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141 Cards in this Set
- Front
- Back
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Bilateral Contract
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A promise for a promise. Anytime both sides negotiate, like buying a house. Most of the contracts utilized tend to be this type.
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Unilateral Contract
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A promise for an act. Somebody is making a promise for a completion of an act
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Tests for Differentiation
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Tests to figure out which side of the law you're going to use (UCC or Common Law based on its connection to Real Estate, Services, or Goods)
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Deminimis Test
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Is there a minor component
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Apportionment Test
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Take percentages based on what the contract is about
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Preponderance Test
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What it is mostly
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What is needed for there to be a contract?
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Offer, Acceptance, Consideration
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What is needed for there to be an offer for a contract?
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Intent
Content Consideration |
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What has to be in the content for the contract?
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* Identify the parties
* Time for performance * Price * Subject Matter |
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Acceptance
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A present, unconditional, unequivocal, assent to each and every term of the offer
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Mirror Image Rule
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Present, unconditional, unequivocal assent to each and every term of the offer. The acceptance is 100% identical to the offer
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Consideration
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A valuable exchange. Each party has to give up something of value to trade.
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Examples of Non Valuable Promises
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* Donative Transaction (Gift)
* Moral Consideration (Money in basket at church) * Past Consideration (Already paid the money) * Pre Existing Duty (Haven't paid but has a duty to finish for previous price) |
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Termination of Contract By Law examples
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Termination by act of the parties such as:
* Death or destruction of the subject matter * Incapacitation of the offer * Illegality on subject matter * Counter offer * Rejection * Revocation |
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Goods
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Anything that is movable that includes animals, their unborn young, gas, oil, and crops
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Minimum Essential Terms
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* Do the parties intend to a contract?
* Can the court give a remedy? * Quantity |
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Modified Term Acceptance
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Battle of the forms:
* Is there an intention to be bound? * What are the terms? * Are both parties merchants? * No, the offered terms are a proposal to modify * Yes, acceptance terms govern |
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Exceptions to sales and leases in UCC
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* Subsequent objection in reasonable period of time
* Objection in advance * If there is a material alteration with the contract |
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Insurablitlity & Risk of Loss when Non-Carrier and Seller is a merchant
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Risk passes on physical posession
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Insurablitlity & Risk of Loss when Non Carrier and seller is not a merchant
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Risk passes on tender (aka when you pay them)
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Insurablitlity & Risk of Loss when Carrier
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* Look at the contract; it dictates it
* The default rule: A seller has to get the goods to the carrier |
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Warranties: Express Warranties
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When a seller gives a statement as to the qualities, abilities, or performance of a product
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Implied warranty: Merchant Ability
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A product is fit for the ordinary purpose for which it is used
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Implied warranty: Fitness
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It must be suitable for a use the buyer proposes
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Disclaimers: Express Warranties
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When you are told what is covered and what is not
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Disclaimers: Implied Warranties
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You can, but you must do the following:
* Use the word "merchantability" * Post it in a conspicuous place (Has to be easy to find) * "As Is" * Examine the goods * Industry Practice |
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Mailbox Rule
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Acceptance occurs upon dispatch
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Statute of Frauds
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* M - Marriage - Any promise in consideration of marriage must be in writing (For example: Prenuptial Agreements).
* Y - Years - Any contract that takes more than one year to perform it has to be in writing * L - Land - Conveying an interest in land. Buying and selling of land * E - Executors Promise - When you die, the person who closes your estate is an executor. Any promise made by an executor must be in writing. (For example: Your aunt is in charge of the estate and you ask her for the dishes, and she dies before putting it in writing, then there is no claim for the good). * G - Goods over $500 - Goods over $500 must be in writing * S - Suretyship - A surety is someone who guarantees the debt of someone else. |
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UCC exceptions to Statute of Frauds
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* S - Specially Manufactured Goods - Anytime a good is specifically made for something then you can have an oral contract
* W - Written Merchants Confirmation - Must have two merchants who make an oral contract * A - Admissions - Admitting you are in the contract * P - Payment or Performance - Oral contract is good enough |
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Defenses to Formation of contracts
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Statute of Frauds
UCC Exceptions Incapacity Fraud Duress Illegality Mistake |
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Mental Incapacity
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If you are not mentally capable of realizing you are getting into a contract. For example: You are too drunk or mentally handicapped. (If you get yourself drunk the contract still is legal but uf someone spiked your drink, it is terminated.)
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Minor Incapacity
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You cannot get into a contract as a minor because the law believes you do not have the capacity to handle it.
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Fraud In The Factum
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Any deceptive strategy that prevents the victim from realizing they are in a contract
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Fraud In The Inducement
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The victim is aware of the contract but they are seduced by lies
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Fraud In The Execution
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The victim is aware of the contract but the written terms are not the same as the oral agreement
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What are the 3 types of Fraud?
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Fraud In The Factum
Fraud In The Inducement Fraud In The Execution |
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What are the two types of Duress?
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* Physical - You are going to do this or you are going to get hurt. Typical Tony Soprano type situation
* Economic - You are going to force a company out of business |
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Mistake
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The words do not covey the intentions of the parties. "Toy Yoda" "Toyota" hooters example.
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Contract Discharges
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By Performance - If you do everything you are supposed to do, it ends the contract because it is completed
By Agreement By Failure of Condition - Until you complete that condition, the contract is not done By Breach - In order to have a breach, it has to be material By Operation of Law |
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Substantial Performance Contract Discharge
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Everything is done the way it is supposed to but for some reason you swap out one aspect of the contract.
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3 Contract Discharges By Agreement
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* Mutual Rescission - Both parties agree that the contract is done.
* Novation - A new contract for an old contract. * Accord & Satisfaction - Agreed that you have done a good enough job and they send you off early. |
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7 Contract Discharges By Failure of Condition
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* Express Condition - If you're building a house and said you wanted double pain windows, this condition must be completed
* Condition Precedent - Things that have to happen before the contract starts * Condition Concurrent - Things that happen at the same time of the performance. An example is people selling real estate that they don't own yet * Condition Subsequent - Things that happen after the performance has occurred An example is a mining company having to fix the land they dig up after they finish their digging. * Implied in Fact - If the job is being done by people from Idaho in Florida, it is implied that Florida Law is being used on the contract and performance * Implied in Law - The fact that the performance is being paid in U.S. dollars |
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Contract Discharge By Operation of Law
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Excusable Non-Performance
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Remedies
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To put the non-breaching party in as good a position as performance would have done
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Damages
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You have a duty to protect the breaching party from paying the maximum
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Formula for mitigation on damages
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+Consequential's + Incidentals - Mitigation
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5 types of Damages
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* Compensatory - Cover your direct losses and costs
* Consequential - Cover your indirect and foreseeable losses * Punitive - Punish and deter wrong doing * Nominal - Recognize wrong doing where there is no monetary loss. There is no paper to prove it but they inference is there. * Liquidated - Specify an amount to be paid in case the contract gets breached |
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2 types of Consequential Damages
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* Reliance - Expenses are incurred but the aggrieved party has not performed. Example is you order cabinets and they get made but last minute you don't want them. You have to pay them for their work after they mitigate the prices.
* Expectation - Neither party has performed in which case all you get is disappointment |
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4 Types of Remedies
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Damages
Equitable Remedies Specific Performance Reformation |
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2 Types of Equitable Remedies
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* Restitution - The aggrieved party has partially or completely performed. The other side that has breached has been unjustly enriched. An example is boyfriend paying for breast enhancement surgery in exchange for her staying with him for a long time. After the surgery she takes off.
* Rescission - Where you undue or cancel the contract and try to put the parties in their original state before the contract |
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Reformation
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Contract is rewritten with the courts supervision because the original contract was performed with changes in performance details
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Lanham Act
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Before this everything was judge made, now we follow this act.
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Principle Register
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Created Lanham Act and it is a database with all of the marks listed there.
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Trademarks
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Any word, name, symbol, or device that indicates source
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Service Marks
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The same thing as a trademark but it indicates a service
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Certification Marks
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Something that is not owned by the certifying company but the mark is still on the product. An example is the "K" on the kosher products or "UL" on electronics. These companies do not own the product being sold but they are on the product for certification purposes.
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2 Collective Marks
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* Indication of Membership - The logos or symbols for clubs are protected under this mark
* CoOps That Collectively Produce - Different people who work as a group to sell their products. An example is California cheese or Florida orange juice because more than one farm is needed to produce the demanded amount. |
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Color under Marks
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If you can attach a secondary meaning to a color then you are going to get that protection in color. Some examples:
* Coca Cola Red * Small Blue Box for Tiffany's |
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Sound under Marks
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Anytime you are putting sound together and you can identify the source, it can get protected.
* Harley Davidson sued a Japanese motorcycle company because their bikes made the "thump thump" sound Harley motors make and won. |
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Scent under Marks
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Usually people do not pursue this protection because it is never exactly the same, they usually just keep formulas a secret. However this can be a problem with candles and perfumes
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Always Distinct under Marks
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* Fanciful - Made up words
* Ziploc * Arbitrary - Common word but is meaningless in context * Apple * Blue Diamond Nuts * Suggestive - Indirectly suggesting what their product is going to do through name * Coppertone |
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Sometimes Distinct under Marks
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* Descriptive Products - Anything that is descriptive and has a secondary meaning. It must describe the product or services they're identifying.
* Sir Speedy Fax * Geographic Location - Where the product is coming from or manufactured * California Wine * Champagne * Tecate Beer * Florida Orange Juice * Surname - Someone whose last name has a secondary meaning * Trump * McDonalds |
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Never Distinct under Marks
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* Generic - Company's must enforce people not to generalize their product so they can keep it distinct
* Coke * Kleenex * Aspirin - Lost their name |
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Precluded from Registration
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* Scandalous or Immoral Marks
* Deceptive Mark |
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Scandalous or Immoral Marks
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If a mark gives offense to someones conscious or moral feelings, the patent office can deny it
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Deceptive Mark
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There is a three part test to figure out if the mark is deceptive:
* Does it falsely indicate a connection with a good or institution * Would a perspective purchaser believe the mis-description * Material fact is important in the buying decision |
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3 Requirements for Patents
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* Non-obvious - Cannot already be created
* Has to be Novel - Must be New * Fully Disclosed - Must tell the world how to do this and how it works |
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3 Types of Patents
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*Utility Patents - General and useful and it performs some type of function. This patent is protected for 20 years.
* Design Patents - Non functional ornamental designs. They are protected for 14 years. These patents are very rare. * Plant Patents - Must be distinct and asexually produced. They are protected for 20 years. |
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Ownership of Patent
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In order to own a patent, you must be the inventor and involved in the conception stage
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Reduction to Practice
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If you were not involved in the conception stage of a patent
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Purpose of Copyright
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Comes out of the constitution to promote science and useful arts
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Work for Hire duration
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Lasts 95 years after first publication or 120 years after the creation of the work
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Duration of Copyright
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Life of the author plus 70 years
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Subject Matter of Copyright requirements
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*Fixed in a tangible medium of expression, in other words if you can replicate it it fits in this category
*Original |
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2 requirements for originality under Copyrights
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* Intellectual Endeavor
* Minimal Amount of Creativity |
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5 Ownerships under Copyright
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* Initial Owner - Fixes it in the tangible medium
* Joint Works - 2 different authors but only one product * Works for Hire - When you work for someone and have to give up the ownership to the employer * Collective Works - When you put numerous copyrighted works together as a new product like a compilation CD of the best songs of the 80's. * Beneficial Owner - Passing on the rights and ownership to someone else. Complete transfer of ownership of a copyright has to be in writing |
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Fair Use Defense under Copyright
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Allows you to use someone's copyrighted material if you are using it for a critique, commentary, news reporting, scholarship, research, etc
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4 Factors to consider under Fair Use
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* Purpose and character of the use
* Nature of the copyrighted work * Amount of substantiality of the use in relation to the whole * Effect on the market value |
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Agent
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Agrees to represent or act for another type of person or entity of some sort
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Principal
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Right to control the agents conduct in matters entrusted to the agent
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Fiduciary Duty
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When founded on trust or confidence reposed by one person in the integrity and fidelity of another. In other words the agent must do what is best for the principal, not the agent.
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2 Types of relationships under Agents
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* Employer - Employee
* Employer - Independent Contractor |
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Formation of Agents
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* By Agreement
* By Ratification * By Operation of Law |
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3 types of Scope of Authortiy
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* Actual Authority
* Apparent Authority - The principle causes a third party to reasonably believe the agent has authority to act * Ratification Authority - The principle affirms an agents unauthorized act |
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2 Types of Actual Authority
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* Express Actual Authority - Direct authority
* Implied Actual Authority - By custom, by position, or reasonably necessary to carry out the expressed authority |
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Equal Dignity Rule
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If the contract being executed is in writing then the agents authority must be in writing as well otherwise the contract is voidable at the principles option
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Liability of Contracts
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* Authorized - The principle is held liable and the
* Unauthorized - The principle cannot be held liable on the contract, the agent is liable |
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Liability For Torts
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* Respondeat Superior - Form of vicarious liability by which an employer can be held liable for the unauthorized tortious conduct of its employees but as a rule not those of an independent contractor
* Vicarious Liability - Where we hold liable an employer for an employee for the conduct. This is applicable for independent contractor and employee type situations |
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5 Termination of Agents by Act of Parties
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* Lapse of time
* Purpose achievement * Occurrence of a specific event * Termination by one party (you're fired) * Mutual agreement |
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4 Termination of Agents by Operation of Law
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* Death or insanity
* Impossibility * Changed circumstances * Bankruptcy |
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"At Will" (American Rule)
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Relationship usually undertaken without a contract that may be severed at anytime by either party without cause
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There are 2 types of employees not subject to the American Rule
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* Public Employees - Fit in under the civil service law
* Contractual Employees - Employment has specifications under a unique contract per employee |
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Judicially Created Exceptions for employee rights
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* Wrongful Discharge
* Public Policy - Employers must give time for jury duty, voting, etc * Torts - Your company cannot ask you to do something illegal and if you deny they cannot fire you for it * Contracts - Implied contracts fit in this as well |
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Who is covered under the Fair Labor Standards Act (FLSA)?
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All employees who are engaged in interstate and foreign commerce, so basically everyone
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2 Systems of hours worked under FLSA
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It does not limit hours but it does require for you to be paid overtime
* Federal System: Based on working over 40 hours for overtime * California System: Based on your scheduled hours |
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Compensation under FLSA
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We have to pay people for the time they worked
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2 entitlements for employees
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* Social Security
* Medicare |
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2 types of Pensions
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* Defined Benefit Plan
* Defined Contribution Plan - 401K where you invest your own money for your retirement and the employer will add some to your fund |
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2 Types of Defined Benefit Plans
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* Contributory Pension - Could add your own money
* Non-Contributory Pension - Can't add your own money |
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Pensions are governed by a law called
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ERISA
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3 Requirements for Unemployment Insurance
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* Involuntarily Terminated - You cannot quit, you had to be let go
* Able & Available To Work * Must Seek Employment |
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Workers Compensation & Its requirements
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Covers you if you are injured at work, not your insurance: (2 Requirements):
* Accident Occurred * Injury Happened During Course of Employment |
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Family Medical Leave Act (FLMA)
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Applies to an employer with 50 or more employees within a 75 mile radius. The employer needs to work 1250 hours in the 12 months prior to taking it in order to qualify. The employee is entitled to 12 weeks off during any 12 month period and it doesn't have to be all at once, it can be spread out.
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4 Acceptable Situations under FLMA
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* Birth of Child - Fathers included
* Adoption/Foster Care Placement * Care of child, spouse, or parent * Own Illness |
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COBRA
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When you get terminated from your employment, you get the option of keeping your insurance. Under COBRA the employer has to give you the option to buy back your health insurance up to 30 days after being fired.
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When does COBRA not apply
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If there was an incident of gross misconduct
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HIPAA
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This is why doctors cannot disclose information to anyone except you unless you sign a waiver giving them the right to.
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3 acceptable Excusable Non-Performances
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* Impossibility - The contract cannot be done. For example you are contracted to clean someones house and it burns down. You can no longer carry out your duty.
* Impracticability - Factors after the contract have made the cost of performing too expensive. An example would be shipping and order of bread to grocery stores in New Orleans after a hurricane. The streets are flooded and it is impractical. Natural Disasters always bring this up. * Frustration of Purpose - Factors after the contract have made doing it worthless. An example would be back to the burnt house, the toilet didnt burn down so you cans till clean the toilet but it is worthless now. |
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The maximum period of time that an offer is open without consideration
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90 days or 3 months
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This term is essential to a UCC contract
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Quantity has to be in writing
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This person has the right to control the agents conduct in matters entrusted to the agent
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The Principle
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Desperate treatment and desperate impact are legal theories for proving discrimination under
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Title 7
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Each qualified employee is guaranteed 12 weeks of unpaid time off under
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Family Medical Leave Act (FLMA)
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These are acceptable reasons for a strike
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Economic
Unfair Labor Practices Unlawful |
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Before bringing a discrimination lawsuit you must file with them first
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Equal Employment Opportunity Commission (EEOC)
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Business Necessity Defense
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Occurs when an employer demonstrates the challenged practice is job related to the positioning question
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Norris Laguardia Act
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Protected peaceful strikes, picketing, and boycotts
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Wagner Act
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Established the right of employees to form a union
* Bargain on behalf of a large group of people * Form strikes |
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Taft Hartley Act
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What unions could and could and could not do
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Landrum Griffin Act
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Modified the Taft Hartley Act, set forth an employee bill of rights and union reporting requirements to stop corruption
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Who is not covered under the National Labor Relations Act?
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Supervisors
Independent Contractors Agricultural Laborers |
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Supervisors
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Supervisors are anyone with the authority to fire, hire, to suspend, promote, discipline, direct employees. Not allowed to vote in union elections
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The National Labor Relations Act covers who?
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Covers all employees and businesses that affect foreign and interstate commerce, so everyone including non profit organizations like healthcare institutions and hospitals
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Union Representation Election Procedures
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1. Filing a Petition - Show an interest for 30% of employees or more and file it at the NLRA
2. Appropriate Unit - Is this one where employees share similar working conditions 3. Scope of Unit - Who is included and who is not included, it is negotiated 4. Conduct Election - NLRB will send agents to conduct an election and make sure that it is done fairly and honestly 5. Objections - Typically there is going to be misconduct or allegations of such and the NLRB is responsible for going through it and seeing if it is true. |
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Unfair Labor Practices By Employers
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1. Interfere with protected activities - Any type of union protected activity the employer has no jurisdiction and they cannot do anything about that.
2. Domination of Labor Organizations - Single employer cannot tell the labor organization how to do something or where to, etc. They are to be decided by the labor organization and its members not the employer. 3. Discrimination Against Union Supporters - Cannot fire someone for being a union supporter and are organizing the labor 4. Discrimination Against Employees Who File Charges - Any employee who says the employee did this they cannot discriminate against employees who filed charges. 5. Failure To Bargain Good Faith - It is their responsibility to bargain in good faith wight the collective bargaining unit 6. Presumption of Majority Support - Presume the majority has support for one year before conducting a new election |
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Union Labor Practices By Unions
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1. Coercion of Employees - Threatening or hurting someone in order to persuade them into joining the union
2. Induce Employer Discrimination Against Non-Union Employees - Cannot get the company to treat employees worse because they do not support the union 3. Failure to Bargain Good Faith - Cannot be outlandish in what they ask for 4. Demand Unnecessary Workers - Employer gets to determine how many workers are needed for the company, not the union |
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Economic Strikes
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When employees are not able to negotiate acceptable terms
* Can hire replacements for striking workers * Employer need not hire the replacement workers when the strike ends |
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Union Labor Practices Strike
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When the union feels that the employer is not bargaining in good faith. Almost always this type of strike.
* All the union workers have to be rehired when the strike is over |
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Unlawful Strikes
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* Organizational Strikes - Cannot have a strike just to organize the labor
* Recognition Strikes - Made the employees engage in order to discover who is in the union and who is not * Secondary Boycotts - When you strike a business that is not part of the original fight |
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Disparate Treatment
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Occurs when the plaintiff claiming such treatment must prove that the employer intentionally discriminated against him by denying him employment, a benefit, or a privilege because of: Race, Religion, Sex, or National Origin.
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Systematic Proof Test
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Tests Disparate Treatment with the following requirements:
* The courts are gonna see if the person was a member of the class supported by Title 7 * Were they denied a position that they were qualified for and was available |
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Disparate Impact
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Lawsuits that challenge testing and other selection procedures even though they are neutral on their face and systematically excludes protect class neighbors from certain jobs.
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Requirement for case against Disparate Impact
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Plaintiff must demonstrate that the specific employment practice, policy, or rule has caused statistically disproportionate employment between different groups
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Statutory Defenses on Discrimination Cases
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* Business Necessity - The employer must prove that the challenged practice is job related for the position in question and consistent with business necessity
* Bona Fide Occupation Qualification (BFOQ) - An employer may lawfully hire an individual on the basis of race, sex, religion, or national origin if one of those three is necessary for the operation of the business. |
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2 types of sexual harassment
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* Quid Pro Quo - Job opportunities, promotions, etc are given for sexual favors.
* Hostile Environment - The workplace is displaying discriminatory intimidation, ridicule, and insult but is sufficiently severe to alter the condition of the victims employment and create an abusive working environment |
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Requirements for Age Discrimination Employment Act (ADEA)
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* Must have 20 employees
* Applies to individuals aged 40 or above |
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Title 1 of Americans with Disabilities Act
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Prohibits employers from discriminating against a qualified individual because of a disabilities in regard to job application procedures, job opportunities, hiring, advancement, and other privileges of employment
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Requirements for protection under the Disabilities Act
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* Must have a mental or physical impairment that limits a persons major life activities
* Must have a record of such an impairment * Must be regarded as having such impairment |
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Specific Exclusions for Disabilities Act
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* Homosexuality
* Bisexuality * Sexual Behavior Disorders * Compulsive Gambling * Kleptomania * Pyromania |
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When does one not need to modify the workplace for disable persons
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Undue Hardship - Not required if it is too extreme to modify for disable people
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Legal Theories for Discrimination
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Desperate Treatment
Desperate Impact |
