LAW Chapter 9

As with the UCC, the offer need not have complete terms in order to be valid. The offer requires only

(1) a brief description of the goods, (2) quantity, and (3) price.

A buyer breaches a sales contract when she does any of the following

(1) rejects the goods despite the fact that the goods conformed to the contract specifications, (2) wrongfully revokes an acceptance, (3) fails to pay the seller in accordance with the contract, or (4) fails to meet her obligations under the contract.

Strict liability

A category of torts in which a tortfeasor may be held liable for an act regardless of intent or willfulness; applies primarily to cases of defective products and abnormally dangerous activities.

Intentional torts

A category of torts in which the tortfeasor was willful in bringing about a particular event that caused harm to another party.

Negligence

A category of torts in which the tortfeasor was without willful intent in bringing about a particular event that caused harm to another party.

• A tort is

A civil wrong and can be classified as intentional, negligent, or strict liability.

Tort

A civil wrong in which one party's action or inaction causes a loss to be suffered by another party.

• Qualified privilege

A defense to a defamation claim whereby the defendant must offer evidence of good faith and be absent of malice to be shielded from liability; provided for the media and employers.

• Absolute privilege

A defense to a defamation claim whereby the defendant need not proffer any further evidence to assert the defense; provided to government officials, judicial officers and proceedings, and state legislatures.

Assumption of the risk

A defense to claims of negligence in which the injured party knew that a substantial and apparent risk was associated with certain conduct and the party went ahead with the dangerous activity anyway.

Comparative negligence

A defense to claims of negligence in which the injured party's conduct has played a factor in the harm suffered and, thus, the proportion of negligence should be divided.

• Defamatory statement

A false statement concerning a party's reputation or honesty or a statement that subjects a party to hate, contempt, ot ridicule. In order to qualify as defamatory, the statement must have a tendency to harm the reputation of the plaintiff.

• Defamation is

A false statement that specifically concerns an individual, company, or product, is communicated to a third party, and results in pecuniary harm to the victim.

Proximate (legal) cause

A fundamental element that must be proved to recover in a negligence lawsuit against a tortfeasor: The injured party must prove a legally recognized and close-in-proximity link between the breach of duty and the damages suffered.

• Breach of duty

A fundamental element that must be proved to recover in a negligence lawsuit against a tortfeasor: The injured party must prove that the tortfeasor failed to exercise reasonable care in fulfilling her obligations.

Duty

A fundamental element that must be proved to recover in a negligence lawsuit against a tortfeasor: The injured party must prove that the tortfeasor owed him a duty of care.

Cause in fact

A fundamental element that must be proved to recover in a negligence lawsuit against a tortfeasor: The injured party must prove that, except for the breach of duty by the tortfeasor, he would not have suffered damages.

Actual damages

A fundamental element that must be proved to recover in a negligence lawsuit against a tortfeasor: the injured party must prove that she suffered some physical harm that resulted in identifiable losses.

• Merchant's privilege

A narrow privilege, provided for in the Restatements, that shields a merchant from liability for temporarily detaining a party who is reasonably suspected of stealing merchandise.

Trade libel

A tort in which a competitor has made a false statement that disparaged a competing product.

• Judicial Officers/proceedings

All states now recognize some protection of participants of a judicial proceeding for statements made during the proceeding. This includes judges, lawyers, and, in some cases, witnesses.

• Truth

An absolute defense to a charge of defamation. If the statement made is truthful, no defamation has occurred.

Misfeasance

An act by one party that harms or endangers another party.

• Empoyers

An increasing number of states have extended some liability protection for employers who are providing a reference for an ex-employee. In most cases, employers do not have liability if the employee's defamation claim is connected to a reference check.

Restatement of Torts

An influential document issued by the American Law Institute that summarizes the general principles of U.S. tort law and is recognized by the courts as a source of widely applied principles of law. ALI has amended the Restatements twice, resulting in the Restatement (Second) of Torts and the Restatement (Third) of Torts.

• Strict liability

Applies to abnormally dangerous activities, applies in absence of negligence, and applies regardless of the care exercised by the tortfeasor.

• Stuart attends a baseball game and, on his way to his seat, he is struck by a foul ball. He sues the stadium owner for negligence. What will be the owner's best defense?

C- Assumption of the risk.

• A product may be unreasonably dangerous due to a ______ or _____ defect

C- Design, manufacturing.

• A breach of duty may be established by showing

D- All of the above... Violation of a safety statute, breach of common law standards of behavior, and Res Ipsa loquiter.

• Which of the following is not an element of defamation?

D- Malice

• Ginger uses the wrong type of cleaner fluid to clean out the deep fryer in her café and causes an explosion. The explosion causes the café's front window to shatter and injures a pedestrian walking on the public sidewalk in front of the café at the time of the explosion. In a suit against ginger for negligence

D-Pedestrian wins because Ginger's actions were the cause and proximate cause of the injury.

Defenses

Did the injured party contribute to the injury? Did the injured party know of the risk but go ahead anyway?

• Actual damages

Did the injured party suffer some physical harm that resulted in identifiable losses?

Damages

Did the injury to person or property result in losses?

• Breach of duty

Did the tortfeasor fail to exercise reasonable care?

• Duty

Did the tortfeasor owe a duty of care to the injured party?

• Media

Employees of media organizations are afforded a qualified protection from defamation liability. So long as the media has acted in a good faith, absent of malice, and without a reckless disregard for the truth, the media is protected from liability through privilege as a defense for unintentional mistakes of fact in their reporting.

• Cause in fact

Except for the breach of duty by the tortfeasor, would the injured party have suffered damages?

• Intentional infliction of emotional distress

Extreme, outrageous, or reckless conduct that is intended to inflict emotional or mental distress.

Communications Decency Act (CDA) of 1996

Federal legislation that extends immunity to Internet service providers (ISPs) by protecting them from any defamation liability as a "publisher or speaker of any information provided by another information content provider."

FOB

Free On Board- applies only when transportation is via freighter ship. It means that the seller's expense and risk of loss end when the seller delivers goods "over the ship's rail" to the freighter ship.

FCA

Free carrier- means that the seller provides transportation at the seller's epense only to the carrier named by the buyer.

• Limited to premises

Generally, the privilege applies only if the suspected party is confronted on the merchant's premises or an immediately adjacent area.

• Damages

IN a business context, the aggrieved party must be able to prove that he or she suffered some pecuniary harm. Examples of damages in a defamation suit include situations in which the victim has lost valuable client due to the tortfeasor's defamatory comment or the victim is unable to secure employment because of tortfeasor's defamatory comment during a reference check.

• Fair report privilege

If one relies on an official public document or a statement made by a public official and cites the document or public statement when making an allegedly defamatory statement, no cause of action for defamation occurs unless the speaker knows the statement is false.

• Palsgraf v. Long Island Railroad Co

In a famous opinion written by Benjamin Cardozo, the New York Court of Appeals ruled in favor of the Long Island Railroad. Cardozo reasoned that because the conductor could not have known that the man was helping onto the train had a box full of fireworks, the action on the conductor was not a proximate-enough cause to incur liability for Paslgraf's injuries.

Estate

In addition to land, assets, and personal property, a person's estate also consists of legal rights and entitlements after death including the right to sue for the tortious conduct that caused the death.

• Dissemination to a third party

In the restatements, this requirement is referred to as publication, but in this context it does not literally require the statement to be published. Rather, this element requires that the statement must somehow reach the ears or eyes of someone other than the tortfeasor and the victim.

Special relationship

In tort law, a heightened duty created between certain parties, such as that of a common carrier to its passengers, innkeepers to guests, employers to employees, businesses to patrons, a school to students, and a landlord to tenants and landowners.

• When a business competitor's actions exceed standard competitive practices, that company may be liable for

Intentional interference with a contract by a third party if the company has specific knowledge of a contract and intentionally disrupts its proper execution.

• Battery

Intentional touching of another person, without that person's consent, in a harmful or offensive manner.

• Pecuniary Harm

Lost revenue or profits, both actual and potential.

• Products liability

Makes a company liable for design or manufacturing defects that cause harm, applies in the absence of proof to negligent design or manufacture, requires that injured parties prove only the defect and injuries; causation is not required, and can apply if a warning of a known danger or defect is not issued.

Punitive Damages

Monetary damages, generally a multiple of the actual damages, that are awarded partly to punish the tortfeasor and partly to deter others from acting in a similar manner.

Tortfeasor

One who commits a civil wrong against another that results in injury to person or property.

Slander

Oral defamation, in which someone tells one or more persons an untruth about another that will harm the reputation or honesty of the person defamed or subject a party to hate, contempt, or ridicule.

• Licensee

Party has owner's consent to be on property for a nonbusiness purpose.

• Invitee

Party is invited onto property by owner for business purposes or because landowner holds premises open to the public.

• Trespasser

Party who enters premises without owner's consent.

• State legislatures

Similar immunity has been extended by the states to protect state legislatures for statements made in the course of carrying out their duties.

Product disparagement statutes

Statutes intended to protect the interest of a state's major industries, such as agriculture, dairy, or beef.

• Bunch v. Hoffinger Industries

The California Court of Appeals affirmed the judgment and verdict in favor of bunch. The court rejected Hoffinger's contention that it owed no duty to warn Bunch of possible head injury from the open and obvious danger of diving headfirst into a shallow above-ground pool.

• Yost v. Wabash College

The Indiana Supreme Court affirmed the summary judgement for Wabash but reversed the summary judgement for the local Fraternity. In the case of Wabash, the court reasoned that a landlord has no liability to tenants or others for injuries on the property when the tenant is in full control of the leased premises.

Zeidman v. Fisher

The Pennsulvania Superior Court reversed the trial court;s decision and ruled in favor of Zeidman. The court reasoned that the assumption-of-the-risk doctrine requires that the evidence show that the injured party (1) fully understands the specific task (2) Voluntarily chose to encounter it and (3) manifested a willingness to accept the known risk.

• Trespass

The act of entering another's land or causing another person or object to enter land owned by a private party without the owner's consent.

• Civil assault

The act of putting someone in fear and apprehension of immediate harmful or offensive contact. No actual contact is required.

• Conversion

The civil counterpart to theft; intended to reimburse a party who suffers damages as a result of theft or any other substantial interference with the party's ownership, where fairness requires that the tortfeasor reimburse the injured party for the full value of the property.

• Nelson v. Tradewind Aviation

The court affirmed the jury's verdict in favor of Nelson. The court reasoned that it was well settled that defamation is actionable if it charges improper conduct or lack of skill or integrity in one's profession or business and is of such a nature that it is calculated in cause injury to one in his profession or business. The court rejected TA's argument that Nelson had not proven that TA's statements rose to the level of malicious.

Nonfeasance

The failure to act or intervene in a certain situation.

• Government officials

The framers of the constitution recognized the need for free debate among members of congress and gave immunity in the Constitution via the Speech and Debate Clause, which shields members of Congress from liability for any statement made during a congressional debate, hearing and so on, while in office.

• Malice

The intent, without justification or excuse, to commit a wrongful act or inflict harm.

• Seizure of property

The merchant or marchant's agent may seize alleged stolen property in plain view but may not search the accused shoplifter.

• Coercion

The merchant or merchant's agent may not attempt to coerce payment, purport to officially arrest the detained party, or attempt to obtain a confession.

• Limited detention

The privilege applies only for a short period of time under the circumstances. Some courts have limited this time period to as few as 15 minutes.

• Specificity

The statement must be about a particular party, business, or product. Thus, any general statement about a profession as a whole cannot constitute defamation, but a false statement about a specific company can be the basis of a reputation claim.

Tortious conduct

The wrongful action or inaction of a tortfeasor.

• Induce

To bring about or give rise to. In the context of tortious interference, liability is triggered if interference causes the harm.

• Treble damages

Treble damages are a remedy in fraud cases whereby the victim of fraud can collect triple the amount of actualy damages.

• Proximate cause

Was there a legally recognized and close-in-proximity link between the breach of duty and the damages suffered by the injured party?

Libel

Written defamation, in which someone publishes in print (words or pictures), writes, or broadcasts through radio, television, or film an untruth about another that will do harm to that person's reputation or honesty or subject a party to hate, contempt, or ridicule.

• False imprisonment is

an intentional tort unless the tortfeasor is a merchant who temporarily and reasonably detains a suspected thief.

Incidental damanges under the UCC

any commercially reasonable charges, expenses, or commissions incurred in stopping delivery or in transportation, care, and custody of goods after a buyer's breach.

• A victim of fraud must show

intentional misrepresentation by the tortfeasor of a material fact, reliance on that fact, and damages resulting from that reliance.

Seasonable notice

notification to the other party within either an agreed-upon time or a reasonable amount of time given the nature and goals of the contract.

Shipment contracts

require the seller to use a carrier to deliver the goods.

Choice of law and forum clauses

terms of a contract that predetermine which nation's laws and court system will be used in a potential lawsuit under the contract.

• If one of the parties in the sales contract is not a merchant

the contract is formed as originally offered.

Conforming goods

the goods must conform exactly to the agreed-upon description of the goods.