Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
133 Cards in this Set
- Front
- Back
|
Tort of Invasion of Privacy |
- Intentionally intruded private affairs - intrusion would be highly offensive to reasonable person |
|
|
Getting your credit card stolen would be an example of ___________________. |
Tort of invasion of privacy |
|
|
Recording telephone calls would be considered a ____________________ |
Tort of invasion of privacy |
|
|
When would recording a telephone call not be a tort of privacy? |
When you are a party to the conversation (ex. three way calls) or you inform them you are recording the call ahead of time |
|
|
What are the defenses for a tort of invasion of privacy? |
- It was a public space (implied consent) - They gave consent |
|
|
What are the remedies for a tort of invasion of privacy? |
- Compensatory - Punitive -Equitable |
|
|
Using someone's name, likeness, identity, or photograph for trade or advertising (commercial use) without consent is considered an ________________ |
Appropration |
|
|
Private person vs. Public Figure |
Private person - personal right to be left alone - harm must be mental (emotional) - right dies with person Public Figure - property right- he has right to profit from you using his face - violation has to cause monetary loss (needs a portion of everything that sells) - may be inherited or otherwise transferred - Example: Elvis pictures are still sold |
|
|
What is the defense for appropriation? |
-Newsworthiness: didn't do it to sell magazines, did it to report news - Gave consent - Parody and satire: it was just a joke (Saturday Night Live, Jay Leno, etc.) |
|
|
What are the remedies for appropriation? |
-Compensatory -Punitive - Equitable |
|
|
False Light |
- attributing characteristics that are false and offensive to plaintiff |
|
|
What is the difference between False Light and Defamation? |
- False Light = damage to person's emotion, publicity (has to be saying it to general public, can't be saying it to one person) - Defamation= damage to one person's reputation, published (one person)
|
|
|
What is the defense for false light? |
- It was the truth - Individual was not identifiable
|
|
|
What are the remedies for False Light? |
- Compensatory - Punitive - Equitable |
|
|
Public Disclosure of Private Facts |
- matters are so intimate that publication outrages public - matter is not of concern to the public |
|
|
The hacker getting into celebrities phones and leaking their nudes is an example of ______________. |
Public Disclosure of Private Facts |
|
|
What is the defense for Public Disclosure of Private Facts? |
- Newsworthiness - Consent - Doesn't outrage communities notion of decency - Event took place in public |
|
|
What are the remedies for public disclosure of private facts? |
- Compensatory - Punitive - Equitable |
|
|
Tortious Interference with a Contract |
- valid contract exists between two parties - Third party's knowledge of contract - Third party intentionally causing either of two parties to break contract
|
|
|
Macys and Martha Stewart have a contract. JC Penny's starts selling Martha Stewart stuff so Macys sues Martha Stewart with a ________________ and sues JC Pennys with a __________________. |
- sues Martha Stewart with breach of contract - sues JC Pennys with Tortious Interference with a Contract |
|
|
What is the defense for a tortious interference with a contract? |
privileged interference |
|
|
What are the remedies for a tortious interference with a contract? |
- Compensatory - Punitive - Equitable |
|
|
Tort of Negligence Duty of Care |
- duty to act reasonably at all times for safety of other persons and their property |
|
|
Who is duty of care determined by? |
Judge |
|
|
You are sunbathing and you see sharks but you see people running into water with sharks. Are you obligated to tell them by law? |
No |
|
|
You own a surf shop which rents surfboards but you know there has been shark spottings. Are you obligated to tell them by law? |
Yes you have a duty to let them know because you are increasing their risk by selling them surfboards |
|
|
Is a pharmacist liable for a lawsuit if he messes up your prescription? |
Yes |
|
|
How do we measure duty of care? |
- By reasonable standard under the circumstances - Emergency situations get some leeway |
|
|
Characteristics that qualify reasonable person standard based on limitations or inferior conditions |
1. Children- don't have same expectations for actions of child than with those of adults (exception when they are engaged in adult activities such as driving a car) 2. Physical disability 3. Superior skill or knowledge (hold doctors, lawyers, accountants, etc. to higher standard)
|
|
|
If you saved a man from a fire, but you accidentally broke his neck in the process are you liable to for a tort of negligence suit? |
Yes |
|
|
If you see someone drowning and you don't try and save them, are you liable for a tort negligence suit? |
No |
|
|
True or False: A landowner has a duty to protect children who are trespassing on his property from injury. |
True. Or he can ensure that children will not have access to that part of the property |
|
|
Licensee |
person who is allowed to enter a piece of property by permission of the owner but does not provide a material benefit to the property owner |
|
|
What duty does a landowner have to licensee? |
duty to warn any known or dangerous activities or conditions that licensee is unlikely to discover |
|
|
What duty does landowner owe to invitees? |
duty to erect safeguards and duty to warn of any known dangerous activities or conditions which the licensee is unlikely to discover |
|
|
Invitee |
person who gives some material benefit to landowner |
|
|
If a child slipped from water under faucet and there was no sign does the mom have the right to sue |
Yes |
|
|
Who decides duty of care? |
Judge |
|
|
Who determines breach of duty of care? |
Jury |
|
|
Tort of Negligence: Breach of Duty |
determined by 1. probability that harm would occur 2. seriousness of resulting harm 3. cost of taking precaution to reduce the risk
|
|
|
Advisors told the World Trade Center that they were a likely target for a terrorist attack and that they should enact beefed up security and renovations but they didn't and eventually they were attacked. Is there a tort of negligence suit? |
Yes multiple agencies had provided tip that they would be targeted so there was a high probability that it might occur |
|
|
Did McDonalds breach their duty by making their coffee too hot? |
Yes government regulations saying coffee could be certain tempurature |
|
|
Tort of Negligence Actual Cause |
- "but for" test - Yeah, you're right "but for" the fact that you were at the crime scene when she was murdered |
|
|
Tort of Negligence Proximate Causes |
What was reasonably foreseeable? |
|
|
BP spilled millions and millions of oil in the Gulf. Which of these could sue BP for a tort of negligence due to proximate causes... Fisherman, Hotel along water, Hotel blocks away from water, Restaurant along the Gulf, Charlottesville restaurant based on Gulf's shrimp |
- Fisherman (easily foreseeable) - Hotel along water (easily foreseeable) - Hotel blocks away (easily foreseeable) - Restaurants along the Gulf (easily foreseeable) - Charlottesville restaurant based on Gulf's shrimp (not easily foreseeable) |
|
|
Tort of Negligence Special Negligence Doctrines |
Negligence per se and Res Ipsa Loquitor |
|
|
Negligence per se |
when statute clearly sets out standard of conduct and of whom it is expected |
|
|
Res Ipsa Loquitor |
- the thing speaks for itself - wake up with a sponge in your stomach cause the surgeon forgot to take it out - walking on the street and toilet falls on your head |
|
|
Defenses for Tort of Negligence |
-Contributory Negligence - Comparative Negligence - Assumption of Risk -Exculpatory Agreement |
|
|
Contributory Negligence |
- If you had been paying attention, then you wouldn't have been harmed |
|
|
If you get hit by a car, but you didn't look before you crossed the crosswalk, could you sue? |
No because they can prove contributory negligence and you would get $0 |
|
|
Who decides if there was contributory negligence? |
Jury in jury trial and judge in a judge trial |
|
|
Comparative Negligence |
Pure state- split liability between parties Modified state- if plaintiff more than 50% fault, they get nothing, if plaintiff less than 50%, the she gets whatever percentage she would have gotten minus what percentage was her fault
|
|
|
Who chooses whether we're o pure state or modified state for comparative negligence? |
legislature |
|
|
Who determines whether the court uses comparative negligence or contributory negligence? |
The state (Virginia uses contributory) |
|
|
Assumption of Risk must prove... |
1. plaintiff had knowledge of risk (ex. bungee jumping) 2. plaintiff assumed that risk by placing himself in the zone of danger 3. Not a defense in negligence per se |
|
|
Exculpatory Agreement |
agreement that your not going to sue them if you get hurt |
|
|
What are the remedies for the Tort of Negligence? |
- Compensatory - Punitive - Equitable |
|
|
You can sue for Tort of Strict Liability if |
1. abnormally dangerous animal (lion, python) 2. hazardous materials (explosives) 3. Innkeepers (hotel is liable for injuries on premises) 4. Common carriers (UPS, Fedex, moving trucks strictly liable if they break something) 5. Product liability (defect in product then they are strictly liable) |
|
|
Contract Law |
contract where if you breach it you are liable to be sued under the law
|
|
|
True or False: Every contract is a promise, but not every promise is a contract |
True |
|
|
Uniform Commerical Code, Article 2 |
- applies only to merchants in sale of goods - provides rules for when oral vs. written may be relevant for contracts
|
|
|
Contract Law is governed by... |
- State common law - Uniform Commercial Code, Article 2 |
|
|
Merchants |
- person who holds himself out as having knowledge or skills particular to those goods |
|
|
Difference between common law, torts, and property law |
Common law- deals with future Torts- deals with what happened in the past Property Law- what are your rights (what is present) |
|
|
Mutual Assent |
Offer and acceptance of offer |
|
|
Objective theory of contract |
offerer must manifest an object intent to be bound by contract |
|
|
If you joke with your coworker about a contract to sell your house, but he thought you were being serious, does the contract hold? |
Yes |
|
|
In order for mutual assent, what terms of an offer must be met? |
- must be reasonably certain or definite (ex. price, duration, quantity, terms of payment, subject matter, etc.) |
|
|
Under UCC, the terms of an offer |
- are not definite (open terms) - merchants operate on good faith |
|
|
You find a dog and return it to owner, but didn't know about the reward. Are you entitled to the reward? |
No because you never knew about it |
|
|
How long does is an offer valid? |
- until its accepted - revoked by offerer (contract still stands until offeree receives the revocal) - implicit revocation by actions/words |
|
|
Exceptions to revoking an offer |
1. Have to hold open an offer when consideration is given (ex. pay portion of car now and give me rest later) 2. If he promises to fulfill offer in writing (sign saying that they are selling Bose for $200 for the next 30 days) 3. Statutory irrevocability 4. Irrevocable offers of unilateral contracts 5. Promissory estoppel |
|
|
Unilateral |
- promise in exchange for an act (accepted by your action) - once offer begins performance after a reasonable time it may not be revoked |
|
|
Bilateral |
Promise in exchange for a promise |
|
|
Promissory estoppel |
offeree relies on a promise made by offerer to his/her detriment |
|
|
When is a rejection by offeree valid? |
- when it is received by offeror - silence can also be rejection |
|
|
When you give a counteroffer, can the party terminate the initial offer? |
Yes |
|
|
Other things that terminate an offer |
- Lapse of time - death or incompetence of offeror or offeree - destruction of subject matter (house, car, etc.) - subsequent illegality (offer to sell a casino but they change law saying gambling is illegal) |
|
|
Mirror image rule |
- unless offer is not exactly the way it was it is a counter offer |
|
|
Mailbox Rule |
1) valid the minute it is mailed, emailed, faxed, etc. 2) properly addressed to the offeror 3) acceptance is valid once it is beyond the senders control |
|
|
Justin has a boat. He gives Dave a 10 day offer on April 2nd for $4200. On April 7th he receives notice from a friend that Justin sold the boat to Mary. On April 8th Dave accepts Justin's offer to buy the boat. Is there still an offer? |
No he had notice of revocation |
|
|
Justin has a boat. He gives Princess a 10 day offer on April 2nd for $4200. On April 5th, she mails a rejection. On April 6th, she changes her mind so she sends an acceptance letter. April 7th the rejection comes in the mail. April 8th the acceptance comes in the mail. Is there a contract? |
Yes because he sent the acceptance before Justin received the rejection |
|
|
Justin has a boat. He gives Jerry a 10 day offer on April 2nd for $4200. On April 3rd he says he's interested but wants to pay $3900 instead of $4200. On April 8th he sends the full $4200. Is there a contract? |
No, once you've made the counteroffer it's a completely different contract |
|
|
What is the default for contracts with Multiple Promisors |
individual accepts liability for entire promise jointly and severally (each makes a promise for the whole |
|
|
5 people sign lease for $5000 a month ($60,000 a year). What did you individually promise when you signed this lease? |
The full $60,000 (joint and several liability) |
|
|
What is the default for Private Sector employment terminations? |
employment at will (can fire you whenever they want without causation) |
|
|
Alternatives to employment at will |
1. employment agreement includes agreed upon reasons for termination 2. employment agreement for a specified term (10 year contract they can still fire you but they have to pay you out) 3. Agreed upon conditions upon termination (severance, 60 day notice, etc.) |
|
|
What is the default for sales/service agreements? |
-service provider promises to perform the authorized service in a reasonable fashion |
|
|
Alternatives to default for service agreements |
1. in a reducible fashion- express warranty: you keep bringing it back until it is fixed without having to pay extra 2. customary charges- bidded agreement: bid puts the risk on the service provider |
|
|
What is the default for sale of real property |
seller promises only "good title" |
|
|
Exception to default for sale of real property |
statutory exception (applies only to new homes) - 4 implied warranties for new homes 1. good title 2. habitability for 1 year 3. structural soundness for 1 year 4. foundation soundness for 5 years |
|
|
Alternatives to default of sale of real property |
express warranty |
|
|
Default for sale of goods |
- caveat emptor (buyer beware) - good title only |
|
|
If you buy something on ebay today and it breaks tomorrow can you sue for fraud? |
No unless you asked questions like "does it work?" etc. |
|
|
Exception to default of sale of goods |
2 types of implied warranties for UCC Merchants 1. implied warranty of mercantability (every time you buy a product from seller it will work) - every time you buy iPhone from Best Buy it will work - law says you have 4 year statute 2. Implied warranty of fitness for a particular purpose |
|
|
Alternatives to Default for sale of goods |
Get an express warranty |
|
|
Magnuson Moss Act (Federal Statute) |
- Governs warranties on consumer goods - if they don't honor it you can bring a federal suit and if you win they will pay your attorney fees |
|
|
What is the key to mutual assent? |
they have to be voluntary contracts |
|
|
Void |
illegitimate and unenforceable from the moment it is made (never worth anything)
|
|
|
Voidable |
still a valid contract but you can get out of it if you want to |
|
|
Physical duress |
- ex. gun to my head -void |
|
|
Economic duress |
- threats using economic coercion, leaving victim with no reasonable alternative other than to agree with more powerful party - voidable |
|
|
General Contractor hires subcontrator to provide bricks for building they constructing. Subcontractor needs to be paid 3.3 million on January 17th, 2010. General Contractor is on a time restraint so they agree. Did they owe this 3.3 million? |
No economic duress makes the contract voidable |
|
|
What is the process to think about whether there was duress (don't have to prove all 4)? |
1. Was there threat or application of pressure? 2. Was there a lack of practical alternative? 3. Was there pressure illegitimate? 4. Was the pressure significant cause for the plaintiff to enter into an agreement? |
|
|
Undue Influence |
- situation in which one person has taken advantage of his or her dominant position in a relationship based on trust - makes contracts voidable |
|
|
Old people's caretaker does not let his family visit him so the caretaker is manipulating him to leave him all his money. What is this an example of? |
undue influence |
|
|
What are the factors of undue influence? |
1. Was the dominant party rushing the other party to consent or take action 2. Did dominant party gain undue enrichment 3. Was the non dominant party isolated from other advisors at the time of the agreement 4. Is the contract unreasonable in the sense that the results of the exchange overwhelmingly benefit the dominant party |
|
|
Difference between duress and undue influence |
- duress involves threat to do something against your will - undue influence you are unaware its against your will |
|
|
Fraud |
- would never have gotten into contract if he hadn't lied to me - did it with scientor (knew he was tricking me into getting into the contract) -Voidable |
|
|
You buy a purebred dog that you find out is not actually a purebred. What happens to your contract? |
It is voidable |
|
|
Non fradulent misrepresentation |
- no scientor (not intentional its negligent) - voidable as well
|
|
|
You are looking for a house, its very important I live in a quiet neighborhood because I'm a stay at home writer so I buy a home but then there is a mill 10 miles away that always makes noise. Is there still a contract? |
Contract is voidable |
|
|
What if there was temporary construction. What happens to contract? |
Nothing, it is not non fraudulent misrepresentation |
|
|
Mutual mistake |
- belief thats not in accord with facts - voidable |
|
|
Husband surprises Canadian wife and orders Canadian blanket so he pays $200 dollars instead of $200 Canadian dollars. What happens to the contract? |
Still gets the blanket but shop pays him the difference or it is voidable |
|
|
Unilaterial mistake |
- no relief - other party knew or had reason to know about other parties mistake - mistake was so serious that contract is unconscionable |
|
|
Paying $5 for a $5000 car is an example of what? |
unilateral mistake |
|
|
Consideration |
- "This for that" - What a party is receiving or giving as party of a contract |
|
|
Legal sufficiency |
doesn't matter how much, it matters that its there |
|
|
Uncle sells nephew his car |
- they are both promising to do something they are not obligated to do |
|
|
What happens if uncle says he'll give nephew a car for his birthday? |
no consideration because its just a gift |
|
|
Legal detriment |
party did something he was not legally obligated to do |
|
|
Agreements Lacking Consideration |
1. Past consideration- already happened 2. Gratituous promise- gifts 3. Illusory Promise- I will give you extra credit if I feel like it (not a firm offer) 4. Preexisting duty- requires contract modification |
|
|
You promise to build a house for 1 million, then you come back and say I need 1.5 million and they agree to pay 1.5 million. Is this a contract? |
No because the promisor is not offering anything new |
|
|
Policeman finds missing child and wants to collect reward. Is he entitled to that reward? |
No because he has a duty to do that even if he is off duty |
|
|
I get a one year student loan of 1 million. The bank says I've been so good that I only have to pay $800,000. Morgan Stanely buys Bank of America and they sue you for not paying full amount. Will they win? |
Yes because you didn't offer the bank anything extra when they cut your payment |
|
|
Settlement of Undisputed debt |
no question as to amount owed or that it is owed |
|
|
Settlement of Disputed debt |
- question as to whether debt is owed - question as to how much is owed |
|
|
Agreements that Lack Consideration but are enforceable |
- unforeseen difficulties which create exception to preexisting rule |
|
|
Contractor agrees to build house for 1 million, then earthquake and tsunami hit. The contractor raises the price to 1.5 million. Is the contract valid? |
Yes meets unforeseen difficulties requirement |
|
|
Mom promises daughter to transfer piece of farm. Daughter sells house and builds new house on farm. Then mom says she won't give up land. Does she have to? |
Yes because the promise relied on her detriment (mom didn't stop her building house on land) |
|
|
Contracts implied in fact |
created in conduct (not by words) of parties |
