PCC Business Law cards 98-216 (Dosson)
149. what is "promissory estoppel"
A doctrine that can be used to enforce a promise when the promisee has justifiably relied on it, and justice will be better served by enforcing it
126. what is a "patent"
A government grant that gives an inventor the exclusive right or privilege to make use or sell his or her invention for a limited time period
124. What is a "service mark"
A mark used in the sale or advertising of services to distinguish the services of one person or company from the services of others
160. what is an agreement
A meeting of two or more minds in regard to the terms of a contract (i.e. and offer and an acceptance)
197. what is a "bilateral mistake"
A mistake that occurs when both parties to a contract are mistaken as to a material fact
195. what is a "unilateral mistake"
A mistake that occurs when one party to a contract is mistaken as to a material fact
119. name 6 types of intellectual property that need legal protection
1. trademarks 2. Patents 3. service marks 4. trade names 5. copyrights 6. trade secrets
99. What are two ways in which a tort can be committed
1. Intentionally (known as an "intentional tort") 2. negligently (known as "negligence")
98. Name five categories of torts against property that may be experienced in a business environment
1. Trespass to land 2. Trespass to personal property 3. Conversion 4. Disparagement of property 5. Infringement
100. What are the four components that are all required for a plaintiff to prevail in a tort case
1. a "duty" (a legal obligation) 2. a "breach of duty (a failure to perform that legal duty) 3. "harm" (the plaintiff suffered a recognizable injury) 4. "causation" (the defendant's breach of duty caused the plaintiff's injury)
172. what are two types of promises that the law has determined do not have value and therefore do not constitute valid consideration
1. a promise to do what one already has a legal obligation to do 2. a promise in return for actions or events that have already taken place "past consideration"
140. name the five basic requirements for a valid contract
1. agreement (offer + acceptance) 2. Consideration 3. Capacity 4. Legality 5. form
170. what are the two elements of consideration
1. it must have legally sufficient value 2. it must be part of a "bargained-for" exchange
130. name the 8 categories that an original work must fall into in order to obtain protection under the Copyright Act
1. literary works 2. Musical works 3. Dramatic works 4. Pantomimes and choreographic works 5. Pictorial graphic and sculptural works 6. Motion pictures and other audiovisual works 7. Sound recordings 8. And computer software
179. what are the three general categories of people that contact law deals with concerning the issue of capacity
1. minor children 2. intoxicated persons 3. mental incompetents
201. what are the four elements that typically have to be present for a party to a contract to either rescind the contract or enforce it and sue for damages under a theory of fraudulent misrepresentation
1. misrepresentation of a material fact 2. an intent to deceive 3. the innocent party justifiably relies on the misrepresentation 4. the innocent party suffers some kind of harm
171. List eight types of objects or concepts that are of "sufficient legal value" to constitute "consideration" and are often exchanged in business contracts
1. money 2. goods 3. Products 4. personal property 5. land 6. intellectual property 7. services 8. forbearance (e.g. a promise not to do something)
117. What 3 qualities must an item or concept possess to constitute property
1. must have value 2. must be subject to ownership 3. must be subject to harm damage or destruction
131. What remedies (or penalty) can be imposed upon a person who infringes upon a protected copyright
1. payment of money damages k2. criminal sanctions for willful infringements
166. what are the three requirements for a valid acceptance of an offer
1. the offer must be accepted by the offeree (not by a third party) 2. the acceptance must be unequivocal 3. In most situations the acceptance must be communicated to the offeror
178. what are the four functions of the court in any civil lawsuit when 'breach of contract" is the cause of action
1. to determine if there was a contract between the parties 2. to determine what the terms and conditions of the contract were 3. to determine if there was a breach 4. to determine the amount of damages (or the appropriate equitable remedy) to solve the problem caused by the breach
128. In the area of Intellectual Property what is a "license"
A "license" for a patent allows the use of the patented design, product, or process for certain specified purposes to another party. It protects the patent, but avoids costly litigation
193. What is an "exculpatory clause"
A clause that releases a party to a contract form his or her wrongful acts. (They are generally held to be unenforceable)
159. what is an e-contract
A contract entered into online
147. What is an implied contract
A contract formed in whole or in part from the conduct of the parties
157. what is an unenforceable contract
A contract having no legal effect because of a statute or rule of law (even though it might appear on its face to be a valid contract)
158. what is a void contract
A contract having no legal force or binding effect
190. what is an "unconscionable" contract or clause
A contract or clause that is void because one party is forced to accept terms that are unfairly burdensome and that unfairly benefit the other party
151. what is a formal contract
A contract that by law requires a specific form for its validity
152. what is an informal contract
A contract that does not require a specific form for its validity
153. what is an executed contract
A contract that has been completely performed
154. what is an executory contract
A contract that has not yet been fully performed
144. what is a bilateral contract
A contract that includes the exchange of a promise for a promise
145. what is a unilateral contract
A contract that includes the exchange of a promise for an act
146. what is an express contract
A contract that is stated in words (oral or written)
156. what is a voidable contract
A contract that may be legally avoided at the option of one of the parties
163. what is an "option" contract
A contract under which the offeror cannot revoke his offer for a stipulated period of time and the offeree can accept or reject the offer during this time
189. what is reformation
A court-ordered correction of a written contract so that it reflects the true intention of the parties
192. when can a covenant not to compete be enforceable
A covenant not to compete can be enforceable when: 1. the specified period of time is not excessive in duration and 2. the geographic restriction is "reasonable"
114. What is "assumption of risk"
A defense against negligence that can be used when the plaintiff is aware of a danger and voluntarily assumes the risk of injury from that danger
125. What is a "trade name"
A name used in commercial activity to designate a particular business
142. what is an offeror
A person (or legal entity) that makes an offer to enter into a contract
143. what is an offeree
A person (or legal entity) to whom an offer is made
161. what is an "offer"
A promise or commitment to perform or refrain from performing some specified act in the future
175. what is an illusory promise
A promise that is so uncertain as to what the terms of the promise is that the promisor has not definitely promised to do anything. Such a promise is unenforceable because it does not constitute consideration
155. what is a valid contract
A properly constituted contract having legal strength or force
103. what is a defense
A reason offered by the defendant in an action or lawsuit as to why the plaintiff should not recover or establish what he or she seeks
167. what is the "mailbox rule"
A rule providing that an acceptance of an offer becomes effective on dispatch
191. what is an adhesion contract
A standard form contract in which the stronger party dictates the terms
127. What is "patent infringement"
A tort that occurs when a firm makes, uses, or sells, another's patented design, product, or process without the patent owner's permission
165. what is an "acceptance"
A voluntary act by the offeree that shows assent or agreement to the terms of the offer
120. What is a trademark
A word, symbol, sound, or design that has become sufficiently associated with the good or has been registered with a government agency
133. what was the significance of the Berne Convention of 1886
All attending foreign countries agreed to honor the copyrights of the other nations
168. what is a "click on agreement"
An agreement entered into online when a buyer indicates his or her acceptance of an offer by clicking on a button that reads "I agree"
177. what is a release
An agreement in which one party gives up the right to pursue a legal claim against another party
139. what is a "contract"
An agreement that can be enforced in court
173. what is recission
An equitable remedy by which a contract is terminated and the parties are returned to the positions they occupied before the contract was made
174. what is a specific performance
An equitable remedy in which the court (rather than awarding money damages for a breach of contract) orders the parties to perform the contract exactly according to its terms
148. what is a quasi contract
An obligation or contract imposed by law, in the absence of an actual agreement, to prevent "unjust enrichment"
164. what is a "counteroffer"
An offeree's response to an offer in which the offeree rejects the original offer and at the same time makes a new offer
200. what is "fraudulent misrepresentation"
Any misrepresentation, either by misstatement or by omission of a material fact, knowingly made with the intention of deceiving another and on which a reasonable person would and does rely to his or her detriment
115. What is an "assault"
Any word or action intended to make another person fearful of immediate physical harm
104. what is defamation
Anything published or publicly spoken that causes injury to another's good name, reputation or character
194. How is the concept of "lack of voluntary consent" used in a business contract lawsuit
As a defense in a lawsuit to enforce a contract because an otherwise valid contract will be unenforceable if the parties have not genuinely agreed to the terms
137. What is the significance of establishing a "domain name"
Because of the restrictive features of domain names, the courts have held that the unauthorized use of another's mark in a domain name constitutes trademark infringement if it might cause customer confusion
187. in addition to contracts to do something that is prohibited by federal or state law, what other kinds of contracts will not meet the essential element of legality
Contracts that are "contrary to public policy" such as a contract to commit an immoral act (like selling a child)
181. when can a minor disaffirm a contract
During his or her minority or within a reasonable time after attaining majority
141. the primary goal in drafting any contract is that it be _______
Enforceable
150. under what basic remedy can the "quasi contract" doctrine and the doctrine of "promissory estoppel' be imposed
Equity
121. How does a person obtain protection for his trademark under the Federal Trademark law (i.e. the Lanham Act of 1946)
He or she must file an application with the U.S. Patent and Trademark Office
199. what is one exception to the rule that either party will be granted recission to a contract when there has been a bilateral mistake as to some material fact
If the mutual mistake concerned strictly the value of the object of the contract, the contract will be enforced and is not subject to recission
186. what is the status of a contract made with an incompetent person
If the person has been determined incompetent by a court - the contract is void If the person has not been determined incompetent by a court - the contract is either voidable or valid, a court would have to determine the incompetent person's condition at the time the contract was entered
162. what is a "revocation"
In contract law, the withdrawal of an offer by the offeror. Unless the offer is irrevocable, it can be revoked at any time before acceptance without liability
196. what is the effect of a unilateral mistake
In general, a unilateral mistake does not give the mistaken party the right to relief from the contract
105. what is privilege
In tort law immunity from liability for an action that would otherwise be a tort ?
134. What is a trade secret
Information or a process giving a business an advantage over competitors who do not know the information or process
116. What is "Battery"
Intentional touching of another
186 a. what is the status of a contract made with an intoxicated person
It is either valid or voidable (by the intoxicated person) depending on the circumstances. But for the contract to be voidable, the intoxicated person must prove that, because of his intoxication, his reason and judgement were impaired to the extent that he or she did not comprehend the legal consequences of entering into the contract
113. What is "Strict Liability"
Liability regardless of fault
101. What is Damages
Money sought as a remedy for a breach of contract or for a tortious (wrongful) act
202. what is "undue influence"
Persuasion that is less than actual force but more than advice and that induces a person to act according to the will or purposes of the dominating party
118. what is intellectual property
Property resulting from intellectual creative processes
132. what is an exception to copyright infringement
The "fair use doctrine" that says a person or entity does not have to pay royalties for using a copyrighted work for such things as criticism comment news reporting teaching scholarship and research
185. What is ratification
The act of accepting and giving legal force to an obligation that previously was not enforceable
138. what is "cybersquatting"
The act of registering a domain name that is the same as, or confusingly similar to, the trademark of another and then offering to sell that domain name back to the owner
188. What is usury
The charging of an illegal rate of interest
184. what is the duty of restitution
The duty imposed on a minor who disaffirms a contract to return whatever goods he received or to pay for their reasonable use
129. What is a "copyright"
The exclusive right of an author to publish print or sell an intellectual production for a statutory period
136. What is a "domain name"
The series of letters and symbols used to identify site operators on the Internet; internet addresses
176. what is an accord and satisfaction
The settling of a claim by the debtor offering to pay less than the creditor claims to be owed, when some dispute arises concerning the actual amount still owed
102. What is "liability"
The state of being legally responsible ("liable") for something such as a debt or an obligation
169. what is "consideration"
The value given in return for a promise or performance in a contractual agreement
135. how are "trade secrets" protected
Under "the Economic Espionage Act of 1996" that made the theft of trade secrets a Federal Crime, punishable by up to 10 years in prison and up to a $500,000 fine.
182. what is the most notable consequence when a minor disaffirms a contract
Whatever the minor transferred as consideration (or its value) normally must be returned
183. what is the effect of emancipation on a minor's capacity
When a minor child is fully emancipated, his parents relinquish control, and the child assumes full contractual capacity and loses the right to disaffirm
123. When does "dilution" of a trademark occur?
When a trademark is used without permission in a way that diminishes the distinctive quality of the mark
198. what is the effect of a "bilateral mistake"
When both parties are mistaken about some material fact, the contract can be rescinded by either party
122. When does the tort of trademark infringement occur?
When one who does not own a trademark copies it to a substantial degree or uses it in its entirety without permission
117. What is "conversion"
Wrongful taking, using, retaining or possession of personal property that belongs to another
180. what is the legal term used when a minor avoids (either during the course of his minority or for a reasonable time after turning 18) a contract he entered into as a minor
disaffirmance