BLAW 3310 Exam 2

Title insurance ___ ___ protect against claims against the property that were not known in the public records at the time the title search was done.

MAY NOT

Fair use:

use of original material "for purposes such as criticism, comment, news reporting, teaching, scholarship, or research."

Infringement:

using someone's TM without permission to cause confusion.

Strict liability under contract law is based on the relationship between the injured party and the manufacturer because of the existence of a ___.

warranty

BUYER'S AND SELLER'S REMEDIES: GENERAL RULE

we try to put the non-breaching party in the same position they would've been in... could be (ex.) giving them difference between contract price; loss profits; incidental damages

OUTPUT AND REQUIREMENT CONTRACT

this can be ENFORCED by the courts

Rule of Caveat Emptor:

"Let the buyer beware." Requires the buyer examine, judge, and test the product himself. If a product is not safe and there is an injury, the loss falls on the consumer.

LIBERALIZED SOF

$500+, must be in writing... THE WRITING CAN BE ON A CHECK, RECEIPT, ETC. -just needs to say that SOME parties had a contract

SELLER'R REMEDIES

cancel contract, identify the goods, WITHHOLD/STOP DELIVERY, sue buyer to recover loss,

Primary areas of product liability law:

-Manufacturing defect -Failure to warn -Design defects -Unknown hazards

Lightle v. Real Estate Commission:

-The Alaska high court held that the claim of fraudulent misrepresentation against Lightle was justified because Lightle knowingly passed false information. -The real estate agent was sued for fraudulent misrepresentation. -The "intent to cause economic loss by foreseeable persons" was not an element of fraudulent misrepresentation noted by the court. -The claim of fraudulent misrepresentation was justified because Lightle made a partial disclosure that failed to reveal facts that "might have affected the recipient's conduct in the transaction in hand."

Requirements to establish a cause of action for strict liability in tort:

-The product was defective -The defect created an unreasonably dangerous product -The defect was the proximate cause of or a substantial factor in bringing about the injury -The injury caused damages

Types of contracts subject to the statue of frauds:

1. Contracts for the sale of real property (land). 2. Contracts that cannot be performed within one year. 3. Promises to pay the debt of another, including the debts of an estate. 4. Promises made in consideration of marriage.

Gap-filling:

A process used when a contract fails to deal with some manner necessary for the contract to be performed. The court either interprets the contract in such a manner that there is no gap, or engages in gap filling where it deals with the gap in the contract by ascertaining what the parties intentions would have been at the time that they entered the contract. In the process of gap filling and determining the parties intentions, courts look to the terms of the contract itself, course of dealing, usage of trade, and course of performance, amongst other things.

Trade secrets:

COKE FORMULA; may consist of any formula, pattern, device, or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it

MacPherson v. Buick Motor Company:

Eliminated the privity requirement and held a manufacturer liable in tort for negligence for a product related injury to a consumer despite the lack of privity.

Cover:

In UCC, the buyer can recover from the seller the difference between the cost of the substituted goods and the original contract price. It is the purchase on the open market, by the buyer in a breach-of-contract case,of goods to substitute for those promised but not delivered.

Under strict liability, any seller of the defective product (manufacturer, wholesaler, retailer) is ___, regardless of negligence and regardless of knowledge of the defective condition of the product.

LIABLE

Scienter:

Latin for "knowingly;" usually meaning that the defendant knew that the act in question was illegal.

Tort against property:

trespassing

UNILATERAL CONTRACT

ONE promise for an action (A tells B to walk across bridge and in return, promised to give B money)

WHEN CONTRACTS ARE PARTLY GOODS AND PARTLY SERVICES

Paramount Contracting Company v. DPS Industries - case with truckload of dirt - contract for SALE OF GOODS was predominant, so they SUED UNDER UCC

Joint tenancy:

a property purchase by two or more persons who have the same interest in the undivided possession of property. -RIGHT TO SURVIVORSHIP

RULE ON MISTAKE (REGARDING AGREEMENT)

if one party mistaken, other party doesn't know, then TERMS CANNOT BE CHANGED! BOTH parties mistaken, NO CONTRACT!

BUYER'S REMEDIES

cancel contract, get goods from other supplier, sue seller for damages, reship goods, store goods

Trademarks:

a commercial symbol—a design, logo, phrase, distinctive mark, name, or word—that a manufacturer prints on its goods so they can be readily identified in the marketplace.

Indefinite offer:

a contract does not fail for indefiniteness "if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy."

Special warranty deed:

a deed by which the grantor promises to defend the title against only those claims and demands of the grantor and those claiming through the grantor.

Warranty deed:

a deed containing one or more covenants of title; a deed that expressly guarantees good, clear title and that contains covenants concerning the quality of title, including defense of title against all claims. -BEST TYPE OF DEED! -Grantor or seller warrants that property is free of any liens and encumbrances unless revealed in title.

Quitclaim deed:

a deed that conveys the grantor's complete interest or claim in real properly but that does not warrant that the title is valid. -NOT A GOOD DEED!

Promissory estoppel:

a doctrine that allows promises to be enforced in the absence of consideration, if a promise is made which the promisor reasonably expects will induce action or forbearance on the part of the promisee and, which in fact, does cause such action or forbearance to the detriment of the promisee.

Privity:

a legal relationship between parties, such as between parties to a contract.

Adverse possession:

a method by which one obtains the right to property by following specific rules under which a nonowner may be declared to be the lawful owner. This normally requires open possession of the property and restraining others from use of the properly for a period of time required by state law and may require payment of property taxes.

ASSIGNMENT

a party who has a contract right ASSIGNS it to someone else

Offer:

a promise to do something or the not do some specific thing

Intent to contract:

a sales contract "may be made in any manner sufficient to show agreement" between the parties.

Interference with contract:

a tort in which there is a valid contract, and the defendant knew of the contract but intentionally caused a breach of the contract, resulting in damages to the plaintiff. The party who suffers the breach may sue both the party who breached the contract for breach and the wrongdoer for the tort of interference with contract.

Delegation:

a transfer of contractual duties to a third party

Dilution:

a way to infringe; using someone's TM to draw attention to YOUR product (ex. car garage using Nike Swoosh on their window to draw in customers).

MAILBOX RULE

acceptance is effective when SENT! acceptance is effective when SENT! acceptance is effective when SENT! acceptance is effective when SENT! acceptance is effective when SENT! acceptance is effective when SENT!

Advertising rule:

advertising is only an INVITATION for someone to make an offer

Trespassing:

an unauthorized intrusion by a person or a thing on land belonging to another. Examples: physically being on land w/o permission; leaving your property on someone's land; flying kite over someone's property; no damage even has to occur

Title insurance:

binds the title company to insure that the title is as declared in the conveyance from the grantor to the grantee.

CONSEQUENTIAL DAMAGES (BUYER)

buyer can get consequential damages (something like loss profits) because seller didn't deliver goods or delivered defective goods

PERFECT TENDER RULE

buyer, IN GOOD FAITH, has right to reject for the slightest imperfection

IMPLIED WARRANTY OF MERCHANTABILITY

by making a sale of a product, seller warrants that the product will meet warranty of merchantability; that the product will perform the way it's supposed to do

ACCEPTANCE OF AN OFFER

can be accepted, but the person accepting must KNOW about the offer (ex. person who found lost dog, didn't know about reward (the offer))

TO INTERPRET WRITINGS BETWEEN PARTIES

can bring in outside evidence from what they've done in the past, this contract, that contract, industry standard... (GRIFFITH V. CLEAR LAKES TROUT ... considered 1lb trout for course of a year in the past)

STATUTE OF FRAUDS

contracts that must be evidence by writing: (1) land, (2) >1 year, (3) promise to pay debt of another, including debts of estates, (4) marriage

WHAT CAN COURTS SUPPLY

courts can supply price BUT NOT QUANTITY

EASIER TO FIND A CONTRACT UNDER UCC RATHER THAN COMMON LAW

even if writings between 2 parties don't amount to a contract, if the parties are acting like they have a contract, then the courts will say that they DO have a contract!

ACCEPTANCE BETWEEN MERCHANTS

if the acceptance has additional terms, those terms WILL become part of contract if other side does not object. If acceptance contains DIFFERENT terms, then they will NOT become part of the contract, THIS IS A COUNTEROFFER!

Incidental damages:

in UCC losses that are reasonably related to actual damages, such as a seller's commercially reasonable expenses incurred in stopping delivery or in transporting and caring for goods after a buyer's breach.

Warranty disclaimer:

in UCC, the ability of goods to be sold as is, or with fewer warranty rights that would normally exist, based upon clear communication to the buyer that warranty rights are reduced or eliminated at the time of sale.

Reality and genuineness of consent:

in contract law, a contract must have been entered into freely based upon correct information about the matter to be valid; if duress, misrepresentation, or fraud was present when the agreement was made, there is no contract.

Strict Liability:

in tort a legal theory that imposes responsibility for damages regardless of the existence of negligence; in tort law, any good sold that has a defect that causes injury leads to the imposition of liability.

Fraud is an ___ ___ of a material fact designed to induce the person receiving the miscommunication to rely upon it to her detriment, so that a loss is suffered.

intentional misrepresentation

Public Nuisance:

interferes with the general public (public health and welfare).

Tenancy in common:

is a form of ownership in which each tenant (owner) has an undivided interest in the property. -NO RIGHT TO SURVIVORSHIP

Easement:

is a right to enter land owned by another and make certain use of it.

Deed:

is the primary way to transfer ownership interests (title) in property.

Parole evidence:

may not be used "if the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement." -Written documents may not be contradicted by oral testimony.

QUASI CONTRACT

means that there's no contract, but one party has conferred a benefit on other party, and it would be unjust for that other party to not pay (doctor saving lives, kid mowing lawn...)

MERCHANT'S FIRM OFFER

merchant says, in signed writing, that he'll keep offer open for a period of time. He's obligated to keep offer open for MAX OF 3 MONTHS

CONTRACT MODIFICATIONS

must be supported by new consideration to be binding on the parties.

MODIFICATION OF SALES CONTRACT

must meet UCC's test of good-faith dealing and usually must be in writing

Trade names:

name of company or business. Some companies (Coca-Cola) have same TM as trade name.

Test for trade secrets:

not known by the competition; the business would lose its advantage if the competition were to get it; owner has taken reasonable steps to protect the secret from disclosure

Cybersquatting:

occurs when a trademark is used improperly in a domain name.

OFFEROR

party making the offer

OFFEREE

party to whom the offer is made

Ultrahazardous activity:

persons or businesses can be strictly liable for injuries caused by dangerous activities in which they are engaged (blasting with dynamite, keeping poisonous snakes, and a snake escapes and bites someone).

Life estate:

the right to occupy a piece of property until death, at which point title to the property passes to someone designated by the former owner of the property.

Patents:

process or machine ... grant from the government to an inventor for "the right to exclude others from making, using, offering for sale, or selling" the invention. LASTS 20 YEARS AFTER FILING OF PATENT APPLICATION! The invention must be genuine, useful, novel, and not obvious.

BILATERAL CONTRACT

promise me something in return for my promise (I want painter to paint my house if I pay him)

When misrepresentation is an intentional tort, there must be ___.

proof

Sophisticated user defense:

relieves a manufacturer of liability for failing to warn of a product's characteristics or dangers when "the end user knows or reasonably should know of a product's dangers."

PAROL EVIDENCE RULE

restricts the use of oral (parol) statements in a lawsuit, when the evidence is contrary to the terms of a written contract

Copyright:

rights of literary property as recognized by law; intangible assets, LASTS THE LIFE OF THE AUTHOR + 70 YEARS!

WARRANTY OF INFRINGEMENT

sale is free of infringement (Copyright, TM, etc.)

UCC: EXPRESS WARRANTY

seller's promise or guarantee as to the quality, safety, performance, or durability of goods being sold; (1) SAMPLE/MODEL, (2) DESCRIPTION, (3) ORAL/WRITTEN STATEMENTS

MERCHANT

someone who regularly deals with goods of a kind sold (auto parts dealer, art dealer, computer parts dealer)

Private Nuisance:

substantially interferes with private landowners around you.

UCC

the law that governs many contracts for the sale of goods

Damages:

the losses suffered by the plaintiff resulting from reliance on the fraud.

Fee simple:

the right to exclusive possession of a particular piece of land for an indefinite time, as well as the right to dispose of the land as the owner pleases.

CONSIDERATION

what is needed to make a promise BINDING. Did the other party (1) give something, or (2) SUFFER A DETRIMENT? (case with uncle, nephew, give up drinking alcohol and partying)

COUNTEROFFER

when the response of the offer comes back with any differences. Can be accepted or not by original offeror

IMPLIED WARRANTY OF FITNESS OF PARTICULAR PURPOSE

when you go to a merchant and seek their recommendation... all that is required is that YOU THINK/RELY on that they know what they're taking about

Parole evidence rule:

will not allow the admission into evidence of oral or written statements, not part of the final written contract between the parties, that were made before or at the same time the contract was executed, that contradict, change, modify, or add terms to the written contract. Parol evidence may be introduced when the written contract is incomplete or ambiguous; when it proves fraud, mistake, or misrepresentation; or when the parol evidence explains the written instrument through previous trade usage or course of dealing.

REVOCATION

withdrawal of offer by offeror

DISCLAIMING WARRANTY OF MERCHANTABILITY

you must do this with BIG LETTERS! BOLD!