotiation become an offer?

Relate to specificity of the language used to state a commitment or willingness to be bound.

UCC Battle of the forms

Section 2-207 of the UCC Changes the mirror image rule for contracts involving the sale of goods. In general, an expression of acceptance or a written confirmation is treated as an acceptance even if such communication adds or changes terms in the offer. If at least one party to the contract is a non-merchant, the new or revised terms are considered proposals for additions to the contract. When the contract is between two merchants, the additional terms become part of the contract unless one of the following takes place: o The offer expressly limits acceptance to the original terms o The proposed terms materially alter the contract o The offeror rejects the proposed items

Musician is contracted to play at a local pub. Local pub pays in advance. Local pub sues for breach of contract and wants her to finish out the contract

Specific Performance

Problem of Limited Resources; 2 Frameworks

State Planning system, and private property

Intentional Torts

The desire to bring about certain results and sometimes even those that are substantially likely to result from an action. -deliberate action; desire to bring about result

Consideration

The legal mechanism for evaluating the existence of incentive or inducement which makes a promise binding. o The receipt of a legal benefit or the suffering or a legal detriment. o Any promise to do something that one has no obligation to do, refrain from something that someone has the right to do, or a performance when there is no obligation to do so. o Must be bargained for

Unreasonable beahvior - breach of duty

The likelihood that the defendants conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the interest which he must sacrifice to avoid the risk. -Question of fact by the jury: you have a duty (established) but was it breached? -This is where the manager or a boss become responsible of their employees actions - if the employees are acting within their scope and breach a duty then it is now the boss'/company's problem -Big money sucker

Commercial Impracticability

Under the UCC a party to a sale of goods contract receives discharge from performance because of ______________ Requirement not as difficult to meet Ex: Homeowner wants a well drilled in the backyard; driller says ok agree to terms etc. Starts drilling, 100 feet down hits rock, tries again in a different spot hits rock again so the drilling company says it's impossible so we want to get out of our contract. -Experts come in and they say nobody can do it, and its unexpected because we don't see this type of rock formation in this part of the country = impossibility of performance -Experts come in and say it's extremely difficult but not possible and it can be expected because we do see this type of rock formation in the part of the country just expensive = should have been included in the contract

Definite Terms

Under the common law of contracts, contractual terms must be definite and specific. o INDEFINITENESS - most advertisements

Mailbox Rule

Unless the offeror specifies a particular time, the acceptance usually binds the parties when the offeree dispatches it. o Since the offeree frequently mails the acceptance, the acceptance becomes binding when it is "deposited" with the postal service - MAILBOX OR DEPOSITED ACCEPTANCE RULE o Importance is that the offeror cannot revoke the offer once the offeree has accepted it. o Added significance is that an offeror's revocation is not effective until the offeree actually receives it.

Hot coffee

Watch this movie

Coastal Oil and Gas Corp vs. Garza Energy Trust et al., 268 S.W.3d 1 (Tex. 2008)

Were Coastal's acts protected by the "rule of capture"? Hydraulic Fracturing A group of people owned this land and leased it to different groups of people to Hydraulic Fracturing. The owners get a percentage of what you make from the fracturing. Coastal was one of those groups. Coastal then bought the land next to it and build a fracturing drill and took out the one in the other land. The old owners are pissed saying its trespassing. But Coastal said Rule of Capture. Rule of Capture applies to Hydraulic Fracturing in Texas. And went farther and said either building your own drill and suck faster or higher a better lawyer so you put it in the contract that they weren't allowed to do that.

Part Performance

When a buyer of land has made valuable improvements in it, or when the buyer is in possession of it and has paid part of the purchase price, even an oral contract to sell is enforceable.

Valid Contract

When an agreement is enforceable because all of the essential requirements are present.

Implied In Law Contracts

When one party is unjustly enriched at the expense of another, the law may imply a duty on the first party to pay the second even though there is no contract between the two parties. o May also use the term QUASI-CONTRACT since there really is no actual contractual agreement o More often applies when parties intended a contract, but that contract is not valid or is unenforceable for some reason. After an exchange has taken place, it would be unjust for a court to leave the parties without a remedy.

Agreement not to Sue

When reasonable ground for lawsuit exist, an agreement not to sue is a consideration to support a promise.

Executory Contract

When the parties have not yet performed their agreement. • Since most business contracts are bilateral, most are executory at some time.

Donee Beneficiary

When the performance under a contract is meant as a gift to a third party. Can sue the party who owes them performance, cannot sue the party who contracted to make them a gift.

Peter lives in a residential neighborhood with a panther in his backyard. If the panther escaped and mauls a child is he liable?

Yes

If you over pay for your credit card does the company have to pay you back?

Yes, because implied in law/quasi contract

Contracts that restrain trade

______________ often are illegal and void o Monopolize, fix prices, divide markets o COVENANTS NOT TO COMPETE: Important in protecting employers from having the employees they train leave them and compete against them. o Protect buyer of a business from having the seller set up a competing business. o Must be reasonable as to time and space.

Intentional Infliction of Mental Distress

a battery to the emotions. ♣ Arises from outrageous intentional conduct that carries a strong probability of causing mental distress to the person at whom it is directed. ♣ Often they must prove that it also caused physical symptoms such as headache. ♣ Judge made tort

Deeds of Trust

a borrower signs a note which shows the borrowers debt to the lender, and the signs a ___________, which grants the lender a security interest in the building and land put up to secure the loan

Variance

can ask a zoning board for this which allows the use of land in a way not permitted under zoning ordinance

Natural Easement

easement by necessity to get from their land to the nearest public road

Embezzlement

entrusted employee has someone else's money an takes it.

Ultra hazardous Activity

ex; explosives and poisons

Condition Subsequent

excuses contractual performance if some future event takes place

Foreclosure

exercise of the secured property interest and means that the creditor must go through the court system to ensure that procedures are properly followed before debtors lose their homes and land. Court will order land sold to satisfy the debt owed, usually by auction.

False statement to a bank or federal agency

filling out applications that are not truthful

Option contract

firm offer exception

Strict Products liability

for the commercial sale of defective products

Duress

force or threat of force; the force may be physical or in some instances economic o Cannot be based on one's assertion of legitimate business consequences; it must rise to the level of a tort.

Testamentary Gift

gift that is made through a will

Adverse Possession

gives you ownership of land under state statues when the possession is as follows: o Open and notorious o Actual and Exclusive o Continuous o Wrongful o For a prescribed period of time

Things that are MISLAID

go to the person who owns the premises where the item was mislaid

Life Estate

grants ownership in land for the lifetime of a specified person o If after that person's death, the land goes to someone else than the original owner, that person has a remainder interest. o If said person dies, the land goes back to original owner which is known as keeping a reversion interest in the land. ALSO KNOWN AS FUTURE interests, which are opposite to life estate

Warranty Deed

guarantees that the seller has good ownership and the full power to convey it

Fee Simple Abolute

has no limitations or or conditions attached to the fee simple

Contract Price

if a defendant fails to pay for goods and services provides; compensatory

Condition Precedent

if something must take place in the future, before a party has a duty to perform

Impossibility of Performance

if the subject matter of the contract is destroyed, the contract becomes impossible to perform. • Excuses a party's nonperformance -Unpredictable from judges because of subjectivity -If you die or in a coma, you cannot perform service -However, if you die or in a coma, GOODS must be delivered -You may be able to enforce the contract against my deal -Must be objectively impossible for ANYBODY to complete. -Must be an unexpected occurrence. -Expected or foreseeable problems must be included in the contract. -Increased difficulty is not an excuse. -East Capitol View Community Development Corp v. robinson

Homestead Act of 1862

illustrates the historical significance of ownership through possession

Excuses for Non performance

in contracts the party who refuses to perform a promise can expect to be sued

Damage Awards

including compensatory (puts plaintiff in same position as if the contract had been performed), consequential (arising from unusual losses that were foreseeable), and liquidated damages (When real damages for the breach of contract are likely to be uncertain.

tina is a sales rep for computer depo and calls dell to make them their exclusive supplier but the store already has a 3 year contract with apple. But she tells them to breach the contract. What could apple sue for?

intention interference with contractual relations

Battery

is an illegal touching of another - touching done without justification and without consent - loss of safety; intentional tort

Assault

is the placing of another in immediate apprehension for his or her physical safety - fear of safety or even expectation - fear of safety; intentional tort

Land

land ownership consists of more than just the surface of the property o English Common Law - Lord Coke -- surface to the heavens and back down to the center of the earth. o Later limited to the practical use of land.

Subsurface rights

landowner owns the liquids, gases, and minerals beneath the land o Similar to air rights, an owner may separate the subsurface and sell to others. o Additional complications come with this such as that many of the substances aren't stationary; can flow from one parcel to another o E.g. drilling of a neighbor and your oil going to them due to movement. o Coastal Oil & Gas Corp. v. Garza Energy Trust Et Al.

Gottlieb & Co., Inc. v. Alps South Corporation:

o Gottlieb was in business of supplying specialty knitted fabrics to manufactures. Alps was a manufacturer of medical devices such as prosthetic limbs. Also purchased Gottliebs fabric for use as a liner in certain devices. In its finished goods form provided in response to Alps order, Gottlieb limited its liability to exclude consequential damages. o During the course of the relationship, Gottlieb changed the yarn used, this resulted in complaints from Alps customers and caused Alps to suffer severe economic loss. o Court found that Gottliebs term was included in the contract even though it appeared only on Gottlieb forms and was not specifically discussed by the parties o Alps failure to read Gottliebs forms was irrelevant, according to the court. This is a generally true as a contract law principle. o If Alps foresaw the likelihood of certain outcomes, like consequential damages from customer complaints, it should have been addressed with Gottlieb.

St Louis Produce Market v. Hughes

o Hughes was fired from the Market and they agreed to pay him 14 weeks of his salary. Market sued Hughes to void the agreement because they claimed Hughes secured the agreement through fraud or negligent misrepresentation. o Failure of a condition precedent can excuse a party's performance, even if it is minor. Similarly, the existence of a minor condition subsequent can cut off a party's obligation to perform o Parties often use conditions to ensure that a transaction occurs under favorable and anticipated circumstances o Parties should carefully consider whether conditions are necessary and understand that they may, at times, provide hold-up power to one side. o Hughes had to return all the company property, and since he didn't he didn't have to be paid.

Intoxicated and Mentally Incompetent Persons

o In most cases involving adult capacity to contract, courts measure capacity by whether the adult was capable of understanding the nature and purpose of the contract. o MENTALLY IMPAIRED: Adults with a history of medically documented disabilities.

Types of contracts required to be evidenced by a signed writing:

o Involving interest in land: ♣ Common contracts covered by statute of frauds. Interests in land include contracts for mortgages, mining rights, and easements. o Collateral Contracts to pay the debt of another person ♣ A secondary or conditional promise that arises when one person promises to repay the loan of the corporation if and only when that organization does not make payments. o Cannot be performed within one year from the date of the agreement o For the sale go foods $500 or more

Macy's v Martha Stewart and J.C. Penny : What is a Stand Alone Store

o Martha Stewart agreed to only sell her products in macys unless it was a stand alone store. But then she was selling them in J.C. Penny and saying that they were stand alone stores within J.C. Penny. o Before the court ruled, J.C. Penny agreed to stop selling the disputed produces . o Store within a store does not equal a stand alone store o Importance of clear language in contracts.

Rhodes v Davis

o Rhodes and Davis are co-owners of Alarm Specialists. Each holds 50%. In an attempt to resolve prior dispute, parties entered into a stipulation of discontinuance, under which they agreed that defendant would buy out plaintiffs ownership interest in ASI for 2500000. Down payment was timely, but the closing date passed without any sale. o Both parties argue they should be awarded attorney's fees for legal expenses incurred throughout the course of their ongoing litigation. o Plain language of the Stipulation awards attorneys fees to the non breaching party. o Defendant was liable for breach. o When a contract involves unique subject matter, courts may award specific performance because there is no market equivalent o Rhodes and Davis had a good understanding of their values for the transaction, and there was no reason for the court to substitute its own reasoning.

Cook v. Sullivan

o Sullivans transformed their property to support a new house, but this had the effect of unreasonably and substantially harming the cooks property o Water that flooded the cooks property did not necessarily flow from the Sullivan's property. If it had, water may have constituted a trespass rather than a nuisance. o If the Sullivans had provided the court with another toption other than moving their house, the balance of hardships might have come out differently

Contracting parties ultimately arrive at one of two conclusions:

o They are discharged from the obligation to perform o They are liable for breaching the contract

Enforceability of agreements

o desirable because it gives people the certainty they need to rely on promises contained in agreements.

Duty of Performance

obligation of performance of promise made

Bribery and Kickbacks

offering money for someone to do something or you that would violate the law

Public Nuisance

one arising from some use of land that causes inconvenience or damage to the public

Executed Contract

one in which the parties have performed their promises

Invasion of Privacy

one that is still in the early stage of legal development and involves the invasion of any personal interests. ♣ A second invasion is the defendant's intrusion upon the plaintiffs physical solitude. Before you use anyone's name you must obtain permission or this may be liability -Example of NCAA players suing a video game for using their names in a game without consent. -Employers invade employees home in some way or make persistent and unwanted calls to them. -Employer reveals information that should not be publicly announced; example is telling someone a former employee has AIDS; have no legal justification -Ehling v Monomouth Hospital

Slander

oral defamation

Air Rights

owner of property also possesses the air above the land to the extent that the owner can occupy or use it in connection with the land o It is possible to sell your air rights to another development o NYC ex of a place that often sells and trades air rights.

Release

party declares that the opposite party must does not have to perform (before contract)

Accord and Satisfaction

payment or such to resolve a dispute

Easement

places a particular use of land behind the exclusive legal fence

Presumption of Innocence

presuming that an indicted person is innocent until found guilty by a petit jury

Antideficiency Judgement Statues

prevent suing for deficiency

Joint Tenancy

property owned jointly, shares pass to the other upon death (1/2)

Fourth Amendment

protects individuals and corporations from unreasonable searches and seizures by the government -requires the police to obtain a search warrant

Misdemeanors

punishable by a fine or jail sentence of less than one year

Felonies

punishable by fine or imprisonment in a penitentiary for a period of one year or more

Endangering Workers

put employees in danger that would harm them

Malum Prohibitum

regulatory infraction; speeding and stuff similar

Substantial Performance

represents a less-than-complete performance. However, the work done is sufficient to avoid the claim of a breach. A party who substantially performs may be entitled to partial recovery under the contract. ♣ Middle ground - even greater than significant performance. Ex: Build me this house by June 1st, backyard is not completely done but buyer can't sue because the Job is 99% complete; they have substantially performed so the buyer must pay unless they can find some damages I can prove related to the delay

Fee Simple

represents the maximum estate allowed under the law, the owner having the fullest legal rights and power to possess, use, and transfer the land.

Securities Fraud

securities and exchange act, corporate officers are required to provide certain documents to investors

Purchase money security interest (PMSI)

security interest that secures the purchase price of goods bought for personal or household use -perfect as soon as they properly attach -21 day perfection

Tenancy in Common

shared tenancy in which each holder has a distinct, separately, transferable interests. (1/3, 2/3)

Title

someone who owns something has ______ to it.

Injurious Falsehood

sometimes called TRADE DISPARAGEMENT - consists of the publication of untrue statements that disparage the business owners product or its quality. Similar to defamation of character

Destination Contact Clause

specific clause that says seller is responsible for liability until it's delivered

Basics for Rules of interpretation

• Common words are given their usual meaning - "a Rose is a Rose" - Gertrude Stein • A court will interpret this common word to refer to a flower • If the meaning of the word is clear on the face of the contract, courts will reject a party's attempt to reinterpret it later. • If there is evidence that a word has a particular TRADE USAGE, courts will give it that meaning. o Ex. Rose would be wine in the wine trade • Written is the best evidence • When only one of the parties draft a contract, courts will interpret ambiguous or vague terms against the party that drafts them. - applied to adhesion contracts and insurance contracts and these are reinterpreted to give the non-drafted party the benefit of the doubt when deciding the meaning of a confusing term or phrase.

Compensatory Damages

• Compensate the plaintiff for injuries suffered. o Past and Future medical expenses o Past and future economic loss o Past and future pain and suffering o Often use state life expectancy tables to determine impact on life. o Controversial for pain and suffering

Assignment of Contracts Basics

• Contracts are often though as involving only 2 parties. • In an assignment one of the original contracting parties becomes an assignor and assigns rights or duties or both to a third party known as the assignee. • If the assignment is properly structured, the assignee can enforce the original contract. • When an assignor signs rights, an implied warranty is made that the right are valid and enforceable • If the assignee is unable to enforce the rights against the obligor because of illegality, incapacity, or breach of contract, the assignee can sue the assignor for breach of the implied warranty. • If the obligor simply refuses to perform for the assignee, the assignees legal claim is against the obligor, not the assignor.

Punitive Damages

• Courts or juries punish defendants for committing intentional torts and for negligent behavior considered gross or willful and wanton. - key is the defendants motive. - usually must be malicious, fraudulent, or evil. Also known as EXEMPLARY DAMAGES

Oral Contracts

• Generally enforceable as written ones. • Most of our everyday lives involve these contracts.

Interpretation of Contracts

• If each party is satisfied with the other's performance under a contract, interpretation of the contract is generally not an issue. But when there is a disagreement about what a term means or whether additional promises were made, interpretation becomes necessary. • The meaning of a contract is a QUESTION OF LAW, which means that a judge makes the final determination.

Mistake

• If it is clear that there has been a MUTUAL _________ as to a material fact relating to the contract, RESCISSION by either party is appropriate. • If there is only a UNILATERAL ________, where one party is mistaken rather than all, then no remedy is generally available.

Conditions to Perform

• If parties do not have EXPRESS CONDITIONS governing performance specified in their contract, courts may be asked whether IMPLIED CONDITIONS can be read into the parties obligations to perform.

Consideration in contracts

• In a bilateral contract, each party promises something to the other and these promises are the consideration. • In a unilateral contract, the consideration of one party is a promise and the consideration of the other party is the performance of an act.

Statue of Frauds

• Law requiring that certain contracts be in writing • Rule DOES NOT address fraud in the formation of a contract • Is designed to prevent potential deception or fraud from oral contracts • Written contracts reduce the potential for confusion, fraud, and deceit. • If the required writing is not met, the parties are left with an unenforceable contract.

Contract Formation

• OFFER to enter into a contract • ACCEPTANCE of the offer • CONSIDERATION for each promise • CAPACITY of each party to enter into a binding agreement • LEGALITY of subject matter o Defenses to Contract Enforcement: ♣ IMPROPER FORM when a writing is required ♣ No true MEETING OF THE MINDS due to fraud or mistake

Negligence

• Unreasonable behavior that causes injury o US has more lawsuits allege negligence than any other single cause of action o Takes place when one who has a duty to act responsibly instead acts carelessly and causes injury to another.

Duty of Care

• Without duty to another person, one does not own that person reasonable care. Duty arises out of a persons conduct or activity. o A person doing something has a duty to use reasonable care and skill around others to avoid injuring them. o Usually a person has no duty to avoid injuring others through NONCONDUCT - there is no general duty requiring a sunbather at the beach to warn a would be surfer that a shark is lurking offshore. Ianelli v. Burger King

acquiring resources without force, theft, or fraud

• means that if we illegally take what belongs to others, we lack the protection of the legal fence regarding those resources.

Impracticality Standard

• not as difficult to meet as the IMPOSSIBILITY STANDARD o Depends on the circumstances of the situation.

Design Defects

• occur when a product injures a user due to its unsafe design. - controversial. -Branham v. Ford Motor

Montz v. Pilgrim TV Inc

♣ Larry Montz was a parapsychologist and conceived of a reality tv show that would follow paranormal investigators as they investigate reports. Montz along with Smoller pitched the idea to NBC Universal, which indicated no interest. NBC then partnered with Pilgrim Films to produce a Ghost Hunters series ♣ Sued alleging that NBC and Pilgrim breached an implied-in-fact contract to pay for the use of the reality tv concept. ♣ Enforcing implied-in-fact agreements is important means of ensuring that one party does not get the benefit of a contract without compensating to the other party ♣ Implied-in-fact agreements must contain the same elements as express contracts, including acceptance and consideration ♣ When an agreement concerns an expressive idea like a story, picture, or writing, courts must differentiate a copyright claim from a contract claim. ♣ Found that the Plaintiffs claim for breach of confidence also survived copyright preemption. ♣ Eventually reversed and sent to appeals.

State Planing System

♣ The state itself, represented by a ruler or legislature, makes the major decisions about the production and distribution of resources. The state takes ownership of resources or acquires them through taxation. IT also can direct people in how, when, and where to work, thus assuming rights over the resources people have in themselves, their efforts, and talents. Distribution of resources occurs through state planning. • Ex. Communism

Vassilkovska v. Woodfield Nissan Inc.

♣ Vass. Purchased a used car from Nissan. In an agreement sep from the purchase contract, Vass. Promised to arbitrate any claim against Nissan instead of suing in court. Nissan promised the same, but excluded several different types of claims from the agreement. ♣ Vass. Sued Nissan for misrepresenting the price of the car in a financing agreement. ♣ Contracts require consideration for both promises. Care must be taken in limiting ones obligations, particularly if the result is no legal detriment at all ♣ The amount of consideration is generally not an issue but it must be more substantial than simply an acknowledgement.

Private Property

♣ is a system of law under which the state recognizes and enforces an individual's rights to acquire, posses. Use, and transfer scarce resources. The state does not plan what people should have nor does it acquire and redistribute resources to them. Rather, the people themselves determine how resources are distributed through voluntary exchange, usually for money that they use to acquire other resources that they want/need. • PRODUCES MORE FOR A SOCIETY THAN THE STATE PLANNING SYSTEM -protects private persons and allows them to exclude others