BLW342 EXAM TWO

Volkswagen could be held liable by a builder and owner of a dune buggy under Section 402A if the dune buggy that fell apart had a Volkswagen engine as part of its construction. a. True b. False

false

When a plaintiff is unaware of a danger in a product but goes ahead and uses it anyway, assumption of risk occurs. a. True b. False

false

Wiretap Act

federal law that makes it a felony to intercept communication without permission or warrant

Counterfeit Access Device and Computer Fraud and Abuse Act (CADCFA)

federal law that makes it a felony to use, buy, sell, or transfer a credit card or other access device that has been counterfeited, forged, lost, or stolen

The Consumer Product Safety Commission does not have the authority to fine, just the authority to set product safety standards. a. True b. False

false

The implied warranty of merchantability is given by all sellers, not just by merchant sellers. a. True b. False

false

Economic Espionage Act (EEA)

an act that makes it a felony to steal, copy, alter, or transmit a trade secret

TF: The burden of proof for unauthorized use of a credit card is on the card holder.

false

TF: The grand jury determines guilt or innocence.

false

Fruit of the poisonous tree

saIn criminal law: evidence obtained illegally cannot be used in the court

home solicitation sales

sales in which sellers and creditors first approach consumers in the buyers' homes

rescission

setting aside of a contract as a remedy

TF: Transfers of consumer credit balances to new credit cards are a lucrative area for banks and credit card companies.

false

Corporate integrity agreements

settlements by companies that require changes in ethics programs and, often, a monitor

Requiring a convicted executive to write a book about the executive's conduct is a form of:

shame punishment

implied warranty of merchantability

the warranty of average quality, purity, and adequate packaging given in every sale by a merchant

nolo contendere

a plea of no contest where the defendant accepts conviction but does not admit guilt

assumption of risk

a voluntary subjection to danger or participation in activities that carry inherent danger

The name for the intent to commit an act that is a crime is:

mens rea

charitable subscriptions

pledges or enforceable promises to make gifts

judgment

the court's official document that rules on the issues that were before the court and imposes damages

Margaret Jameson has had enough. Last week she saw the drug dealers who live next door selling drugs to a 12-year-old from the neighborhood. Deciding to take things into her own hands, she paid her acquaintance John $100 to set fire to their house while they were gone. This is a(n): a. void contract. b. voidable contract. c. unenforceable contract. d. quasi contract.

void contract

Which of the following types of contract is described as an agreement to do something that is illegal or against public policy or one that lacks legal elements? a. A void contract b. A voidable contract c. A quasi contract d. An unenforceable contract

void contract

Cindy had a contract with Mohammed, a minor who is 16 years of age, to repay Cindy $1,000 plus interest on January 1, 2019. The loan was used to buy a computer. It is now August 1, 2020, and Cindy has not received any payment. Cindy wishes to file suit to collect the $2,000. Cindy's contract with Mohammed is: a. unenforceable. b. void. c. voidable. d. valid.

voidable

FCC Content Control and Accuracy

way to regulate accuracy of ads (if a company is offering a set/making sure that sale is reflected in their prices)

Duress

when a party is physically forced into a contract or deprived of a meaningful choice when deciding whether to enter into a contract

restatement

when legal scholars draft general concepts related to legal standards in a particular standard of law in torts: discusses strict liability for products deceptive is not the same as defective

The issue in the Smith v Coleman case was: a. a breach of the implied warranty of fitness for a particular purpose. b. whether there was privity between the injured party and Coleman. c. whether the warnings given were adequate. d. whether there would be punitive damages.

whether the warnings given were adequate

The "_____" law, enacted by the U.S. Congress in 1990, imposes minimum mandatory sentences (10 years in most instances) for corporate officers who mastermind financial crimes such as bank and securities fraud.

white-collar kingpin

Can Businessess be criminal defendants?

yes

Doctrine of Impossibility

you can get out if its impossible to perform

Intentional tort

—civilly wrong conduct that is done deliberately

Tort reform

—political and legislative process of limiting damages and changing methods of recovery for civil wrongs

Leonard v PepsiCo

-Pepsi Co advertised an advert for their "Pepsi Points" where you could send in points and attempt to redeem a Harrier jet. -Pepsi Co refused to pay for the harrier jet and the man sued for fraud and breach of contract -The courts ruled that the advertisement did not lead the man to be able to believe Pepsi Co would convey a $23 million jet for $700,000 and that as the value of the contract fell underneath the "Statute of Frauds" it was required for both parties to form a written agreement. As this was not fulfilled there was no contract to be broken If the ad is clear, definite, explicit and leaves nothing open to discussion and a reasonable person knows that, its valid. Looks at object of intent

Which of the following allows bankrupt debtors to keep some of their property

. Exemptions

Requiring executives to do volunteer work as part of their sentence is an example of a form of penalty called:

. community service

Crosswhite v Urbach

05/11/2002 a boy was jumping on urbachs trampoline and tried to backflip, landed on his head, paralyzed in lower legs. 16 yo, sued for inadequate warnings and defect trampoline company sued urbachs ct said when a person jumps on trampolines they assume the risks. Case was dismissed. EXAMPLE OF RESTATEMENT 402A! strict liability, breach of performance and warranty.

There a 5 elements to negligence

1) Duty- have to show for some reason the defendant owed the plaintiff something 2) Breach of that duty-violated the responsibility 3) Causation in Fact (action and causation) (chain of events that happen, its foreseeable ex: running the light) But for test: but for the action, ____ would not have occurred 4) Proximate Cause (showing in proximity)(my action started the chain of events) 5) Damages (money, injunctive relief)

All businesses should help create a safe environment for their customers and discourage criminal acts by providing the following:

1)Good lighting 2)Access to public phones or call boxes 3)Security patrols 4)Locked gates to parking lots; gate or security access 5)Escorts for customers and employees to their vehicles after closing hours 6)Camera security 7)Assigned parking spaces for tenants and employees 8)Warning signs to use caution and be alert 9)Policies for monitoring the premises—when, by whom, and how often

Offers have elements

1)Intent 2)Indefinite terms 3)communication of offer (ill do this if___) counteroffer: thank you but can we do this ->negotiation in order for it to be an offer it has to be legal

What is the percentage of net wages a creditor is permitted to garnish? a. 25 percent b. 33.3 percent c. 50 percent d. 75 percent

25%

class notes: constitutional arguments

3 main constitutional amendements: 4th, 5th, 6th

Restatement § 402A:

402A. Special Liability of Seller of Product for Physical Harm to User or Consumer (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relations with the seller.

Stored Communication Act (SCA)

an act that prohibits the unauthorized interception of stored electronic communications such as text messages, tweets, and instant messages

The Constitutional source for protections of defendants on searches is the _______ Amendment.

4th

The Constitutional source for protections of defendants against self-incrimination is the _______ Amendment.

5th

The Constitutional source of the Miranda decision is the ________ Amendment.

5th

Which constitutional provision affords the right to a speedy trial?

6th amendment

Pegues v Wal-Mart Stores, Inc., 63 F. Supp. 3d 539 (D. Md. 2014)

A Walmart security guard stopped Pegues and arrested, handcuffed, and detained her on suspicion that she had shoplifted the bassinet. The police were called and, once they arrived, issued a citation to Pegues. Pegues filed suit against Walmart for false imprisonment. The case turned on whether the security guard had probable cause to detain Pegues. She may not have been guilty of shoplifting, but the shopkeeper's privilege protects Walmart from liability, and the security guard had a reasonable basis for believing there had been a theft and acted reasonably.

liability limitations

A cardholder is not liable for more than $50 for the unauthorized use of a credit card. To even recover the $50 amount, the credit card issuer must show that (1)the credit card was an accepted card, (2)the issuer gave the holder adequate notice of possible liability in such a case, (3)the issuer furnished the holder with notification means in the event of loss or theft of the credit card, (4)the issuer provided a method by which the user of the card could be identified as the person authorized to use it, and (5)unauthorized use of the card had occurred or might occur as a result of loss, theft, or some other event. *The burden of proof is on the card issuer to show that the use of the card was authorized or that the holder is liable for its unauthorized use.

In which of the following scenarios is the Fair Debt Collections Practices Act (FDCPA) likely to be applicable? a. A national bank that collects commercial accounts b. A collection agency to which an organization has referred its accounts c. An organization collecting its own debts d. The Internal Revenue Service engaging in debt collection

A collection agency to which an organization has referred its accounts

Which of the following contracts must be evidenced by a record to be enforceable? a. A contract for the sale of two acres of land b. A contract for management consulting for $427 c. A contract for management consulting for three months d. A contract for a bicycle for $225

A contract for the sale of two acres of land

Formation of contract

A contract is formed when two parties with the correct mental intent, under the correct circumstances, within the boundaries of the law, and with some detriment to each of them agree to do certain acts in exchange for the other's acts.

Who among the following would be entitled to see an individual's credit report? a. An ex-employer b. A creditor with an unauthorized credit application c. A spouse d. A debtor who asks for his or her own report

A debtor who asks for his or her own report

Under the FCRA, consumer reporting agencies can disclose information only to the following:

A debtor who asks for his own report A creditor who has the debtor's signed application for credit A potential employer A court pursuant to a subpoena

What must a creditor have before the creditor can garnish a debtor's wages? a. Bankruptcy decree b. A judgment c. Priority as a secured creditor d. A plea bargain

A judgment

Specific Performance

A legal action to compel a party to carry out the terms of a contract.

Elements of Defamation

A statement about a person's reputation, honesty, or integrity that is untrue A statement that is directed at a particular person Publication Damages In some cases, proof of malice

Tort v Crime

A tort is a private wrong. When a tort is committed, the party who was injured is entitled to collect compensation for damages from the wrongdoer for the private wrong. A crime, on the other hand, is a public wrong and requires the wrongdoer to pay a debt to society through a fine or by going to prison.

Sarbanes-Oxley

AKA White-Collar Criminal Penalty Enhancement Act of 2002. Under SOX, as it is known among businesspeople, penalties for mail and wire fraud, which had a former maximum of five years, have been increased to 20 years in prison. Penalties for violation of the trust, reporting, and fiduciary duties under pension laws increased from one year to 10 years, with fines increasing from $5,000 to $100,000. S OX also provides for the specific crime of false financial statement certification, a crime directed at CEOs and CFOs, who are now required to certify the financial statements issued by their companies. Top officers who certify financial statements that they know contain false information now face being charged with a specific federal crime because of SOX reforms. **prevents altering or destroying documents to impede a criminal investigation.

Which of the following situations would get the benefit of the mailbox rule? a. An acceptance of a stipulated means offer by the stipulated means b. An acceptance of a stipulated means offer by a faster or unreasonable method of communication c. An acceptance of an offer by a slower or unreasonable method of communication d. An acceptance of an unstipulated means offer by a faster or unreasonable method of communication

An acceptance of a stipulated means offer by the stipulated means

Communication

An offer must be communicated to the offeree before it is valid.

Ana owns a citrus tree farm near Mesa, Arizona. Ana and her family have fertilized the trees each spring for 52 years. The water from the farm carrying fertilizer remnants flows into the nearby Salt River. When investigators from the Environmental Protection Agency (EPA) discover the fertilizer in the river and trace the unique brand to Ana, they indict her for violation of the Clean Water Act for the discharge of a substance into a waterway. Ana responds, "I did not know there was fertilizer in the water. I was just letting the water flow out." Which of the following is true of Ana?

Ana can raise the defense that she did not knowingly release fertilizer into the waterway.

Anderson v. McOskar

Anderson joined a fitness club owned by McOskar, experienced pain in neck, trainer said it was muscle soreness, in June 2023, she needed surgery to have her injury fixed. She signed a contract but said it was too vague. She agreed to the terms and conditions Court affirmed lower courts ruling If you are competent and you participate in functions, you cant sue them later. exculpatory clause: holding one party harmless key concept: "intentional, willful conduct" The district court granted respondent's motion for summary judgment on the ground that appellant signed and agreed to a release of respondent's liability for negligence.

Rodrigo hired Anglin Engineering to produce engineering drawings for the work Rodrigo was doing at a brewery. Anglin said it would charge "street" rates for the work, which meant $35 an hour for regular work, $40 an hour for overtime work, and $45 an hour for its time. Rodrigo gave Anglin a purchase order for the work, but no rate was specified. Anglin sent bi-weekly invoices to Rodrigo, and Rodrigo paid the invoices for two months. Rodrigo continued to insist that the work be done but constantly complained about the rates and did not pay invoices for the next four months. Anglin sued for $98,618, the amount it was due for work at the street rate. Rodrigo claimed there was no contract because there was no meeting of the minds about the rate to be paid. Who should prevail in this case? a. Rodrigo, because there was no meeting of the minds as to the rate of compensation for Anglin's work and because there was no contract, but only a purchase order b. Rodrigo, because there was no contract since the rates identified by Anglin were too vague and indefinite to enforce c. Anglin, because there was an agreement in that Rodrigo accepted the rates when he paid the invoices for two months d. Anglin, because there was a purchase order that outlined all of the terms and conditions between Rodrigo and Anglin

Anglin, because there was an agreement in that Rodrigo accepted the rates when he paid the invoices for two months

FTC Control of Performance Claims

Any claims about the abilities or capabilities of a product that a seller makes must be supportable. puffing is not regulated by the FTC

Ariel McClellan was using an underarm aerosol deodorant one morning while she was smoking a cigarette. The deodorant had this warning in large letters on the side of the can: "DO NOT USE AROUND HEAT, FLAME, OR WHILE SMOKING." The deodorant was ignited by the cigarette in her hand, and the flames quickly spread to her silk robe. McClellan was severely burned and will have permanent scarring. Who is liable for her injuries? a. The deodorant manufacturer b. The cigarette manufacturer c. The manufacturer of her silk robe d. Ariel is responsible.

Ariel is responsible.

Arthur Andersen

Arthur Andersen, the accounting firm for Enron, was not charged with any securities or financial reporting crimes but rather with obstruction of justice. The jury's guilty verdict was reversed by the U.S. Supreme Court because the prosecutors were not able to attribute criminal intent to the firm because of the actions of a few employees. (See the Ethical Issues on David Duncan and Andersen in section 8-7b for more information.

Emma and her friends bought fireworks for a big Fourth of July celebration. While setting off some of the fireworks, the wind blew the sparks into a tent setting it on fire. The fire then spread to Emma's house doing $200,000 worth of damage before it could be put out by the fire department. Emma is now suing the maker of the fireworks. What would be the best defense for the fireworks manufacturer? a. Contributory negligence b. Comparative negligence c. Misuse of product d. Assumption of risk

Assumption of risk

Justin saw an ad from Big Buys Electronics stating that it had brand new computers for only $250. When he went to Big Buys to purchase one of the computers, he was told that it only had one of those and that it had already been sold. The salesperson showed him some other computers, and Justin ended up paying $550 for a computer. When Justin got home, he realized he had been conned into buying a more expensive computer. Which unlawful sales tactic was Justin a victim of? a. Puffery b. Bait and switch c. Implied warranty of merchantability d. None; Justin should not have let the salesperson convince him to purchase a different computer.

Bait and switch

Internet Invasion of Privacy and False Light Cyberlaw

Because of social media, there is a hybrid breach of privacy that results from posting of photos without permission but not for commercial purposes. What has been posted publicly is not defamation but involves the posting of a picture with commentary that attributes to the person in the photo qualities, characteristics, or beliefs that result in an unfavorable view of the person in the photo. Because of social media, there is a hybrid breach of privacy that results from posting of photos without permission but not for commercial purposes. For example, many states have what it called false light invasion of privacy. What has been posted publicly is not defamation but involves the posting of a picture with commentary that attributes to the person in the photo qualities, characteristics, or beliefs that result in an unfavorable view of the person in the photo. S.E. v Chmerkovskiy (221 F. Supp. 3d 980 (M.D. Tenn. 2016) is one of the first that dealt with the issue

John is negotiating with Benjamin to buy Benjamin's mountain bike. The following conversation has taken place so far:John: I will buy your mountain bike for $325.00. Benjamin: I couldn't sell it for less than $375.00. John: I'll take it for $375.00. Which of the following statements is true of this scenario? a. Benjamin and John have a contract for the sale of the bike at $375.00. b. Benjamin and John have a contract for the sale of the bike at $325.00. c. Benjamin and John do not have a contract. d. Benjamin and John do not have a contract until the exchange is in writing.

Benjamin and John do not have a contract.

Review: Types of Contracts

Bilateral contract—contract of two promises; one from each party Unilateral contract—contract made up of a promise for performance Express contract—written or verbally agreed-to contract Implied contract—contract that arises from parties' voluntary conduct Quasi contract—theory for enforcing a contract even though there is no formal contract because the parties behaved as if there were a contract Implied-in-fact contract—contract that arises from factual circumstances, professional circumstances, or custom Implied-in-law contract—legally implied contract to prevent unjust enrichment Void contract—contract with illegal subject matter or against public policy Voidable contract—contract that can be avoided legally by one side Unenforceable contract—agreement for which the law affords no remedy Executed contract—contract that has been performed Executory contract—contract not yet performed

Bilateral v unilateral

Bilateral: contracts involving both parties Unilateral: a promise is made by one party

Javier Fields is on the board of directors for Top Flight Aviation, Inc. During a federal investigation, it was found that Top Flight had worked with a supplier of parts to fix prices so that Top Flight got a better deal. Fields, along with the other board members neglected to implement or regulate Top Flight's internal control in order to prevent fraudulent actions like this. Now, the board members are being charged with criminal responsibility. Which of the following is true in the context of this scenario?

Board members can be charged for failing to monitor the company properly

Boudreau v Lussier 901 F.3d 65 (1st Cir. 2018)

Boudreau was an employee at Automated Temperature Controls, Inc. (ATC). His employers suspected that he was viewing child pornography at work and covertly installed screenshot-capturing software on his computer. The resulting screenshots confirmed their suspicions, and they notified local law enforcement. Boudreau was arrested and eventually entered a nolo contendere plea to one count of possession of child pornography. Boudreau then brought suit under the ECPA against various ATC officers and employees as well as several police officers.The district court granted summary judgment in favor of all the defendants on all claims. Boudreau appealed. The decision was affirmed

Quiz Q: Aisha Braxton is the CEO of Meta Financial, Inc. During a federal investigation concerning the company's financial procedures, it was found that Braxton had certified her firm's financial documents as correct and accurate. In the wake of the investigation, Braxton now claims that she does not know anything about the accuracy of the financials and signed them based on the accounting department's assurance of their correctness. What is the likely outcome?

Braxton will face criminal penalties because she certified the statements.

Ralph Deuschle owns an ice sculpture company. Ralph provides ice sculptures for private weddings, parties, and receptions. The event manager at Canasta Resort likes Ralph's work. The manager approaches Ralph and indicates that Canasta would like to have an ongoing supply contract but that its needs would require Ralph to expand his business, both with additional space and three new employees. Ralph enters into a supply contract with Canasta, and the event manager tells a lending officer at the bank where Ralph is getting his construction mortgage for the business expansion that Canasta would be sending all of its business to Ralph. The management at Canasta, however, begins to rethink its events focus and marketing and decides to cut back on ice sculptures. As a result, Ralph cannot use the additional space, and the three new employees need to be laid off. Which of the following statements is correct in the context of this scenario? a. Canasta has no liability to Ralph for the downturn in amount of ice sculptures ordered if it did not guarantee a minimum amount to be purchased. b. Ralph may be entitled to recover liquidated damages from Canasta due to nonperformance of the contract. c. Canasta may be liable to Ralph under a theory of a lack of good faith and owe him compensatory damages. d. Canasta is liable to Ralph, but a court will likely only award him nominal damages.

Canasta may be liable to Ralph under a theory of a lack of good faith and owe him compensatory damages.

Cantu v. Central Education

Cantu submitted a letter of resignation to school district. Approved by superintendent. Letter was mailed to her new address. The school district received a hand delivered letter withdrawing her resignation. School district denied saying they already approved. Cantu said she never received notice about her resignation being accepted mailbox rule: when a letter is sent out in the mail its deposited and accepted in texas trial court ruled w central edu based on mailbox rule court of appeals affirmed this ruling prime example of where someone can say there is a law on this. Contract can supersede what law says.

Jane is negotiating with Carlos to buy his 2009 Honda Accord. The following excerpts from emails have occurred so far:Jane: I would be interested in purchasing your Honda Accord. Carlos: I am thinking of selling my Honda Accord. Jane: I am considering selling my diamond tennis bracelet to buy your Honda Accord. Which of the following statements is true of this scenario? a. Carlos and Jane have a contract. b. Carlos and Jane do not have a contract. c. Carlos and Jane have a conditional agreement based on the sale of his Honda Accord. d. Carlos and Jane have a conditional agreement based on the sale of her tennis bracelet.

Carlos and Jane do not have a contract.

Engler v. Winfrey

Cattle ranchers in Texas sued the The Oprah Winfrey Show and one of its guests for knowingly and falsely depicting American beef as unsafe in the wake of the British panic over "Mad Cow Disease." The matter was removed from state court to federal court. The federal district court granted summary judgment as a matter of law on all claims presented except the business disparagement cause of action, which was eventually rejected by a jury. The court alternately held that no knowingly false statements were made by the appellees. This court affirmed on this latter ground only, finding that the guest's statement and the producers' editing of the show did not violate the Texas False Disparagement of Perishable Food Products Act.

In the context of forms of bankruptcy, which of the following is the section of bankruptcy law for consumer debt adjustment plans? a. Chapter 11 b. Chapter 13 c. Chapter 7 d. Regulation Z

Chapter 13

Chen has a lawn service. Jennifer asks him to come by and mow her lawn while she is out of town. Jennifer pays him when she gets back into town and asks him to mow the grass "whenever it needs it." So Chen has been mowing her lawn every few weeks all summer. She has been paying him the following day. In late August, Chen mowed the grass again, but this time Jennifer refused to pay him stating that they did not have a contract so he should have asked her first. Which of the following statements is true of this scenario? a. Chen and Jennifer had a quasi contract. b. Chen and Jennifer had an unenforceable contract. c. Chen and Jennifer had an executory contract. d. Chen and Jennifer did not have any type of contract.

Chen and Jennifer had a quasi contract.

Chiara Sandren purchased a toaster from Standard Electric. While using the toaster the day after it was purchased, Chiara discovered that the toaster slots were too small for a thick piece of bread. The bread was stuck in the slot. With the toaster still plugged in, Chiara used a knife to pry loose the toast and was electrocuted. Considering that Chiara's family files a suit against Standard Electric, which of the following statements is true? a. Standard will lose because the slots should have been made wider. b. Standard will win because of misuse of the product. c. Chiara's family will win because of a design defect. d. Chiara's family would win if there were no warnings on the toaster about using knives to remove the toast.

Chiara's family would win if there were no warnings on the toaster about using knives to remove the toast.

Jordan worked in a manufacturing facility that required her to start a generator each day by opening a heavy door and pulling several levers. On Monday, Jordan was not wearing the required hardhat, and when she yanked the levers down, the door closed, and she sustained severe head injuries. During the investigation, it was determined that the door was faulty and would not stay open like it should. Jordan sued the company for $1 million, but during the trial, the jury decided that Jordan was 30 percent at fault for not wearing the required hardhat and the company was 70 percent at fault for not keeping the equipment in good condition. What defense to negligence did the company raise to get this ruling?

Comparative negligence

Kristen took her computer to a shop called A1 Computers to have it repaired. She told the technicians at the shop that her computer seemed to have a virus. She asked them to remove any viruses they found and to install a new virus protection software. The next day she returned and paid $250 for the repairs and the program and left. At home, when she tried to turn on the computer, it would not turn on. She took it back to the repair shop, and the technicians stated that they did not know what had happened. They, however, said that they would refund her $250. She filed a lawsuit and demanded that they not only refund her money but also buy her a new computer comparable to the old one. For what type of damages is Kristen asking? a. Compensatory and incidental damages b. Liquidated and consequential damages c. Consequential and compensatory damages d. Incidental and liquidated damages

Compensatory and incidental damages

1990 "white-collar kingpin" law.

Congress enacted a law in response to the 1980s and 1990s savings and loan scandals and the 2000 dot-com and 2008 financial market collapses, the law imposes minimum mandatory sentences (10 years in most instances) for corporate officers who mastermind financial crimes such as bank and securities fraud.

What reforms have occurred and are proposed in product liability?

Consumer Product Safety Commission—federal agency that regulates product safety and has recall power Consumer Product Safety Improvement Act of 2008—expands authority to secondhand sales

Which of the following defenses to negligence refers to negligence by a plaintiff that is part of the cause of an accident? a. Contributory negligence b. Comparative negligence c. Assumption of risk d. Proximate cause

Contributory negligence

Conversion

Conversion-Intentional Tort (theft in civil world) elements: Plaintiff has an ownership right Defendant takes object Damages hold defendants liable regardless of ownership right but you are not intending to do wrong. Your intention is you just want to have it.

Church & Dwight v. Clorox

Corporation v Corporation scenario Church and Dwight Co- baking soda company and also sells kitty litter vs Clorox who uses carbon. Made a commercial that carbon could reduce odors better based on a specialized test. CD argued the test wasn't accurate and they spread false info about baking soda and that they were bringing harm to their business (discouraging them to purchase baking soda and encourage carbon) preliminary injunction: sometimes you have to act immediately. In this case, CD wanted the action to stop now bc of misleading statements. They are very tactical weapons used as a lawyer bc you dont have to win you just have to show there's a likelihood. CD was successful but agreed the lab test was not enough to make that claim. Clorox had to back away from it.

Which of the following helps debtors for a fee and is regulated by the Consumer Financial Protection Bureau? a. Credit repair organization b. Federal register c. Administrative law judge d. Injunction

Credit repair organization

Dakota Style Foods, Inc. v SunOpta Grains and Food, Inc. 329 F. Supp. 3d 794 (D.S.D. 2018)

Dakota Style Foods, Inc. (Dakota Style) filed suit against SunOpta Grains and Food, Inc. (SunOpta) to recover damages for SunOpta's recall of shelled sunflowers kernels. SunOpta voluntarily recalled its roasted sunflower kernel products because of potential Listeria presence found in its product on May 2 through May 31, 2016. The recall ultimately covered one year's products sold to Dakota Style. Dakota Style filed claims for strict product liability, negligence, breach of implied warranties, breach of express warranties, and breach of contract. Dakota Style moved for summary judgment on its claims for breach of express and implied warranties breach of the implied warranty of fitness for a particular purpose claim has three elements: (1) Seller must have reason to know the buyer's particular purpose;(2) Seller must have reason to know that the buyer is relying on the seller's skill or judgment to furnish appropriate goods; and(3) Buyer must, in fact, rely upon the seller's skill or judgment.

Jaylen purchased a new type of leash for his dog that was claimed to adjust to the size of a dog's neck and body. While wearing the new leash, his dog ran after a squirrel and was strangled by the leash before Jaylen could get the leash off the dog's neck. What would be the best type of product liability claim for Jaylen? a. Improper warnings b. Improper instructions c. Errors in manufacturing d. Design defects

Design defects

The most common types of product liability cases are based on the following types of defects:

Design defects Dangers of use due to lack of warnings or unclear use instructions Errors in manufacturing, handling, or packaging of the product

The liability of bar owners for accidents that are caused by patrons who drank at their bars is determined by which of the following? a. Dram shop laws b. Simple standards of negligence c. Landowner liability standards d. Comparative negligence

Dram shop laws

When did financial crimes start to increase

Enron's collapse in 2001

Community Service

Example of shame punishment United States v Allegheny Bottling the court imposed a fine of $1,000,000 on the corporation but also required officers of the corporation to provide community service during the period of the corporate sentence so that nonprofits and community organizations could benefit from the management expertise of executives, expertise that is given free of charge as part of the corporation's penalty.

TF: The United Nations Convention on Contracts for the International Sale of Goods (CISG) is similar to the Restatement (Second) of Contracts.

FALSE

TF: The three-day rescission period does not apply to home equity credit lines because if this three-day rescission right is given to the homeowners, the right of rescission will continue for three years.

FALSE

Which ad content does the FTC not regulate? a. Price claims b. Performance claims c. Accuracy d. Celebrity endorsements e. The FTC regulates all of these content forms.

FTC regulates all of these content forms.

UNITED STATES v. ANTOINE JONES (2012)

Facts: Antoine Jones was arrested for drug possession after police attached a tracker to Jones's Jeep -- without judicial approval -- and used it to follow him for a month. A jury found Jones not guilty on all charges save for conspiracy->jurors hung. District re-filed a single count of conspiracy against Jones and his business partner, Lawrence Maynard. Jones owned the "Levels" nightclub in the District of Columbia. Jones and Maynard were then convicted, but a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled that the Supreme Court specifically stated in a 1983 case regarding the use of a beeper to track a suspect that the decision could not be used to justify 24-hour surveillance without a warrant. Q: Did the warrantless use of a tracking device on Jones's vehicle to monitor its movements on public streets violate Jones' Fourth Amendment rights? The Court affirmed unanimously the judgment of the lower court, and held that the installation of a GPS tracking device on Jones' vehicle, without a warrant, constituted an unlawful search under the Fourth Amendment. The Court rejected the government's argument that there is no reasonable expectation of privacy in a person's movement on public thoroughfares and emphasized that the Fourth Amendment provided some protection for trespass onto personal property. *HAD SEVERAL MISTRIALS: Eventually Jones took a plea bargain for 15 years. Importance: you have constitutional and jurisdictional arguments. Police need search warrants! Also the fifth amendment applies here and sixth amendment (jury, speedy trial) 5-4 split

USA Patriot Act

Federal law that deals with due process rights as well as substantive issues such as money-laundering prohibitions and mandatory disclosures by those involved in financial transactions, including banks, escrow and title companies, and other financial institutions

U.S. v Fokker Services B.V., 79 F. Supp. 3d 160 (D.D.C. 2015)

Fokker was charged with violating U.S. prohibitions on trade with Iran and other countries and an alleged conspiracy to hide the trades from the federal government.

Health Insurance Portability and Accountability Act of 1996 (HIPAA) (42 U.S.C. §§ 1320d-1320d-8).

HIPAA controls how medical information is collected, used, and conveyed. Resulted in the complex paperwork we sign when we receive medical care that discloses our rights to access our records. Made privacy front and center and introduced some new complexity.

Chris Sharton works for Atlantic Electronics in the accounting department. Sharton's daughter has a big project due on Monday, and their home computer is not working. Sharton takes the company computer home to use for the weekend. On Monday, he is met at the doo

He is not guilty of embezzlement because his situation does not meet all the elements of the actus reus of the crime.

Patch v. Hillerich Bradsby

Hillerich & Bradsby Co. While pitching in a baseball game, Brandon Patch was struck in the head by a batted ball that was hit using a Hillerich & Bradsby Company (H&B) aluminum bat. Brandon died from his injuries. Brandon's parents sued H&B in strict products liability for survivorship and wrongful death damages, asserting manufacturing and design defect and failure to warn claims. The district court granted H&B's motion for summary judgment on Patches' manufacturing defect claim but denied summary judgment on their design defect and failure to warn claim. The court granted Patches' motion in limine, excluding H&B's assumption of the risk defense. The jury concluded that the bat was in a defective condition due to failure to warn of the enhanced risks associated with its use and awarded Patches an $850,000 verdict on their failure to warn claim. On review, the Supreme Court affirmed, holding the district court properly (1) denied H&B summary judgment, (2) denied H&B's motion for judgment as a matter of law, (3) granted Patches' motion in limine regarding H&B's assumption of the risk defense, and (4) instructed the jury on failure to warn. ALSO REFERENCES RESTATEMENT 402!

Hunter bought a new Turfmate brand lawn mower from Equipment Depot. While mowing the lawn, the blade stopped moving. Hunter tipped over the mower and gave the blade a push with his hand despite the warning on the mower not to tip over the mower or touch the blades. The mower started back immediately, and Hunter's hand was severely cut. Who will be liable for Hunter's injuries? a. Hunter b. Equipment Depot c. Turfmate d. Both Turfmate and Equipment Depot

Hunter

nucence value

I dont want to admit liability but we are settling for efficiency and moving on throw money at it to make it go away

Which of the following would be an example of an implied warranty of fitness for a particular purpose? a. "These are great hiking shoes." b. "If this is your first time hiking, I recommend these shoes." c. "I have never had a complaint about these hiking shoes." d. "You might want to think about different hiking shoes."

If this is your first time hiking, I recommend these shoes."

Liability for stalking would be covered by which tort?

Intrusion into private affairs

Review: What are the contract theories of product liability?

Implied warranty of merchantability—warranty of average quality, purity, and adequate packaging given in every sale by a merchant Implied warranty of fitness for a particular purpose—warranty given in circumstances in which the buyer relies on the seller's expertise and acts to purchase according to that advice Disclaimer—act of negating warranty coverage Privity—direct contractual relationship between parties

SabreTech Inc.

In 1999, the state of Florida charged SabreTech Inc. with 110 charges of third-degree murder, 110 charges of manslaughter, and one count of illegal transportation of hazardous waste for the deaths of 105 passengers and five crew members that resulted when a ValuJet flight crashed into the Everglades following the explosion of flammable oxygen canisters placed as cargo in the plane

BP 2014 Deepwater Horizon explosion and oil spill

In 2014, BP reached a plea agreement with federal prosecutors for the deaths of 11 people in the Deepwater Horizon explosion and oil spill. BP entered a guilty plea to 11 counts of manslaughter and one count of obstruction of justice and agreed to pay a $4 billion fine and be under a five-year corporate integrity agreement. There were two rig supervisors who were charged with manslaughter in the case for the failure to monitor, but by 2015 all of their charges were dismissed.

Which of the following statements is true of the mailbox rule? a. It applies only when the offer includes a specific method of acceptance. b. It makes an acceptance effective when it arrives at the offeror's electronic or regular mailbox. c. It only applies under the Uniform Commercial Code (UCC). d. It can apply whether the means are stipulated or not under certain circumstances.

It can apply whether the means are stipulated or not under certain circumstances.

Which of the following statements is true of a subprime loan? a. It is now prohibited under the Dodd-Frank Wall Street Reform and Consumer Protection Act (DFCPA). b. It is a loan with higher interest rates and large prepayment penalties. c. It is for borrowers with a FICO (Fair Isaac Co.) score below 720. d. It is for borrowers with a FICO (Fair Isaac Co.) score above 720

It is a loan with higher interest rates and large prepayment penalties.

Which of the following is true of the Credit Card Accountability, Responsibility, and Disclosure (CARD) Act of 2009? a. It restricts credit card solicitation of those under the age of 18. b. It allows college and university partnering with credit card companies. c. It created the Consumer Financial Protection Bureau (CFPB). d. It limits the frequency of companies changing a card holder's interest rate.

It limits the frequency of companies changing a card holder's interest rate.

Which of the following is true of the White-Collar Criminal Penalty Enhancement Act of 2002?

It provided for the specific crime of false financial statement certification, a crime directed at CEOs and CFOs, who are now required to certify the financial statements issued by their companies.

Malice

Its the publication of information with a reckless disregard for whether it is false or true public figure requirement

Jayla purchased a computer from Big Box. Big Box did not disclose to her that the computer was a return item. There was no indication of any price difference between the computer Jayla bought and the unopened computers. Jayla experienced significant difficulties with the computer and returned it to Big Box. Jayla indicated that she would like to have a new computer and that the price is now $150 more. Big Box indicated that it was happy to take the return on the computer and credit Jayla's account but that it has no further liability. Which of the following is correct? a. Big Box's position indicating no further liability is correct. b. Jayla is not entitled to damages since Big Box took back the computer. c. Jayla is entitled to recover the price difference so that she can replace the computer. d. Jayla is entitled to the return but no additional damages.

Jayla is entitled to recover the price difference so that she can replace the computer.

Jerry is negotiating with Tiana for the purchase of her mountain bike. The following conversation has taken place so far:Jerry: I will buy your mountain bike for $375.00. Tiana: I will sell it to you. Jerry: Good. The tire pump is included. Which of the following statements is true of this scenario? a. Jerry and Tiana have a contract for the bike at $375.00. b. Jerry and Tiana do not have a contract for the bike at $375.00. c. Jerry and Tiana have a contract for the bike at $375.00 with the tire pump. d. Jerry and Tiana do not have a contract without the tire pump being included.

Jerry and Tiana have a contract for the bike at $375.00.

What defenses exist in product liability?

Misuse—product liability defense for plaintiff using a product incorrectly Contributory negligence—conduct by plaintiff that contributed to plaintiff's injury; serves as a bar to recovery Comparative negligence—negligent conduct by plaintiff serves as a partial defense by reducing liability by percentage of fault Assumption of risk—defense to negligence available when plaintiff is told of product risk and voluntarily uses the product

Jolivet was convicted of mail fraud and money laundering in connection with an insurance fraud scheme she carried out with her husband. They provided fraudulent documents to insurance companies to extract settlements for auto accidents that never occurred. She appealed the conviction, contending that she was not guilty of money laundering because she never hid the funds that were taken improperly. Was Jolivet correct in her contention?

Jolivet was incorrect because money laundering relates to hiding the truth about the origins of the money.

Kito was called to testify as a witness in a trial in which his supervisor, Martin, is accused of harassing and abusing one of his co-workers. The trial was covered by several media outlets, including local television and newspapers. When Kito took the stand, he lied about having witnessed the abuse. Now, Martin is suing Kito for defamation. Which of the following is true of this scenario

Kito is not guilty of defamation because he is a witness in a trial

Which of the following will result in punitive damage recovery from a manufacturer? a. Any breach of warranty b. Defective design c. Breach of implied warranty of fitness for a particular purpose d. Knowledge of the manufacturer of a defect without issuing recall or warning

Knowledge of the manufacturer of a defect without issuing recall or warning

James Krieg has finished law school but has unsuccessfully taken the bar exam twice. Krieg is running low on patience and cash. He has begun writing wills to see him through this time of crisis and is charging $200 per will. Some of his clients have refused to pay him, and he wishes to take them to a small claims court. Which of the following statements is true in the context of this scenario? a. Krieg could recover the fees on a quasi-contract theory. b. Krieg could recover the fees since the licensing after the bar exam is simply to raise funds. c. Krieg's agreements are voidable. d. Krieg's agreements are void.

Krieg's agreements are void.

Class Notes 10/24: statute of frauds

Law that says certain contracts must be in writing and if not then they are not valid goods and services that exceed an amount real estate contracts sometimes business and employees, not needed but should be used can't sue for fraud until there's been a breach

Economic Pressure on Businesses

Many business crimes are committed because companies apply pressure to managers and employees to produce results. Economic pressure often leads managers to cross ethical and legal lines.

Barnes v. McDonalds

Mcdonalds stamps: Barnes went to mcDs ordered, hashrbowns, got an instant win, filled out forms for redemption. Mailed it in, received a letter that her stamp would not be valid bc it was miscue. She sued for breach of contract Ct determined Mcds was in compliance w the prize promotion act which required written disclosures, terms and rules which she signed. In that it said it wouldn't cut. She appeals, goes back to district court, still affirmed. Unilateral contract example bc we dont know the other side. In this scenario there are terms and conditions It says it won't be honored if mis printed

The elements required for innocent misrepresentation are as follows:

Misstatement of a material fact (or the failure to disclose a material fact) Reliance by the buyer on that material misstatement or omission Resulting damages to the buyer

Three defenses are available to a defendant in a product liability tort:

Misuse or abnormal use of a product Contributory negligence Assumption of risk

Select all of the following that are covered by Dodd-Frank.

Mortgage lenders Insurers Investment firms

Is negligence an intentional tort?

No bc there isn't a conscious or purposeful act. Theres no intent

general limitations on debtor disclosures:

No disclosure of bankruptcies that occurred more than 10 years ago No disclosure of lawsuits concluded more than seven years ago No disclosure of criminal convictions and arrests that were disposed of more than seven years ago

On Monday, Rosa agreed to buy Joey's car for $8,000 when she gets paid on Friday. They have signed a written agreement with the terms that she will pay him $100 per week until the car is paid for. On Thursday, the car is involved in an auto accident and is totaled. Does Rosa have to pay for the car? a. Yes, because they had a written agreement. b. Yes, because she agreed to buy it without any stipulation on the condition. c. No, because the car is totaled and no longer exists. d. No, because Joey was guilty of fraud.

No, because the car is totaled and no longer exists.

Two experienced welders were working inside a barge. Both received training in their respective trade and also received safety training required by the government and the company. The company regularly stressed the importance of safety procedures to prevent accidents. A gas hose leading to the welding torch developed a leak that the workers apparently could not smell because of "nasal fatigue" from having inhaled so much gas. One worker lit a cigarette, igniting the gas and killing both workers. The workers' heirs sued the gas and gas hose producers in strict liability. Was either company liable? a. No, because the employees were negligent. b. No, because only one company can generally be liable in this type of accident. c. Yes, because there was likely a defect in the hose that could have been prevented. d. Yes, because this type of accident does not happen to experienced workers

No, because the employees were negligent.

Element two: Breach of duty

Once the standard of care and the duty are established under element one, there must be a determination that the defendant fell short of that standard or breached that duty for the plaintiff to recover on the basis of negligence.

Charlotte Newsom worked as a cashier at a store. One day she was asked to report to the manager's office where she was accused by two security staff members of stealing $500. She denied stealing the money. The meeting lasted two hours. The security staff asserted to have evidence of theft, although Newsom constantly denied the claim. Whenever Newsom said she wanted to leave, the staff told her she would be arrested for theft if she left. Finally, Newsom wrote a statement denying the charge. She was fired on the spot and left the store. Did she have a case for false imprisonment?

No, because the staff members only threatened to arrest her if she left, and that she was free to leave at any time.

Wyoming police were told that Barekman was selling large quantities of marijuana from his residence. The police went to Barekman's residence and took a bag of trash out of a trashcan in front of the residence. In the trash they found marijuana residue. Obtaining a warrant, they searched the residence and found all kinds of drugs. Barekman was convicted. He appealed, contesting that the taking of his trash was an improper search and seizure that violated his expectation of privacy under the Fourth Amendment. Do you think he had a right to privacy?

No. The court reasoned that the defendant's placement of his trash on the curb in front of his residence was evidence of his intent to relinquish any privacy rights he had in these items.

Review: How are contracts formed?

Offer—preliminary to contract; first step in formation Offeror—person making the offer Offeree—recipient of offer Course of dealing—UCC provision that examines the way parties have behaved in the past to determine present performance standards Revocation—offeror canceling offer Options—offers with considerations; promises to keep offer open Merchant's firm offer—written offer signed by a merchant that states it will be kept open Counteroffer—counterproposal to offer Battle of the forms—UCC description of merchants' tendency to exchange purchase orders, invoices, confirmations, and so on; under Revised UCC, the court determines terms after the fact looking at intent, forms used, and the UCC terms Acceptance—offeree's positive response to offer Mailbox rule—timing rule for acceptance Consideration—something of value exchanged by the parties that distinguishes gifts from contracts Charitable subscriptions—enforceable promises to make gifts Promissory estoppel—reliance element used to enforce otherwise unenforceable contracts

business v non business

One of the major differences between nonbusiness and business crimes is that more people can be convicted of business crimes. For nonbusiness crimes, only those involved in the planning or execution of the crime or assistance after it is committed can be convicted. For business crimes, on the other hand, those in management positions at firms whose employees actually commit criminal acts can be held liable if they authorized the conduct, knew about the conduct but did nothing, or failed to act reasonably in their supervisory positions.

Monitors

One portion of a corporate integrity agreement is generally the assignment of monitors to corporations to follow up on corporate activity. Monitors have offices within the corporation and are permitted to attend meetings, make observations, and provide feedback. The monitors are also there to report back to prosecutors any missteps.

In the Leonard v PepsiCo case, the court held that: a. Pepsi's advertisement with the Harrier jet was a unilateral offer. b. all advertisements are not offers. c. Pepsi's advertisement did not reflect present intent to contract. d. Pepsi owed Leonard a Harrier jet.

Pepsi's advertisement did not reflect present intent to contract.

Privity Issues in Tort Theories of Product Liability

Privity is not the standard for recovery in tort actions. The standard for recovery in tort actions is whether the injury that resulted was foreseeable and foreseeable to that particular party.

In Bose Corporation v Consumers Union of United States, Inc., 466 U.S. 485 (1984),

Product disparagement is defamation of a product. For example, a Consumer Reports evaluation of a product that is not truthful about its qualities or abilities would be product disparagement. the U.S. Supreme Court dealt with whether product disparagement of the Bose speaker system actually occurred when Consumer Reports described individual sounds from the speakers, such as those of violins, as growing to gigantic proportions. The Supreme Court held that even though Consumers Union had not given the Bose speakers a favorable review, it also did not say anything false about them in its negative review. There was, as a result, no disparagemen

Which of the following is a factor in reducing sentences for corporations?

Protecting employees who report violations

Restitution

Restitution made by a company before sentencing reduces penalties and fines. For example, a fine of $1 million to $2 million could be reduced to as low as $50,000 for a company with the following: (1) a code of conduct (2) an ombudsperson (compliance officer) (3) a hotline (4) mandatory training for executives.

The Requirement of a Seller Engaged in a Business

Section 402A requires the seller to be "engaged in the business of selling the product." Covers manufacturers, wholesalers, retailers, food sellers, and even those who sell products out of their homes.

Salma plans to purchase a new Maserati. She will be borrowing the money from her bank. Salma signs the contract at 8:00 p.m. at the dealership, and her bank will not be open until 10:00 a.m. the following day. Which of the following statements is true of this scenario? a. Salma has a contract regardless of whether the bank approves her loan. b. Salma has made a conditional acceptance and has no contract. c. Salma will be excused from her contract if the bank does not approve her loan. d. Salma will have to pay for the car regardless of the loan

Salma will be excused from her contract if the bank does not approve her loan.

Hamburger Hamlets, Inc. is a chain of fast-food restaurants. Its major competitor is Sam's Sandwiches, Inc. Sam's Sandwiches's public relations vice president issues the following statement, "We have documented proof that Hamburger Hamlets uses horse meat in its burgers." The statement was later proved to be false. Which of the following statements is true of this scenario?

Sam's Sandwiches could be liable for defamation.

Dawkins v Fitness International

Specifically, Dawkins alleged that Fitness employees failed to use an automated external defibrillator (AED) on Dollett in a timely fashion after she suffered cardiac arrest while exercising in a Fitness facility, which caused Dollett to suffer permanent and irreversible brain damage.

When must contracts be in writing?

Statute of frauds—state statutes governing the types of contracts that must be in writing to be enforceable Merchants' confirmation memorandum—UCC provision that allows one merchant to bind another based on an oral agreement with one signature Parol evidence—extrinsic evidence that is not admissible to dispute an integrated unambiguous contract

Which act prohibits the unauthorized interception of electronic communications, excluding ongoing communication, such as text messaging, tweeting, and instant messaging?

Stored Communication Act (SCA)

What is required for tort-based recovery on a defective product? What is strict tort liability for products?

Strict liability—standard of liability that requires compensation for an injury regardless of fault or prior knowledge Restatement (Second) § 402A—American Law Institute's standards for imposing strict liability for defective products Negligence—standard of liability that requires compensation for an injury only if the party responsible knew or should have known of its potential to cause such injury Punitive damages—damages beyond compensation for knowledge that conduct was wrongful

Credit Cards for Those under the Age of 21

The CARD Act restricts the solicitation of credit card accounts from those under the age of 21. Credit card companies must have a written application in hand from those under 21 and those applications must carry the signature of a parent changed transfers and interest rates

Consumer Financial Protection Bureau (CFPB).

The Dodd-Frank Wall Street Reform and Consumer Protection Act (DFCPA) (the Wall Street Reform and Consumer Financial Protection Act)(Consumer Financial Protection Act (CFPA) created CFPB Housed within the Federal Reserve and serves the combined roles that the Federal Reserve and the Federal Trade Commission (FTC) played in enforcing consumer credit laws and regulations.

The Federal Bureau of Investigation (FBI) has developed a new technology that enables its agents to listen to conversations in homes from vans parked in the street outside the homes. While listening to conversations in one neighborhood, the FBI uncovers a meth lab. Agents move in and arrest those in the home without a warrant. Which of the following statements is correct?

The FBI is required to have a warrant to listen to the conversations.

Refurbished Inc. sent an offer to The Phone Warehouse. The offer read as follows: "Available for immediate shipment: 1,000 iPhone 4s. Price is $49 each. 30 days, same as cash. All warranties in effect. This offer expires on Tuesday, December 31, 2021." The Phone Warehouse sent the following letter in response on December 30, 2021 via overnight delivery: "Happy to accept your offer on the iPhone 4s. Ship immediately." A huge snowstorm hit the east coast on December 30, 2021, and The Phone Warehouse's letter did not arrive at Refurbished's headquarters until January 3, 2022. By then, Refurbished had sold the iPhones to another company. The Phone Warehouse demanded the 1,000 phones for $49 each, claiming that it had accepted the offer in time. Which of the following statements is true of this scenario? a. The Phone Warehouse is correct; it had valid and timely acceptance and had a contract. b. The Phone Warehouse is incorrect; the acceptance must arrive for it to be effective. c. The Phone Warehouse is incorrect; the offeree assumes the risk of the delivery means chosen. d. The Phone Warehouse is correct, but any damages must be recovered from the overnight shipping company.

The Phone Warehouse is correct; it had valid and timely acceptance and had a contract.

Element Five: Damages

The plaintiff in a negligence case must be able to establish damages that resulted from the defendant's negligence. Such damages could include medical bills, lost wages, and pain and suffering, as well as any property damages.

Following the 2008 collapses and near-collapses of so many investment firms, banks, insurers, and mortgage lenders, Congress passed the Financial Services Reform Act, also known as the Dodd-Frank Wall Street Reform and Consumer Protection Act.

The act creates a Bureau of Consumer Financial Services (CFSB) that can impose civil penalties and also refer cases to the Department of Justice for criminal prosecution for violations of disclosure requirements or misrepresentations related to financial transactions. The act covers brokers, insurers, mortgage lenders, investment firms, banks, and any company that provides consumer financial services, including additional disclosure requirements as well as prohibitions on predatory lending.

Bentley owes a credit-card company $18,000 and has not made a payment in four months. The account has been turned over to a collection agency that has been trying to contact Bentley to collect the money owed. The agency has tried to contact Bentley at work and at his parent's home. The agency has even resorted to calling Bentley in the middle of the night to get in contact. Which of the following is a true statement in the context of this scenario? a. The agency cannot attempt to contact Bentley. b. The agency can only speak to people at Bentley's workplace if the representative specifically states that the call is about the $18,000 debt. c. The agency can use any methods to contact Bentley because he owes the agency a large amount of money. d. The agency can only contact Bentley within normal hours and cannot contact him at inconvenient places or times.

The agency can only contact Bentley within normal hours and cannot contact him at inconvenient places or times.

Dam Adventures operates a helicopter tour business near Lake Mead, Nevada. Lake Mead is the site of Hoover Dam. Dam Adventures has purchased five helicopters over the 214 years it has been in business, and its mechanic has rebuilt the engines on all of the helicopters. In addition, Dam Adventures's mechanic has altered the timing mechanisms on the helicopters so that they are able to hover longer and with less noise, two features that are important for tourists. One of Dam Adventures's helicopters crashes over Lake Mead, killing the pilot and the four passengers on board. Which of the following statements is true of this scenario? a. The alteration of the helicopters is a potential bar to recovery from the manufacturer. b. The manufacturer is always liable for a products liability claim. c. Dam Adventures is jointly liable with the manufacturer for negligence for its alteration to the helicopter. d. Neither Dam Adventures nor the manufacturer is liable because of the assumption of the risk by the tourists.

The alteration of the helicopters is a potential bar to recovery from the manufacturer.

Ann McEachron is an administrative assistant at a large international accounting firm. Her supervisor has asked her to destroy boxes of documents from an audit the firm conducted two years ago. The firm generally keeps records for seven years because of potential tax liability and issues; however, supervisors have destroyed documents earlier for cases that involved excessive and overwhelming paperwork. Ann wonders about the request but complies with her supervisor's order. The company whose audit documents Ann destroyed is currently under criminal investigation, and the partner in the accounting firm who conducted the audit is aware of that investigation. It is a federal crime to destroy documents that are involved in or could potentially be involved in either a civil or criminal investigation. Which of the following statements is correct in the context of this scenario?

The audit partner had intent; however, the fact that the partner did not perform the physical act of destruction does not shield the partner from liability under the criminal statute.

Great Northern Bank makes loans to thousands of individuals and companies. They are under investigation for their handling of several cash transactions of $100,000 or more from a seemingly legitimate business. The federal investigation discovered that the business was a front for an organized crime group selling illegal weapons. Which of the following is true in the context of this scenario?

The bank is responsible for reporting these transactions under the USA Patriot Act.

Which of the following is a requirement to establish the implied warranty of fitness for a particular purpose? a. The goods are of average quality. b. There is a defect in the goods. c. The buyer relies on the seller in making the decision to buy the goods. d. The seller lacks the skill or judgment in use of the goods.

The buyer relies on the seller in making the decision to buy the goods.

Jason Ormand was arrested on suspicion of sexual assault. The arresting officers did not give Jason his Miranda warnings. Jason confesses to the assault. The DNA evidence taken from the victim shows with 99 percent certainty that Jason was the attacker. Which of the following is true?

The case can still proceed with the DNA evidence.

Cyberstudy is an online company offering help to students studying for certain certification exams. The students pay per hour to get online tutoring from an expert in their field of study. Cyberstudy is now under investigation for fraud after it was found that their tutors were not experts but were using stolen copies of the exam to give answers to the student. Which of the following is true in the context of this scenario?

The company can be charged with a cybercrime.

The Hoffmans were having their home remodeled by All-Right Contractors. The roof had to be removed in order to build the second story the Hoffmans had contracted and designed to build. After All-Right had removed the roof, but before a covering was placed over the exposed half of the home, All-Right's foreman said the job would cost an additional $12,500. The Hoffmans refused to agree to the additional fee, and All-Right's foreman said, "Suit yourselves. Looks like it's going to rain for the next day or two" and left. The Hoffmans called All-Right and agreed to pay the $12,500 extra and went in to sign the paperwork. Which of the following statements is true of this scenario? a. The contract for the additional $12,500 is valid and binding. b. The contract for the additional $12,500 is invalid because of duress. c. The contract was not valid because of duress, but the Hoffmans signed anyway—so there is a valid and enforceable agreement. d. The contract is valid because there was substantial performance.

The contract for the additional $12,500 is valid and binding.

Rosa, a minor, purchased a new car from Sheehan Buick for $5,000. Rosa later, while still a minor, elected to disaffirm the purchase and notified Sheehan of her decision. She also requested a full refund of the purchase price. Sheehan refused, and Rosa brought an action to invalidate the contract and seek a refund of the purchase price. What will be the likely result? a. The contract is valid and enforceable as to Rosa, and she must continue to pay for the vehicle. b. The contract is valid and enforceable as to Rosa, as she ratified the contract when she took possession of the vehicle. c. The contract is void because it is between an auto dealership and a minor. d. The contract is voidable at the option of Rosa because she is a minor.

The contract is voidable at the option of Rosa because she is a minor.

Jerry Costello, a politician, met with the editorial board of a newspaper and stated that he would not raise taxes if elected. The local newspaper supported Costello and published an editorial stating that Costello would not raise taxes. Costello won the election. At his first board meeting, Costello moved to raise taxes. That prompted the following editorial from a citizen: "Costello blew his first chance. Jerry Costello lied to us. There's no nicer way to put it; he simply lied. And when he lied to us, he lied to you... Some leader! You couldn't tell him from any other politician in the bunch. He did absolutely nothing to protect your interests. To say we're disappointed is too mild; we're irate... Jerry Costello asked for a chance to prove himself and, in his very first meeting, he blew it. Just think, we've got two more years of the Costello brand of lying leadership. Doesn't that thrill you?" At trial, the defendant testified that he believed he had been lied to. If Costello sued the newspaper, what would be the likely result?

The court would find for the defendant because the statements were not made with actual malice.

The Morrisons plan to purchase their first home in a new town. They do not know much about the area, so they ask the real estate agent to show them homes in a quiet neighborhood. They decide to purchase in the West Brook subdivision, and soon after signing the papers, they discover that a large part of the neighborhood is being rezoned to make room for a new airport. When questioned, the realtor admitted knowing about the rezoning but that it would probably be years before the project started, so the realtor was not obligated to tell them about it. Which of the following is true? a. The realtor was not obligated to tell the Morrisons about the rezoning. b. The realtor is guilty of misrepresentation. c. The realtor is guilty of fraud. d. The realtor is guilty of duress.

The realtor is guilty of misrepresentation.

Negligence: A Second Tort for Product Liability

The elements for establishing a negligence case are the same as those for a Section 402A case with one addition: establishing that the product seller or manufacturer either knew of the defect before the product was sold or allowed sales to continue with the knowledge that the product had a defect.

Which of the following would require a warrant?

The identity of anonymous posters in chat rooms

Hyland v Raytheon Technical Services Co. 670 S.E.2d 746 (Va. 2009)

The jury returned a verdict in favor of Hyland, and the circuit court later entered final judgment awarding Hyland $1,850,000, which included $350,000 in punitive damages. The Virginia Supreme Court reversed the decision because of errors in the jury instructions and the resulting possible failure by the jury to distinguish statements of fact from statements of opinion. On remand for retrial with proper jury instructions, the court granted Raytheon a summary judgment. Hyland appealed again.

Obstruction of Justice

The new obstruction section makes it a felony for anyone, including company employees, auditors, attorneys, and consultants, to: 1)alter 2)destroy 3)mutilate 4)conceal 5)cover up 6)falsify 7)make a false entry with the "intent to impede, obstruct 8)influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States.

Terms of Intent

The offer must contain certain and definite language and cover all the terms necessary for a valid contract, which include the following: Parties Subject matter of the contract Price Payment terms Delivery terms Performance times

What should go into a contract?

The parties involved Term of contract (how long does it last) Consideration (whats at issue) What are the services and products at issue. Who is responsible for what What happens if there's a breach Send an official notice Appropriate venue (for lawsuits)(provides courts exclusive jurisdiction) Jointly Drafted Signature

"ninja lending"

The period leading up to the real-estate market crash and economic downturn has been called a period of "ninja lending" or making loans to borrowers with "no jobs, no income, no assets.

Mrs. Glover went into a local pharmacy with her three-year-old daughter Abby to pick up a prescription medication for cough syrup. The pharmacist could not get the child-proof cap closed but handed the bottle to Mrs. Glover anyway. While driving home, Abby grabbed the bottle and put it in her mouth, drinking a small amount of the prescription medication before her mother could take it away from her. Abby was taken to the hospital to receive treatment. Mrs. Glover sued the pharmacy for the faulty cap. Which of the following is true of this scenario?

The pharmacist is guilty of negligence.

what is a huge protection for a seller?

The requirement that a product reach the buyer without "substantial change" is a protection for the seller. A seller will not be liable for a product that has been modified or changed. once a product is modified or changed, it becomes unclear whether the original product or the modifications caused the unreasonably dangerous condition

Woeste ate raw oysters at a restaurant and died a week later from the bacteria Vibrio vulnificus. The bacteria naturally occur in oysters from warm water. Vibrio has no effect on most people but can be fatal to people with a weak immune system—as Woeste had due to Hepatitis C and cirrhosis of the liver. The restaurant menu warned of the danger of eating raw oysters, especially for persons with "chronic illness of the liver." Woeste ordered without reading the menu warning. His estate sued the restaurant and the Texas company that harvested the oysters for negligence and strict liability. What is the likely outcome? a. The restaurant is liable under strict liability for selling a dangerous product. b. The restaurant is liable for failure to warn of every possible risk. c. The restaurant breached its implied warranty of merchantability by serving a dangerous product. d. The restaurant is not liable to the estate of Woeste.

The restaurant is not liable to the estate of Woeste

Which of the following describes Section 2-207 of the Uniform Commercial Code (UCC)? a. The mailbox rule b. The section on electronic communications c. The section on additional terms in acceptance d. The mirror image rule

The section on additional terms in acceptance

Catarina and Delores left after their fall semester finals for a four-day skiing trip in northern Arizona. During their return drive, they encountered a severe snowstorm and were having difficulty with directions. They took a wrong turn onto a road that remains closed during the winter months and that was not plowed. The winter barricades for the road were not yet in place. Catarina and Delores were soon stuck in the snow. They remained in their vehicle for 11 days until they were rescued by snowmobilers. Both had severe frostbite. Catarina lost both feet. Delores lost all of her toes. Both filed suit against the state of Arizona for its failure to put up barricades in a timely fashion. Which of the following statements is true of this scenario?

The state of Arizona should be held only partially liable because of the negligence of the women.

The Defenses to Defamation

Truth Opinion and Analysis Privileged Speech

Hacking crimes

There are laws at both the state and federal levels that prohibit the unauthorized access of computers and computer files. Unauthorized computer access is a crime in all states and at the federal level.

Mr. Anderson sold his car to his daughter Amanda for $1,000 even though the car is valued at $20,000. The next day, her brother Richard claimed the car belonged to him. Richard claimed that their dad had promised to give him the car the previous year. Which of the following statements is true of this scenario? a. Because the car was worth more than the sale price, there is no consideration. b. There is valid consideration despite the price. c. Even though there is minimal consideration, the sale does not constitute a valid contract. d. The car belongs to Richard because it was promised to him first.

There is valid consideration despite the price.

Dakota and Lucia have been life-long friends. When Dakota decided to move, Lucia made her an offer of $350,000 for Dakota's house, and Dakota accepted the offer with a handshake. A few days later, Dakota was killed in a car accident, and her brother informed Lucia that Dakota had left him as the sole beneficiary and he would be selling the house for $500,000 if she still wanted to buy it. Which of the following statements is true of this scenario? a. The house belongs to Lucia because she and Dakota had a valid contract. b. Lucia can still purchase the house for the original $350,000. c. Dakota's brother has to sell the house to Lucia for $350,000. d. There was no valid contract between Lucia and Dakota, so Lucia will have to pay the new price

There was no valid contract between Lucia and Dakota, so Lucia will have to pay the new price.

Fair Debt Collections Practices Act (FDCPA)

an act that regulates the conduct of third-party bill collectors and attorneys; enacted to control abuses in the collection process applies to consumer debts and debt collectors

In Thomas v Staples, Inc., what was the issue? a. Whether there was a design defect in the shredder b. Whether Thomas was contributorily negligent in how she allowed her daughter near the shredder c. Whether misuse was a cause of the accident d. These were all issues in the case.

These were all issues in the case.

Tanner moved from Cleveland to New Orleans. He drove a rental truck with his belongings, but he needed to get his car to New Orleans too. He told his friend Han, "If you drive my car to New Orleans this weekend, I will pay you $200." Han then drove the car to New Orleans, but Tanner refused to pay and claimed they do not have a contract. Which of the following statements is true of this scenario? a. They do not have a contract. b. They have a bilateral contract. c. They have a unilateral contract. d. They have an executory contract.

They have a unilateral contract.

Which of the following statements exemplifies the concept of puffing? a. "This is simply the best flashlight you will ever own." b. "You will never need to buy another mower for as long as you own your current house." c. "This toothpaste will prevent cavities." d. "Lose five pounds your first week on this diet or you get your money back."

This is simply the best flashlight you will ever own.

Which of the following statements qualifies as an express warranty? a. "This tire cannot be punctured." b. "This air conditioning unit could be the future of air conditioning." c. "This is a durable watch." d. "This taser is effective against assailants.

This tire cannot be punctured."

2) Public Disclosure of Private Facts

This tort occurs when a company makes information about an employee public. The information may be true, but the tort is the invasion of another's privacy by disclosing facts the public has no reason to know.

The intentional tort of invasion of privacy is actually three different torts: 1)Intrusion into the Plaintiff's Private Affairs

This tort results in liability when photographers or others stalk individuals, such as in Galella v Onassis, 353 F. Supp. 196 (S.D.N.Y. 1972). In the case, the late Mrs. Jacqueline Kennedy Onassis brought suit against Ron Galella, a photojournalist, for invasion of her privacy. As a result of the case, Mr. Galella was ordered to remain at least 50 yards from Mrs. Onassis and 100 yards from her children.

Imani is going to work as a lifeguard at the Big River Water Park. As a part of her new hire package, she was asked to sign several documents, one of which stated that the water park would not be held responsible for any injuries that happened to her during the course of her work. Which of the following is true? a. This type of clause would not be enforced by the courts. b. This clause is legal and used to protect companies. c. This is a violation of usury laws. d. This is a violation of the covenants clause.

This type of clause would not be enforced by the courts.

People v Matthews Happy Pizza Joint

Timothy Courdre Matthews broke a glass door and an employees car window who messed up his pizza order. He used a golf club. Had to determine guidance of whether the weapon was considered a dangerous weapon. Jury has to infer what a dangerous weapon is. Assault: felt like you were gonna get hit Battery: Actually hitting actus rea and mens rea act interchangeably. *people can be banned from private businesses* Defendant was sentenced to six months in jail and a 24-month period of probation. On appeal, the Court affirmed.

Celebrities must disclose any financial interests in a product as part of their endorsement if it is not obvious to consumers. a. True b. False

True

TF: Federal regulations prohibit the unsolicited distribution of credit cards to persons who have not applied for them.

True

UCC Statute of Frauds

Under the UCC, a separate statute of frauds applies to contracts covering the sale of goods. Contracts for the sale of goods costing $500 or more must be evidenced by a record to be enforceable.

UCC and counteroffer

Under the UCC, modification by offerees was seen as a necessary part of doing business, and § 2-207 allows flexibility for such modifications. Under § 2-207, two separate rules apply for modifications: one governs merchants, and the other governs nonmerchant transactions.

U.S. v Ebbers, 549 U.S. 1274 (2007)

Under the criminal portions of SOX, executives cannot isolate themselves from information that the financial reports were inaccurate by not attending meetings or not reading the reports that are disclosed to the public.

Class Notes 3 main types of tort

Unintentional (negligence) Intentional Strict liability (the legislature says this activity is dangerous and no matter what your responsible for it)

Racketeer Influenced and Corrupt Organizations Act

United States federal law that provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization.

Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act

an act under which private companies can bring suit against spammers for their unauthorized use of Internet Service Providers (ISPs)

liquidated damages

an agreement clause in a contract that pre-establishes and limits the damages

accord and satisfaction

an agreement entered into as settlement of a disputed debt

Valley Technology, Inc. runs a 24-hour manufacturing facility that consists of a manufacturing floor, office space, and a kitchen where employees can store and prepare food during their shifts. When Morgan tries to cut some fruit to eat during a lunch break, she accidentally cuts her hand with the knife. The cut is deep and results in a trip to the emergency room for stitches. Which of the following is true of the scenario?

Valley Technology should claim assumption of risk.

unenforceable contract

an agreement for which the law affords no remedy

void contract

an agreement to do something that is illegal or against public policy; a contract that the courts will not honor, and neither party is obligated to perform under that agreement

void contract

an agreement to do something that is illegal or against public policy;?a contract that the courts will not honor, and neither party is obligated to perform under that agreement

When can the FTC propose corrective advertising as a remedy to a seller who has made a claim about a product? a. When a competitor complains b. When a consumer complains c. When the claim made cannot be substantiated d. When a competitor has made a better claim

When the claim made cannot be substantiated

when is a search warrant not required?

When the evidence is in plain view

Which of the following is not a test for determining liability for injury a consumer experiences while eating? a. Foreign-natural test b. Reasonable expectation test c. Whether the consumer was negligent in eating the food d. Both reasonable expectation test and whether the consumer was negligent in eating the food

Whether the consumer was negligent in eating the food

Sutton v. Eastern NY Soccer

While attending a soccer tournament in which his son was a participant, plaintiff D. James Sutton (hereinafter plaintiff) was struck by a soccer ball kicked by a 16-year-old boy practicing on one of the soccer fields between games. Thereafter, plaintiff and his wife, derivatively, commenced this personal injury action against organizations and teams sponsoring and/or participating in the tournament, as well as the boy who kicked the ball, seeking to recover damages for injuries he sustained to his knee as a result of the accident. Supreme Court granted summary judgment to all defendants, finding that plaintiff had assumed the risk of being struck by a soccer ball, and dismissed the complaint. On plaintiffs' appeal, we affirm.

FTC Control of Product Comparisons

While the FTC permits and even welcomes comparisons of products, the comparisons must be accurate. Survey results must be supported, and product preference tests must be done fairly.

What crime carries the longest sentence

White Collar Crime

TF: Employees who help their employers establish fraudulent tax shelters for customers cannot be held liable along with the company and its officers.

false

novation

an agreement to release one party to a contract in exchange for the substitution of a new party (for example, when a party under contract to deliver ice is released from the contract as the buyer for the ice agrees to a substitute company)

covenants not to compete

a clause under which the employee agrees that he or she will not enter a trade in competition against the employer

Fifth Amendment

an amendment to the U.S. Constitution that provides protection against self-accusation; it also guarantees that an accused individual has the right to be heard

TF: In the context of forms of bankruptcy, Chapter 7 bankruptcies are limited to businesses.

false

1988 reforming added

a 28-word addition to the federal mail and wire fraud statutes that provided, "For the purposes of this chapter, the term, scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest services."

The RICO Act (18 U.S.C. §§ 1961-1968)

a complex federal statute, was passed with the intent of curbing organized crime activity. For RICO to apply, a "pattern of racketeering activity" must be established. That pattern is defined as the commission of at least two racketeering acts within a 10-year period. Racketeering acts are defined under the federal statute to include: murder kidnapping gambling arson robbery bribery extortion dealing in pornography or narcotics counterfeiting embezzlement of pension union welfare funds mail fraud wire fraud obstruction of justice or criminal investigation interstate transportation of stolen goods white slavery fraud in the sale of securities

The American Rule

a concept that says unless the statute gives you the right to get attorney fees, you do not get them unless there is something that also gives you the right.

bilateral contract

a contract in which both parties make promises to perform

unilateral contract

a contract in which one party issues a promise and the other party simply performs

Conditions concurrent

a contract scenario where one party performs as the other party does

implied-in-fact contract

a contract that arises from factual circumstances, professional circumstances, or custom

implied contract

a contract that arises from the parties' voluntary conduct and not from express agreements

executed contracts

a contract where the parties have performed according to their promises or required actions

express warranty

a contractual promise about the nature or the potential of the product that gives the right of recovery if the product falls short of a promise that was a basis of the bargain A seller makes a warranty by displaying a sample or model or giving a description of the goods. Opinions, however, are not considered a basis for transactions and are therefore not express warranties.

United Nations Convention on Contracts for the International Sale of Goods (CISG)

a convention that is designed to provide international contracts the convenience and uniformity that the Uniform Commercial Code provides for contracts across state lines in the United States Party autonomy is a priority

In In re Caremark International, Inc., 698 A.2d 959 (Del. Ch. 1996)

a court concluded that corporate boards could be held liable for their failure to institute and monitor adequate internal controls to prevent fraud in the company.

Chapter 8: white-collar crime

a crime committed by a person in a high position of authority (such as business and government professionals) during their tenure

Interbusiness crime

a crime committed by a person in a high position of authority (such as business and government professionals) during their tenure

privileged speech: absolute privilege

a defense to defamation, enjoyed in certain contexts or venues

shopkeeper's privilege

a defense to torts of defamation, invasion of privacy, and false imprisonment for merchants; shopkeepers can detain a suspected shoplifter for a reasonable period of time on the basis of suspected wrongdoing until the matter or incident is investigated

privity

a direct contractual relationship between parties

conscious avoidance

a doctrine under which executives cannot "consciously try to avoid knowledge" about the actions and activities of those within the company

information

a document issued after a preliminary hearing that concludes there is sufficient evidence to charge a crime and/or require a defendant to stand trial

indictment

a document issued by the grand jury requiring the defendant to stand trial

discovery

a fact-finding pre-trial procedure in which the parties obtain evidence from each other using legal methods

Federal Trade Commission (FTC)

a federal agency responsible for regulating deceptive advertisements

Electronic Communications Privacy Act of 1986 (ECPA)

a federal law that prohibits the unauthorized access of "live" communications such as when someone uses a listening device to intercept a telephone conversation

warrant

a judicial document authorizing detention of an individual for criminal charges and for searches when there is an expectation of privacy

search warrant

a judicially issued order to examine home, business, and papers in areas in which there is an expectation of privacy

Truth in Lending Act (TILA)

a law that provides the requirements for disclosures in credit contracts and consumer rights when full disclosure is not made

implied-in-law contract

a legally implied contract to prevent unjust enrichment; it is also known as a quasi-contract

counteroffers

a modification or rejection of a portion of the original offer, resulting in a new counterproposal The effect of a counteroffer is that the original offer is no longer valid, and the offeree now becomes the offeror as the counteroffer becomes the new offer. Consider the following dialogue as an example:

comparative negligence

a negligence defense that assigns liability and damages in accidents on a percentage basis; it calculates the contribution of both the defendant and the plaintiff toward the accident, thus reducing a plaintiff's recovery by the amount of negligence contributed to the cause of the accident

merchant's firm offer

a written offer signed by a merchant that makes an offer irrevocable, even without the offeree's payment If these requirements are met, the merchant must hold the offer open for a definite time period (but no longer than three months). A merchant is someone who is in the business of selling the goods that are the subject matter of the contract or who holds particular skills or expertise in dealing with the goods

TF: An option can be revoked any time prior to acceptance.

false

cook v downing

a patient, sued Appellant in small claims court because of mouth trouble she had on account of the dentures Appellee alleged the condition was the result of ill-fitting dentures. Appellant testified that the condition was generalized and not consistent with localized sore spots which would result from ill-fitting dentures. Appellant referred Appellee to oral surgeons. The dental specialists' evidence showed that they believed the condition was due to either candidas, an autoimmune reaction or an allergy to the dental material. Although none of the dental evidence pinpointed the source of the problem, it consistently ruled out ill-fitting dentures. After trial, the court entered judgment in favor of Appellee, setting forth that damages were awarded pursuant to Article 2 of the Oklahoma Uniform Commercial Code, (UCC), 12A O.S. 1991 §§ 2-104, 2-105 and 2315. "Implied Warranty of Fitness for a Particular Purpose" ****plantiff sued under the UCC bc the dentist is selling a good (dentures) Ct said no dentist is not in business of selling dentures In dissent: justice said it was hybrid.

substantial performance

a performance that, for practical purposes, is accepted to be nearly equivalent to performance required under the contract terms

Element One: ordinary and reasonably prudent person

a person exercising a level of care that most others, when faced with the same circumstances, would also do

minors

a person who has not attained the age of contractual capacity (18 in most states) infants: a person who is a minor (below the age of 18)

letter of credit

a pledge by a bank promising the availability of funds for a transaction

appropriation

a privacy tort that involves the use of a person's likeness, image, voice, or trademark for commercial gain, without the permission of that person

Intentional torts

a private wrong that involves deliberate actions that results in injury to a person or a property

preliminary hearing

a proceeding that requires the prosecution to establish that there is sufficient evidence to bind defendant over for trial

misuse

a product liability defense that exists when the product was used in a manner that the manufacturer has specifically warned against; or in a way the defendant could not anticipate and warn against

Fourth Amendment

a provision in the Bill of Rights of the U.S. Constitution that protects against invasions of privacy; it forms the basis for requiring warrants for searches of private property

Consumer Product Safety Commission (CPSC)

a regulatory agency set up under the Consumer Product Safety Act to regulate safety standards for consumer products 1)protect the public against unreasonable risks of injury from consumer products—gives the authority to recall products and order their repair or correction. The commission also has the power to ban products completely. 2)develop standards for consumer product safety— 3)fund research in matters of product safety design and in product-caused injuries and illnesses. The act carries civil penalties of up to a maximum of $100,000 per violation and up to $15,000,000 for ongoing violations. Knowing or willful violations carry a criminal fine of up to $100,000 and/or one year's imprisonment, and willful repeat violations carry penalties of up to $500,000 and 5 years. In addition, consumers have a right to sue in federal district court for any damages they sustain because of a violation of a regulation or law.

stipulated means

a required means of acceptance given by offerors

bait and switch

a sales tactic that advertises a cheaper product than the one in stock (used as "bait") to get customers into a store and then present them with a "better," more expensive product (a switch)

Impossibility

a scenario where the contract cannot be performed by the parties or anyone else

grand jury

a secret panel of citizens who serve for a designated period of time (usually six months) and act as the body responsible for the review of evidence of crimes; it determines whether charges should be brought and whether the defendant should be held for trial

Chapter 11: Contracts and Sales Contract

a set of agreements between parties that enforces duties and responsibilities, the breach of which require remedies or compensation

Common law

a set of laws developed historically and by judicial precedent

express contract

a spoken or written agreement that specifies the terms and limitations of an employee or an agent's authority

disclaimers

a statement that restricts the scope of a warranty or a promise

quasi contract

a theory for enforcing a contract, even though there is no formal contract, because the parties behaved as if there were a contract The theory of quasi contracts is not used to help "the officious meddler." The officious meddler is someone who performs unrequested work or services and then, based on a quasi contract theory, seeks recovery.

Chapter 13: Product Advertising and Liability caveat emptor

a theory that sellers are not liable for defects in their products; it is the buyer's responsibility to be on the alert for defects and take appropriate precautions Restatement (Second) of Torts adopted strict tort liability-> per se standard of liability for defective products.

contract interference or tortious interference with contracts

a tort where parties are not allowed the freedom to contract without interference from third parties someone intentionally persuades another to break a contract already in existence often a theory used when employees leave their jobs to start a company of their own that competes with their former employer.

assignment

a type of contract rights for third parties not part of the original contract, but are brought in at a later stage

Chapter 9: Business Torts Tort

a wrongful act that imposes legal liability Tort law is not a statutory law; it consists of the principles developed in the civil suits filed for wrongs and resulting injury

TF: Puffing is a defense to contract formation.

false

Consumer Product Safety Improvement Act (CPSIA)

an act that expands CPSC's authority to cover secondhand sales

Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA)

an act that imposed stricter standards for filing for bankruptcy

Consumer Financial Protection Act (CFPA)

an act that increases the disclosure requirements and grants the Consumer Financial Protection Bureau (CFPB) broad authority to enforce extensive new regulation on mortgage and equity loans

Select all of the following that are requirements for an implied warranty of fitness for a particular purpose. a. The seller has skill or judgment in use of the goods. b. The buyer is relying on that skill or judgment. c. The seller did not have any reason to know of the buyer's reliance. d. The seller makes a recommendation for the buyer's use and purpose.

a. The seller has skill or judgment in use of the goods. b. The buyer is relying on that skill or judgment. d. The seller makes a recommendation for the buyer's use and purpose.

crime

act or an omission that violates the law and results in punishment

The name for the conduct required to commit a crime is:

actus rea

corrective advertising

ads required by a court or agency for sellers that are necessary to correct the unsubstantiated claims made in the previous advertisements

Under the Equal Credit Opportunity Act (ECOA), it is unlawful to discriminate against an applicant for credit on the basis of: a. income. b. length of employment. c. felony conviction. d. age.

age

Under federal law, three-day rescission periods apply to: a. all consumer credit contracts. b. all credit contracts in which the creditor takes a security interest in the debtor's home. c. all mortgage and home equity credit lines only. d. all first mortgages only.

all credit contracts in which the creditor takes a security interest in the debtor's home

Strict liability

an absolute liability for engaging in dangerous activities with risky consequences, regardless of the precautions taken; a standard of liability that requires compensation for an injury regardless of fault or prior knowledge

strict liability

an absolute liability for engaging in dangerous activities with risky consequences, regardless of the precautions taken; a standard of liability that requires compensation for an injury regardless of fault or prior knowledge

Wheeler-Lea Act of 1938

an act passed by Congress that clarified and expanded the FTC's power by authorizing it to regulate "unfair and deceptive acts or practices" whenever the public is being deceived, regardless of any effects on the competition

Federal Trade Commission Act

an act passed in 1914 that authorized the Federal Trade Commission (FTC) to prevent unfair and deceptive trade practices

Home Ownership and Equity Protection Act (HOEPA)

an act that covers disclosure requirements on payment amounts for home equity loans and cancellation rights

Home Equity Loan Consumer Protection Act

an act that covers the disclosure and advertisement requirements for home equity loans

Fair Credit Reporting Act (FCRA)

an act that covers the rights of debtors with respect to reports of their credit histories held by third parties The FCRA applies to consumer reporting agencies

Fair Credit Billing Act

an act that covers timing and content requirements for credit card bills; it affords debtors the opportunity to challenge the figures on credit card monthly statements

A local liquor store posts the checks of customers that are returned from the bank. The store manager says the public display of the checks is a good way to deter other bad-check writers. The display of the checks is:

an invasion of privacy.

"I am interested in retiring and looking for a franchise to start a business" is an example of: a. an offer. b. an invitation for an offer. c. an inquiry. d. an acceptance.

an invitation for an offer.

puffing

an opinion about the subject matter of a contract

Defamation

an untrue or damaging statement made by one party to another about a third party; includes both slander and libel slander: oral or spoken defamation made to another libel: a written defamation published by oral or written communication that impeaches the honesty, integrity, professionalism, or virtue of another

Jin, an actor, has filed suit against an online tabloid for using a photo of him on its website. The basis for Jin's complaint is:

appropriation

The proceeding at which the defendant enters a plea of guilty, not guilty, or no contest (nolo contendere) is:

arraignment

Which of the following is used to protect payment rights in international transactions? a. CISG provisions b. Party autonomy c. A bill of lading d. Parol evidence

bill of lading

intentional infliction of emotional distress (IIED)

bizarre and outrageous conduct that goes beyond all bounds of decency, and inflicts mental and possible physical harm on another

The sellers of "Acne-Statin," a skin cream, claim in ads that their cream "cures acne." The American Association of Dermatologists has determined that there is no cure for acne but only creams that can curb breakouts. The ad claims: a. are simply puffery. b. breach an express warranty. c. do not violate any FTC rules. d. would fall under contributory negligence.

breach an express warranty.

Pestro is the manufacturer of a weed killer that is used in public parks in Metroville. After the parks were sprayed with the weed killer, a group of children became ill and required hospitalization. Two dogs that had been with the group died. The parents of the children and the dog owners could: a. bring suit against Pestro under 402A even though there is no privity. b. not bring suit against Pestro because of lack of privity. c. bring suit against Pestro but not against the city. d. could only bring suit for the dogs that died.

bring suit against Pestro under 402A even though there is no privity.

Sierra decided to paint her house. She gave the salesclerk at DYI Warehouse a swatch labeled "sunshine yellow" and asked the salesclerk to mix the paint using the Hitone brand of paint. When she arrived home and opened the cans, the paint was a greenish-blue color that she did not like. She took the cans back to the store and asked for her money back. The salesclerk refused but said that he could re-mix the paint and that she could buy five more cans. Which of the following is true of this scenario? a. Hitone brand of paint is in violation of the implied warranty of merchantability. b. Sierra is in violation of the warranty of disclaimers. c. DYI Warehouse is in violation of the implied warranty of fitness for a particular use. d. There is no warranty violation in this case.

c. DYI Warehouse is in violation of the implied warranty of fitness for a particular use.

Under the Fair Credit Billing Act, debtors: a. can collect damages if they comply with all the act's procedural requirements. b. are required to pay creditors the questioned amount or any finance charges on that amount. c. can be harassed, oppressed, or abused by collectors. d. are prohibited from engaging in postcard contact as stated in the act.

can collect damages if they comply with all the act's procedural requirements.

In the context of defenses in contract formation, the term "_____" refers to mental and age thresholds for valid contracts. a. puffing b. duress c. scienter d. capacity

capacity

Which of the following debt is discharged in bankruptcy? a. Child support b. Student loan c. Alimony d. Car loan

car loan

Invitees

category for persons using the land of another that includes those who are there at the express or implied invitation of the landowner (e.g., customers in stores)

Licensees

category of individual on the land of another that determines level of duty and liability of the landowner; generally consists of those who have an implied invitation such as meter readers and first responders

trespassers

category of person on the land of another who has no right or permission to be on the land; landowner's only duty is to not intentionally injure the trespasser

exculpatory clauses

clause to hold oneself harmless for one's own conduct

When courts allocate a percentage of fault when assessing damages, they are applying which of the following? a. Dram shop acts b. Comparative negligence c. Contributory negligence d. Assumption of risk

comparative negligence

"Performance is contingent upon buyer qualifying for financing" is an example of a: a. condition precedent. b. condition contemporaneous. c. condition concurrent. d. conditional acceptance.

condition precedent

A substitute for establishing criminal intent in corporate officers who claim no knowledge of a financial crime is:

conscious avoidance.

Jane Mitchell, age 16, is shopping at her neighborhood Osco Drug Store. She is looking at magazines as she waits for a friend. She decides to purchase a magazine and then waits for her friend outside the store. She pays for the magazine and as she is heading for the door, the store manager uses the store's loudspeaker system to announce, "You, with the green hair and the maroon Doc Marten's on. Yes, you, by the front of the store. I saw you take that magazine. Stop right there, you thief." The manager's statement:

constitutes slander.

Quiz Qs: Which of the following is a situation, term, or event that makes an otherwise valid agreement invalid? a. indictment b. vicarious liability c. contract defense d. arraignment

contract defense

Which of the following contracts must be evidenced by a record? a. A contract for the sale of an easement for $350 b. A contract that is oral but that has been verified by a merchant to another merchant c. A contract for the sale of a cell phone for $250 d. A contract for consulting that runs from April 1, 2021, through December 12, 2021

contract for the sale of an easement for $350

voidable contract

contract in which one party can choose not to honor (rejects) the contract

voidable contract (2)

contract in which one party can choose not to honor (rejects) the contract

Statute of frauds applies to: a. contracts that exist just on the basis of an oral promise. b. all express contracts. c. contracts for paying the debt of another. d. contracts for the sale of properties.

contracts for paying the debt of another

bargained-for exchange

contractual formation requirement of value exchanged by the offeror and offeree that distinguishes gifts from contracts

Contributory negligence v Comparative negligence

contributory: plaintiff or another defendant, someone else contributed negligence comparative: who was more at fault (helps reduce the damages)

computer crime

crimes committed while using computer technology

Which of the following is not a type of tort liability? Intentional tort b. Negligence c. Strict tort liability d. Criminal tort

criminal tort

TF: The Fair Credit Billing Act covers collection practices.

false

Which of the following is not an absolute defense to defamation? a. Truth b. Statement made during testimony c. Statement made on the floor of the U.S. Senate d. Statement made to only a small group of people

d. Statement made to only a small group of people

Bertsch v Mammoth Community Water District (247 Call. App. 4th 1201, 202 Cal. Rptr. 3d 757 (3d Dist. 2016, review denied August 17, 2016)

dealt with the issue of the extent of duty landowners owe to those using the land.

In the context of third-party rights in contracts, the transfer of contractual duties and obligation is called: a. a rescission. b. a delegation. c. an injunction. d. a plea.

delegation

The officer in a corporation who is held criminally responsible for criminal conduct by the corporation is called:

designated felon

United States v Park 421 U.S. 658 (1975)

discusses the liability standards for those who are in charge but may not themselves commit a criminal act. Acme Markets, Inc., was a national food retail chain in Philadelphia, Pennsylvania. In 1970, the Food and Drug Administration (FDA) forwarded a letter to Mr. Park describing, in detail, problems with rodent infestation in Acme's Philadelphia warehouse facility. In December 1971, the FDA found the same types of conditions in Acme's Baltimore warehouse facility.

Element three: Causation

element of negligence that establishes the connection between the breach of duty and the resulting injuries or damages "but for" test: a test in determining negligence liability that is used to determine the causation element; "but for" the action or the lack of action of the defendant, the plaintiff would not have been injured

In the context of business crimes, theft from a specific type of person—an employer—is called:

embezzlement

The U.S. Sentencing Commission (USSC)

established by Congress in 1984, has developed both federal sentencing guidelines and a carrot-and-stick approach to fighting white-collar crime.

"Weekend Rentals is not responsible for the condition of its rental property and is not liable for any injuries that result from renting its property" is an example of: a. a valid disclaimer. b. an exculpatory clause. c. a covenant not to compete. d. an ultra vire.

exculpatory clause

Privity of contract: a. exists between buyer and seller. b. is required for recovery under the UCC warranties. c. exists between buyer and the manufacturer of the goods the buyer purchased from a retailer. d. exists between buyer and seller and is required for recovery under the UCC warranties.

exists between buyer and seller

A(n) _____ as provided in the Uniform Commercial Code (UCC) is an express promise (oral or written) by a seller as to the quality, abilities, or performance of a product. a. express warranty b. implied warranty c. implicit warranty d. warranty of title

express warranty

Describe the classifications for contract: A. express or implied? B. bilateral or unilateral? C. executed or executory? D. enforceable or unenforceable?

express: everything is writing implied: based on actions. Nothing is expressly written. executed or executory = executed is a contract where all parties performed all obligations in contract. Executory: something remains to be done (could be both if they did some) enforceable if you can prove it

parol evidence

extrinsic evidence that is not admissible to dispute an integrated, final, and unambiguous contract

"Bait and switch" is not illegal unless the merchant does not have both the expensive and the cheaper products for sale. a. True b. False

false

A cross-border system for criminal prosecutions of businesses does not exist.

false

Section 402A provides a remedy for those who are harmed by defective products only through a theory of negligence. a. True b. False

false

T/F: A plaintiff in a negligence case need not establish damages resulting from a defendant's negligence.

false

T/F: In the context of intentional torts, an element of defamation is a statement about a person's reputation, honesty, or integrity that is true.

false

T/F: Laws that put limitations in tort recovery are the same from state to state.

false

TF: A bankruptcy that was declared seven years ago cannot appear on a current credit report.

false

TF: A bill of lading is a credit instrument used to help obtain payment in international transactions.

false

TF: A letter of credit is a document of title

false

TF: A quasi contract is a type of voidable agreement.

false

3) Appropriation of Another's Name, Likeness, or Image for Commercial Advantage.

final form of the privacy tort involves using someone's name, likeness, or voice for commercial advantage without that person's permission constitutes the tort of unauthorized appropriation. For example, if a gas station used your picture in its window to show you as a satisfied customer, you might not be harmed greatly, but your privacy is invaded because you have the right to decide when, how, and where your name, face, image, or voice will be used. Bullard v MRA Holding, LLC 740 S.E.2d 622 (Ga. 2013)

implied warranty of fitness

for a particular purposethe warranty given in circumstances in which the buyer relies on the seller's expertise and acts, and makes a purchase based on that advice. Four requirements 1)The seller has skill or judgment in use of the goods. 2)The buyer is relying on that skill or judgment. 3)The seller knew or had reason to know of the buyer's reliance. 4)The seller makes a recommendation for the buyer's use and purpose.

The following series of events occurred between two shops named Bull's Meat Market and The Butcher:May 1: The Butcher sends a fax to Bull's offering to buy 200 lbs of T-bone steak at $3.29 per lb. May 2: Bull's sends a fax back saying "Price is okay. Payment prior to delivery."In this scenario, Bull's and The Butcher:

have a contract on May 2 with the payment term.

statute of frauds

have records of agreements for the types of contracts that might encourage conflicting claims and possible perjury if oral agreements were allowed. The following is a partial list of the types of contracts required to be evidence by a record under most state laws. Contracts for the sale of real property. This requirement includes sales, certain leases, liens, mortgages, and easements. Contracts that cannot be performed within one year. These contracts run for long periods and require the benefit of written terms. Contracts to pay the debt of another. Cosigners' agreements to pay if a debtor defaults must be in writing. A corporate officer's personal guarantee of a corporate note must be in writing to be enforceable.

U.S. Supreme Court held in Skilling v U.S., 561 U.S. 358 (2010)

held that the portion of the mail and wire fraud statute was void for vagueness in the way prosecutors were using it for convictions and pleas (see substantive due process in The court held that company officers would not know when and how they had violated the law because this portion of the statute was being applied when anything went wrong in the company. In other words, it was difficult to know what conduct deprived shareholders of officers' "honest services."

While practicing baseball, Ava accidently hits Shaun on his head with the bat. By the time Shaun is rushed to the hospital, he is declared dead. Ava is unlikely to be convicted of first-degree murder because

her action lacked mens rea.

Unconscionable

highly unjust terms of a contract, which are in favor of a party with a greater bargaining power

unconscionable

highly unjust terms of a contract, which are in favor of a party with a greater bargaining power

Vicarious liability

holding companies accountable for criminal conduct of their officers

merchant transactions

if the parties reach a basic agreement but the offeree has added terms, there will be an enforceable contract; the added terms are not a rejection under § 2-207. Whether the added terms will become a part of the contract depends on the following questions: Are the terms material? Was the offer limited? Does one side object?

Class notes 10/26

implied warranty merchantability: I convey the goods, you can buy with peace of mind implied warranty of fitness for a particular fitness: by me selling it for this use it can be used for that use warranties are made available to the consumer tort and contract theories can apply to both

E-Commerce and Contract Formation

require that the parties prove that a click was something more than an accidental action and that the click was made after there had been full disclosure of the terms. courts recognize e-mails and their time stamps as proofs of time of sending and proof of receipt

Susan is eating a bowl of cream of broccoli soup in a bistro when she notices a portion of a caterpillar on her spoon. Susan's best basis for recovery is: a. implied warranty of merchantability. b. negligence. c. implied warranty of fitness for a particular purpose. d. violation of the warranty of disclaimers.

implied warranty of merchantability.

Strict tort liability

imposition of liability because of harmful results, regardless of the precautions taken, and from failure to provide enough warnings

subprime mortgage market

include those borrowers with a FICO (Fair Isaac Co.) score below 640. The median FICO score is 720 a perfect score being 850. The FICO score can be lower if the down payment is higher. For example, a person with a FICO score of 580 could get a loan with a 30% down payment. now: subprime loans are 3%. Other types of loans, including title loans (loans made in exchange for title to a car or house if the borrower defaults), had been widely used in subprime markets.

misrepresentation

incomplete or inaccurate information provided by one party to another prior to contract execution

_____ crime occurs amoung _______ and results in one business gaining a competitive advantage over the others.

interbusiness competitors

"Shame punishment"

involves public disclosure of an offense.

option

is a contract in which the offeree pays the offeror for the time needed to consider the offer.

Officer Muldoon is on foot patrol in Tempe, Arizona, when he sees an open garage door. He looks inside the garage and sees a statue that he knows is a rare artwork that was stolen the night before from a building downtown. Officer Muldoon:

is able to seize the evidence that can be seen.

Riko is a certified public accountant (CPA) with a public accounting firm. A client of Riko's has called to tell her that the Securities and Exchange Commission (SEC) is investigating the firm for possible misrepresentations and embezzlement in the company's financial reports. Riko is worried that she may have pushed the envelope in allowing some of the revenues of the client to be reported as they were. Riko shreds several sets of notes from her meetings with the client on revenue recognition. Riko:

is probably guilty of obstruction of justice.

Class notes 10/17: contract simply is

is there a meeting in the minds? Written and oral contracts are enforceable Express contract: contract in writing implied : actions are implied

bill of lading

it is a receipt for shipment issued by the carrier to the seller; it also serves as a contract for the shipment of the goods and provides evidence of who has title to the goods

Which of the following is true of common law? a. It is synonymous to the Uniform Commercial Code (UCC). b. It does not attract penalties when violated. c. It was the first law of contracts. d. It is not uniform.

it is not uniform

Under the Equal Credit Opportunity Act (ECOA)

it is unlawful to discriminate against an applicant for credit on the basis of race, color, religion, national origin, gender, marital status, or age; Under the ECOA, debtors can recover actual damages for embarrassment and emotional distress and for punitive damages of up to $10,000. If a group of debtors brings a class action against a creditor, they can collect punitive damages of up to the lesser of $500,000 or 1% of the creditor's net worth

corporate integrity agreement (CIA)

judges are able to, in effect, place corporations on probation. Under CIAs, companies are assigned monitors who are on-site and follow up to be sure the company is not committing any further violations. Most CIAs include requirements that the company create or improve its ethics and compliance program, something that can include additional staffing and mandatory training for all employees.

Some parties agree in their contracts on the amounts they will pay in the case of nonperformance. Such amounts are called: a. incidental damages. b. compensatory damages. c. liquidated damages. d. consequential damages.

liquidated damages.

Which of the following elements is a unique element in defamation of public figures? a. Publication b. Harm to reputation c. Malice d. Damages

malice

merchants' confirmation memoranda

memos that summarize oral agreements and are signed by only one party; they can be used to satisfy the statute of frauds so long as the memos have been sent to the non-signing party for review and no objection is raised upon its receipt

Criminal fraud

misrepresentation of information or identity, with the intent to take something (funds or property) from another without that person's knowledge

Under corporate integrity agreements, companies are assigned _____ who are on-site and follow up to be sure the companies are not committing any further violations.

monitors

Equifax

most damaging hackings of computer files occurred when hackers obtained names, dates of birth, and Social Security numbers of 147 million people along with the 207,000 credit card numbers and expiration dates in 2017. Equifax was required to pay $575 million to settle the case because of its failure to patch a security flaw in its system and the storage of information in plain text files (a hacker's dream for easy access).

John Reisen is driving home after working the late shift and runs a red light, hitting Anaya's car and causing her injury. Reisen has committed the tort of:

negligence

Which of the following types of tort liability is always used when the conduct of one party does not live up to a certain minimal standard of care people are expected to use in driving, in their work, and in the care of their property? a. Intentional tort b. Strict tort liability c. The tort of negligence d. The tort of defamation

negligence

Conditions precedent

requirement that must occur before performance is required

Having someone else take on your contract as a substitute; ______. An agreement between contract parties to accept a sum as all that is due and owing; ______All three parties must agree;_____The original party to the contract is discharged and a new party is substituted;_____Payment of this agreement discharges all the parties;______

novation; accord and satisfaction; novation; novation; accord and satisfaction

Undue influence

occurs when one party uses a close personal relationship with another party to gain contractual benefits

Juan: I will pay you $125 to detail my car. This is a(n) ______1 .Tanner: I will do it for $150. This is a(n) ______ 2 .Juan: Okay, but you will need to clean the engine too. This is a(n) ______ 3 .Tanner: Deal. This is a(n) ______ 4 .Juan: Okay, $150 with a clean engine. This is a(n)________

offer; counteroffer;counteroffer;acceptance; acceptance

Intent

offerer must have proper mental state to initiate the contract

Revocation

offeror cancelation of an offer with notification to the offeree of the termination One such limitation has already been mentioned: acceptance by the offeree cuts off the right to revoke. Also, under common law, options cannot be revoked.

2 parties

offeror: makes offer offeree: receives offer

Information about negotiations or promises that are beyond the contract itself is called: a. promissory estoppel. b. parol evidence. c. consideration. d. charitable subscription.

parol evidence

third-party beneficiary

person or entity that is not a party to a contract but is expressly addressed in the contract or is intended to benefit from the contract

Insys

pharmaceutical firm that had only one branded product, Subsys, a highly potent opioid painkiller. Between 2012 and 2013, sales of Subsys increased by 1,000%. Established a network of notoriously high prescribers and Insys used those doctors to flood the painkiller prescription market with its product. At its headquarters in Arizona, the company had created a pool of "prior authorization specialists" who worked with doctors' offices to handle insurer approval for prescribing Subsys. Seven officers of the company were indicted and convicted on charges ranging from insurance fraud to racketeering. There were guilty pleas and convictions, with the CEO eventually sentenced to five years in prison. The business of the company, selling drugs, changed into white-collar crimes because of the sales structure created by the officers of the company. In addition, the officers designed a compensation structure that enticed and benefitted employees who participated in that structure. A legitimate business became a front for criminal activity. The Food and Drug Administration (FDA) does not permit pharmaceutical firms to market prescription drugs for purposes other than their federally approved use.

force majeure

potential international events that could hamper production or trade (such as wars, economic depression, or embargoes); events beyond the control of the parties to a contract

conditions

prescribed events that must occur before performance is required

trial

proceeding in first-level court that goes through the process of hearing witnesses, taking evidence, and reaching a conclusion through a verdict

celebrity endorsements

product advertisements by easily recognized public figures

The Money Laundering Control Act (MLCA), 42 U.S.C. § 5301

prohibited the knowing and willful participation in any type of financial transaction that was set up in order to conceal or disguise the source of funds.

Prosecutorial Discretion

prosecutor has the discretion to decide when to give up

Which element of negligence was the focus of the Palsgraf v Long Island Ry. Co. case?

proximate cause

Penalties

punishments for commission of crimes; include fines and imprisonment

The writer of a letter of recommendation has a(n) ____privilege against defamation Whistle-blowers have a(n) ____ privilege against defamation. Senators have a(n) _______privilege against defamation.

qualified qualified absolute

Chapter 12: contract defense

refers to a situation, term, or event that makes an otherwise valid contract invalid

employee theft

some individual employees feel personal financial pressure and resort to embezzlement as a means of remedying their own bleak financial positions Small businesses have higher employee theft costs because they cannot afford the sophisticated monitoring measures that larger corporations adopt.

Consideration

something of value exchanged by the parties that distinguishes gifts from contracts; it is sometimes called bargained-for exchange

The ____is a general term for laws that require certain contracts to be evidenced by a record. The term originated in 1677 when ____ passed the first rule dealing with written contracts.

statute of frauds England

Which of the following is used to determine whether an individual is eligible for bankruptcy? a. The statute of limitations b. A cost-benefit analysis c. Regulation Z d. A statutory formula

statutory formula

The notion of ______liability for products is unique to ________ and under _________ guidelines, the notion of knowledge is used as a standard for imposing liability.

strict liability united states EU

Jasper Construction, Inc. has the job of demolishing a small building in a busy downtown area. The streets are blocked off and barricades are erected to avoid possible injuries, but some of the debris from the wrecking ball is projected into the windows of the building next door. No one is hurt, but there is extensive damage to the neighboring building. Of what type of tort is Jasper Construction in violation?

strict tort liability

Choose the TWO requirements for the terms required to form a contract offer under the Uniform Commercial Code (UCC). a. subject matter b. parties c. price d. payment terms e. delivery terms f. performance times

subject matter parties

Which doctrine applies in construction contracts and means that the constructed building is, for practical purposes, just as good as the one contracted for? a. substantial evidence b. vicarious liability c. due process d. substantial performance

substantial performance

Paddock Pools constructed a swimming pool and deck for the Jensen's home. Paddock installed the wrong trim on the pool. It would cost $2,800 to change the trim—one-fifth the total cost of the pool. The Jensen's refuse to pay anything for the pool. Paddock's best defense is: a. duress. b. substantial performance. c. mistake. d. failure of conditions.

substantial performance.

plea bargain

term used in criminal proceedings to denote settlement of criminal charges

Elements in a contract:

terms and conditions Services and products are two big things subject to contract Statutes and common law are important Uniform Commercial Code talks about purchases of goods and services. Gives guidance of what to put in contracts SImilar to elements in tort: 5 elements: 1) Offer 2) Acceptance 3) Consideration (something for something) 4) Mutuality of obligation (both sides have to do something) 5) competency and capacity: age.

three-day cooling-off period

the 72 hours immediately following execution of certain types of credit contracts during which the buyer has the right to rescind the contract

In Arizona v Gant, 556 U.S. 332 (2009)

the U.S. Supreme Court limited the use of evidence that is obtained from a driver's vehicle when that driver has been handcuffed and locked in the rear of a squad car.

embezzlement

the action of an employee that expresses the intent to take the property of the employer or the actual taking of the property for permanent use without authorization from the employer 1) intent to take 2) actual taking 3) no authorization to take 4)the person commits the crime while in the employ or position of trust of the property owner.

theft

the action of an employee that expresses the intent to take the property of the employer or the actual taking of the property for permanent use without authorization from the employer actus reas elements: 1) intent to take the property 2) actual taking of the property for permanent use 3) no authorization to take the property. mens rea: taking of the property with the intent of permanently depriving the owner of use and possession.

non merchant transactions

the addition of terms in the counteroffer does not result in a rejection; there will still be a contract if there is a clear intent to contract, but the additional terms will not be a part of the contract.

Miranda warnings

the advice required to be given to those taken into custody, such as a description of the right to remain silent and the right to have counsel Miranda v Arizona, 384 U.S. 436 (1966)

compensatory damages

the amount required to place a party in as good a position as before the breach

garnishment

the attachment of a judgment to an account, paycheck, or receivables

capacity

the capacity (age and mental capacity) to make contracts

negligence

the conduct of omission or carelessness that results in damages or harm to another

tort negligence

the conduct of omission or carelessness that results in damages or harm to another

executory contracts

the contracts where the promise to perform is made but the actual performance has not been done

incidental damages

the costs of collecting compensatory damages

In Kyllo v United States, 533 U.S. 27 (2001)

the court dealt with a Fourth Amendment issue of agents using an Agema Thermovision to scan for heat on Danny Kyllo's triplex at 3:20 a.m. to determine whether the heat emissions were unusual and therefore consistent with using heat lamps for growing marijuana.

omnibus hearing

the trial court proceeding held before the trial begins in which all the evidentiary challenges can be presented for the judge's ruling as to the admissibility of the evidence

material fact

the type of information that would affect someone's decision to enter into the contract

In Wilkow v Forbes, Inc., 241 F.3d 552 (7th Cir. 2001)

the court dealt with an opinion column in Forbes magazine. According to the article, a partnership led by Marc Wilkow "stiffed" the bank, paying only $55 million on a $93 million loan while retaining ownership of the building. The court held that if it is plain that the columnist "is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable." "Stiffing," as the court noted, may "drip of disapproval," but it is an interpretation of values and is not defamation.

In Geanacopoulos v Philip Morris, USA Inc., 33 Mass. L. Rptr. 308 (Mass. 2016)

the court found that Philip Morris's actions in marketing and selling its low-tar cigarettes were deceptive and were undertaken for the purpose of selling more cigarettes by misleading the public about the risk associated with even low-tar cigarettes. Knowledge opens the door to punitive damages.

n Metty v Shurfine Central Corp., 736 S.W.2d 527 (Mo. 1987)

the court found that a breach of the implied warranty of merchantability occurred because part of a grasshopper in a can of green beans was eaten by a pregnant woman who purchased the beans. Shurfine was liable to the woman for resulting complications in her pregnancy.

Warner-Lambert Co. v FTC, 562 F.2d 749 (D.C. Cir. 1977), certiorari denied, 435 U.S. 950 (1978),

the court had to balance the First Amendment protections for companies in their commercial speech (see Chapter 5) and the need for accuracy in advertising. The court decided that the FTC had the authority to require Warner-Lambert, the company that produces Listerine mouthwash, to correct its previous ad claims that Listerine prevents and/or eases colds and sore throats with specific language.

In U.S. v Booker, 543 U.S. 220 (2005),

the court held that when judges are determining sentences for defendants under the guidelines, any facts, other than the defendant's prior conviction, must be established by a jury trial beyond a reasonable doubt.

consequential damages

the damages a party to a contract owes to third parties as a result of the breach of contract

initial appearance

the defendant's first appearance in court to be informed of charges and rights; to set bail and future dates and appoint a lawyer

Commercial impracticability

the defense to performance of sales contract based on objective impracticability; it excuses performance if the basic assumptions the parties made when they entered into the contract have changed

In the case, Reed v. King, the issue was: a. the failure to disclose material information about a house prior to selling. b. the act of using fraudulent papers for buying. c. the act of buying under duress. d. the failure to highlight opinion about the subject matter of a contract.

the failure to disclose material information about a house prior to selling.

offer offeror offeree

the first step in the formation of a contract the person making an offer the recipient of an offer

Element Four: Proximate Cause

the foreseeability requirement of causation

Restatement (Second) of Contracts

the general summary of the common law of contracts

arraignment

the hearing at that trial date is set and plea is entered by the defendant

Which of the following is an element that constitutes the actus reas of the crime of theft?

the intent to take a property

fraud

the knowing and intentional use of false information or the knowing failure to disclose relevant information

scienter

the knowledge that the information given is false

contributory negligence

the negligence on the part of a plaintiff that was partially responsible for causing injuries

deferred prosecution agreement (DPA)

the negotiated settlements of criminal charges against a corporate defendant

acceptance

the offeree's positive response to the offeror's proposed contract

qualified privileges

the privileges that provide limited liability for defamation

promissory estoppel

the reliance element used to enforce otherwise unenforceable contracts

elements

the requirements of proof for crimes mens rea: the mental intent (state of mind) or knowledge of wrong required for committing a crime actus rea: refers to the physical act of committing a crime

Due process

the right to trial before conviction or some review or procedure prior to loss of rights

Sixth Amendment

the right-to-trial protection of the U.S. Constitution; ensures that the criminal proceedings and trials advance in a timely fashion

Uniform Commercial Code (UCC)

the set of uniform laws (pertaining to states) that govern commercial transactions Article 2 of the UCC governs contracts for the sale of goods and has been adopted in all states except Louisiana. Article 2A Leases, applies to leases of goods

consent decree

the settlement (nolo contendereplea) of charges brought by an administrative agency

Uniform Electronic Transactions Act (UETA)

the state recognition of the Electronic Signatures in Global and National Commerce Act of 2000 (ESIGN) rule of parity UETA provides that electronic and paper records and signatures are given the same legal effect for enforcement, in court proceedings, and in lending.

mailbox rule

the timing rule for acceptance that is applied when acceptance is offered by the same or faster means of communication as the offer or when offerees use the stipulated means to communicate acceptance

delegation

the transfer of contractual duties and obligations from one party to another contracting party

False imprisonment

the wrongful detention of a person for any period of time against that person's will; called the shopkeeper's tort, this occurs as a result of detention by a merchant for a shoplifting accusation

Burns v. Masterbrand Cabinets

tort of inclusion and exclusion civil version of fruit of poisonous tree Burns won was an employee at Masterbrand who suffered an injury --> filed a workers compensation claim --> Masterbrand gave it to a private investigation company --> employee of investigation company invaded his home pretending to be looking for a juvenile kid to figure out the extent of Burns' injuries case was initially dismissed because IL court didn't recognize intrusion upon seclusion invasion of privacy can be seen as intrusion upon seclusion court reversed the dismissal of the plaintiff's claim and remanded the case

Catalog and Internet merchants are required to disclose delays in deliveries to their customers. a. True b. False

true

Negotiated settlements of criminal charges against a corporate defendant are called deferred prosecution agreements.

true

QUIZ QS: The adoption of Section 402A has changed the area of product liability from no liability to an almost per se standard of liability for defective products. a. True b. False

true

QUIZ Qs: TF: A contract is a promise of performance that can be enforced by law.

true

Quiz Qs T/F: Tort comes from the Latin word for crooked or twisted.

true

T/F: Professional negligence means that the defendant did not live up to the standard practices in the profession.

true

T/F: Torts are the civil recovery for what can be a criminal wrong.

true

T/F: White collar crime often refers to crimes committed by a person of respectability and high social status in the course of his or her occupation.

true

TF: A contract to pay a commission to a person who is not licensed as a real estate broker is void.

true

TF: A creditor has 30 days to respond to a written dispute by a customer.

true

TF: An offer can be revoked any time prior to acceptance.

true

TF: Consideration is what distinguishes gifts from contracts.

true

TF: Contract provisions used to cover interruptions and changes caused by the COVID-19 virus are force majeure issues

true

TF: In the context of forms of bankruptcy, Chapter 11 bankruptcies are limited to businesses.

true

TF: It is difficult to determine which contracts are UCC contracts and which are common law contracts

true

TF: Lawyers' strategies for criminal trials are privileged documents.

true

TF: Merchants who do not require chip credit cards are unable to seek reimbursement for fraud from credit card companies.

true

TF: Party autonomy is a priority under the United Nations Convention on Contracts for the International Sale of Goods (CISG).

true

TF: The Restatement (Second) of Contracts addresses common law contracts.

true

TF: The doctrine of promissory estoppel is a substitute for consideration.

true

The CISG contains warranty provisions similar to those of the UCC. a. True b. False

true

The Consumer Product Safety Commission authorizes criminal penalties in product liability cases. a. True b. False

true

The implied warranty of merchantability is given in every sale of goods by a merchant seller under the UCC. a. True b. False

true

confidential relationship

type of relationship in which there is trust, confidence, and reliance

A contract that gives all the benefits to one side and all the burdens to the other is a(n) _____ contract. a. plea b. unconscionable c. nonattainable d. inchoate

unconscionable

. If a child who is caring for an elderly parent is getting property signed over to the child by that elderly parent, which contract defense could the child's siblings use to set aside the transfers?

undue influence

What are other types of conduct that might invalidate mutual assent?

undue influence

The seller of a dry cleaning business has agreed not to open another dry cleaning business for two years within a one-mile radius of the sold business. Such an agreement: a. is void as against public policy. b. is void as unconscionable. c. is void as usurious. d. is valid and enforceable.

valid and enforceable

Clothing for Accountants is a popular retail store owned by I.M. Material. Material has just sold the business to Phil Forma. Phil has asked that a covenant not to compete be inserted into the agreement. Such covenants are: a. void as against public policy. b. only valid in employment contracts. c. valid if reasonable in time and geographic scope. d. always valid.

valid if reasonable in time and geographic scope.