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80 Cards in this Set
- Front
- Back
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Elements of a contract |
1. Agreement 2. Consideration 3. Contractual Capacity 4. Legality |
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Defenses to the enforceability of a contract |
1. Voluntary Consent 2. Form |
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Types of contracts |
1. Bilateral 2. Unilateral 3. Formal 4. Informal 5. Express 6. Implied |
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Contract performance |
1. Executed contract 2. Executory contract |
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Contract enforceability |
1. Valid contract 2. Voidable contract 3. Unenforceable contract 4. Void contract |
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Quasi contract/quantum meruit |
A fictional contract created by courts for equitable, not contractual, purposes. A quasi-contract is not an actual contract, but is a legal substitute formed to impose equity between two parties. The concept of a quasi-contract is that of a contract that should have been formed, even though in actuality it was not. It is used when a court finds it appropriate to create an obligation upon a non-contracting party to avoid injustice and to ensure fairness. It is invoked in circumstances of and is connected with the concept of restitution. |
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Interpretation of contracts |
1. Plain meaning of rule 2. Other rules |
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Requirements for an offer (agreement) |
1. Offeror must have a serious intention to become bound by the offer a. expression of opinion b. statements of future intent c. preliminary negotiations d. advertisements e. auctions f. agreements to agree 2. Terms of the offer must be reasonably certain or definite so that parties and the court can ascertain the terms of the contract a. identification of the parties b. identification of the subject matter c. consideration to be paid d. time of payment 3. The offer must be communicated to the offeree |
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Termination of the offer |
1. Revocation of offer 2. Rejection of offer 3. Counteroffer by the offeree 4. Termination by operation of law a. Lapse of time b. Destruction of the specific subject matter of the offer c. Death or incompetence of the offeror or the offeree d. supervening illegality of the proposed contact |
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Acceptance of the offer |
1. Unequivocal acceptance 2. Silence as acceptance 3. Communication as acceptance 4. Mode and timeliness of acceptance a. Mailbox rule b. Authorized means of acceptance c. Substitute method of acceptance |
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E-Contracts |
1. Require same elements as regular contracts 2. Click on agreements 3. Shrink wrap agreements 4. Browse wrap agreements 5. E-signiture |
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Elements of consideration |
1. Legal Value 2. Bargained for exchange 3. Dont need adequacy of exchange but inadequate consideration may lack consent |
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Agreements that lack considerations |
1. Pre-existing duty a. unforeseen difficulties b. recession and new contract 2. Past consideration 3. Illusory promises a. option to cancel classes b. requirements and output contracts |
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Settlement of claims |
1. Accord and satisfaction 2. Release 3. Covenant not to sue |
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Exemptions to consideration requirement |
1. Promissory estoppel 2. Statute of limitations 3. Charitable contributions |
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Primary Source of Law |
1. Constitution a. US constitution highest law of land - nothing may conflict b. 10th amendment gives states the ability to pass laws that are outside federal scope 2. Statutes 3. Regulations 4. Case law/Common Law |
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Statutes |
a. Federal statute applies to all states b. State statute applies only state and can conflict between states |
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Regulations |
Agencies such as the FEC, FDA, SEC |
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Case law/common law |
Result of court decisions where no formal law clear so court interprets |
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Secondary Sources of Law |
Books or articles tat summarize and clarify the primary sources of law. ex. legal treatise, law review articles Note: courts do these |
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Uniform Laws |
Must be adopted by each state for them to be part of State's law,can adopt in full or in part , reason for them is easier for business - too hard when each state has a different law |
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Stare Decisis |
Judge made law, let decision stand, precedent (otherwise chaos) 1. court should not overturn its own precedent 2. decisions made by a higher court are binding on lower courts |
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How to apply the law (IRAC) |
1. Issue: spell out key facts and what the issue is at hand 2. Rule: tell the court what rule they should apply 3. Analysis: tell the court why that rule/case on point are in your favor. |
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Plantiff/appellant |
person bringing the lawsuit or person appealing lawsuit |
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Defendant/appellee |
person being sued or who won the first time and is now on the other side of the appeal |
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Majority opinion |
More than 50% votes for case |
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Concurring opinion |
agree with majority decision but not necessarily reasoning |
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Dissenting opinion |
Minority opinion, doesn't agree with majority |
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Plurality opinion |
has the support of the largest number of judges but not a majority |
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Judicial Review |
Process in which courts review laws to determine whether constitutional |
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In order to sue someone you must have these three things |
1. Jurisdiction a. Personal: In order for court to hear case need jurisdiction over person or company b. In rem: In order for court to hear case need jurisdiction over property c. subject matter: general vs. limited jurisdiction 2. Venue (where would the best place be) a. Civil case: where defendant resides b. criminal case: where crime occurred c. forum selection clauses - common in business contracts 3. Standing to sue a. Harm-Party bringing action must of suffered them b. Causation-need connection between issue and injury c. remedy-likely that court would rule in favor. |
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Long arm statute |
court can exercise personal jurisdiction over certain out-of-state defendants based on activities that took place within state |
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Exclusive jurisdiction for federal courts |
1. Federal crimes 2. Bankruptcy 3. Patent and copyright 4. lawsuits against U.S. 5. Admiralty law |
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Exclusive jurisdiction for state courts |
1. Divorce 2. Adoption |
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Cyberspace |
Courts use sliding scale 1. Does defendant conduct substantial part of business over internet 2, Some interactivity through website 3. Passive advertising on web not enough (ex. where individual must affirmatively go access something) |
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Types of courts |
1. Trial Courts - hear evidence for first time , conduct trial 2. Appellate courts 3. Highest courts |
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Alternatives to trial/court |
1. Negotiation - not binding but just settle case , no third party 2. Mediation - third party attempts to help resolve 3. a fictional contract created by courts for equitable, not contractual, purposes. A quasi-contract is not an actual contract, but is a legal substitute formed to impose equity between two parties. The concept of a quasi-contract is that of a contract that should have been formed, even though in actuality it was not. It is used when a court finds it appropriate to create an obligation upon a non-contracting party to avoid injustice and to ensure fairness. It is invoked in circumstances of and is connected with the concept of restitution. - usually binding, similar to trial format |
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Types of attorney fees: |
1. Retainer 2. Fixed fee 3. Hourly fee 4. Contingency fee (percentage of recovery) |
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Steps in a dispute |
1. Pleadings 2. Pretrial motions 3. Discovery 4. Pretrial conference 5. Settlement/ADR 6. Trial 7. Verdict 8. Post trial motions 9. Appeal 10. Enforcing the judgement |
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Why tort law? |
Protect individual's personal safety and compensate for loss |
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Tort actions - type of damages |
1. Compensatory (reimburse for actual loss) a. special quantifiable such as medical, lost wages, damaged property b. general pain and suffering 2. Punitive - to punish wrongdoer and deter others |
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Tort reform |
remember juries are dumb, state courts aaren't good for business - reason for Class Action Fairness Act, half the states have reforms with caps |
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Reforms |
1. Limit amount of both punitive and general damages 2. Capping amount of fees attorneys can collect contingency fee cases 3. Requiring losing party to pay both the plaintiff's and defender's expenses |
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2 Types of Torts |
1. Intentional 2. Unintentional |
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Intentional torts |
Requires intent on the part of the tortfeasor (defendant) - can be transferred The consequence of the intent/act must interfere with the personal or business interests of another in a way not permitted by law Note: doesn't require motive or evil intent |
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Types of intentional torts |
1. assult and battery 2. false imprisonment 3. infliction of emotional distress 4. defamation - libel (general damages), slander (must prove special damages) 5. invasion of privacy 6. fraudulent misrepresentation 7. misuse of litigation |
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Business torts |
wrongful interference with a contractual relationship. a. valid enforceable contract must exist between two parties b. third party must know the contract exists c. third party must intentionally induce a party tot he contract to breach the contract wrongful interference with a business relationship |
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Intentional torts against property |
1. Trespass to land 2. Trespass to personal property 3. conversion 4. disparagement of propety |
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Negligence |
1. Duty - reasonable person standard od duty of landowners) 2. Breach 3. Causation 4. Damages a. "pure" comparative negligence b. modified comparative negligence |
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Special negligence |
1. Res Ipsa Loquitur 2. Negligence Per Se 3. "danger invites rescue" 4. good Samaritan 5. dram shop |
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Strict liability |
1. Abnormally dangerous activities 2. Other applications a. Manufacturer can better bear cost of injury because it can spread it out b. Manufacturer making profits so should bear costs |
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Product liability |
1. Designing the product 2. Selecting the materials 3. Using the appropriate production process 4. Assembling and testing te product 5. Placing adequate warnings on the label to inform user 6. Inspecting and testing any purchased components used in the product note: no privity of contract required - can sue without being the one who purchased |
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Product liability: based on misrepresentation |
1. Misrepresentation must be made knowingly on with reckless disregard for the facts 2. Material fact 3. Seller intended to induce buyer's reliance on the misrepresentation |
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Strict Liability - what you need to win |
1. Product must be in a defective condition when the defendent sells it 2. The defendant must normally be engaged 3. This product must be unreasonably dangerous 4. The plaintiff must incur physical harm to self or property by use of consuption the product 5. The defective condition must be the cause of the condition 6. The goods must not have been substainally changed from the time of the injury |
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Design defectors How to decide |
1. A resonable aternative design 2 The defendants failure to adopt the arternative design rendered the product not reasonably safe 1. Risk utility analysis 2. consumer expectation |
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Inadequate warnings |
defective if the forseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonably instructions or warnings by the seller. |
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Defenses to product liability |
1. preemtion 2. Assumption of the risk 3. Product misuse 4. Comparitive negligance 5.Commonly known dangers 6. Knowaldgable user 7. Statutes of limitations |
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Contractual Capacity |
Minors (age of majority id 18) a. Must be in reasonable amount of time from age majority b. Only requirement is return goods (some states require make whole) c. Cannot misrepresent d. Cannot dis-affirm contract for necessities (food,clothing, shelter, medical) e. cannot disaffirm contract for military service f. minors can ratify once reach age of majority 2. Intoxication a. voidable - person sufficiently intoxicated to lack mental capacity 3. Mental Incompitence Void - if court determines person is mentally incompetent Voidable - no court but person not competent, one side can void valid - if competent at the time |
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Legality: Contracts contrary to statute - |
a. contracts to commit a crime b. Usury c. Gambling |
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Legality: Contracts contrary to public policy |
a. Contracts in restraint to trade b. Unconscionable contracts or clauses c. Exculpatory clauses d. Discriminatory contracts |
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Effect of legality |
1. Justifiable ignorance of these facts 2. Members of protected classes 3. Withdrawal from an illegal agreement 4. Fraud, duress or undue influence 5. Severable or divisible contracts |
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Mistakes of fact |
1. Bilateral (mutual) mistakes of fact 2. Unilateral mistakes of fact |
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Mistakes of Value: Fraudulent misrepresentation |
1. Misrepresentation of a material fact a. fact vs opinion b. misrepresentation by conduct c. misrepresentation of law d. misrepresentaion of silence 2. Intent to deceive (innocent v. negligent) 3. Innocent party must of justifiably rely on the misrepresentation 4. Harm (if want damages) |
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Duress |
Use of threats to force a party to enter into a contract (both defense to enforcement of a contract and a ground for the rescission of a contract) |
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Adhesion Contracts |
1. Standard-form contracts 2. Take-it-or-leave-it |
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Statute of Frauds |
1. Interests of the land 2. Cannot by their terms be performed in one year from the day after the date of the formation 3. Collateral or secondary contracts such as promises to answer for the debt or duty of another and promises by the administrator or executor of an estate to pay a debt of the estate personally 4. Promises made in consideration of marriage 5. Contracts for the sale of goods greater than $500. |
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Exceptions to the Statute of Frauds |
1. Partial performance 2. Admissions 3. Promissory estoppels 4. Special exceptions under the UCC |
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Sufficiency of writing |
1. What constitutes a writing 2. What must be contained in the writing |
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Parol Evidence: |
If a court finds the that written contract represents the complete and final statement on the parties' agreement, it will not allow eiter party to present evidence. Parol evidence is testimony or other evidence of communications between the parties that is not contained in the contact itself. |
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Exceptions to parol evidence rule: |
1. Contract sub sequentially modified 2. Voidable or void contracts 3. Contracts containing ambiguous terms 4. Incomplete contracts 5. Prior to dealing, course of performance, usage of trade 6. Contracts subject to an orally agreed on condition precedent |
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Third Party Rights: Assignment |
a. terminology b. effect on assignment c. rights assigned are subject to the same defenses d. forms of the assignment e. rights cannot be assigned f. Notice of an assignment Delegation a. Duties that cannot be assigned b. effect on delegation 3. Third party beneficiaries a. types of intended beneficiaries b. when the rights of intended beneficiaries visit c. Intended versus incidental beneficiaries |
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Performance and Discharge in Traditional E-Contracts Conditions |
1. Conditions precedent 2. Conditions subsequent 3. Concurrent conditions 4. Express and implied condition |
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Performance and Discharge in Traditional E-Contracts Discharge by performance |
1. Complete performance 2. Substantial performance 3. Performance to the satisfaction of another |
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Performance and Discharge in Traditional E-Contracts Discharge by agreement |
1. Discharge by mutual recession 2. Discharge by novation 3. Discharge by settlement agreement 4. Discharge by accord and satisfaction |
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Performance and Discharge in Traditional E-Contracts Discharge by operations of Law |
1. Material alteration of the contract 2. Statute of limitations 3. Bankruptcy 4. Impossibility of performance 5. Commercial impracticability 6. Frustration of purpose |
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Breach of Contract and Remedies Damages |
1. Compensatory 2. Consequential 3. Punitive 4. Nominal |
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Breach of Contract and Remedies Migration of damages |
1. Rental agreements 2. Employment contracts |
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Breach of Contract and Remedies Equitable Remedies |
1. rescission and restitution 2. specific performance 3. reformation 4. quasi contract |
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Breach of Contract and Remedies Waiver of breach |
1. Consequences of waiver 2. Reasons for waiving a breach 3. Waiver of breach and subsequent breaches |
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Breach of Contract and Remedies
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Damages Mitigation Liquidated damages Equitable Remedies Waiver of Breach |
