L201 - Exam 3 - Langvardt

Front 1

duress

Back 1

1. contract was induced by improper threat
2. victim had no reasonable alternative but to agree

Front 2

Statute of Frauds

Back 2

Certain contracts must be in writing

Front 3

MYLEGG

Back 3

Marriage is consideration
Bilateral contract that will take 1 Year to perform
Contract for Land
Executor or administrator promises to take over debt of an estate personally
Goods contract >$500
Party becomes Guarantor for an obligation

Front 4

Parol evidence rule

Back 4

If there is a written contract,
And it’s fully integrated,
Then the court won’t hear parol evidence to add to or contradict the written words

Front 5

Admissible parol evidence

Back 5

To explain ambiguity
To show invalidating circumstances
To show existence of condition
Later agreements

Front 6

condition precedent

Back 6

future event that triggers duty to perform (burden on plaintiff)

Front 7

condition concurrent

Back 7

each party must perform at the same time

Front 8

condition subsequent

Back 8

future event that discharges duty to perform (burden on defendant)

Front 9

strict performance

Back 9

Perfect performance is required if
It is made express (“on condition that,” etc.)
It is possible to perform perfectly

Front 10

substantial performance

Back 10

Imperfect performance is permitted if
The duty is difficult to perform perfectly
And strict performance is not an express condition

Front 11

A material breach of contract ___________.

Back 11

discharges obligation to perform under contract

Front 12

Non-material breach of contract

Back 12

gives rise to whatever damages result from the breach

Front 13

anticipatory repudiation

Back 13

a declaration by the promising party to a contract, that he or she does not intend to live up to his or her obligations under the contract
(nonbreaching party may sue then or wait until appointed date of performance)

Front 14

breacher's bounty

Back 14

If breacher performed partially before breaching the contract they may try to get compensation for what you have already done (under quasi contract), so long as the contract is divisible

Front 15

excuses for nonperformance: impossibility

Back 15

elements
1. unexpected occurrence
2. no understanding re: risk allocation
3. occurrence made performance objectively impracticable by anyone

- financial justifications for nonperformance are suspect -

Front 16

excuses for nonperformance: impossibility (UCC alternative)

Back 16

Commercial impracticability
Relaxed standard
Must not be promisor’s fault
And contract must be premised on understanding that performance is practicable
Wars and crop failures will do
Ordinary price collapse will not
Seller must notify customers and distribute deliveries among them fairly and reasonably

Front 17

calculating breach damages

Back 17

loss in value
+ consequential and incidental damages
- restitution

Front 18

specific performance

Back 18

appropriate for land, fine arts:
Breaching party is forced to perform
Only available if money damages will not do
And then, only if
Injured party acts in good faith
Asserts rights promptly
And specific performance will not require excessive supervision by court

Front 19

employment law in 19th century was extremely pro-______________

Back 19

management

Front 20

worker's compensation

Back 20

employer is strictly liable for workplace injures
e.g. no contributory negligence, etc.
-worker's comp right displaces all others

Front 21

scope of employment
(elements)

Back 21

1. Conduct is in the nature of the work
2. Conduct is more or less during work hours
3. Conduct is basically in the authorized place
4. Conduct is at least partially meant to serve employer

Front 22

Equal Pay Act

Back 22

People performing substantially equal work
Must receive equal pay
Irrespective of gender

Front 23

Employer's defenses
(to Equal Pay Act)

Back 23

Point to disparity of:
Seniority
Merit
Quality or quantity of production
And other stuff not related to sex

Front 24

remedy to Equal Pay Act is ________ .

Back 24

back pay lost due to discrimination
enforced by the EEOC

Front 25

Title VII to 1964 Civil Rights Act

Back 25

If you have more than 14 employees,
Then you may not discriminate based on:
Race
Color
Religion
Sex
National origin

Front 26

Aggrieved parties on Title VII must ______.

Back 26

file charge with EEOC

Front 27

affirmative action programs (under Title VII)

Back 27

may be permissible if
They are designed to correct a traditional racial imbalance
They don’t prejudice majority workers gratuitously
And they are only temporary

Front 28

3 ways to prove discrimination (under Title VII)

Back 28

Direct evidence
Disparate treatment
Disparate impact

Front 29

BFOQ's work in ___________, ____________, and ____________ cases. But not _________ and ____________ cases.

Back 29

gender, national origin, religion

race, color

Front 30

disparate treatment

Back 30

violation is made out when an individual of a protected group is shown to have been singled out and treated less favorably than others similarly situated on the basis of an impermissible criterion under Title VII

Front 31

disparate impact

Back 31

"theory of liability that prohibits an employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class."[1] "A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect."

Front 32

quid pro quo

Back 32

Supervisor offers to reward or threatens to punish employee based on sex
-tangible employment action

Front 33

hostile work environment

Back 33

Employee faces a barrage of unwelcome sex-related behavior from people at work
It’s severe and pervasive
Reasonable person would find it hostile or abusive

Front 34

vicarious liability for sexual harassment

Back 34

If harasser was a supervisor and there was a tangible employment action, then automatic
otherwise, affirmative defense

Front 35

affirmative defenses (for vicarious liability for sexual harassment)

Back 35

Employer exercised reasonable care to prevent and correct promptly
or
Plaintiff unreasonably failed to take preventive or corrective opportunities provided by employer

Front 36

sexual harassment policy must contain ______.

Back 36

written policy
and
complaint procedure

Front 37

ADEA

Back 37

Age Discrimination Employment Act
Only applies if you have 20 or more employees
Only people who are 40+ are covered
And it doesn’t cover discrimination in favor of elder workers

Front 38

ADA

Back 38

Americans with Disabilities Act
Covers employers of >14
Prohibits discrimination against qualified people with disabilities
This includes people who need reasonable accomodations
“reasonable” meaning no undue hardship to the employer
Defenses: job-related criteria, business necessity

Front 39

Employee Polygraph Protection Act:
Employers may not use polygraph tests, unless:

Back 39

it’s the government
it’s a government-administered test pertaining to security
it’s a security service firm (alarm, guard, armored car)
or it’s a pharmaceutical company

Front 40

Drug and alcohol testing

Back 40

4th Amendment Issue
-Gov needs either:
--individualized suspicion
--based on "special needs"

Front 41

public policy (firing)

Back 41

you violate public policy when you fire someone who:
Refuses to break law
Performs of legal obligation
Takes advantage of a legal right

Front 42

implied convenant of good faith and fair dealing (firing)

Back 42

Discharge was unfair or not in good faith, and violated implied contract scope

Front 43

promises by employers (firing)

Back 43

This is when you violate some promise about the termination policy
It can be express or implied

Front 44

public policy (firing)

Back 44

Must come from Constitution or statute
Must serve the public rather than the individual
Must have existed at time of discharge

Front 45

UCC express warranties

Back 45

Affirmation of fact or promise regarding the goods is part of basis of bargain
Description of goods is part of basis of bargain
A sample or model becomes part of basis of bargain

Front 46

The UCC implied warranty of merchantability is implied if __________.

Back 46

the seller is a merchant who sells the kind of goods in question

Front 47

merchantability

Back 47

Must pass without objection in the trade
Must be fit for ordinary purposes (reasonableness)
Must be of even kind, quality, and quantity per unit
Must be adequately wrapped, boxed, etc.
Must conform to affirmations or promises on label
Must be of fair average quality, if a fungible good

Front 48

UCC implied warranty of fitness

Back 48

Seller should know buyer requires goods for particular purpose;
Seller should know buyer is relying on seller’s skill or judgment in selection;
And buyer relies on seller’s judgment
Note: it doesn’t have to be a merchant

Front 49

Magnuson-Moss Act

Back 49

Applies to consumer goods >$10
If there is a written warranty,
Must be either full or limited
Limited warranties are limited to own terms

Front 50

full warranties
(under Magnuson-Moss Act)

Back 50

require seller to remedy defects
And to replace or refund after reasonable attempts at repair
And they bar waivers of implied warranties

Front 51

product liability: torts

Back 51

Since it’s torts, you need some kind of injury to prevail

Front 52

product liability: negligence
(4 types)

Back 52

Negligent design
Negligent manufacture
Negligent inspection
Failure to warn

Front 53

product liability: strict liability: Sec. 402A

Back 53

Seller is engaged in business of selling product that harmed plaintiff
Product is in defective condition
Defective condition makes product unreasonably dangerous
And no one has “substantially modified” it