PCC Business Law cards 98-216 (Dosson)

149. what is "promissory estoppel"

A doctrine that can be used to enforce a promise when the promisee has justifiably relied on it, and justice will be better served by enforcing it

126. what is a "patent"

A government grant that gives an inventor the exclusive right or privilege to make use or sell his or her invention for a limited time period

124. What is a "service mark"

A mark used in the sale or advertising of services to distinguish the services of one person or company from the services of others

160. what is an agreement

A meeting of two or more minds in regard to the terms of a contract (i.e. and offer and an acceptance)

197. what is a "bilateral mistake"

A mistake that occurs when both parties to a contract are mistaken as to a material fact

195. what is a "unilateral mistake"

A mistake that occurs when one party to a contract is mistaken as to a material fact

119. name 6 types of intellectual property that need legal protection

1. trademarks 2. Patents 3. service marks 4. trade names 5. copyrights 6. trade secrets

99. What are two ways in which a tort can be committed

1. Intentionally (known as an "intentional tort") 2. negligently (known as "negligence")

98. Name five categories of torts against property that may be experienced in a business environment

1. Trespass to land 2. Trespass to personal property 3. Conversion 4. Disparagement of property 5. Infringement

100. What are the four components that are all required for a plaintiff to prevail in a tort case

1. a "duty" (a legal obligation) 2. a "breach of duty (a failure to perform that legal duty) 3. "harm" (the plaintiff suffered a recognizable injury) 4. "causation" (the defendant's breach of duty caused the plaintiff's injury)

172. what are two types of promises that the law has determined do not have value and therefore do not constitute valid consideration

1. a promise to do what one already has a legal obligation to do 2. a promise in return for actions or events that have already taken place "past consideration"

140. name the five basic requirements for a valid contract

1. agreement (offer + acceptance) 2. Consideration 3. Capacity 4. Legality 5. form

170. what are the two elements of consideration

1. it must have legally sufficient value 2. it must be part of a "bargained-for" exchange

130. name the 8 categories that an original work must fall into in order to obtain protection under the Copyright Act

1. literary works 2. Musical works 3. Dramatic works 4. Pantomimes and choreographic works 5. Pictorial graphic and sculptural works 6. Motion pictures and other audiovisual works 7. Sound recordings 8. And computer software

179. what are the three general categories of people that contact law deals with concerning the issue of capacity

1. minor children 2. intoxicated persons 3. mental incompetents

201. what are the four elements that typically have to be present for a party to a contract to either rescind the contract or enforce it and sue for damages under a theory of fraudulent misrepresentation

1. misrepresentation of a material fact 2. an intent to deceive 3. the innocent party justifiably relies on the misrepresentation 4. the innocent party suffers some kind of harm

171. List eight types of objects or concepts that are of "sufficient legal value" to constitute "consideration" and are often exchanged in business contracts

1. money 2. goods 3. Products 4. personal property 5. land 6. intellectual property 7. services 8. forbearance (e.g. a promise not to do something)

117. What 3 qualities must an item or concept possess to constitute property

1. must have value 2. must be subject to ownership 3. must be subject to harm damage or destruction

131. What remedies (or penalty) can be imposed upon a person who infringes upon a protected copyright

1. payment of money damages k2. criminal sanctions for willful infringements

166. what are the three requirements for a valid acceptance of an offer

1. the offer must be accepted by the offeree (not by a third party) 2. the acceptance must be unequivocal 3. In most situations the acceptance must be communicated to the offeror

178. what are the four functions of the court in any civil lawsuit when 'breach of contract" is the cause of action

1. to determine if there was a contract between the parties 2. to determine what the terms and conditions of the contract were 3. to determine if there was a breach 4. to determine the amount of damages (or the appropriate equitable remedy) to solve the problem caused by the breach

128. In the area of Intellectual Property what is a "license"

A "license" for a patent allows the use of the patented design, product, or process for certain specified purposes to another party. It protects the patent, but avoids costly litigation

193. What is an "exculpatory clause"

A clause that releases a party to a contract form his or her wrongful acts. (They are generally held to be unenforceable)

159. what is an e-contract

A contract entered into online

147. What is an implied contract

A contract formed in whole or in part from the conduct of the parties

157. what is an unenforceable contract

A contract having no legal effect because of a statute or rule of law (even though it might appear on its face to be a valid contract)

158. what is a void contract

A contract having no legal force or binding effect

190. what is an "unconscionable" contract or clause

A contract or clause that is void because one party is forced to accept terms that are unfairly burdensome and that unfairly benefit the other party

151. what is a formal contract

A contract that by law requires a specific form for its validity

152. what is an informal contract

A contract that does not require a specific form for its validity

153. what is an executed contract

A contract that has been completely performed

154. what is an executory contract

A contract that has not yet been fully performed

144. what is a bilateral contract

A contract that includes the exchange of a promise for a promise

145. what is a unilateral contract

A contract that includes the exchange of a promise for an act

146. what is an express contract

A contract that is stated in words (oral or written)

156. what is a voidable contract

A contract that may be legally avoided at the option of one of the parties

163. what is an "option" contract

A contract under which the offeror cannot revoke his offer for a stipulated period of time and the offeree can accept or reject the offer during this time

189. what is reformation

A court-ordered correction of a written contract so that it reflects the true intention of the parties

192. when can a covenant not to compete be enforceable

A covenant not to compete can be enforceable when: 1. the specified period of time is not excessive in duration and 2. the geographic restriction is "reasonable"

114. What is "assumption of risk"

A defense against negligence that can be used when the plaintiff is aware of a danger and voluntarily assumes the risk of injury from that danger

125. What is a "trade name"

A name used in commercial activity to designate a particular business

142. what is an offeror

A person (or legal entity) that makes an offer to enter into a contract

143. what is an offeree

A person (or legal entity) to whom an offer is made

161. what is an "offer"

A promise or commitment to perform or refrain from performing some specified act in the future

175. what is an illusory promise

A promise that is so uncertain as to what the terms of the promise is that the promisor has not definitely promised to do anything. Such a promise is unenforceable because it does not constitute consideration

155. what is a valid contract

A properly constituted contract having legal strength or force

103. what is a defense

A reason offered by the defendant in an action or lawsuit as to why the plaintiff should not recover or establish what he or she seeks

167. what is the "mailbox rule"

A rule providing that an acceptance of an offer becomes effective on dispatch

191. what is an adhesion contract

A standard form contract in which the stronger party dictates the terms

127. What is "patent infringement"

A tort that occurs when a firm makes, uses, or sells, another's patented design, product, or process without the patent owner's permission

165. what is an "acceptance"

A voluntary act by the offeree that shows assent or agreement to the terms of the offer

120. What is a trademark

A word, symbol, sound, or design that has become sufficiently associated with the good or has been registered with a government agency

133. what was the significance of the Berne Convention of 1886

All attending foreign countries agreed to honor the copyrights of the other nations

168. what is a "click on agreement"

An agreement entered into online when a buyer indicates his or her acceptance of an offer by clicking on a button that reads "I agree"

177. what is a release

An agreement in which one party gives up the right to pursue a legal claim against another party

139. what is a "contract"

An agreement that can be enforced in court

173. what is recission

An equitable remedy by which a contract is terminated and the parties are returned to the positions they occupied before the contract was made

174. what is a specific performance

An equitable remedy in which the court (rather than awarding money damages for a breach of contract) orders the parties to perform the contract exactly according to its terms

148. what is a quasi contract

An obligation or contract imposed by law, in the absence of an actual agreement, to prevent "unjust enrichment"

164. what is a "counteroffer"

An offeree's response to an offer in which the offeree rejects the original offer and at the same time makes a new offer

200. what is "fraudulent misrepresentation"

Any misrepresentation, either by misstatement or by omission of a material fact, knowingly made with the intention of deceiving another and on which a reasonable person would and does rely to his or her detriment

115. What is an "assault"

Any word or action intended to make another person fearful of immediate physical harm

104. what is defamation

Anything published or publicly spoken that causes injury to another's good name, reputation or character

194. How is the concept of "lack of voluntary consent" used in a business contract lawsuit

As a defense in a lawsuit to enforce a contract because an otherwise valid contract will be unenforceable if the parties have not genuinely agreed to the terms

137. What is the significance of establishing a "domain name"

Because of the restrictive features of domain names, the courts have held that the unauthorized use of another's mark in a domain name constitutes trademark infringement if it might cause customer confusion

187. in addition to contracts to do something that is prohibited by federal or state law, what other kinds of contracts will not meet the essential element of legality

Contracts that are "contrary to public policy" such as a contract to commit an immoral act (like selling a child)

181. when can a minor disaffirm a contract

During his or her minority or within a reasonable time after attaining majority

141. the primary goal in drafting any contract is that it be _______

Enforceable

150. under what basic remedy can the "quasi contract" doctrine and the doctrine of "promissory estoppel' be imposed

Equity

121. How does a person obtain protection for his trademark under the Federal Trademark law (i.e. the Lanham Act of 1946)

He or she must file an application with the U.S. Patent and Trademark Office

199. what is one exception to the rule that either party will be granted recission to a contract when there has been a bilateral mistake as to some material fact

If the mutual mistake concerned strictly the value of the object of the contract, the contract will be enforced and is not subject to recission

186. what is the status of a contract made with an incompetent person

If the person has been determined incompetent by a court - the contract is void If the person has not been determined incompetent by a court - the contract is either voidable or valid, a court would have to determine the incompetent person's condition at the time the contract was entered

162. what is a "revocation"

In contract law, the withdrawal of an offer by the offeror. Unless the offer is irrevocable, it can be revoked at any time before acceptance without liability

196. what is the effect of a unilateral mistake

In general, a unilateral mistake does not give the mistaken party the right to relief from the contract

105. what is privilege

In tort law immunity from liability for an action that would otherwise be a tort ?

134. What is a trade secret

Information or a process giving a business an advantage over competitors who do not know the information or process

116. What is "Battery"

Intentional touching of another

186 a. what is the status of a contract made with an intoxicated person

It is either valid or voidable (by the intoxicated person) depending on the circumstances. But for the contract to be voidable, the intoxicated person must prove that, because of his intoxication, his reason and judgement were impaired to the extent that he or she did not comprehend the legal consequences of entering into the contract

113. What is "Strict Liability"

Liability regardless of fault

101. What is Damages

Money sought as a remedy for a breach of contract or for a tortious (wrongful) act

202. what is "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

118. what is intellectual property

Property resulting from intellectual creative processes

132. what is an exception to copyright infringement

The "fair use doctrine" that says a person or entity does not have to pay royalties for using a copyrighted work for such things as criticism comment news reporting teaching scholarship and research

185. What is ratification

The act of accepting and giving legal force to an obligation that previously was not enforceable

138. what is "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 owner

188. What is usury

The charging of an illegal rate of interest

184. what is the duty of restitution

The duty imposed on a minor who disaffirms a contract to return whatever goods he received or to pay for their reasonable use

129. What is a "copyright"

The exclusive right of an author to publish print or sell an intellectual production for a statutory period

136. What is a "domain name"

The series of letters and symbols used to identify site operators on the Internet; internet addresses

176. what is an accord and satisfaction

The settling of a claim by the debtor offering to pay less than the creditor claims to be owed, when some dispute arises concerning the actual amount still owed

102. What is "liability"

The state of being legally responsible ("liable") for something such as a debt or an obligation

169. what is "consideration"

The value given in return for a promise or performance in a contractual agreement

135. how are "trade secrets" protected

Under "the Economic Espionage Act of 1996" that made the theft of trade secrets a Federal Crime, punishable by up to 10 years in prison and up to a $500,000 fine.

182. what is the most notable consequence when a minor disaffirms a contract

Whatever the minor transferred as consideration (or its value) normally must be returned

183. what is the effect of emancipation on a minor's capacity

When a minor child is fully emancipated, his parents relinquish control, and the child assumes full contractual capacity and loses the right to disaffirm

123. When does "dilution" of a trademark occur?

When a trademark is used without permission in a way that diminishes the distinctive quality of the mark

198. what is the effect of a "bilateral mistake"

When both parties are mistaken about some material fact, the contract can be rescinded by either party

122. When does the tort of trademark infringement occur?

When one who does not own a trademark copies it to a substantial degree or uses it in its entirety without permission

117. What is "conversion"

Wrongful taking, using, retaining or possession of personal property that belongs to another

180. what is the legal term used when a minor avoids (either during the course of his minority or for a reasonable time after turning 18) a contract he entered into as a minor

disaffirmance