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61 Cards in this Set

  • Front
  • Back
A CIVIL WRONG THAT IS AN INTERFERENCE WITH SOMEONE'S PERSON OR PROPERTY SUCH THAT INJURY RESULTS...
TORT
INTENTIONAL TORTS
MORE THAN AN ACCIDENTAL WRONG.
TORT OF NEGLIGENCE
-ACCIDENTAL HARMS THAT RESULT FROM THE FAILURE TO THINK THROUGH THE CONSEQUENCES.
-STILL HAVE LIABILITY BUT THERE ARE DEFENSES.
STRICT TORT LIABILITY
-ABSOLUTE STANDARD OF LIABILITY.
-USED IN PRODUCT LIABILITY CASES.
TYPES OF PROPERTY TORTS
-TRESPASS
-DISPARAGEMENT
-PALMING OFF
-NEGLIGENCE
TYPES OF PERSONAL TORTS
-FALSE IMPRISONMENT
-DEFAMATION
-BATTERY
-ASSAULT
-EMOTIONAL DISTRESS
-NEGLIGENCE
UNTRUE STATEMENT BY ONE PARTY THAT IS PUBLISHED TO A THIRD PARTY...
DEFAMATION
SLANDER
ORAL OR SPOKEN DEFAMATION
TORT OF CONTRACT INTERFERENCE
-TORTFEASOR KNEW OF EMPLOYEE'S CONTRACT.
-TORTFEASOR INTENDED TO INTERFERE WITH OR BREACH CONTRACT BETWEEN EMPLOYER-PLAINTIFF AND EMPLOYEE.
-EMPLOYER-PLAINTIFF IS INJURED BY BREACH OF CONTRACT.
INTENTIONAL INFLICTION OF E.D.(EMOTIONAL DISTRESS)
-LIABILITY FOR CONDUCT THAT EXCEEDS ALL BOUNDS OF DECENCY.
-DIFFICULT FOR PLAINTIFF TO ESTABLISH EMOTIONAL DISTRESS.
-HAS BEEN USED BY DEBTORS AGAINST COLLECTORS.
INVASION OF PRIVACY
-PUBLIC DISCLOSURE OF PRIVATE FACTS.
-APPROPRIATION OF ANOTHER'S NAME FOR COMMERCIAL ADVANTAGE.
NEGLIGENCE ELEMENT ONE
DUTY:
-ALL PERSONS ARE EXPECTED TO BEHAVE AS ORDINARY AND REASONABLY PRUDENT PERSONS DO.
-STANDARD OF THE LAW IS NOT ALWAYS USED.
-EX.) THE SPEED LIMIT OF 45 IS NOT APPROPRIATE IN ICE AND SNOW.
NEGLIGENCE ELEMENT TWO
BREACH OF DUTY:
-FAILURE TO COMPLY WITH ESTABLISHED STANDARD OF CONDUCT.
NEGLIGENCE ELEMENT THREE
CAUSATION:
-BREACH OF DUTY CAUSED THE PLAINTIFF'S INJURIES.
-"BUT/FOR" CAUSATION TEST.
-RESTRICTED BY THE ZONE OF DANGER RULE = DUTY.
NEGLIGENCE ELEMENT FOUR
PROXIMATE CAUSE (FORESEEABILITY):
-SOME COURTS HOLD THE CUT-OFF LINE MUST BE DRAWN BETWEEN THE "BUT/FOR" CAUSATION AND EVENTS CONTRIBUTING TO PLAINTIFF'S INJURIES.
-THERE IS A LEGAL LIMIT TO WHAT IS FORESEEABLE.
NEGLIGENCE ELEMENT FIVE
DAMAGES:
-MEDICAL BILLS
-LOST WAGES
-PAIN AND SUFFERING
-LOSS OF CONSORTIUM (AS BETWEEN SPOUSES).
THREE TYPES OF DEFENSE TO NEGLIGENCE
-CONTRIBUTORY NEGLIGENCE
-COMPARATIVE NEGLIGENCE
-ASSUMPTION OF RISK
CONTRIBUTORY NEGLIGENCE
(LEAST COMMON)
-PLAINTIFF IS ALSO NEGLIGENT.
-OPERATES AS A COMPLETE BAR TO RECOVERY.
COMPARATIVE NEGLIGENCE
-COMPARE ACTS OF PLAINTIFF AND DEFENDANT AND ASSESS BLAME FOR ACCIDENT.
-REDUCES PLAINTIFF'S RECOVERY BY AMOUNT OF FAULT.
ASSUMPTION OF RISK
PLAINTIFF KNEW OF INHERENT RISK AND WENT FORWARD ANYWAY.
CONTRACT
A PROMISE (OR SET OF PROMISES) FOR BREACH OF WHICH THE LAW GIVES A REMEDY.
TWO SOURCES OF CONTRACT LAW
-COMMON LAW
-UNIFORM COMMERCIAL CODE
COMMON LAW
-BASED ON ENGLISH COMMON LAW.
-SUMMARIZED IN RESTATEMENT OF CONTRACTS.
-APPLIES TO CONTRACTS WITH SUBJECT MATTERS OF LAND OR SERVICES.
-EX.) MORTGAGE, LEASE OR MEDICAL SERVICES.
UNIFORM COMMERCIAL CODE
-MORE FORGIVING THAN COMMON LAW.
-COMMON LAW IS NOT UNIFORM FROM STATE TO STATE.
BILATERAL CONTRACT
FIRST PARTY (OFFEROR) MAKES A PROMISE IN EXCHANGE FOR THE SECOND PARTY'S (OFFEREE'S) PROMISE.
-EX.) YOU PROMISE TO PAY BACK MONEY WITH INTEREST AND THE BANK PROMISES TO LOAN YOU THE MONEY.
UNILATERAL CONTRACT
FIRST PARTY (OFFEROR) MAKES A PROMISE IN EXCHANGE FOR OFFEREE'S PERFORMANCE.
-EX.) DRIVE MY CAR ACROSS THE COUNTRY AND I'LL PAY YOU $500 PLUS EXPENSES.
EXPRESS CONTRACTS
WRITTEN OR ORAL AGREEMENTS.
IMPLIED-IN-FACT CONTRACTS
NON-SPOKEN, NON-WRITTEN UNDERSTANDINGS.
-EX.) WHEN YOU GO INTO THE DOCTOR'S OFFICE, YOU HAVE AN IMPLIED CONTRACT TO PAY HER FOR HER SERVICES EVEN THOUGH YOU MAY NOT SIT DOWN AND ORGANIZE THE DETAILS.
QUASI CONTRACTS
-IMPLIED IN LAW
-FICTIONAL CONTRACT CREATED BY A COURT.

ELEMENTS:
-ONE PARTY CONFERS A BENEFIT ON ANOTHER.
-BOTH ARE AWARE OF THE BENEFIT.
-RETENTION OF THE BENEFIT WITHOUT COMPENSATION WOULD BE UNFAIR AND UNJUST.
VOID CONTRACTS
-A CONTRACT TO DO SOMETHING ILLEGAL OR AGAINST PUBLIC POLICY - NEITHER SIDE CAN ENFORCE.
-VOID CONTRACTS ARE ILLEGAL AND DO NOT EXIST AT LAW.
-EX.) CONTRACT TO BUY DRUGS
VOIDABLE CONTRACTS
CONTRACTS IN WHICH ONE PARTY HAS THE RIGHT TO END THE CONTRACT.
-EX.) CONTRACTS OF MINORS ARE VOIDABLE.
THE FIRST PART OF THE CONTRACT...
OFFER
PERSON WHO MAKES OFFER...
OFFEROR
PERSON WHO RECEIVES OFFER...
OFFEREE
UNDER COMMON LAW OFFER MUST CONTAIN ESSENTIAL TERMS OF THE CONTRACT SUCH AS:
-PARTIES
-SUBJECT MATTER OF THE CONTRACT
-PRICE AND PAYMENT TERMS
-DELIVERY TERMS
-PERFORMANCE TIMES
REVOCATION
OFFER CAN BE REVOKED ANY TIME PRIOR TO ACCEPTANCE.
OFFER TERMINATION
-TERMINATION OF AN OFFER BY REJECTION.
-OFFEREE INDICATES "NO"
TERMINATION BY COUNTEROFFER
-NON-MERCHANTS ADDITION OF TERMS IN ACCEPTANCE DOES NOT EQUAL A COUNTEROFFER. ACCEPTANCE RESULTS BUT ADDITIONAL TERMS ARE NOT PART OF CONTRACT.
-ACCEPTANCE WITH ADDITIONAL TERMS = CONTRACT.
ACCEPTANCE
-OFFEREE'S POSITIVE RESPONSE
-MUST BE COMMUNICATED TO OFFEROR
-USING PROPER MEANS OF ACCEPTANCE
-ONLY OFFEREE HAS POWER TO ACCEPT
CONSIDERATION
-DISTINGUISHES GIFTS FROM CONTRACTS.
-THE BARGAINED-FOR EXCHANGE.
-WHAT EACH PARTY IS WILLING TO GIVE UP FOR THE OTHER PARTIES PROMISE.
-COURTS ARE NOT CONCERNED WITH THE ADEQUACY OF CONSIDERATION, ONLY THE LEGAL SUFFICIENCY OF CONSIDERATION.
-CHARITABLE SUBSCRIPTIONS ARE ENFORCEABLE EVEN THOUGH DETRIMENT IS ONE-SIDED.
-RELIANCE PROVIDES ELEMENT OF DETRIMENT FOR CONTRACTS NOT YET BEGUN.
STATUTE OF FRAUDS
WRITING IS REQUIRED, CONTROLS WHAT MUST BE WRITTEN
-TYPES OF CONTRACTS:
REAL PROPERTY
CONTRACTS THAT CANNOT BE PERFORMED IN ONE YEAR.
CONTRACTS TO PAY THE DEBT OF ANOTHER.
UCC-CONTRACTS FOR SALE OF GOODS FOR $500 OR MORE.
DEFENSES: CAPACITY
-BOTH PARTIES TO A VALID CONTRACT MUST HAVE CAPACITY, WHICH INCLUDES AGE 18 AND MENTAL CAPACITY.
-CONTRACTS ARE VOIDABLE IF PARTY IS A MINOR.
-EXCEPTIONS: STUDENT LOANS, MILITARY SERVICE
DEFENSES: MENTAL CAPACITY
-PERSON UNDERSTANDS CONTRACTS ARE ENFORCEABLE AND SIGNIFICANCE OF LEGAL DOCUMENTS.
-UNDERSTANDS CONTRACTS INVOLVE COSTS AND LITIGATION.
-IF DECLARED LEGALLY INCOMPETENT, CONTRACTS ARE VOID.
MISREPRESENTATION
ELEMENTS: MISSTATEMENT OF A MATERIAL FACT, RELIANCE, DAMAGES.
-REMEDY CAN BE RESCISSION, CONTRACT IS SET ASIDE.
-MUST HAVE BEEN MATERIAL.
-CANNOT BE SALES PUFFING (OPINION).
FRAUD
THE FAILURE TO DISCLOSE MATERIAL INFORMATION CAN BE FRAUD OR MISREPRESENTATION. FRAUD INVOLVES INTENT.
ELEMENTS OF FRAUD
-KNOWING AND INTENTIONAL USE OF FALSE INFORMATION.
-KNOWING AND INTENTIONAL FAILURE TO DISCLOSE.
-MANY STATES HAVE STATUTES EXEMPTING THE DISCLOSURE OF A MURDER OR AIDS VICTIMS AS PREVIOUS OWNERS OR RESIDENTS.
DURESS
-PHYSICAL FORCE OR THREATS.
-PARTY IS DEPRIVED OF A MEANINGFUL CHOICE.
-HAS RIGHT OF RESCISSION.
-VOIDABLE.
UNDUE INFLUENCE
-VOIDABLE
-MUST HAVE CONFIDENTIAL RELATIONSHIP: ATTORNEYS/CLIENTS , ELDERLY PARENTS.
CONTRACTS IN VIOLATION OF PUBLIC POLICY
-EXCULPATORY CLAUSES: FULL LIABILITY ELIMINATION IS GENERALLY INVALID.
-COVENANTS NOT TO COMPETE MUST BE REASONABLE IN TIME AND GEOGRAPHIC SCOPE.
WHEN PERFORMANCE IS DUE
CONDITIONS PRECEDENT
CONDITIONS CONCURRENT
CONDITIONS SUBSEQUENT
CONTRACT PERFORMANCE
-COMPLETE PERFORMANCE IS REQUIRED.
-SUBSTANTIAL PERFORMANCE ALLOWED IN CONTRACT CASES.
-SUBSTANTIAL PERFORMANCE= NONMATERIAL BREACH
WHEN PERFORMANCE IS EXCUSED
-IMPOSSIBILITY
-COMMERCIAL IMPRACTICABILITY
PERFORMANCE IMPOSSIBILITY
CONTRACT CANNOT BE PERFORMED.
-EX.) CANNOT BUILD HOUSE IF THE LAND IS WASHED AWAY.
PERFORMANCE COMMERCIAL IMPRACTICABILITY
-BASIC ASSUMPTIONS PARTIES MADE ARE NO LONGER TRUE.
-CAN PROTECT THEMSELVES BY PUTTING FORCE MAJEURE CLAUSE; COVERS PROBLEMS SUCH AS WARS, EMBARGOES, AND DEPRESSIONS.
COMPENSATORY DAMAGES
PUT PARTY IN SAME POSITION THEY WOULD HAVE BEEN IN WITHOUT THE BREACH.
-EX.) SALES-BUYER HAS TO BUY CAR FOR $7000 AS OPPOSED TO ORIGINAL $6000 - GETS $1000 IN DAMAGES.
CONSEQUENTIAL DAMAGES
-DAMAGES EXPERIENCED IN RELATION TO THIRD PARTIES.
-LATE FEES OR LOSS OF INCOME FOR DELAYS.
LIQUIDATED DAMAGES
PARTIES AGREE ON DAMAGE AMOUNT IN ADVANCE.
THIRD PARTY RIGHTS
-ASSIGNMENTS: ORIGINAL PARTY TO CONTRACT ASSIGNS HIS/HER BENEFITS UNDER THE CONTRACT TO ANOTHER.
-ASSIGNEE HAS SAME RIGHTS AS ORIGINAL PARTY.
EX.) CREDIT COMPANY SELLS CREDIT CONTRACT FOR PRESENT VALUE TO ANOTHER WHO UNDERTAKES ITS COLLECTION.

DELEGATION: TRANSFER OF OBLIGATIONS UNDER CONTRACT.

THIRD PARTY BENEFICIARY:
-ORIGINALLY NAMED IN THE CONTRACT TO BENEFIT FROM THE CONTRACT.
-INSURANCE BENEFICIARIES ARE THIRD PARTY BENEFICIARIES.
CONDITIONS PRECEDENT
REFERS TO AN EVENT OR STATE OF AFFAIRS THAT IS REQUIRED BEFORE SOMETHING ELSE WILL OCCUR.
CONDITIONS CONCURRENT
MUTUALLY DEPENDENT STIPULATIONS IN A CONTRACT WHICH MUST BE PERFORMED OR COMPLIED WITH BY ALL CONTRACTING PARTIES.
CONDITIONS SUBSEQUENT
STIPULATION IN A CONTRACT THAT PROVIDES FOR DIVESTMENT OF A RIGHT, OR DEFEAT OF AN INTEREST, IF A PARTICULAR EVENT OCCURS OR DOES NOT OCCUR.