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89 Cards in this Set
- Front
- Back
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Purpose of contract law
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provide stability and predictability and certainty for BOTH buyers and sellers in market place
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contract law deals with....
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formation and enforcement of agreements between parties
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CONTRACT
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promise or a set of promises for the beach of which the law gives a remedy or the performance of which the law is some way recognizes as a duty
- legally binding agreement between two or more parties |
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Contract disputes arise when
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promise of future performance
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in determing whether a contract has been forced.....key word
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INTENT
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how do we determine Intent on contracts
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object theory of contracts
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Four requirements of a valid contract
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Agreement
consideration contractual capacity legality |
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2 major defenses to a contract
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genuineness of assent (can't be formed by fraud)
and form |
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Contractual agreement arises when
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only when the terms of the agreement impose legally enforceable obligations on the parties
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OFFER
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promise or commitment to do or refrain from doing some specified thing in the future
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Three Elements of an Offer
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intent
definite terms communication |
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Offers can be made in a state of anger
TRUE or FALSE |
False
think of car can't start girl getting mad |
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doctor saying when he things hand will heal isn't an offer just an opinion
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expression of opinion
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If Kim tells George, "You know, I've been thinking about selling my CD burner for under $100," this would constitute:
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statement of [future] intent
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contractors submitting bids
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preliminary negotiations
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advertisements in paper are not considered an offer becuase
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they are just an invitation to negotiate
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lease to be extended and price to be named at that date
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terms aren't binding - agreements to agree
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4 factors in determining if terms are reasonable or defined
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Identification of the parties
Identification of the object or subject matter Consideration to be paid time of payment, delivery or performance |
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10 Ways to Terminate an offer
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Predesignation, Revocation, Rejection, Counteroffer, Conditional Acceptance, Lapse of Time, Destruction of subject matter, Death, Incompetence, Supervening illegality
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Lapse of time, destruction of subject matter, death, incompetence all fall under which category of ways to terminate an offer
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Operation of Law
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Counteroffer
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occurs when the offeree rejects the original offer and simultaenously makes a new offer
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Mirror Image Rule
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requires the offeree's acceptance to match the offeror's offer exactly
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Acceptance:
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voluntary act by the offeree that shows assent to terms of offer
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Mail box rule
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once deposited in a mailbox(acceptable normal way of travel) - terms become valid
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Consideration
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value given in exchange for a promise....consists of promise and a return for a promise
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4 steps of Promissory Estoppel
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-must be clear and definite promise
-promissee must justifiably rely on the promise -reliance normally must be of a substantial and a definite character -justice will be better served bt enforcing the promise |
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Capacity
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legal ability to enter a contractual relationship
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Who doesn't have Capacity for contracts
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minors
intoxication mental incompetence |
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legality as a way to terminate contracts
contracts must be formed how |
for legal purposes
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genuineness of assent
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voluntary consent can be used as a defense to teh contract's enforeabilty
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Describe mistakes in their two different categories
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bilateral - mistake made by both parties
unilateral - one sided mistake |
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what is general rule for unilateral mistakes
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side that makes mistake can NOT benefit from mistake
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2 types of misrepresentations
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fradulent misrep
nonfradulent misrep |
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Describe fradulent Misrep
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consciously false and intended to mislead others
1) material fact 2) intent to deceive 3) party must rely on the misrepresentation |
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undue influence
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arises from unfair influences such as parents, guardians
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duress
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forced into the agreement .... threats, blackmail, extortion to induce consent to a contract constitutes duress
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statute of frauds
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act established to determine what frauds need to be in writing
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5 types of frauds that are on the statute of frauds
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contract sell goods for 500 or more
contract to transfer real estate prenups contract that cant be completed in one year contract to pay the debt of another |
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most common duress cases
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contracts between husband and wife
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common influential cases
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worker employee, family
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Types of Intellectual Property
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1) marks
2) trade dress 3) Trade names 4) patents 5) copyrights 6) trade secrets |
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Define Intellectual Property
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consists of products that result from intellectual creative processes
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define trademark
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distinctive mark, motto, device or implement that a manufacturer stamps, prints or otherwise affizes to the goods it producees so they can be identified on market and their origin made known
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3 degrees of distinctiveness
inherently distinctive |
fanciful - strongest mark, no meaning, made up works, no prior meaning
arbitrary - name already existed, unrelated to good suggestive - name suggests quality of good but stops short (Dairy Queen) |
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3 degrees of distinctiveness
descriptive |
describes good or service
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when is a descriptive degree of distinctiveness protect able
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only if it acquires a secondary meeting
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3 degrees of distinctiveness
generic |
mark that describes entire class of goods/services
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what is legal protection on generic names
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NO LEGAL PROTECTION
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examples of generic names
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aspirin
escalator |
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4 Types of Marks and describe
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trademark - mark a product
service mark - mark a service certification mark - mark of approval collective mark - mark of an organization |
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trade dress
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overall apperance of product
distinctive appearance of goods/services |
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service mark
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essentially a trademark that is used to distinguis the services of one person or company from those of another rather than its products
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trade name
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term used to indicate part or all of a business' name whether the business is a sole proprietorship a partnership or corporation
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trade names are protected under common law
however... |
HOWEVER.....wrods must be unusual or fancifully used if they are to be protected as trade names
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patent
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governement grant that gives an inventor the right to exclude others from making using and selling an invention for a period of twenty years from the date of filing the application for a patent
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characteristics to be patented
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new
not obvious |
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types of patents
4 types |
utility
design plant business method |
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utility patent
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useful invention or imporvement to one
2 types composition of matter process |
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design patent
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ornamental design for already useful invention
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plant
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new plant produced without seeds
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business method
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uniqe business process
priceline.com auction method |
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steps to obtain a patent
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apply to US patent and trademark Office
Meet statutory requirements pass review by Patent Examiner |
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comparing cost and duration for utility patent and design patent
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utilty 20 years higher cost
design 14 years lower cost |
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utility patent requirements
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novelty - not used in US
usefulness - NOT if pople would use it non - obviousness - invention would not have been obvious to a person of ordinary skill |
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Patent Infringement
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to make use or sell all or part of patented invention without the patent owner's permission
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penalties for Patent Infringement
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injunction
compensatory damages attorney's fee punitive damages |
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Copyright
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exclusive right to artistic thing
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what is copyrightable
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artistc work in fixed form
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fixed form
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- can be seen either with naked eye or machine
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not copyrightable
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ideas, facts, discoveries
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copyright ownership
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creator owns it unless it is transferred to another or it is a work for hire
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procedure to acquire copyrights
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work is automatically copyrighted as soon as it is placed into fixed form
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duration of copyrights
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minimum of 70 years
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copyright infringement
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copy all or substantial part of copyrighted work
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penalties for copyright infringement
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injunction (stop)
damages - actual or statutory (statutory - registered copyrights only, less money if innocent infringement and more if intentional impoundment - seize pirated copies court costs attorney fees |
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fair uses of copyrights
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criticism
comment new reporting teach scholarship research |
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trade secret
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information that is not generally known or discoverable
gives owner an advantage over competitors |
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trade secret laws what kinds involve
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state tort law (uniform trade secrets act)
federal criminal law (economic espionage act of 1996) |
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techniques to protect against trade secrets
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employee - need to know basis
computers - firewall and encryption document security - valuting physical security - employee ID cards |
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Uniform Trade Secrets Act
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misappropriation of trade secret
acquiring , disclosing or using the trade secret of another, without their permission |
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secrecy, duration, protection and obtaining
Trade Secret |
secrecy -confidential
duration - infinite protection - no protection from other independents obtaining - no legal procedures |
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secrecy, duration, protection and obtaining
Patent |
secrecy -public
duration - 14 to 20 years protection - protection from anyone for life of patent obtaining - detailed application process |
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Remedies of trade secret breach
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injunction, compensatory damges
if intentional = punitive damages |
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economic espionage act of 1996
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federal crime to misappropriate, attempt, or conspire to misappropriate a trade secret or even attempt to misappropriate
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Economic Espionage act of 1996 is enforced by? penalties ?
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enforced by US dept of justice
penalties include prsion up to 15 years, forfeiture of gains and fines up to 10 million dollars |
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non compete clause
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antitrust law promotes competion
not to compete is legal if it is necessary, reasonable and not contrary to public interest |
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agreements that lack consideration
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preexisting duty
past consideration - actions or events that have already taken place |
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exculpatory clause
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contract erm allowing a party to escape liability for negligence
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2 elements of consideration
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legal value
bargained for exchange |
