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93 Cards in this Set
- Front
- Back
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What are the three sources of modern contract law?
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1) common law
2) Restatement second of contracts 3) Uniform commerical code |
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Common law
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judicial opinoins- cases that hace been decided by courts
(vary from state to state) |
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Restatement second of contracts
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mian principles of the common law, basic info.
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Uniform commercial code
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(1940s) consistant set of principles that governed contracts dealing with the sale of goods
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contract
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LEGALLY ENFORCABLE exchange of promises (almost never needed in writing)
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Express Contract
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parties hace talked about the terms in advance- written or oral
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Implied contract
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parties DO NOT talk about the term sin advance.
1)Implied in fact 2) quasi-contract |
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Implied-in-fact
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terms are never openly discussed but the actions of the parties indicate on exsistance of an agreement
EX) mowing the lawn for yrs then one day dont get paid the court will say you have to pay b/c of implied-in-fact |
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Quisi-contract
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a court will infer the exsistance of a contract for reasons of fairness.
EX) paying a doctor for treating you |
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What are the elements of a valid contract (K)
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1)mutual agreement
2) consideration 3) legality of object 4) capacity of the parties |
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What do we look for to see if there is valid consideration for a contract?
What are the threee main questions? |
(offer and acceptance)
Would a reasonable person think that an offer was being made? *all that matters is how your actions were interpretted NOT whats going on inside your head. *Do parties intend to be legally bound? *Are the terms sufficiently specific? (names of parties, price, subject matter, quantity, tome for performance |
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Termination of offers
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1) lapse of time (held to a standard of reasonable person)
2)revocation (offerer changes their mind) 3)death to either party 4)death or destruction of something necessary for performance 5) subsequent illegality |
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What determines acceptance of a contract?
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silence DOESNT constitute acceptance.
Have to indicate that you accept the offer |
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Consideration of a contract
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the inducemnet to contract; what was being exchanged.
Was there a bargain for exchange? gratutious promise-promise that lacks consideration Do both parties have a benefit and a deteriment? |
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Whats a benefit? Deteriment?
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Benefit- recieveing something that you have no right to receieve outside of the contract
Deteriment- 1) doing something that your not obligated to do OR 2) NOT doing something that your obligated to do outside the K |
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What are the four contract defenses?
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1) fraud 2) duress 3) undue influnce 4)inconscionability
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What is the contract defense fraud?
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misinterpretation of a material fact made with knowledge o the falsity of the statement, with intend to cause another to act, which in fact causes another to act to his detriment or injury
EX) selling a house with termites and not telling the buyer |
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What is the contract defense duress?
Usually voidable except for what? |
an improper threat that is so serious that it leaves the victim with no reasonable alternative but to accept the contract
*usually viodable, BUT if the threat is one of physical violence, then the contract is AUTOMATICALLY VOID |
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What is the contract defense undue influence?
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unfair persuassion of a party because of a fiduciary relationship or other abuse of trust.
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What is the contract defense unconsionability?
why is an informal def. a good thing? |
theres no formal definition.
1)one sided terms, 2)unbalanced bargaining power, 3) no opportunity to negotiate. Informal definition- good because is gives judges flexability BUT you need all three to win this arguement. |
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Not all contract disputes are solved by payment of money damages. What are some equitable remedies available in contract cases?
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1)specific performance
2) injunction 3)Rescussion and restitution |
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What is the equitable remedy specific performance?
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- court orders the parties to comply with the terms of the contract.
This is only avaliable when 1)contract involving goods are required and 2) sales on land contract |
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What is the equitable remedy injuntion?
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-saying you have to stop doing something
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What is the equitable remedy of rescussion and restitution?
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restituiton- putting the injured party in the position they'd be in if the contract had never been made
Reformation-court can reform/modify the contract to reflect the parties time intentions. |
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What is a tort?
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a civil wrong; the civil side of a case that may or may not be criminal
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***What questions do we ask in determining whether a tort has been committed?
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1) is there a legally protected interest?
2) What is the nature of the defendants conduct? 3)Is there a sufficiently close connection b/w the defendants act and the plantiffs wrong? 4) Are there any defense? |
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What are the legally protected interests?
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1)physical injury 2) injury to property 3) injury to reputation 4) injury to your dignity 5)emotional distress 5)intentional tort 7) neglegence 8) strict liabilty
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You should understand the term “intentional” as it applies to tort law.
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Intentional- a volitional act committed with the substantial certainty that harm will result. DOES NOT mean that a defendand has an evil motive or desire to harm
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What are the 4 elements that the plaintiff must prove in order to win a defamation suit?
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1) defamatory statement- thing in question likely to hurt reputation
2) falseness 3) communication- must be told to one other person 4) injury slander- must show injury |
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What are the two types of contract defenses?
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1)money
2) equtaible remedies |
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What are the money damages?
what is not a contract money damage? |
1) Nonimal (rare)
2) compensatory- put the injured party in the position he'd be in if the contract never had been performed 3) Liquidated damages- parties agree in advance what the damages will be if there is a breach of contract ** NOT punitive |
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What is mitigation?
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parties to a contract are under an obligation to limit damages that accrue
EX) mow the lawn and never get paid still have an obligation to keep the damages down by stopping mowing. |
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What questions to we ask in determining whether a tort has been committed? (Also known as Universal Tort Analysis. Make sure you know this!)
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1) is there a legally protected interest?
2) what is the nature of the defendants conduct? 3)is there a sufficiently close connection b/w the defendants actions and the plantiffs injury? 4) are there any defenses? |
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what is causation? significance?
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link b/t action action and injury.
1) actual cause 2)proximate cause *have to decide at what point the action is no longer held responsible for the injury EX) the injury on the tracks due to the fireworks |
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What is slander per se and when does it apply?
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slanderous statements that are so harmful that we treat them like libel, injury is presumed.
APPLIED 1) accusing the plantif of being incompetent in his profession 2)accusing the plantif of commiting a serious crime 3) accusing the plantiff of having an STD 4) accusing/calling the plantif and unchased women. |
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Suppose that the plaintiff in a defamation case is a public figure. What impact does that have on the case?
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Defemation effects your reputation and when your a public figure defemation.
If its too easy to win a defamation the press will be afraid to write **NEED TO MAINTAIN FREEDOM OF PRESS in addition to the 4 main elements they need ACTUAL MALICE- must show that the defendant knew the statement was false when they made it. |
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what case established absolute malice?
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New York times v. Sullivan
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What actress actually won a defemation case?
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Carol Bernet- claimed she was out drunk eating off ppls plates but she wasnt even at that resturant and she was offered a dessert from someone
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What is the difference between “libel” and “slander”?
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Slander- oral statements
libel- written statements |
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what is defamation?
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an intentional statement that is false and harms someones reputation
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What are the types of intentional torts?
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1)battery- intentional contact that is harmful or offensive
2) Assault- intent, plus the reasonable apprehension of an imminent battery (swing and a miss) 3 false imprisonment-intent and confinement aganist ones will w/o reasonable means of escape. |
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What are the defenses for intentional torts?
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1) good samaritan law
2) consent 3) self-defense 4)defense of others 5) defense of property |
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What is the good samaritan defense for intentional tort?
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trying to help someone and end up injurying them--NOT LIABLE- EX) giving someone cpr and breaking a rib
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What is consent as a defense for an intentional tort?
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consent- if you consent to the tort you can't sue
EX) boxing |
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What is self defense as a defense for an intentional tort?
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self defense- can use reasonable force to prevent the precieved threat of injury.
*NOT a licence to retaliate. Was your belief of attack reasonable if you precieved wrong? |
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What is defense of others as a defense for an intentional tort?
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reasonable force to prevent harm of someone else
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What is defense of property as a defense for an intentional tort?
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cannot use deadly force to protect uninhabited property (this is not universal)
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What is negligence?
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an act taking an unreasonable risk breaching a duty of due care, CAUSING INJURY
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What is the Reasonable Person Standard?
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always does the right think. always follows the rules.
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What is the rule for proximate cause in cases of negligence based on the case of Palsgraf v. Long Island Railroad?
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With an act followed by intervening events and then an injury.
** In order for negligence the plantiffs injury must be FORSEEABLE-predictable.. |
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What are the defenses for claims of negligence in tort law?
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1)contributory negligence-if the plantif is at all to blame for his own injury,the defendant cannot be held liable
2)Comparative negligence- defendant can only be held reliable for his share of the plantifs injury. 3)assumption of the risk-if the plantif knows that there is a risk in an activity then cant recover aganist a negligent defendant. |
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What are the primary categories of strict liability cases?
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1)Ultrahazardous activites-risk that cannot be eliminated no matter how much care is used. EX) demolision of a building with explosives.
2) FIRE started in the course of abnormally dangerous activity EX) fireworks in the house 3)Dangerous animals- EX) poisionious snake -if it injures someone you are held liable |
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When you own property, what are the rights you have under the law with regard to that property?
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1)possession
2)Use 3) dispostion 4) Right of the title-ownership backed up by the law |
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What is real property?
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land, anything attached to the land, and interest in the land (mortgage)
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What is personal property?
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everything else tangible or intangible
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What is different about fixtures of property?
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they start off as personal property and become real property.
EX) all the materials that are used to make a house |
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What are the sx ways to transfer ownership of personal property?
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1)by sale
2)by death *testate- have a valid will *intestate- w/o a valid will **cannot disinherit your spouse allowed 1/3 3)by gift 4) lost, mislaid, abandoned 5)accesion 6) confusion |
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What are the elements needed in order to have a valid gift?
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1)donative intent with proper mental capacity
2)delivery- donor has to turn ENTIRE control over the item 3) acceptance of the gift |
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Explain the transfer of personal property by lost, mislaid, or abandoned
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if abandoned (non-use plus intent to relinquish) then the finder gets the title
Lost accidently- the finder has the rights superior to all BUT the owner. Mislaid- owner placed the item somewhere for safe keeping and forgot where owner of the LOCATION where it was found has rights superior to all but the true owner |
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Explain the transfer of personal property by accession
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the improvement or augmentation of personal property by artifical means.
EX) use the neighbors wood but make a table you have to reimburse for the wood but not give up the table. |
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What are the three questions that come with accsssion?
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1) innocent taking?
2) Did the taker greatly improve the item? 3) Did the org. item undergo material change? |
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Explain the transfer of personal property by confusion
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when 2 ppls goods get inseperately mixed up.
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What is bailment?
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Bailment- voluntarily turning personal property to another for the accomplishmen of some purpose
EX) renting and returning a video Bailor=owner Bailee= temp. possesion, have a duty of reasonable care. |
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What constitutes real property?
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Unique and three dimensional
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What is easement?
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non-possessory interest in land that entitels the owner of the easment to a limited use or enjoyment of the land.
EX) if there is a cable line under your land and you want to build a pool you cant. **EASEMENTS RUN WITH THE LAND |
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What are the two types of concurrent ownership?
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1)tenants in common- default standard- if one owner dies then the heir gets the property interest
2)joint tenancy- if one owner dies then the survivor gets the property. |
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What are the ways to transfer ownership of real property?
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1)adverse possession
2)at death 3) by deed |
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What is adverse possession?
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if a person is possessing anothers real property with the owners knowledge but without the owners permission then the possessor in time could become the owner.
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What is transfering real property by deed include?
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1)Names of the party
2) Words of conveyence 3) detailed desrciption of the land 4)signitures 5) witnesses 6)statements of consideration 7)property is yours to sell 8) Statements about easements or other restrictions |
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What is zoning?
Why do we have it? |
the power of the state to regulate and restrict the use of real property. *local gov. issued
WHY= zoning segregates use (houses by houses..) and protects orderly development of property and unecessary sprawl and pollution |
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What is eminent domain?
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the power of the government to take private property for public use. w/ just compensation.
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What is the kilo v. london case?
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New London wanted to attract new bus. to an area so they wanted to seize are by the river and expanding bus= public use by supreme court
**BECAME MUCH EASIER TO WIN EMINENT DOMAIN |
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What are the four main types of tenancies? Briefly explain
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1) tenancy for years
2)tenancy-at-will 3)periodic tenancy 4) tenancy at sufferage |
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What is tenancy for years
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fixed start and end date expires w/o notice
College apt. |
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What is peroidic tenancy?
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lease that goes on indefinelty but periodically pay rent (every month)
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What is tenancy at will?
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relationship can be terminated at any time by either party
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What is tenancy at sufferage?
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if the lease expires and you dont move out it can lead to an eviction. Police will eventually move you out
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What are the landlord’s duties under landlord/tenant law? Briefly explain.
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1) convenant of quiet enjoyment-landlord must provied the tenant with full possesory rights. Club-forcing the tenant to move out.
2)Implied warranty of habitability- doesnt have to be included in the lease but says that the place has to be kept to a min. standard of livability. |
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What is constructive eviction?
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landlord allows conditions to become so unbareable that the tenant has no choice but to leave. (violation)
EX) no heat |
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What are the four criteria for granting a patent?
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1)inventiveness- required skill
2)Novelty- NEW 3) Utlilty- useful/purpose/functional 4) subject matter requirement- must be invention NOT a DISCOVERY |
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If you are a copyright owner, what are the rights you have with respect to your work?
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1)Reproduction-have exclusive rights to make copies
2)Derivative works- decide if you want a work based on your preexisting work (book-movie) 3) Distribution 4)Public performance and display |
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How do you prove copyright infringment?
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1)valid copyright
2) defendant copied your work 3) work substantially similar to plantiffs work |
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When is it okay to copy?
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1) Fair use=education or research purpose
2) Public domain- after 50yrs after death of copyright owner 3) parody- spoofing an existing work (scary movie) |
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What are the Idea/Expression Dichotomy.
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Ideas are NOT copyrightable but EXPRESSIONS ARE.
ex) many songs about the idea of love but your own words and melody-expression- are your own to copyright. |
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What is a trademarks used for?
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exclusively used for commercial purpose and they last forever (mickey mouse) but you have to file your own lawsuit to keep those rights.
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self-help
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landlord actually changing the locks or moving your stuff out=illegal
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Distress for rent
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illegally seizing your property as a pmt of missed rent- unless the parties agree that its okay
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Intellectual property
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subset of personal property- congress has pwer to promote exclusive right for ppl to protect their discoveries.
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Difference b/w patents, copyrights, and trademarks
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patents- granted to inventors
copyrights- granted to authors (anyone who creates something) Trademark- exclusive right to a brand name. symbol, sign. |
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When and why does the Statute of Frauds apply to contracts,
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1) the sale or transfer of land
2) to pay off the debt of another 3)actual terms of the contract must make it impossible for performance to be completed within one year 4)Certain contracts for the sale of goods, under the Uniform Commercial Code. |
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What is the pupose of a written contract- statue of fraud
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1) to prevent fraud
2)A writing will both reduce the chance of future litigation, and also give the parties the opportunity to take a second look at the terms and conditions of their agremeent before it becomes final. |
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Consideration
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is the legal concept of value in connection with contracts. It is anything of value in the common sense, promised to another when making a contract. It can take the form of money, physical objects, services, promised actions, or even abstinence from a future action. If either promisee already had a legal obligation to render such payment, it cannot be seen as consideration in the legal sense
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liquidated damages
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are damages whose amount the parties designate during the formation of a contract for the injured party to collect as compensation upon a specific breach
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