Business Law Test 2

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Tort law

Back 1

designed to compensate those who have suffered a loss or injury due to another person's wrongful act

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Compensatory Damages

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intended to compensate or reimburse a plaintiff for actual losses—that is, to make the plaintiff whole and put her or him in the same position that she or he would have been in had the tort not occurred. Compensatory damages awards are often broken down into special damages and general damages.

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Punitive Damages

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in tort cases to punish the wrongdoer and deter others from similar wrongdoing. Punitive damages are appropriate only when the defendant's conduct was particularly egregious or reprehensible

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Intentional tort

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A tort that requires intent

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Tortfeasor

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The person that commits the tort

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Assault

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any intentional and unexcused threat of immediate harmful or offensive contact, including words or acts that create in another person a reasonable apprehension of harmful contact.

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Battery

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an unexcused and harmful or offensive physical contact intentionally performed

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Actionable

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capable of serving as the ground for a lawsuit

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Defamation

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Wrongfully hurting a person's good reputation. The law imposes a general duty on all persons to refrain from making false, defamatory statements of fact about others

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Libel

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general duty on all persons to refrain from making false, defamatory statements of fact about others in writing or any other permanent form

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Slander

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general duty on all persons to refrain from making false, defamatory statements of fact about others orally

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Priviledge

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Qualified or conditional; gives the person making the statement immunity from possible consequences of such speech

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Public figures

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Public officials who exercise substantial governmental power and any persons in the public limelight

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Actual malice

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a statement must be made with either knowledge of its falsity or a reckless disregard of the truth

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Invasion of privacy (4)

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1) Appropriation of identity
2) Intrusion into an individual's affairs or seclusion
3) False light
4) Public disclosure of private facts

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Appropriation

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The use of another person's name, likeness, or other identifying characteristic, without permission and for the benefit of the user

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Fraudulent misrepresentation (5)

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1) A misrepresentation of material facts or conditions with knowledge that they are false or with reckless disregard for the truth.

2) An intent to induce another party to rely on the misrepresentation.

3) A justifiable reliance on the misrepresentation by the deceived party.

4) Damages suffered as a result of that reliance.
A causal connection between the misrepresentation and the injury suffered.

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Puffery

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seller's talk

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Business torts

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Apply only to wrongful interferences with the business rights of others. Business torts generally fall into two categories—interference with a contractual relationship and interference with a business relationship.

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Trespasses to land

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occurs any time a person, without permission, enters onto, above, or below the surface of land that is owned by another; causes anything to enter onto the land; or remains on the land or permits anything to remain on it.

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Trespasses to personal property

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Whenever any individual wrongfully takes or harms the personal property of another or otherwise interferes with the lawful owner's possession and enjoyment of personal property

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Conversion

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Whenever a person wrongfully possesses or uses the personal property of another without permission

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Disparagement of property

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Disparagement of property occurs when economically injurious falsehoods are made about another's product or property rather than about another's reputation. General term for torts that can be more specifically referred to as slander of quality or slander of title.

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Slander of quality/trade libel

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publication caused a third person to refrain from dealing with the plaintiff and that the plaintiff sustained economic damages (such as lost profits) as a result.

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Slander of title

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When a publication falsely denies or casts doubt on another's legal ownership of property, resulting in financial loss to the property's owner

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Cyber torts

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Torts committed via the Internet

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Spam

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unsolicited "junk e-mails" that flood virtual mailboxes with advertisements, solicitations, and other messages

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Negligence (& 4)

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When someone suffers an injury because of another's failure to live up to a required duty of care

1. Duty
2. Breach
3. Causation
4. Damages

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Duty of care

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People are free to act as they do as long as their actions do not infringe on the interests of others

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Reasonable personal standard

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How a reasonable person would have acted under the circumstances in question

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Business invitees

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Explicitly or implicitly invited persons to a business's premises

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Malpractice

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Professional negligence

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Causation in fact

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Did the injury occur because of a defendant's action?

Use the "but for" test

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Proximate cause

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Legal cause, when the connection between an act and an injury is strong enough to justify imposing liability

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Assumption of risk (2)

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1. Knowledge of risk
2. Voluntary assumption of risk

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Superseding cause

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An unforeseeable intervening event that breaks the casual connection between a wrongful act and an injury

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Contributory negligence

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A plaintiff who is also negligent cannot recover anything from the defendant

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Comparative negligence

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Enables both the plaintiff and the defendant's negligence to be computed and the liability for damages distributed accordingly

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Res Ipsa Loquitor

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"the facts speak for themselves"

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Negligence per se

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if an individual violates a statute or an ordinance providing for a criminal penalty and that violation causes another to be injured

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Good Samaritan statutes

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Someone who is aided voluntarily by another person cannot turn around and sue the "good samaritan" for negligence

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Dram shop acts

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Bar owners or bartenders can be held liable for injuries caused by a person that became intoxicated while being served at that establishment

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Strict liability

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A person who engages in certain activities can be held responsible for any harm that results to others even if the person used the utmost care

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Intellectual property

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any property that results from intellectual, creative processes

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Trademark

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a distinctive mark, motto, device, or implement that a manufacturer stamps, prints, or otherwise affixes to the goods it produces so that they can be identified on the market and their origins made known

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Dilution

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Using a mark too similar to one already existing reduces its impact and completion of its purpose

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Service mark

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a trademark that is used to distinguish the services (rather than the products) of one person or company from those of another

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Certification mark

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Used by one or more persons, other than the owner, to certify the region, materials, mode of manufacture, quality, or other characteristic of specific goods or services

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Collective mark

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used by members of a cooperative, association, or other organization

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Trade Dress

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the image and overall appearance of a product

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Trade name

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indicate part or all of a business's name, whether the business is a sole proprietorship, a partnership, or a corporation

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Cyber marks

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Trademarks on the internet

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Domain name

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part of an Internet address—for example, "westlaw.com."

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Cybersquatting

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when a person registers a domain name that is the same as, or confusingly similar to, the trademark of another and then offers to sell the domain name back to the trademark owner

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Meta tags

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key words

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License

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essentially an agreement, or contract, permitting the use of a trademark, copyright, patent, or trade secret for certain purposes

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Patent

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a grant from the government that gives an inventor the right to exclude others from making, using, or selling his or her invention for a period of twenty years from the date of filing the application for a patent. Patents for designs, as opposed to those for inventions, are given for a fourteen-year period

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Copyright

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an intangible property right granted by federal statute to the author or originator of a literary or artistic production of a specified type

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Peer-to-peer networking

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Rather than going through a central Web server, P2P networking uses numerous personal computers (PCs) that are connected to the Internet. Individuals on the same network can access files stored on one another's PCs

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Distribute Network

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Parts of the network may be distributed all over the country or the world, which offers an unlimited number of uses. Persons scattered throughout the country or the world can work together on the same project by using file-sharing programs

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Cloud computing

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a subscription-based or pay-per-use service that extends a computer's software or storage capabilities. Cloud computing can deliver a single application through a browser to multiple users, or it might be a utility program to pool resources and provide data storage and virtual servers that can be accessed on demand

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Trade secret

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information of commercial value. Trade secrets may include customer lists, plans, research and development, pricing information, marketing methods, production techniques, and generally anything that makes an individual company unique and that would have value to a competitor

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Cyber crime

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the way in which particular crimes are committed (over the internet)

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Crime

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a wrong against society. proclaimed in a statute and punishable by a fine and/or imprisonment—or, in some cases, death

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Beyond a reasonable doubt

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If the jury views the evidence in the case as reasonably permitting either a guilty or a not guilty verdict, then the jury's verdict must be not guilty

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Felonies

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serious crimes punishable by death or by imprisonment for more than one year

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Misdemeanors

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less serious crimes, punishable by a fine or by confinement for up to a year

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Petty offenses

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a subset of misdemeanors. Petty offenses are minor violations, such as jaywalking or violations of building codes

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Mens Rea

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The required mental state, or intent, is indicated in the applicable statute or law

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Robbery

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The taking of money, personal property, or any other article of value from a person by means of force or fear-is a violent crime

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Burglary

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breaking and entering into the dwelling of another at night with the intent to commit a felony

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Larceny

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the unlawful taking and carrying away of someone else's personal property with the intent to permanently deprive the owner of possession

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Arson

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The willful and malicious burning of a building (and, in some states, personal property) owned by another

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Forgery

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The fraudulent making or altering of any writing (including electronic records) in a way that changes the legal rights and liabilities of another

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Embezzlement

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When a person entrusted with another person's property or funds fraudulently appropriates that property or those funds

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Bribery (&3)

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offering to give something of value to a person in an attempt to influence that person, who usually is (but not always) a public official, to act in a way that serves a private interest. Three types of bribery are considered crimes: bribery of public officials, commercial bribery, and bribery of foreign officials

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Insider trading

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securities law prohibits a person who possesses inside information and has a duty not to disclose it to outsiders from trading on that information

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Money laundering

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an alternative to storing cash from illegal transactions in a safe-deposit box, wrongdoers and racketeers have invented ways to launder "dirty" money to make it "clean."

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Self-Defense

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Defending oneself against an attacker using either deadly or nondeadly force

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Necessity

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a criminal act was necessary to prevent an even greater harm

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Duress

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when the wrongful threat of one person induces another person to perform an act that he or she would not otherwise have performed

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Entrapment

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a defense designed to prevent police officers or other government agents from enticing persons to commit crimes in order to later prosecute them for those crimes

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Immunity

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A person will not be charged with a crime in exchange for information at the discretion of the prosecutor

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Plea bargaining

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The prosecution drops the charges down to a lesser infraction in order to obtain information about accomplices or another crime

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Double Jeopardy

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trying someone twice for the same criminal offense

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Exclusionary rule

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any evidence obtained in violation of the constitutional rights spelled out in the Fourth, Fifth, and Sixth Amendments generally is not admissible at trial

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Indictment

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Individuals must be formally charged with having committed specific crimes before they can be brought to trial. If issued by a grand jury, such a charge is called an indictment

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Information

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criminal complaint

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Computer crime

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any violation of criminal law that involves knowledge of computer technology for its perpetration, investigation, or prosecution

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Cyber fraud

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fraud committed over the Internet

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Identity theft

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when the wrongdoer steals a form of identification—such as a name, date of birth, or Social Security number—and uses the information to access the victim's financial resources

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Phishing

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the perpetrator "fishes" for financial data and passwords from consumers by posing as a legitimate business, such as a bank or credit-card company. The "phisher" sends an e-mail asking the recipient to update or confirm vital information, often with the threat that an account or some other service will be discontinued if the information is not provided. Once the unsuspecting individual enters the information, the phisher can use it to masquerade as that person or to drain his or her bank or credit account

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Vishing

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When phishing involves some form of voice communication

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Hacker

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someone who uses one computer to break into another

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Botnets

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networks of computers that have been appropriated by hackers without the knowledge of their owners

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Worm

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a software program that is capable of reproducing itself as it spreads from one computer to the next

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Virus

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malware, is also able to reproduce itself, but must be attached to an "infested" host file to travel from one computer network to another

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Cyberterrorists

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hackers who, rather than trying to gain attention, strive to remain undetected so that they can exploit computers for a serious impact