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318 Cards in this Set
- Front
- Back
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contracts
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provide means for individuals and businesses to sell and otherwise transfer property, services and other rights
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private law
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the terms of the contract, courts are obliged to give legal effect to such contracts according to the true interests of the parties
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an agreement that is enforceable by a court of law or equity
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contract
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offerer
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the party who makes an offer to enter into a contract
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offeree
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the party to whom the offer is made
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To have an enforceable contract, there must be this between the parties. |
agreement |
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consideration |
The promise must be supported by a bargained-for consideration that is legally sufficient |
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contractual capacity
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the parties to a contract must have the capacity to contract
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lawful object
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the object of the contract must be lawful, or legal
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agreement
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the manifestation by two or more persons of the substance of a contract, requires an offer and acceptance
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sets forth the terms under which the offerer is willing to enter into the contract
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offer
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For an agreement to be effective:
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1. The offerer must objectively intend to be bound.
2. The terms of the offer must be reasonably certain. 3. Offer must be communicated. |
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An offer can be terminated by the
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action of the parties
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option contract
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an offeree can prevent the offeror from revoking their offer by paying the offeror compensation to keep the offer open for an agreed-upon period of time
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simultaneously terminates the offer and creates a new offer
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counteroffer
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acceptance
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the manifestation of assent by the offeree to the terms of the offer in a manner invited or required by the offer
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can be accepted only by the offeree's performance of the required act
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unilateral contracts
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bilateral contract
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can be accepted by an offeree who promises to perform the requested act
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Third persons usually do not have the power to accept an offer, but
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an offer that is made to two or more persons jointly must be accepted jointly.
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may be either express or implied-in-fact
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an actual contract
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express contract
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stated in oral or written words, ex. purchasing a neighbor's bicycle or signing to buy a car from a dealership
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implied from conduct of the parties, leaving more room for questions
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implied-in-fact contracts
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Elements that must be established to create an implied-in-fact contract:
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1. Plaintiff provided property or services to the defendant.
2. Plaintiff expected to be paid by defendant for prop/services and did not do these gratuitously. 3. Defendant given opportunity to reject prop/services provided by plaintiff but failed to do so. |
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the necessary element for a contract to exist; the thing of value given in exchange for a promise
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consideration
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most common types of consideration
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money, property, or performance of of an act (providing legal services)
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less-usual form of consideration
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forbearance of legal right (accepting of out-of-court settlement) and non economic forms (refraining from drinking, using tobacco, swearing or playing cards for money)
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gift promises (gratuitous promises)
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unenforceable promise because they lack consideration
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the law presumes that the parties to a contract have
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requisite contractual capacity
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do not have the maturity, experience, or sophistication needed to enter into contracts with adults (age of majority)
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minor
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infancy doctrine
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allows minors to cancel most contracts that they have entered into with adults
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disaffirm
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cancel
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minor's right to disaffirm a contract is based on public policy, and is voidable
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infancy doctrine
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a minor can disaffirm a contract orally, in writing or by the minor's conduct
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contract may be disaffirmed at any time prior to reaching age of majority plus "reasonable time"
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nondisclosure agreement (NDA)
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swears the signatory to secrecy about confidential ideas, trade secrets and other nonpublic information revealed by the party proffering the NDA
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essential element for the formation of a contract, can't be an illegal act or contract
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lawful object
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contracts contrary to public policy
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certain contracts are illegal, if they have a negative impact on society or interfere with the public's safety and welfare
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Statute of Frauds
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requires certain types of contracts to be in writing; ensures that the terms of important contracts are
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executory contract |
is unenforceable by either party, except when it is voluntarily performed by the parties |
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The Statute of frauds is raised by one party looking for |
the other party to comply. |
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any contract that transfers an ownership interest must be writing to be unenforceable under Statute of Frauds |
real property |
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deed of trust (written mortgage) |
borrowers often give a lender an interest in real property as security for the repayment of a loan |
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transfer of the right to use real property for a specified period of time (mostly for more then a year) |
lease |
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one-year rule |
intended to prevent disputes about contract terms that otherwise may occur toward the end of a long-term contract |
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in order to be enforceable, a written contract must be made for goods $500 or more |
UCC Section 201, Statute of Frauds provision |
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Contracts do not have to be written formally, but |
have to contain all the essential elements. |
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Statute of Frauds and UCC require (about signatures) |
that only one party needs to sign (the person who is not enforcing the contract). |
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The courts will enforce a contract according to it's terms if: |
1.The object of the contract is lawful. 2. The other elements for the formation of a contract are met. |
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unconscionable contracts |
ex.) normally happens when someone takes advantage of people who can't defend for themselves, and they are forces to enter unfair contracts |
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E-Sign Act |
recognizes the validity of an e-signature, and enforces it like every other contract |
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the party who owes the duty of performance |
obligor |
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the party owed a right under contract |
obligee |
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assignment of rights |
the transfer of contractual rights |
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assignor |
an obligee who transfers the right to receive performance |
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the party to whom the right has been transferred is called the assignee, can even assign the right to another person |
assignee |
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1.wrongdoer made false rep. 2.wrongdoer intended to do so 3. innocent party relied on misrep. 4. innocent party was injured |
Fraud |
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intended third-party beneficiary |
when one party's performance directly benefits a third party |
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when a person enters into a contract with the intent to give a benefit or gift on an intended third party |
donee beneficiary contract |
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performance |
may be classified as complete, substantial (minor breach) or inferior |
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a contract that requires an occurrence (or nonoccurrence) of an event before having to complete the contract |
condition precedent |
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complete performance |
occurs when a party does exactly what the contract requires |
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when a party only completes part of it's contractual duty |
substantial performance |
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inferior performance (material breach of contract) |
when a party fails to preform certain obligations that fail the essence of the contract |
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three types of monetary damages |
compensatory, consequential and liquid |
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compensates the nonbreaching party for loss of the bargain |
compensatory damages |
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consequential (special) damages |
foreseeable damages that arise from circumstances outside the contract |
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the parties to a contract may agree to a reasonable amount of damages payable upon breach, actual damages must be hard to determine |
liquidated damages |
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penalty (in liquidated damage clauses) |
when actual damages are easily determinable in advance or the damages are excessive |
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if contract is breached, the law places a duty on the innocent nonbreaching party to take efforts to avoid and reduce damages |
mitigation of damages |
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types of equitable remedies |
specific performance, injunction, reformation and quasi-contract |
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in unique cases, the court orders the breaching party to preform the acts promised in the contract |
specific performance |
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injunction |
a court order that prohibits a person from doing a certain act |
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permits the court to rewrite a contract to express the parties' true intentions |
reformation |
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permits the recovery of compensation even though no enforceable contract exists between parties (reasonably) |
quasi-contract (quantum meruit, implied-in-law contract) |
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Uniform Commercial Code (UCC) |
model act containing uniform rules that govern commercial transactions, divided into articles |
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Article 1 (UCC) |
general provisions |
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Article 2 (UCC) |
sales |
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Article 2A (UCC) |
leases |
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Article 3 (UCC) |
negotiable instruments |
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Article 4 (UCC) |
bank deposits and collections |
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Article 4A (UCC)
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wire transfers
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Article 5 (UCC)
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letters of credit
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Article 6 (UCC)
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bulk transfers
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Article 7 UCC
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documents of title
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Article 8 UCC
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investment securities
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Article 9 UCC
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secured transactions
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The law protects the right of property owners to... |
use, sell, dispose of, control and prevent others from trespassing on their rights. |
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Two kinds of property |
real, personal |
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real property |
includes land and property that is perm. attached to it. ex. minerals, crops, timber, buildings |
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sometimes referred to as goods or chattels; consists of everything that is not real prop. |
personal property |
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Real prop. can become personal property if |
removed from the land. |
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includes physically defined property such as goods, animals, and minerals |
tangible property (personal) |
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intangible property |
represents rights that cannot be reduced to physical form, such as certificates of stock, deposits, binds and copyright |
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gift |
a voluntary transfer of property without consideration, given by donor and received by donee |
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a gift made during a person's lifetime that is an unchangeable transfer of ownership |
gift inter vivos |
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gift causa mortis |
a gift made in contemplation of death, established when the donor makes a gift in anticipation of approaching death and the donor dies without revocation |
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refers to property that the owner voluntarily places somewhere and then inadvertently forgets, owner of place has first rights over someone who just finds it |
mislaid property |
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lost property |
refers to property that the owner negligently, carelessly or inadvertently leaves somewhere, finder owns it unless claimed by true owner |
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A finder that refuses to return the property is liable for the tort of.. |
conversion and the crime of larceny. |
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1. property that owner discards with intent to relinquish rights 2. mislaid or lost property that owner gives up further attempts to locate |
abandoned property |
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estray statutes |
1.finder reports property and turns it in to govt agency 2.govt or finder posts notices that it is found 3.a specific time has passed without someone reclaiming it |
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when the owner of personal property delivers his or her property to another person to be held or stored |
bailment |
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bailor
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owner of property, does not gibe up rights of ownership
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the party who is holding for safekeeping, storage or delivery
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bailee
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mutual-benefit bailments
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bailments that benefit both parties, bailee owes a duty of reasonable care (is liable for any goods are lost, damaged or destroyed because of their negligence).
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statutes allow innkeepers to avoid liability regarding loss caused to guests' property if a safe is provided and the guests are aware of it
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innkeeper statutes
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the right to occupy the land
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surface rights
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Estate |
The bundle of legal rights that the owner has to possess, and use, determined from the deed, will, lease or other document |
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the owner has a present possessory interest in the real property , the owner may use and enjoy the property as they see fit |
freehold estate |
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Fee simple absolute (fee simple) |
Highest form of ownership of real property; it grants the owner the fullest bundle of legal rights that a person can hold; right to exclusively possess their property |
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grants the owners all the incidents of a fee simple except it may be taken away if a specific condition occurs; "as long as the land is used as ___," |
Qualified fee (fee simple defeasible) |
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Life estate |
An interest in real property that lasts for the life of a specified person |
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Interest in real prop. that lasts for the life of a third party |
estate pour autre vie |
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life tenant |
treated as owner until life estate ends; can do anything including selling or transfer except for damaging the property |
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A person may be given right to possess prop. in the future rather then in the present |
future interest (reversion and remainder) |
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reversion |
right of possession that returns to grantor after expiration of limited or contingent estate |
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right of possession returns to a third party upon the expiration of a limited or contingent estate |
remainder |
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Joint tenancy |
words that clearly show the "jointness" needs to be shown, the coowners have right of survivorship |
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upon the death of one if the co-owners, the deceased person's interest in the property automatically passes to the surviving joint tenants |
Right of Survivorship |
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Tenancy in common |
a deceased tenant's estate receives the interest of the former tenant, w/o the permission of the other tenants; can sell, give or transfer his tenancy at any point |
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Only for married couples, must be created by express words, surviving spouse has the right of ownership |
Tenancy by the entirety |
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Community property |
Only in certain states; applies only to married couples; each spouse has right to half of EVERYTHING EXCEPT FOR PROPERTY OWNED/INHERITED BEFORE MARRIAGE; property bought in non-state are still community property; half not owned goes to who the will assigns |
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multiple dwelling buildings, living units individ. owned, common areas owned as TENANTS IN COMMON |
condominiums |
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a corp. owns the building, the residents own shares in corp.; each one leases a unit in building that can't be sold or subleased w/o approval; individuals can't secure loans, need blanket mortgage |
Cooperative |
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Deed |
Transfer a fee simple absolute, or leaser estate, used to convey real property by sale or gift; from grantor to grantee |
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contains the greatest number of warranties and provides most protection to grantees |
warranty deed |
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quitclaim deed |
the least amount of protection because grantor conveys only whatever interest they have in prop. |
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the title is free from any encumbrances that are not disclosed that could effect the value the property |
marketable title |
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Adverse possession |
A person wrongfully possesses real property and obtains title to that property if certain statutory requirements are made. |
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An interest in land that gives the holder the right to make limited use of another's property w/o taking from it |
easement |
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grant |
an owner gives party an easement across their property |
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an owner sells land that they own but reserves an easement on the land |
Reservation |
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Easements may be implied by: |
1.implication (roads, wells, etc) 2.necessity (landlocked- entry and exit for landlocked property) 3.prescription: adverse possesion |
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The owner of one piece of land is given an easement over adjacent piece of land |
Easements appurtenant |
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The tenant has a right to exclusively and temporarily posses the owner's property |
Nonfreehold estate |
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leasehold estate |
The tenant's interest in the property |
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When the landlord and the tenant agree on specific duration for lease; terminates automatically w/o notice upon expiration of the term |
tenancy for years |
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periodic tenancy |
lease specifies intervals at which payments are due but does not specify the duration of the lease; rent and apartments |
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created expressly (ex. to tenant as long as landlord wishes), but more likely created by implications, min. advance for termination is needed |
tenancy at will |
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tenancy at sufferance |
when tenant retains possession of the property after the expiration of another tenancy or life, wrongful possession; possession without right |
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Fault rule |
Groom breaks engagement, bride keeps ring; bride breaks, groom gets ring back |
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If engagement is broken, bride gives back ring, avoiding litigation |
Objective rule |
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Many cases of spousal abuse go unreported or are punished by jail time or have to attend educational programs |
Spousal abuse |
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father's registry |
A male may register as the father of the child, when a planned adoption occurs, they must be notified in case they want to oppose |
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Parents adopt a child from a social service organization of the state; normally children born out of wedlock and parents terminate their rights |
Agency adoption |
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Independent adoption |
A private arrangement between biological and adoptive parents; adoptive parents pay intermediaries (lawyer, hospital, etc.), and also cost of adoption |
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Order of the court declaring that the marriage did not exist; in order for this to happen, parties must have lacked capacity to consent, the two are too closely related, there was bigamy, fraud; children are legitimate |
Annulment |
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Order of the court declaring that the marriage did not exist; in order for this to happen, parties must have lacked capacity to consent, the two are too closely related, there was bigamy, fraud; children are legitimate |
Annulment |
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No-fault divorce |
Spouse wishing to obtain this merely has to state irreconcilable differences, neither party is blamed, recognized by every state |
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A spouse has a certain period of [ ] to file an answer to a divorce petition. |
Time |
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If no agreement is made, then |
the case will go to trial. |
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Parties do not have yo hire lawyers to represent them but may represent themselves in divorce proceedings |
Pro se divorce |
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Custodial parent |
parent awarded custody, physical custody, legally |
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An attorney who is appointed to represent the interests of a child in a child custody battle |
Guardian ad litem |
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equitable distribution |
Fair, not 50-50 |
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All property acquired during the marriage using income earned during the marriage; divided equally |
Community property |
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alimony |
spousal support |
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designed to provide the receiving individual w/ payment for a limited time during which the individual can obtain education or job skills necessary to enter job force |
Temporary/rehabilitation alimony |
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Prenuptial agreements |
Specify how property will be distributed upon termination of the marriage or death of a spouse; when both parties have accumulated assets and take care of children; eachoart must make full disclosure of assets |
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A person who dies without a will is said to have died, property is distributed to relatives according to state statutes |
Intestate |
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Will (testementary deposition of property) |
Declaration of how a person wants his or her property to be distributed upon his or her death |
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Person who makes the will is called the |
Testator or testatrix |
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Beneficiaries |
Persons designated in the will to receive the testator's property |
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Establishes the requirements for making a valid will in that state |
Statute of Wills |
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Testament capacity |
Testator must have been legal age and "sound mind" when will is made, |
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Courts determine on case-by-case basis, legal age for executing a will is set by state statute |
Testamentary capacity |
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Signatures on wills |
Signatures must appear at the end of the will, but can be signed in any way: nickname, title or even an "X" |
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Most states require two or three witnesses for attestation, witnesses do not have to reside in the jurisdiction in which the testator is domiciled |
Attestation |
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Codicil |
Legal way to change an existing will is through this, separate document that must be executed with the same formalities as a will,read as one instrument with the will. |
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A will is revoked if the testator intentionally... |
burns, tears, obliterates, or otherwise destroys it |
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Subsequent will |
Revokes a prior will if it specifically states that it is the testator's intention to do so, if it does not entirely revoke the will, the wills are read together |
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Entirely handwritten and signed by the testator; may be in ink, pencil, crayon or other writing instrument, not always witnessed |
Holographic wills |
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Noncupative wills |
Oral wills made before witnesses, usually only valid if made during testator's last illness, sometimes called deathbed wills or dying declarations |
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A gift of real estate by will |
Devise |
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Bequest or legacy |
A gift of personal property by will |
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Two people who die at the same time |
Simultaneous death |
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Joint will |
Two or more testators execute the same instrument as their will |
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Developed when two or more testators execute separate wills that make testamentary disposition of their property to each other |
Mutual/reciprocal wills |
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Undue influence |
Inferred from the facts and circumstances surrounding the making of the will |
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A person dies without a will, or it fails for some legal reason, the property is distributed to his or her relatives |
Intestacy statute |
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Escheats |
If the deceased has no surviving children, the deceased's property goes to the state |
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Death, property is collected, debts and taxes paid, remainder of estate distributed; done by probate court |
Settlement |
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Executrix |
The rep. who is named by the testator's will |
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Legal arrangement under which one person (settlor, trustor, transferor) delivers and transfers legal property to another person (the trustee) |
Trust |
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The trustee has LEGAL TITLE and the |
beneficiary has EQUITABLE TITLE |
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Income beneficiary |
All trust income paid to person called |
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Inter vivos trusts |
(Express trust) settlor transfers legal title of property to a named trustee to manage for the benefit of named beneficiaries |
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(Express trusts) created by will, comes into existence when settlor dies |
Testamentary trusts |
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Those imposed by law or by conduct of the parties |
Implied trusts |
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Constructive trusts |
Trust imposed by law to avoid fraud, unjust enrichment; the holder of the actual title of the property holds the property in trust for its rightful owners. |
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Created by the conduct of the parties |
Resulting trust |
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Spendthrift trusts |
Control from beneficiary is removed, prevents beneficiary's personal creditors form reaching the trust interest |
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When a person deposits $$ in their name and holds it as a trustee for the benefit of another person; the trustee can add or withdraw funds from the account and can be revoked at any time prior to death |
Totten trusts |
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Pour-over will |
Necessary to distribute any property acquired in the name of the grantor |
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Title VII of the Civil Rights Act of 1964 |
Protects against employment discrimination based on race, national origin, color, sex and religion |
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(Defining an agency) "results from the manifestation of consent by one person to another that the other shall act in his behalf and subject to his control, and consent by the other so to act" |
Fiduciary relationship |
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Principal |
A party who employs another person to act on his or her behalf |
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A party who agrees to act on behalf of another |
Agent |
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Agency |
Principal-agent relationship |
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When an employer hires an employee to preform some form of physical service |
Employer-employee relationship |
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An employee is not an agent unless they are specifically... |
empowered to enter into contracts on the employer's behalf. |
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Principal-agent relationship |
Formed when an employer hires an employee and gives that employee authority to act and enter contracts on their behalf. |
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Principals employ outsiders to perform certain tasks on their behalf |
Independent contractors |
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Public policy exception |
Most common used exception to common-law; an employee can't be discharged if such discharge violates the public policy of the company (serving as juror, refusing to break the law, fraud) |
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Most common form of agency, authority to contract or otherwise act on principal's behalf, also possess implied or apparent on their behalf also |
Express agency |
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Exclusive agency contract |
Principal can't employ any agent other than the exclusive agent; agent can recover damages from principal |
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Formal type of express agency, gives agent power to sign legal documents |
Power of attorney |
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Type of power of attorney, confers broad powers on the agent to act in any matters on the principal's behalf |
General power of attorney |
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Special power of attorney |
Limits the agency to acts specifically enumerated on an agreement |
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Business name (trade name) |
Often designated as a d.b.a (doing business as), a fictitious business name statement must be filled out with appropriate agency |
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Sole proprietor is personally liable for the debts and obligations of the proprietorship; flows down if not sole proprietorship |
Liability |
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General partnership |
An association of two or more persons to carry on as co-owners of a business for profit |
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General partnership |
Association of two or more persons to carry on as co-owners of a business for profit |
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Model act codifies partnership law,most states have adopted all or parts |
Uniform Partnership Act (UPA) |
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Entity Theory of Partnerships |
A theory that holds partnerships as separate legal entities that hold title to personal and real property, transact business in the name, etc. |
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Partnerships do not pay federal income taxes, income and losses of partnerships flow onto partners' federal income tax return |
Taxation of partnerships |
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Partnership agreement |
Establishing a general partnership; sets forth terms of the partnership , normally written |
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A contract entered into by a partner with third party on behalf of partnership is binding on the partnership |
Partners' Contract Authority |
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Partnership liability |
Partnership is liable to third persons who are injured by torts made by partner while acting within ordinary business |
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Occurs when a partner causes injury to third party by his or her negligent act, etc. |
Partnership tort |
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Joint and several liability of partners |
Partners are personally liable for torts committed by partners acting on partnership business, plaintiff can sue one or more partners seperately |
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Change in relation of the partners caused by an partner ceasing to be associated in carrying on the business |
Dissolution of partnerships |
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Wrongful dissolution |
When a partner withdraws from a partnership without having the right to do so at the time; they are liable for damages caused by wrongful dissolution |
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Partners in a limited partnership who invest capital but do not participate in management and are not personally liable for debts beyond their capital contirbutions |
Limited partners |
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ULPA (uniform limited partnership act) |
1916 model act that contains a uniform set of provisions for the formation, operation, and dissolution of limited partnerships |
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A document that sets forth the rights and duties of general and limited partners, terms and conditions regarding operation, termination and dissolution of the partnerships, etc. |
Limited partnership agreement |
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Limited partners |
Limited partners are liable for the debts and obligations of limited partnership only up to their capital contributions |
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Form of business where all the partners only stand to lose what they have contributed through capital, formed by accountants and other professionals |
Limited liability partnership |
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Limited liability company |
A special form of unincorporated business entity that combines the tax benefits of a partnership with limited partnership liability |
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Articles of organization |
Owners of LLC must execute, sign and file with the secretary of state |
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Sperate legal identity (an artificial person) that can own property, sue and be sued, etc. |
Corporation |
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Characteristics of corporations |
1. Limited liability of shareholders 2. Free transferability of shares 3. Perpetual existence 4. Centralized management |
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A corporation that is incorporated in another country, treated as foreign corporations |
Alien corporation |
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Incorporation |
The process of incorporating (forming) a new corporation |
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A detailed set of rules adopted by the board of directors after corporation is formed, managing business and affairs of corp. Does not have to filed with secretary of state |
Corporate bylaws |
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Shareholders of corporations have this; labeled for debts and obligations of the corp only to extent of their capital contribution |
Limited liability (of shareholders) |
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Inside director |
Member of the board of directors who also is an officer of the corporation |
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A duty that corporate directors and officers have to use care and diligence when acting on behalf of the corp |
Duty of care |
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Franchise |
Established when one party licenses another party to use trademarks, commercial symbols, patents, in the distribution of goods |
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The party who does the licensing in a franchise arrangement. |
Franchisor (licensor) |
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Franchisee (licensee) |
The party who is licensed by the franchisor in a franchise arrangement |
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Principal employs person who is not employee of the principal; has authority only to enter into contracts authorized by principal |
Principal-Independent Contractor Relationship |
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Express energy |
Is agreed to in words by principal and agent. Oral or written |
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Arises when a principal creates an appearance of an agency that actually does not exist |
Apparent agency |
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Agency by ratification |
Occurs when a person misrepresents himself or herself as another's agent when they are not the purported principal ratifies the unauthorized act |
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Third party entering into contract knows agent is acting for principal and knows identity of principal, principal liable, not agent |
Fully disclosed agency |
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Frolic and detour negligence |
Principals are relieved of liability if the agent's negligent act occurred on a substantial detour from the scope of employment |
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Motivation test (intentional tort) |
The principal is liable if the agent's intentional tort was committed to promote the principal's business |
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Principal liable if the agent's intentional tort was committed within a work related time or spacee |
Work related test (intentional tort) |
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Title VII of the Civil Rights Act of 1964 |
Federal statute that prohibits job discrimination based on race, color, religion, sex, or national origin of job applicant |
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Protected classes |
Race, color, national origins, sex, religion |
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Federal statute that prohibits employment discrimination against applicants and employees who are 40 years of age and older |
Age Discrimination Employment Act (ADEA) |
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Section 7 of the NLRA |
Gives employees the right to form an union |
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Individual members of a union who do not honor a strike and continue to work for the employer |
Crossover workers |
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Trade secret |
Business secrets that make a business successful |
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Obtaining another's trade secret through unlawful means, plaintiff can recover profits, damages, etc. |
Misappropriation |
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Economic Espionage Act |
Makes a crime for any person to convert a trade secret for his or her benefit, knowing or intending to cause injury |
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Criteria for a patent |
Novel, useful and nonobvious |
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Scope of patents |
Machines, processes, compositions of matter, etc. |
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Patents are valid for |
20 years. |
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Public Use Doctrine |
patent not granted if invention was used by public for more than one year prior to filing of patent |
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Copyright law is exclusively [ ]; only [ ] can be copyrighted |
federal law; tangible writings |
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Copyright term for individual holder |
Life of the author plus 70 years |
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Copyright terms for corporate holder |
Either 120 years from date of creation or 95 years form the date of publication, whichever is shorter |
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Fair Use Doctrine |
Law permits use of copyrighted material without consent of copyright holder for limited uses (scholarly work, parody or satire, brief quotation) |
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Prohibits manufacture/distribution of tech, etc. for purpose of circumventing wrappers or encryption protection; also prevents access by circumventing wrapper, etc. |
Digital Millennium Copyright Act (DMCA) |
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Mark of trademarks |
Trade name, symbol, word, logo, design, device, etc. |
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Tradmark |
Identifies goods of a particular business |
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Identifies services of a particular business |
Service mark |
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Certification mark |
Certifies that goods or services are of a certain quality or origin |
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Used by cooperatives, associations, and fraternal organizations |
Collective mark |
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Requirements for a trademark |
Either distinctive or having acquired a second meaning |
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Term for marks |
10 years, can be renewed for an unlimited number of 10 year periods |
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Generic name |
Mark that becomes a common term for a product line or type of service loses its protection under federal trademark law |
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Created by federal/state legis. and exec. branches; professionals having area of expertise in area of commerce, interpret and apply designated statutes |
Administrative Agencies |
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Administrative Procedural Act |
Establishes procedures to be followed by federal agencies in conducting affairs |
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Statute that regulates testing, manufacture distribution, sale of foods, food additives, drugs, cosmetics, medicinal products |
Federal Food, Drug and Cosmetic Act |
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Federal Food and Drug Administration |
Empowered to interpret and enforce FDCA; approves/denies apps by private companies to distribute drugs, food additives and medicinal devices |
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Sponsored protocol that require signatory countries to place label "may contain living modified organisms" on all genetically engineered foods |
United Nations Biosafety Protocol for Genetically Altered Foods |
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Consumer Product Safety Act (CPSA) |
Regulates safety of consumer products |
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Statute prohibits unfair and deceptive practices, including false and deceptive advertising, abusive sales tactics, etc. |
Section 5 of Federal Trade Commission Act (FTC Act) |
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Securities and Exchange Commission (SEC) |
Admin agency that administers federal security laws; adopt rules and regulations |
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Federal statute that primarily regulates the trading of securities |
Securities Act of 1934 |
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Environmental Protection Agency (EPA) |
1970, implements and enforces federal environ protection statutes; can adopt regulations to interpret and enforce laws |
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Statute that mandates federal government consider adverse impact govt action would have on environ before action is inplemented |
National Environmental Policy Act (NEPA) |
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Environmental Impact Statement |
Describes major impact on environ, describe the affected environ, identify alternatives, contain cost benefit analysis |
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Fed statute, 1963, regulates air pollution |
Clean Air Act |
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National Ambient Air Quality Standards (NAAQS) |
Certain standards set by EPA that protects humans, etc. |
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Regulates water pollution |
Federal Water Pollution Control Act (FWPCA), 1948 |
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Resource Conservation and Recovery Act |
Authorizes the EPA to regulate facilities that generate/treat/store, etc. hazardous wastes |
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Fed govt a mandate to deal with hazardous waste that have been spilled, etc. |
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) |
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Endangered Species Act |
Requires EPA to designate critical habitats for each endangered and threatened species |
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contractual capacity |
the parties to a contract must have the capacity to contract |
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lawful object |
the object of the contract must be lawful, or legal |
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agreement |
the manifestation by two or more persons of the substance of a contract, requires an offer and acceptance |
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sets forth the terms under which the offerer is willing to enter into the contract |
offer |
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For an agreement to be effective: |
1. The offerer must objectively intend to be bound. 2. The terms of the offer must be reasonably certain. 3. Offer must be communicated. |
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An offer can be terminated by the |
action of the parties |
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option contract |
an offeree can prevent the offeror from revoking their offer by paying the offeror compensation to keep the offer open for an agreed-upon period of time |
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simultaneously terminates the offer and creates a new offer |
counteroffer |
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acceptance |
the manifestation of assent by the offeree to the terms of the offer in a manner invited or required by the offer |
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can be accepted only by the offeree's performance of the required act |
unilateral contracts |
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bilateral contract |
can be accepted by an offeree who promises to perform the requested act |
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Third persons usually do not have the power to accept an offer, but |
an offer that is made to two or more persons jointly must be accepted jointly. |
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may be either express or implied-in-fact |
an actual contract |
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express contract |
stated in oral or written words, ex. purchasing a neighbor's bicycle or signing to buy a car from a dealership |
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implied from conduct of the parties, leaving more room for questions |
implied-in-fact contracts |
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the necessary element for a contract to exist; the thing of value given in exchange for a promise |
consideration |
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most common types of consideration |
money, property, or performance of of an act (providing legal services) |
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gift promises (gratuitous promises) |
unenforceable promise because they lack consideration |
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the law presumes that the parties to a contract have |
requisite contractual capacity |
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do not have the maturity, experience, or sophistication needed to enter into contracts with adults (age of majority) |
minor |
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infancy doctrine |
allows minors to cancel most contracts that they have entered into with adults |
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minor's right to disaffirm a contract is based on public policy, and is voidable |
infancy doctrine |
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a minor can disaffirm a contract orally, in writing or by the minor's conduct |
contract may be disaffirmed at any time prior to reaching age of majority plus "reasonable time" |
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nondisclosure agreement (NDA) |
swears the signatory to secrecy about confidential ideas, trade secrets and other nonpublic information revealed by the party proffering the NDA |
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essential element for the formation of a contract, can't be an illegal act or contract |
lawful object |
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contracts contrary to public policy |
certain contracts are illegal, if they have a negative impact on society or interfere with the public's safety and welfare |
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Statute of Frauds |
requires certain types of contracts to be in writing; ensures that the terms of important contracts are |
