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150 Cards in this Set
- Front
- Back
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Breech of duty 3 types 1 other |
violation of statute custom or usage res ipsa loquitur prove someone fails to act as a prudently careful person |
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breech of duty violation of statute example |
going over the speed limit and causing an accident |
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breech of duty violation of a statute per se meaning |
negligence is guilty no matter what |
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breech of duty custom or usage |
does not have proof a statute was broken |
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breech of duty custom or usage examples |
accident happens that could have been prevent by a back up camera. Person sues dealership for not installing camera
person is sick and doc decides against $$$$ test and you have that disease |
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breech of duty res ipsa loquitur charecteristics |
exclusive control of the D normally wouldn't happen without negligence no other cause |
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breech of duty res ipsa loquitur example |
doc in surgery leaves something in the patient |
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causation cause in fact |
defendant's conduct was the actual cause of, or a substantial factor in causing the injury |
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causation 4 types |
but for causation substantial factor test no causation if unforeseeable consequences result no causation is superseding cause results/yes causation if merely intervening |
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causation but for test |
act or omission is CFI of another when the 2nd act would not have occurred but for the 1st |
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causation but for test example |
person not putting in fire escape and person dies trying to get out of the top floor |
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causation substantial factor test |
several causes concur to bring about an injury, and any one alone would have been sufficient to cause injury, then CFI if D's conduct was a substantial factor |
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causation substantial factor test example |
2 people hit one person in cars |
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causation no causation is superseding cause results/yes causation if merely intervening |
cause occurs after the D's negligent conduct and relieves D of liability |
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causation no causation is superseding cause results/yes causation if merely intervening example |
huge hole in the road and the road is blocked off and there are signs. night is an intervening cause and man cant see sign. another man throws man in hole, criminal act and is a superseding cause
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eggshell plantiff rule |
if P had no reason to know he was weak, D is still liable |
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must have ___________ to prevail in a negligence suit |
damages |
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defense to negligence contributory negligence |
failure of a plaintiff to exercise reasonable care to the extent that the plaintiff's failure is the legal cause of the plaintiff's harm |
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defense to negligence contributory negligence last clear chance (__________ peril)
not a valid defense in AR if |
discovered not a valid defense in AR if D put P in situation |
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defense to negligence comparative fault |
fault of P and D are connected, and P's recovery is reduced in proportion to his fault |
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defense to negligence comparative fault equal to or greater than limitation |
no recovery if P is 50% or more responsible |
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defense to negligence comparative fault multiple defendants |
joint and several liability - contribution |
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defense to negligence assumption of risk 2 types |
express implied |
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defense to negligence assumption of risk express generally by a ________ _______ clause |
generally by contract, but not always -exculpatory clause |
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defense to negligence assumption of risk implied idea often merged with _____ |
this idea is often merged with contributory negligence and comparative fault analysis |
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contract |
legally enforceable promise or set of promises |
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types of contracts classified by |
classified by formation classified by how they are accepted |
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types of contracts classified by formation |
express implied quasi contract |
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types of contracts classified by formation express |
language (written) |
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types of contracts classified by formation implied |
conduct (pump gas then pay, eat at restaurant with no price on menu) |
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types of contracts classified by formation quasi contract |
not a contract, but a way to avoid unjust enrichment (contractor builds most of a house but stops. he gets partial compensation) |
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types of contracts classified by how they are accepted |
bilateral unilateral |
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types of contracts classified by how they are accepted bilateral _______ for a _______ ex |
promise for a promise teachers at obu- teach for $, promise made in April for the next fall, no act yet but promise exchange |
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types of contracts classified by how they are accepted unilateral ___________ for a _________ offer to the _______ clearly ________ |
act for a promise offer clearly indicates performance is the only manner of acceptance offer to the public clearly contemplating acceptance by performance |
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types of contracts classified by how they are accepted unilateral example |
man will pay first person to come mow his lawn. man not looking for a promise of another, but an act |
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void def and example |
has no legal affect from the beginning agreement to commit a crime |
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voidable def and example |
one party may elect to avoid or ratify -contract by a minor without capacity
person under anesthetics, person can decide to stand by contract after they ware off |
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unenforceable |
otherwise valid, but some defense exists to prevent formation -statute of frauds- requires contracts to be in writing before enforceable |
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elements of a contract |
mutual assent consideration no defense to formation |
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elements of a contract mutual assent determined by |
determined by an objective standard |
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elements of a contract mutual assent offer steps: expression of ____,_____ or ____ to enter into a contract _____ and _____ in its terms communicated to the ________ |
expression of promise, undertaking, or commitment to enter into a contract definite and certain in its terms communicated to the offeree how is an offer terminated? |
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elements of a contract mutual assent offer expression of promise, undertaking, or commitment to enter into a contract step elements |
language used surrounding circumstances method of communication prior relationship between parties custom in the industry |
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elements of a contract mutual assent offer definite and certain in its terms step elements |
quantity, price, duration of term |
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elements of a contract mutual assent how is an offer terminated |
acts of parties operation of law |
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elements of a contract mutual assent how is an offer terminated acts of parties terminated by the |
terminated by the offeror terminated by the offeree |
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elements of a contract mutual assent how is an offer terminated acts of parties terminated by the offeror:______ effective when? may be revoked when?
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revocation effective when received generally offers that are not supported by consideration, with no reasonable detrimental reliance and are not firm offers under the UCC may be revoked at any time prior to acceptance |
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elements of a contract mutual assent how is an offer terminated acts of parties terminated by the offerer |
express rejection, counter offer, or lapse of time effective when recieved |
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elements of a contract mutual assent how is an offer terminated operation of law 3 ways |
death or insanity of either party destruction of contract's subject matter supervening illegality |
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elements of a contract mutual assent acceptance requires 3 things |
offeree with power of acceptance unequivocal terms of acceptance communication of acceptance |
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elements of a contract mutual assent acceptance requires offeree with power of acceptance |
must be a member of the class to whom the offer was made |
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elements of a contract mutual assent acceptance requires unequivocal terms of acceptance under two groups |
common law UCC rules |
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elements of a contract mutual assent acceptance requires unequivocal terms of acceptance common law |
acceptance must mirror the offer's terms- mirror image rule |
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elements of a contract mutual assent acceptance requires unequivocal terms of acceptance UCC rules |
need not mirror the offer's terms |
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ucc |
uniform comercial code |
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elements of a contract mutual assent acceptance requires unequivocal terms of acceptance ucc rules if one party is non merchant,_______ if both parties are merchant, ______ |
if one party is a nonmerchant, terms of offer govern if both parties are merchant, then new terms become part of contract unless |
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elements of a contract mutual assent acceptance requires unequivocal terms of acceptance ucc rules if both parties are merchant, then new terms become part of contract unless |
they materially alter the agreement- offer to buy shoes using UPS, accept using FedEx the offer expressly limits acceptance to terms of offer offeror had already objected to new or different terms |
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elements of a contract mutual assent acceptance requires communication of acceptance __________ means acceptance on ________ |
any reasonable means acceptance on dispatch |
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elements of a contract consideration the thing that ______________ difference btwn ______ and ______ |
the thing that makes a contract stick difference between promise and promise legally binding |
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elements of a contract no defense to formation divided into two groups |
legality of object capacity |
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what to look for in a contract 4 things |
1.length-want it short -opt out- w/out cause, gives incentive for party to do well 2. employee or independent contractor 3.liquidated damages-if you get out of contract, will have to pay a ton of $$$ 4.indemnity-to pay someone else's losses |
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consideration elements 2 things |
legal sufficiency (something of value in the law- nothing to do with adequacy of consideration) bargained for exchange |
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consideration legal sufficiency must be a __________ law will not ________ |
must be a legal detriment to the promisee or a legal benefit to the promisor law will not bail you out if you make a bad deal |
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legal detriment |
doing something you had no legal obligation to do refrain from doing something you had the legal right to do |
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unilateral contract def and example |
promise is exchanged for an act have only 1 promisor and 1 promisee
man says "first to fix my deck gets paid"
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bilateral contract |
exchange of a promise for a promise have 2 promisors and 2 promisees |
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mutuality of obligation example |
promise of mcKinney's mom not to sue for promise of restaurant to pay |
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distinguish legal sufficiency from contracts not supported by |
consideration |
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illusory promise |
not supported by consideration b/c they impose no obligation on the promisor
i'll buy as much as i desire, want or wish to buy- not detriment bc no legal detriment was suffered |
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illusory promise is not _____ bc it is supported by consideration output contract |
i'll sell you everything i have seller suffers leg. detr. |
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illusory promise is not _____ bc it is supported by consideration requirements contracts |
i'll buy everything i need from you team buy their suppliers from merchant only buy as many uniforms as needed
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illusory promise is not _____ bc it is supported by consideration UCC imposes |
good faith limitation on quantity for output and requirement contract |
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illusory promise is not _____ bc it is supported by consideration exclusive dealing contracts |
mfr of goods grants distributor exclusive right to sell its products in designated market |
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illusory promise is not _____ bc it is supported by consideration conditional promise |
a promise that is conditioned upon the something happening that is not certain to happen unless a promisor knows it wont happen |
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illusory promise is not _____ bc it is supported by consideration conditional promise example and violation of promise |
buy a house on the condition of ability to finance and approval of sale price
bob pays jim and sally for them to name next biological baby after him, they cant have kids but take his money |
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preexisting public obligations def and example |
public duty does not arise out of contract, it simply exists ed threatens to stel bob's car. bob promises to pay ed $100 in exchange for ed's promise to not steal car. no consideration bc tort and criminal law impose a preexisting public obligation to refrain from such abuse |
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preexisting contractual obligation |
performance of a preexisting contractual duty not consideration |
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modification of a preexisting contract |
under common law, modification must be supported by mutual consideration UCC contract can be modified w/out new consideration (if both intend to make modification in good faith) |
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settlement of an undisputed debt |
settlement of a lesser sum of money does not constitute legally sufficient consideration |
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settlement of a disputed debt def and ex |
payment of lesser sum to discharge a disputed debt is consideration if accepted
mckinney sending $100 check to phone company and stating Paid In Full |
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bargained for exchange both parties _____ and _____ to give or give up ____ |
both parties intended and mutually agreed to give or give up consideration |
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bargained for exchange past consideration def and ex |
unbargained for past actions find and return dog then find out there was a reward |
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2 types of illegal bargains/agreements |
agreement in violation of a statute agreement contrary to public policy |
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illegal bargain/agreement agreement in violation of a statute 4 things |
licensing gambling usury sunday |
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illegal bargain/agreement agreement in violation of a statute licensing statute |
regulatory revenue |
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illegal bargain/agreement agreement in violation of a statute licensing statute regulatory |
law, doc, contractor, lawyer protects public from incompetent or dishonest service may not enforce agreements
if a license isn't current, dont have to pay if you back out |
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illegal bargain/agreement agreement in violation of a statute licensing statute revenue |
raises money may enforce agreement pay to have the license |
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illegal bargain/agreement agreement in violation of a statute gambling statute |
one wins and loses depending on one event |
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illegal bargain/agreement agreement in violation of a statute usury statute |
sets a maximum rate of interest that may be charged by a lender trend is to relax these rules -in large part bc of the German Leach Bliley Act, but doesn't cover non bank lender
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illegal bargain/agreement agreement in violation of a statute usury statute 3 penalties |
lose all principle and interest lose all interest lose portion above legal limit |
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illegal bargain/agreement agreement in violation of a statute sunday statute/blue laws |
prohibit certain types of activity on Sunday
cant buy alcohol or show a movie |
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illegal bargain/agreement agreement contrary to public policy |
restraint in trade exculpatory clause unconscionable agreement |
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illegal bargain/agreement agreement contrary to public policy restraint in trade |
covenants not to compete in the sale of a business in employment context -reasonable in time, geography, type of work |
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illegal bargain/agreement agreement contrary to public policy exculpatory clause |
excuse one party from fault or liability cannot excuse intentional or reckless conduct can excuse negligent conduct, but will be scrutinized very closely -must be knowingly and voluntarily signed |
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illegal bargain/agreement agreement contrary to public policy unconscionable agreements |
procedural substantive |
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illegal bargain/agreement agreement contrary to public policy unconscionable agreements procedural |
bargaining process is bad person can win if they were coerced taken advantage of |
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illegal bargain/agreement agreement contrary to public policy unconscionable agreements substansive |
actual terms of agreement are bad person can never win because they made a bad deal law wont bail them out |
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defense to formation absence of mutual assent 5 mistakes |
mutual mistake unilateral mistake mistake by intermediary latent ambiguity mistake misrepresentation or fraud |
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defense to formation absence of mutual assent 5 mistakes mutual mistake is a defense if |
1.mistake concerns a basic assumption on which the contract was made 2.mistake had a material adverse effect on the agreed upon exchange 3.the adversely affected party did not assume the risk of the mistake |
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defense to formation absence of mutual assent 5 mistakes mutual mistake example |
thinking you are buying a diamond from a person at a garage sale who also thought it was a diamond too. |
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defense to formation absence of mutual assent 5 mistakes unilateral mistake example generally _______ to make a contract voidable |
college student talking to a landlord and both know that he will move out at end of year, sign a one year contract and has to pay the extra months
insufficent |
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defense to formation absence of mutual assent 5 mistakes mistake by intermediary example
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texting and say something wrong but believable |
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defense to formation absence of mutual assent 5 mistakes latent ambiguity mistakes 3 kinds |
neither party is aware- no K unless both intended same meaning both parties are aware -no K unless both intended same meaning one party is aware- binding K based on what ignorant party reasonably believed to be meaning of ambiguous words |
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defense to formation absence of mutual assent 5 mistakes latent ambiguity mistakes example |
A ship states it will make delivery at the customary time, the ship delivers in the fall and spring |
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defense to formation absence of mutual assent 5 mistakes misrepresentation or fraud: Must_____ generally _______ defense that prevents mutual assent |
go to a material factor in the contract be reasonable reliance for negligent representation valid |
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defense based on lack of capacity 3 kinds |
minor mentally incapacity intoxicated person |
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defense based on lack of capacity minor business deal "_________" with minor |
at their peril 17 yr. old can back out of a deal, bit the company cant |
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defense based on lack of capacity minor contracts with minors are binding on adult party,__________ may be __________ by majority |
voidable by minor affirmed/ratified |
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defense based on lack of capacity minorexceptions |
necessity- minor must pay reasonable value of necessity statutory exception- insurance contracts, student loans |
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defense based on lack of capacity mental incapacity these contracts are _____ by the incapacitated person |
not simply a lack of average intelligence, one is incapable of understanding the nature and significance of a contract voidable |
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defense based on lack of capacity mental incapacity lucid intervals and example |
may disaffirm or affirm during a lucid interval
will case 2 daughters and a son |
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defense based on lack of capacity intoxicated person these contracts are __________ |
voidable if the other party had reason to know of the drunk's intoxication |
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defense based on lack of capacity intoxicated person 3 parts |
drunk will be liable for necessities intoxicated person may affirm the contract upon recovery voluntary drunks treated less favorably than involuntary drunks |
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other defenses to enforcement of a contract statute frauds 7 kinds
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1.executor or administrator promises to PERSONALLY pay debts of estate 2.suretyship promise 3. promise in consideration of marriage 4. interest in land 5.performance not capable of being completed within one year 6. goods priced at $500 or more 7.requirements of the statute of frauds |
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other defenses to enforcement of a contract statute frauds interest in land
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1.leases for more than one year 2.easement of more than one year 3.fixture 4.timber, materials, or other structures if they are to be severed by the buyer -if severed by seller, not an interest in land 5. mortgages and most other security lines |
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other defenses to enforcement of a contract statute frauds suretyship promise (to ____________)- assuming____ |
pay the debts of another
the main purpose isn't in the pecuniary interest of the promisor |
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other defenses to enforcement of a contract statute frauds performance not capable of being completed within one year the date of agreement is the _______ |
effective date |
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other defenses to enforcement of a contract statute frauds performance not capable of being completed within one year possibility of being completed in one year_______ examples |
need not be in writing be a nurse until recovery be employee until you die be employee for 53 weeks |
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other defenses to enforcement of a contract statute frauds performance not capable of being completed within one year when the parties have the right to terminate within one year, courts are split majority says |
terminating within one year is non-performance, thus is not performance within one year, contract within SOF |
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other defenses to enforcement of a contract statute frauds performance not capable of being completed within one year when the parties have the right to terminate within one year, courts are split minority says |
since the contract may be terminated by either party, it is not within SOF |
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other defenses to enforcement of a contract statute frauds goods priced at $500 or more must and exceptions |
must be evidence by a writing or the contract is not enforceable
specially manufactured goods for buyer, not suitable for sale to others admission in pleading for court written confirmation btwn merchants |
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other defenses to enforcement of a contract statute frauds requirements for the statute of frauds under common law
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identity of the party sought to be charged id of the contract's subject matter terms and conditions of the subject matter recital of consideration signature of the party to be charged |
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other defenses to enforcement of a contract statute frauds requirements for the statute of frauds under UCC |
quantity signature of the party to be charged a writing "sufficient to indicate" that a contract was formed- reciept |
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easement |
the right to go across someone's yard and not own it |
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most likely to get sued for |
negligence and breech of contract |
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when does a breech occur 2 options -2nd option has 2 options |
promisor is under an absolute duty to preform promisor fails to preform as promised -didnt preform at all -preformed in part or poorly |
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kind of breech options 2 |
material or minor |
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kind of breech material breech non breeching party______ |
does not receive the substantial benefit of the bargain |
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kind of breech material breech consequences of a material breech non breeching party may two things |
treat the contract as at an end (duty of counter performance is discharged)
immediately pursue all remedies for breach of the entire contract |
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kind of breach minor breach aggrieved party may_____ |
recover damages, but must still perform under the contract |
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timeliness of performance generally not a material breech if |
performance is rendered within a reasonable time |
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timeliness of performance is a material breach if |
the contract provides that "time is of the essence" |
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what are the remedies for a breach of contract 5 optins |
standard damages liquidated damages specific performance rescission restitution |
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what are the remedies for a breach of contract standard damages 3 types |
compensatory nominal punitive |
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what are the remedies for a breach of contract standard damages compensatory: goal is to_____ |
put the non breaching party back into as good a position as they would have been in had the other party no breahed |
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what are the remedies for a breach of contract standard damages compensatory 2 kinds |
standard measure consequential damages |
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what are the remedies for a breach of contract standard damages compensatory standard measure (_______) remember which case |
cost of a substitute circuit city- employer require employee to arbitrate issues |
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what are the remedies for a breach of contract standard damages compensatory standard measure employment contract breaches 2 kinds |
employer breach employee breach |
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what are the remedies for a breach of contract standard damages compensatory standard measure employment contract breach employer breaches- what is required duty to _______ damages if party doesn't "above blank"______ |
full contract price less money earned elsewhere
duty to mitigate
damages will be reduced by the amount that would have been avoided by mitigation
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what are the remedies for a breach of contract standard damages compensatory standard measure employment contract breach employee breach |
cost to replace the employee |
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what are the remedies for a breach of contract standard damages compensatory consequential damages |
in addition to standard measure damages if foreseeable at the time the contract was entered |
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what are the remedies for a breach of contract standard damages compensatory nominal |
moral victory gets $1 breach occurred but no actual loss is proven |
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what are the remedies for a breach of contract standard damages compensatory punative |
designed to punish the wrongdoer generally not awarded in contract cases
most likely seen in insurance cases |
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what are the remedies for a breach of contract standard damages liquidated damages will be upheld if: 3 things |
damages were difficult to ascertain at teh time the contract was formed the amount agreed upon was a reasonable forecast of compensatory damages if above 2 scenarios are not present, the courts will construe the liquidated damages provision as a penalty and refuse to enforce it |
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what are the remedies for a breach of contract standard damages specific performance- def and what it works for and what it does not |
make the non preforming party preform
generally works for land and unique goods doesnt work for services |
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what are the remedies for a breach of contract standard damages recission |
non breaching party cancels the contract and sues for damages |
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what are the remedies for a breach of contract standard damages restitution |
if non breaching party conferred a benefit to the breacher while attempting to perform, the non breaching party is entitled to restitution for the benefit transferred |
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why is it so important to know what kind of breach it is? |
in material breach, it relieves the non breaching party of counter preformance |
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exculpatory clause question: if I willingly drive you to airport.....reckless the court will |
not enforce because it violates public policy |
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exculpatory clause question: if I willingly drive you to airport.....negligence the court will |
scrutinize, but enforce |
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most contract law is |
common law |
