Term
|
Definition
| a legally enforceable agreement |
|
|
Term
| What are the elements of a valid contract? |
|
Definition
- offer
- meet requirements of law
- offer/acceptance-responding
- consideration for both & all parties (may lead to an exchange)
- legality
- capacity
- consent
- writing- verbal, writeen to be enforceable
|
|
|
Term
|
Definition
| when a person proposes a deal |
|
|
Term
|
Definition
| "a promoise made in exchange for another promise" - both parties make a promise |
|
|
Term
|
Definition
| one party makes a promise that the other party can accept only by actually doing something |
|
|
Term
|
Definition
| an agreement in which all parties has not yet fulfilled its obligations |
|
|
Term
|
Definition
| an agreement in which all parties have fulfilled their obligations |
|
|
Term
| Valid agreements/contracts |
|
Definition
| fully enforceable one that satisfies all of the laws requirements |
|
|
Term
| Void agreements/contracts |
|
Definition
| means that the law will ignore the deal regardless of what the parties want. Dead on arrival, from the beginning (if its for an illegal purpose) |
|
|
Term
| Voidable agreements/contracts |
|
Definition
| occurs when one party has an option to cancel the agreement. 18 & under can get out of contracts at any time |
|
|
Term
| Unenforcable agreements/contracts |
|
Definition
| one with a legal defect. Starts off as valid, then something happens during it to make it unenforceable |
|
|
Term
| What is an express contract? |
|
Definition
| an agreement with all the important terms explicitly stated. Parties express consent and the conserns of the contract. Terms. Behavior. Negotiating |
|
|
Term
| What is an implied contract? |
|
Definition
| the word and conduct of the parties indicate that they intended an agreement. Doesn't have the benefits of writing or discussing, just look at it to determine what the terms should be |
|
|
Term
|
Definition
| a possible remedy for an injured plaintiff in a case with no valid contract, where the plaintiff can show benefit to the defendent, resonable expectation of payment, and unjust enrichment. This lacks agreement |
|
|
Term
| Examples of a Quasi-Contract |
|
Definition
- trespassing property
- person hasnt been harmed but they haven't been benefited either
- if you can prove why you conveyed venfit to judge why the thing was going to happen anyways
|
|
|
Term
|
Definition
| a possible remedy for an injured plantiff in a case with no valid contract, where the plantiff can show a promise, reasonable reliance, and injustice. Directed at the persons making the offer. Material changing there position. |
|
|
Term
| Where does contract law come from? What is the UCC and how does it relate to common law? |
|
Definition
- 1952 lawyers looked at legal system like commerical law (ucc- uniform commerical code)
- if a contract is for the sale of goods, the ucc is relevant body of law
- for anything else, the common law governs
- if a contact involves both goods and services, a court will determine the agreements primary purpose
|
|
|
Term
| What two factors must be present in order for a statement to be considered an offer? |
|
Definition
- convince the judge that person who was making the offer intended to do this
- must be able to tell what is being offered
|
|
|
Term
|
Definition
| a person who makes an offer |
|
|
Term
|
Definition
| a person to whom an offer is made |
|
|
Term
| Two questions to determine what must be present in order for a statement to be considered an offer |
|
Definition
- do the offerors word and actions indicate an intention to make a bargin?
- are the terms of the offer reasonable definite?
|
|
|
Term
|
Definition
| Placing an item for this is not an offer- it is merely a request for an offer |
|
|
Term
|
Definition
| puts on a minimum amount set for the item |
|
|
Term
|
Definition
| person with the highest bid gets the product |
|
|
Term
| When an "offer" or indefinite term, what happens? |
|
Definition
| the terms of the offer must be definite, although under the UCC the parties may create a contract that has open terms |
|
|
Term
| What is the 'key of enforcement' of a contract under the UCC approach? |
|
Definition
| intention --> all in the code intended to create a contract. UCC will not create a contract where the parties never intended one. |
|
|
Term
|
Definition
| UCC rules for supplying milling terms. Saves contracts, has a forgotten price and UCC fills it with market price. Output and requirements contracts |
|
|
Term
| What is a "termination" of an offer by revocation mean? |
|
Definition
| an offer may be terminated by revocation, rejection, expiration, or operation of law |
|
|
Term
| Two ways that an offer can become irrevocable: |
|
Definition
- Option contact (all types) - may not revoke an offer during the option period
- Firm offers (UCC contacts only)- if a promise made in writing is signed by a merchant, and if it agrees to hold open an offer for a stated period, then an offer may not be revoked. May not exceed tree months. - Promissory Estoppel
|
|
|
Term
| Explain revocation/termination by rejection |
|
Definition
| if an offeree rejects an offer, the rejection immediately terminates the offer. It's off table. Includes counter offer. |
|
|
Term
|
Definition
| a party makes this when it responds to an offer with a new and different proposal (also a rejection, reverse of roles) |
|
|
Term
| Explain termination by expiration |
|
Definition
| when an offer specifies a time limit for acceptance, that period is binding. If the offer specifies no time limit, the offeree has a reasonable period to accept |
|
|
Term
| Explain termination by operation of law |
|
Definition
| if an offeror dies or becomes mentally incapacitated, the offer terminates automatically and immediatly. Destruction of the subject matter terminates the offer |
|
|
Term
| Explain the common law Mirror Image Rule |
|
Definition
| requires that acceptance be on precisely the same term as the offer. "If youre going to accept my offer, your terms must match mine" |
|
|
Term
| Explain the UCC section 2-207 change the common law with regard to acceptance ? |
|
Definition
| Under the UCC, an offeree may often create a contract even when the acceptance includes terms that are additional to or differen from those in the offer. Includes three circumstances. Different terms are those that contradict terms in the offer. The majority of states hold that different (contradictory) terms cancel eachother out |
|
|
Term
| Explain the three circumstances the UCC section 2-207 change with regard to acceptance: |
|
Definition
- if the original offer insisted on its own terms
- if the additional terms materially alter the original offer (do not become apart of the offer)
- if the offeror receives the additional terms and promptly objects to them
|
|
|
Term
|
Definition
| (enforceable) Ex. big company buys from little software company to improve pay roll. Check out, box pops ip saying "this seller is not responsible." Years later, software broke, company sues |
|
|
Term
|
Definition
| (enforceable) Go in and buy something. Conditions are inside the package before purchase. Not bounded by this untill you've read the conditions, able to take it back |
|
|
Term
|
Definition
| an acceptance is generally effective upon dispatch, meaning from the moment it is out of the offeree's control. Terminations usually are not effective until receieved. Acceptance is effected by dispatch. Can adjust terms of an offer. |
|
|
Term
|
Definition
| contracts must be a two-way street. If one side gets all the benefit and the other side gets nothing, then an agreement lacks this and is not an enforceable contract |
|
|
Term
| Three rules of consideration |
|
Definition
- both parties must get something of 'measurable value' from the contract
- a 'promise' to five something of value counts as consideration
- the two parties must have 'bargained' for whatever was exchanged
|
|
|
Term
|
Definition
| any action that a party was not legally required to take in the first place |
|
|
Term
|
Definition
| refraining from doing something that one has a legal right to do. The opposite of an act. The item of value can either be an act or this. |
|
|
Term
| Explain "adequacy of consideration" |
|
Definition
| the courts will seldom inquire into this. This is the "peppercorn rule." Illusory promises is not a consideration |
|
|
Term
|
Definition
| buyer agrees to purchase 100% of her goods from one seller- buying only want you need |
|
|
Term
|
Definition
| the seller guarantees to sell 100% of its output to one buyer, and the buyer agrees to accept the entire quanitty- someone has agreed to take your output and pay you for it |
|
|
Term
| Explain more on output and requirement contracts |
|
Definition
| under sales law, both of these type of contracts are valid. Although one side controls the quantity, its agreement to make demands in good faith is consideration. Only in scale of goods/services. New agreements by consideration. |
|
|
Term
|
Definition
| a debt that is disputed because the parties disagree over its existence or amount |
|
|
Term
|
Definition
| a debt in which there is no dispute about the amount owed. In cases of this, if the creditor agrees to take less than the full amount as full payment, agreement is not binding |
|
|
Term
| Which form of debt may Accord and Satisfaction apply? |
|
Definition
|
|
Term
|
Definition
| a complete agreement to settle a debt for less than the sum claimed. Pay by check "final payment" then binding when cashed |
|
|
Term
| Two reasons for Unliquidated Debt |
|
Definition
- the parties dispute whether any money is owed
- the parties agree that some money is owed but disput how much
|
|
|
Term
| Explain "full payment" notions |
|
Definition
| in most states, payment by a check that has this, will create an accord and satisfaction unless the creditor is an organization that has notified the debtor that full payment offers must go to a certain officier |
|
|
Term
| Is a gambling debt an enforceable contract? |
|
Definition
| This kind of contracts are illegal unless it is a type of wagering specifically authorized by state statue |
|
|
Term
|
Definition
| a purely speculative contact, whether for gambling or insurance, is likely to be unenforceable |
|
|
Term
| Explain more on life insurance in gambling |
|
Definition
| anyone taking out a policy on the life of another must have an insuravle interest in that person. Most common insurable interest if family connection. Valid interest include creditor- debtor statue (the creditor wants payment if the debtor dies) |
|
|
Term
| Explain a "Licensing Statue" and what makes it unenforceable |
|
Definition
| when the licensing statue is designed to protect the public, a contract by an unlicensed plaintiff is generally unenforceable. When such a statue is designed merely to raise revenue, a contract by an unlicensed plaintiff is generally enforceable |
|
|
Term
|
Definition
| excessive interest in generally unenforceable and may be fatal to the entire debt. Credit card debt is often exempt from this kind of laws. Charing excess interest on loans |
|
|
Term
| Explain non-complete agreement |
|
Definition
| this kind of clause in the sale of a business must be limited to a reasonable time, geographic area and scope of activity. In an employment contract, such a clause is considered reasonable and enforceable- only to protect trade secrets, confidential information, and customer lists |
|
|
Term
| What is an exculpatory clause? |
|
Definition
| a contract provision that attempts to release one party from liability in the event the other is injured. These clauses are generally void if the activity involved is in the public interest, the parties are greatly unequal in bargaining power, or its unclear. Generally enforced. Listing types of activites that they could be liable for (ex. signing a contract before bungee jumping) |
|
|
Term
| What does "unconscionable" mean? |
|
Definition
| this kind of contract is one that a court refuses to enforce because of fundamental unfairness. Under the UCC, a limitation of liability is less likely to be this when both parties are sophisticated corporations |
|
|
Term
| Two factors that will support a finding of unconscionability by a court: |
|
Definition
- oppression- one party uses its superior power to force a contract on the weaker party
- surprise- weaker party did not fully understand the consequences of its agreements
|
|
|
Term
| What is a contract of adhesion? |
|
Definition
| it's a standard form contracts prepared by one party and presented to the other on a "take it or leave it" business |
|
|
Term
| What is 2-302 section in the UCC in conflict? |
|
Definition
| you are free to negotiate anything you want |
|
|
Term
| What is 2-719 section in the UCC in conflict? |
|
Definition
| a contract that may provide remedies in addition to or in substitution and may limit or alter the measure of damages recoverable, by limiting the buyers remedies to return of goods and repayment of the price |
|
|
Term
|
Definition
| the legal ability to enter into a contract |
|
|
Term
|
Definition
| agreement is one that can be canceled by a party who lacks legal capacity or who did not give true consent |
|
|
Term
|
Definition
| someone under the age of 18, may disaffirm any contract while she is still a minor or within a reasonable time after reaching age of 18. Voidable contract may be canceled by the party who lacks capacity |
|
|
Term
| What is a "necessity of life"? |
|
Definition
| Food, shelter, and clothing (minimal)- I bought by minors, its enforceable |
|
|
Term
|
Definition
| to give notice of refusal to be bounded by an agreement. Rescind and restitution. |
|
|
Term
|
Definition
|
|
Term
|
Definition
| restoring an injured party to its original position |
|
|
Term
|
Definition
| Power to dissafirm- underage contract not void though minors contact becomes voidable. Can easily get out of the contract. If a minor dissafirms there contract, they get back whatever they put in. But has to give back what they put in |
|
|
Term
|
Definition
| words or actions indicating an intention to be bound by a contract |
|
|
Term
| How does fraud differ from misrepresentation? |
|
Definition
| Innocent misrepresentation also allows an injured party to rescind a contract, but it does not allow a plaintiff to sure for damages. It has the same elements as fraud, but it does not require intent or recklesness |
|
|
Term
| What three things must happen before a contract can be set aside based upon fraud or misrepresentation? |
|
Definition
- a false statement of fact made intentionally or recklessly
- materiality
- justifiable reliance
|
|
|
Term
| What is a bilateral mistake? |
|
Definition
| This occurs when both parties negotiate based on the same factual error. In a case of this, either party may rescind the contract. Ig the parties contact based on an important factural error, the contract is voidable by the injured party |
|
|
Term
| What is a unilateral mistake? |
|
Definition
| occurs when only one party enters a contract under a mistaken assumption. Party must demonstrate that she entered the contract because of a basic factual error and that either 1) enforcing the contract would be unconsionable or 2) the nonmistaken party knew the erroe. Helps one sided. |
|
|
Term
|
Definition
| a plaintiff may not enforce any of the following agreements unless the agreement or some memorandum or it, is in writing and signed by the defendant. |
|
|
Term
|
Definition
- Land - the sale of any interest
- One year- an agreement that cannot be preformed within one year
- Debt of Another- a promise to pay the debt of another, including promises made by executors to pay an estates debt
- Executors- a promise made by an executor of an estate
- Marriage- consideration/promise
- Goods- the sale of goods, worth $500 or more
|
|
|
Term
| Define an "interest in land" |
|
Definition
| a contract for the sale of an interest must be in writing to be enforceable. Means any legal right regarding land. Tangible with evidence. Seller makes promise to sell, buyer. General rule. |
|
|
Term
| List the three exception to this requirement |
|
Definition
- Full performance by the seller
- Part performance by the buyer- may be able to enforce an oral contract if she paid part of the purchase price and either entered upon the land or made improvements to it
- Promissory Estopel- makes a oral promise that should rely on it, and the promisee does rely then may be able to enforce the promise
|
|
|
Term
| What does "cannot be performed in one year" mean? |
|
Definition
| contracts that cannot be performed within one year are unenforceable unless they are in writing- one year period begins on the date the parties make the agreement. Contracts beyond a year and can morph. |
|
|
Term
|
Definition
| a promise made by this. An executor is the person who is in charge of an estate after someone dies. |
|
|
Term
| What is a "collateral promise" |
|
Definition
| This is when one person agrees to pay the debt of another as a favor to that debtor |
|
|
Term
|
Definition
| a promise made in consideration of goods- the sale of goods worth $500 or more |
|
|
Term
| Common Law Statue of Frauds |
|
Definition
| the writing must be signed by the defendant and must state the name of all parties, the subject matter of the agreement, and all essential terms and promises. Electronic signatures are usually valid. |
|
|
Term
| Uniform Commerical Code (UCC) |
|
Definition
| a contract or memorandum for the sale of goods may be less complete than those required by the common law |
|
|
Term
| Three important elements of UCC |
|
Definition
- the basic rule
- the merchant's exception
- special circumstances
|
|
|
Term
|
Definition
| requires only a memorandum signed by the defendant, indicating that the parties reached an agreement and specifying the quanity of goods |
|
|
Term
| Expand on the merchant's exception |
|
Definition
| if one merchant sends written confirmation of a contract, the merchant who recieves the document must object within 10 days or be bound by the writing |
|
|
Term
| Expand on special circumstances |
|
Definition
| an oral contract may be enforceable, even without a written memorandum, if: the seller is specially manufacuring the goods for the buyer, or the defendant admits in courts procedings that there was a contract, or the goods have been delivered or they have been paid for |
|
|
Term
| Whatt is "Parol Evidence" |
|
Definition
| Rule: when two parties make an integrated contract, neither one may use parol evidence to contradict, vary, or add to its terms |
|
|
Term
|
Definition
| a writing that the parties intend as the final, complete expression of their agreement |
|
|
Term
| What is a "third party beneficiary" |
|
Definition
| this is someone who was not a party to the contract but stands to benefit from it |
|
|
Term
|
Definition
| someone who may enforce a contract made between two other parties. (a) enforcing the promise will satisfy a duty of the promisee to the beneficiary (b) the promisee intended to make a gift to the beneficiary |
|
|
Term
|
Definition
| makes the promise that a third party seeks to enforce |
|
|
Term
|
Definition
| the contract party to whom a promise is made |
|
|
Term
|
Definition
| someone who might have benefited from a contract between two others but has no right to enforce that agreement. May not enforce the contract (ex. pizza parlor owner owns a small shop thats next to a new mall) |
|
|
Term
|
Definition
| obligation, something you owe to someone else. Your duty to pay |
|
|
Term
| An obligator may delegate his duties unless: |
|
Definition
- delegation would violate pubic policy, or
- the original contract prohibits delegation, or
- the obligee has a substantial interest in the personal performance by the obligator
|
|
|
Term
|
Definition
| a three-way agreement in which the obligator transfers all rights and duties to a third part. Obligator delegates all duties to the delegatee and the obligee agrees to jold only the delegatee responsible. This is a new agreement replacing an old agreement |
|
|
Term
|
Definition
| a party is this when she has no more duties under the contract. Most contracts are this by full performance. Full fill all elements under the contract, if you're deemed to be this. Rescind. |
|
|
Term
|
Definition
| to terminate a contract by mutal agreement |
|
|
Term
|
Definition
| an event that must occur before a party becomes obligated under a contract. It may be stated expressly or implied, and no formal language is necessary to creat one (no special language) |
|
|
Term
|
Definition
|
|
Term
|
Definition
| an event must occur before a duty arises. Must occur before the party who put it in there for liability |
|
|
Term
|
Definition
| must occur after a particular duty arises. If it happened after the fact, then the party is released immediately |
|
|
Term
|
Definition
| requires one party to perform its obligations precisely, with no deviation from the contract terms. Only gets paid for what the other side accepts. Requires one party to fulfull its duties perfectly (unusual) |
|
|
Term
|
Definition
| occurs when one party fulfills enough of its contract obligations to warrant payment. In construction and service contracts, generally sufficient to entitle the promisor to the contract price, minuse the cost of defects in the work. Enough to make the agreement binding still enforceable |
|
|
Term
| Four issues in Substantial Performance |
|
Definition
- How much benefit has the promisee receieved?
- Under construction contract, can the owner use the thing for its intended purpose?
- Can the promisee be compensated with money damages for any defects?
- Did the promisor act in good faith?
|
|
|
Term
| Personal Satisfaction Contracts |
|
Definition
| permit the promisee to make a subjective evalutations of the promisors performance. Contracts are interpreted under an objective standard, requiring reasonable ground for dissatisfaction, unless the work involves personal judgement and the parties intended a subjective standard. Rare but logical. |
|
|
Term
|
Definition
| this type of performance is required in all contracts (ex. brunswick hills inc. vs. route 18 case) |
|
|
Term
| Brunswick Hills Inc. vs. Route 18 case |
|
Definition
| you choose to renew or walk away at the end of the leasing period. This company didn;t want them to renew. Court ordered that it was fair dealing or in "good faith" |
|
|
Term
| 'Time of the Essence' clauses |
|
Definition
| this generally makes contract dates strictly enforceable. Its a condition. Done by a certain date. |
|
|
Term
|
Definition
| This is the only kind that will discharge a contract; a trivial breach will not. Courts will discharge a contract only if a party is commited to this. |
|
|
Term
| Anticipatory breach (or anticipatory repudiation) |
|
Definition
| by making it unmistakably clear that it will not honor the contract. Breaching the contract. Minimizing liability. If party doesn't act on it, then the person who said this can take it back. This most likely includes conteciputory damages |
|
|
Term
|
Definition
| a statutory time limit within which an injured party must file suit. Legislative (legal) deadline. Includes Statue of Repose |
|
|
Term
|
Definition
| this is designed to protect the seller after a certain number of years- released of liabilty. Only in manufactured sale of goods, not in torts |
|
|
Term
|
Definition
| true impossibility means that some event has made it impossible to perform an agreement |
|
|
Term
| Three situations/causes that'll support a claim of Impossibility |
|
Definition
- Destruction of the subject matter
- Death of the promisor in a personal services contract
- Illegality
|
|
|
Term
| Commercial Impracticability |
|
Definition
| means that some unexpected event has made it extradinarily difficult and unfair for one party to perform its obligations |
|
|
Term
|
Definition
| beyond control of either party. Something that happens that makes its impossible for either party to perform (earthquakes, fire, material things beyond the control). Clause is designed to release 1 or more parties from the contract under unforseen |
|
|
Term
|
Definition
| this may occur when an unexpected event renders a contract completely useless to one party |
|
|
Term
|
Definition
| a violation of duty imposed by a civil law |
|
|
Term
| Obligations is created... in Contract |
|
Definition
| parties agree on a contract, creaties duties for both |
|
|
Term
| Obligations is created... in Tort |
|
Definition
| Civil law imposes duties of conduct |
|
|
Term
| Obligations is created... in Criminal Law |
|
Definition
| prohibits certain conduct |
|
|
Term
| Obligations is enforced... in Contract |
|
Definition
|
|
Term
| Obligations is enforced... in Tort |
|
Definition
|
|
Term
| Obligations is enforced... in Criminal Law |
|
Definition
| prosecution by government |
|
|
Term
| Possibly results... in Contract |
|
Definition
| money damages for plaintiff |
|
|
Term
| Possibly results... in Tort |
|
Definition
| money damages for plantiff |
|
|
Term
| Possibly results... in Criminal Law |
|
Definition
| punishment for defendent including prison and/or fine |
|
|
Term
|
Definition
| doesnt have to be a contract or relationship to inflict nelegent tort on someone. Commiting this is unexceptable in society, improper. Allows people to collect contempretory damages |
|
|
Term
|
Definition
| you get what the breach of contract costs you |
|
|
Term
|
Definition
| harm caued by a deliberate action (purpose crime) vs. Nelegent (accidental). The decision to do the act. Responsible to do all the damages |
|
|
Term
| Four elements necessary for defamation |
|
Definition
- defamatory statement
- falseness
- communicated
- injury
|
|
|
Term
| Four false statements that constitute "Slander Per Se" (turn on by what you say) |
|
Definition
- lie about sexual activity/preference
- suggesting they have a disease
- damages professional reputation "false gossip"
- convicted of a serious crime (dont have to prove this one)
|
|
|
Term
|
Definition
| public personalites can win a defamination suit only by proving this |
|
|
Term
|
Definition
| this is the intentional restraint of another person without reasonable cause and without consent |
|
|
Term
| Intentional Infliction of emotional distress |
|
Definition
| an intentional tort in which the harm results from extreme and outrageous conduct that causes serious emotional harm |
|
|
Term
|
Definition
| an act that makes a person reasonably fear an imminent battery. When you make an offer/threat to physical harm with the present, liability to commit to act. Intent to harm. |
|
|
Term
|
Definition
| an intentional touching of another person is a way that is harmful or offensive. Rude/unpromitted (ex. shot or stab). Not intentional- running into someone/knocking them over |
|
|
Term
|
Definition
| Intentionally entering land that belongs to someone else or remaining on the land after being asked to leave |
|
|
Term
| Two categories in Trespass |
|
Definition
- recover to personal property
- when someone steals your stuff
|
|
|
Term
|
Definition
| taking or using someones personal property without consent. From theres to yours |
|
|
Term
|
Definition
| injuring another person by deliberate deception. Prove you gave it to them. Intentional claim. |
|
|
Term
|
Definition
| money intended to restore a plaintiff to the position he was in before the injurt |
|
|
Term
| Three elements of Compensatory Damages |
|
Definition
- if you been injured and they can prove it was intentional, they will give you medical expenses
- future income
- jury is free to awared money to compensate for emotional pain and suffering (loss of consortion)
|
|
|
Term
|
Definition
| damages that are intended to punish the defendant for conduct that is extreme and outrageous. |
|
|
Term
|
Definition
| assumption "juries are out of control." You cannot deprive someone of there actual damages. Limiting punitive damages. |
|
|
Term
| Tortious Interference with a Contract |
|
Definition
| an intentional tort in which the defendant improperly induced a third party to breach a contract with the plaintif. Consistent relationship A and B |
|
|
Term
| Five elements of negligence |
|
Definition
- duty of due care
- breach
- factual cause
- proximate cause
- damages
|
|
|
Term
|
Definition
| a duty can arise by a statue whether you have a license or not. Doesn't automatically concur |
|
|
Term
|
Definition
| each of us has a duty to behave as a reasonable person would under the circumstances. Includes general landowners |
|
|
Term
| General Landowners... to trespassers |
|
Definition
| a person on anothers property without consent. No duty of care, they can't sue you |
|
|
Term
| General Landowners... to trespassing children |
|
Definition
| "maintained an attractice musence" - things that are attractice to minors- manmade objects (fenses around pools) otherwise the owner is liable. Ex. abandoned buildings boarded/fenced in. If a minor is under 18, then a parent figure can sure you |
|
|
Term
|
Definition
| if the defendant could foresee that misconduct would injure a particular person, he probably has this to her. Special of these exist for people on the job, landowners, and employers |
|
|
Term
| General Landowners... to social guests |
|
Definition
| making them aware of the known dangerous areas on your property *warning* |
|
|
Term
|
Definition
| a person on anothers land for her own purposes but with the owners permission |
|
|
Term
|
Definition
| a person who has a right to enter anothers property because it is a public place or a business open to the public. |
|
|
Term
| General Landowners... to business invitees |
|
Definition
| Potentially engage in a business relationship. Make the area safe for them. Ex. if you're shopping at H&M, as the shopper, you are this |
|
|
Term
| Professionals in "duty of care" example |
|
Definition
| a surgeon you hire to take care or your cancer and then they just guess how to fix it. This constitutes as malpractice |
|
|
Term
|
Definition
| a defendant breaches his duty of due care by failing to meet his duty of care. Not performing to a reasonable persons standards. Second element of a plaintiffs neglience case |
|
|
Term
|
Definition
| if a legislature sets a minimum standard of care for a particular activity in order to protect a certain group of people, and a violation of the statue injurees a member of that group, the defendant has committed this. Relieves of as plaintiffs of the obligation. Duty is create here. Automatic. Created from statue. Protected class. |
|
|
Term
| Causation- Palsgargf vs. Long Island Railroad case |
|
Definition
| a man was standing on a railroad and holding a package. The man gets pushed into a care and package explodes (hit man problems). Not resonable that anyone would expect this. Depending what youre liable for concept of injury (physical, pain and suffereing- medical expenses, physiocial pain) |
|
|
Term
|
Definition
| if one event directly led to the ultimate harm, them its this |
|
|
Term
|
Definition
| for the defendant to be liable, the type of harm must have been reasonablu foreseeable |
|
|
Term
|
Definition
| the plaintiff must persuade the court that he has suffered a harm that is genuine, not speculative. For emotional distress, without a physical injury, are awarded only in select cases |
|
|
Term
|
Definition
| the facts imply that the defendants negligence caused the accident- going in for one thing and coming out with another |
|
|
Term
| Three requirements of Res Ipsa Loquitur |
|
Definition
- the defendant has exclusive control of the thing that cause the harm
- the harm normally would not have occurred without negligence
- the plaintiff has no role in causing the harm
|
|
|
Term
|
Definition
| "recover from injuries." Must witness and be there. 'Party that can be curable' |
|
|
Term
|
Definition
| a plaintiff who is even slightly responsible for his own injury recovers nothing |
|
|
Term
|
Definition
| the jury may apportion liability between plaintiff and defendant |
|
|
Term
|
Definition
| if you're 50% of more of your own proble, you're more likely to recover |
|
|
Term
|
Definition
| a person who voluntairily enters a situation that has an obvious danger cannot complain if she is injured. If you engage in an activity with knowledge of the dangers then you know the risk. Not a neglient risk. |
|
|
Term
| Not an example of "Assumption of Risk" |
|
Definition
| a hockey player breaks stick on his leg and sticks on his leg and sticks in in another players eye. He claimd it was this, but the judge said no and that it was an assult. This is not a normal foressable risk of the activity |
|
|
Term
|
Definition
| a brand of tort law that imposes a much higher level of liability when harm results from ultrahazardous acts or defective products. Includes using harmful chemical blasking, and keeping wild animals. Consequenses. Unreasonable/worthable burden. Reliable for anything that goes wrong. (ex. transportation of nuclear waste) |
|
|
Term
|
Definition
| manufacturer trying to make product safer: 1) product a marketable product and 2) environmentally safe |
|
|
Term
|
Definition
| a contractual assurance that good will meet certain standards |
|
|
Term
|
Definition
| one that the seller created with his words or actions |
|
|
Term
| Three ways you can make an express warranty under the UCC 2-313 |
|
Definition
- with an affirmation of fact or a promise
- with a description of the goods
- with a sample or model
|
|
|
Term
|
Definition
| are those created by the unifrom commerical code itself not by any act or statement of the seller |
|
|
Term
| Implied Warranty of Merchantiability |
|
Definition
| unless excluded or modified, a warranty that the goods shall be merchantable is implied in a contract for ther sale if the seller is a merchant with respect to goods of that kind |
|
|
Term
|
Definition
| means that the goods are fit for the ordinary purposes for which they are used |
|
|
Term
| Implied Warranty of fitness for a particular purpose UCC 2-315 |
|
Definition
| where the seller at the time of contracting knows about a particular purpose for which the buyer wants the goods, and knows that the buyer is relying on the sellers skill or judgement, there is (unless excluded or modified) an implied warranty that the goods shall be fit for the purpose |
|
|
Term
|
Definition
- particular purpose
- sellers skill
- exclusion or modification
|
|
|
Term
|
Definition
| a statement that a particular warranty does not apply |
|
|
Term
|
Definition
| if you dont want to make any implied warranties you can disclaim. Not a consumer product, you can always disclaim it. No time limit- only with statue of limitations |
|
|
Term
| When two parties contract, they are in |
|
Definition
|
|
