Legal Studies Exam 2

Front 1

Contract

Back 1

a legally enforceable promise

involve either an exchange of promises or "promise for performance"

Front 2

Sources of Contract Law

Back 2

Common law that the court decides

Legislation such as the UCC (uniform commercial code) that applies to the SALE OF GOODS

Front 3

Breach of Contract remedies

Back 3

Negotiated Settlement
Arbitration
Compensatory Damages
Specific Performance
Consequential Damages
Rescission
Nominal Damages
Liquidated Damages

Front 4

compensatory damages

Back 4

remedies a court would award the plaintiff that would make them economically whole as if no violation in the contract

Front 5

specific performance

Back 5

court awarded remedies for extreme circumstances regarding "unique" goods

Front 6

rescission

Back 6

a remedy that involves the party who was violated to be made as if they were before the contract existed

Front 7

liquidated damages

Back 7

when losses from breach of contract are unknown, and the court awards a set amount of $ to the plaintiff that may or may not be the same amount they lost

Front 8

mitigation of damages

Back 8

the victim of a breach of contract must take reasonable steps to reduce damages

Front 9

bilateral contracts

Back 9

involve each party making a mutual promise

(Promise for a promise)
courts will assume this when unclear

Front 10

unilateral contracts

Back 10

involves a present act in return for a promise of future performance

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express contracts

Back 11

contracts that arise from parties actually discussing the terms of agreement (ex. meal plan)

Front 12

implied-in-fact contracts

Back 12

contracts that arise from the conduct of the parties rather then words (i.e. talk to accountant for advice, he sends you a bill without asking, its just implied)

Front 13

quasi-contract

Back 13

when a contract is implied in law

ex. if you pay a bill twice, its implied by law that you are either credited the second payment or sent it back in a check

Front 14

valid contract

Back 14

enforceable agreement because all of the essential requirements of a contract are present

Front 15

void contracts

Back 15

agreements where the court says nothing is enforceable either because:
a) lack of one or more essential elements to form a contract OR
b)are illegal and against public policy (i.e. a drug contract)

Front 16

voidable contracts

Back 16

binds one party, but allows one party to get out (ex. fraud, misrepresentation, duress, etc.)

Front 17

executed contract

Back 17

the parties have performed

Front 18

executory contract

Back 18

the contracting parties have not yet performed

Front 19

5 elements of a contract

Back 19

offer
acceptance
consideration
capacity of persons to a contract
legal purpose

Front 20

offer

Back 20

a specific promise and a specific demand

must be DEFINITE and SPECIFIC

Front 21

terminations of offer

Back 21

provision of offer (terminates at noon)
lapse of time-specific or reasonable
rejection of offer
revocation of offer (sometimes leads to counter offer)
destruction of subject matter
offeror's death/insanity
performance becomes illegal

Front 22

acceptance

Back 22

necessary to form a binding contract.

Front 23

mirror image rule

Back 23

acceptance must mirror or match offer

Front 24

is silence acceptance?

Back 24

no
UNLESS:
automatic shipment
conduct of buyer (UCC)
prior course of dealing (buyer taking prev. shipments until tells seller to stop)

Front 25

are gift promises binding?

Back 25

no

Front 26

deposited acceptance rule

Back 26

mailbox rule: acceptance is binding as soon as it is deposited with postal service and CANT be revoked

Front 27

consideration

Back 27

a legal obligation or surrendering of a legal right

Front 28

agreement not to sue

Back 28

legal consideration saying you won't sue offeree even if grounds exist

Front 29

preexisting obligation

Back 29

once parties have agreed at a set price or performance, this can't be changed from in the future, even if the offerer accepts a new deal with the same party

(ex. promise to do job for $800, then say you'll do it for $1200, even if other party agrees, they only have to pay you $800)

does NOT apply to UCC sale of goods

Front 30

promissory estoppel

Back 30

if the promisee justifiably relies on a promisor's promise to his/her economic injury, then consideration is not necessary

if you've started a contract, you can't revoke it

Front 31

3 classes of people who lack capacity to sign contracts

Back 31

minors (unless parent cosigns or necessaries of life)

intoxicated persons (hard to prove)

mentally incompetent persons

Front 32

fraud

Back 32

intentional misrepresentation of material fact (i.e. you wouldn't have signed if you were aware). VOIDS contract

Front 33

misrepresentation

Back 33

misstatement without intent. innocent party can void contract

Front 34

duress

Back 34

forced to sign contract via physical and economic threats. can VOID a contract

Front 35

undue influence

Back 35

when one party is taken advantage of to sign a contract. can VOID a contract
(ex. using a dieng sibling to sway mother to change will and give more to you)

Front 36

mutual mistake of fact

Back 36

both parties misunderstand a basic fact in the contract. rescission usually occurs here, and the contract can be VOIDED

Front 37

unilateral mistake

Back 37

one party is wrong about a material fact. tends to still bind contract

Front 38

lawful purpose

Back 38

for a contract to be enforceable, it must have a legal purpose

1) illegal contracts will not be honored
2)contracts that restrain trade will not be honored (ex. price fixing between airlines)

Front 39

Covenant not to compete

Back 39

contract saying you won't compete with party. illegal unless time is reasonable,
space is reasonable, and
there is a valid business purpose

Front 40

Third party rights

Back 40

assignment of contract = transfer of rights under a contract ( not all can be assigned)

novation - a three or more party contract where one party relieves the obligations of one party and assigns them to the third party temporarily (ex. sublease)

in general though, third parties have no rights to sue for damages in a contract if breached

Front 41

statute of frauds

Back 41

law that says what types of contracts should be in writing

Front 42

what contracts must be in writing?

Back 42

contracts for sale of interests in land

collateral contracts to pay debt of another

contracts that cannot be performed within 1 year of making

contracts for sale of goods that are tangible, personal property and > $500 (ex. custom t shirts)
excludes real estate and services

Front 43

Parol Evidence rule

Back 43

parties to a complete and final contract may not use oral evidence in court that changes meaning of written terms

Front 44

interpretation of contracts

Back 44

court looks at trade usage to determine intention of contract

Front 45

3 levels of performance on contracts

Back 45

complete performance - finished

substantial performance - most of work complete

material breach - little of work was done

Front 46

excuses for nonperformance

Back 46

impossibility of performance - subject matter of contract was destroyed, person becomes ill or dies, promise becomes illegal

commercial impractability- difficult to get out this way because court expects you to know if its practical or not, even in ridiculous circumstances

waiver/release from contract

Front 47

waiver

Back 47

when a party intentionally lets go of their right to enforce a contract

Front 48

release

Back 48

when a party announces the other party no longer has to perform on contract as promised

Front 49

tort

Back 49

a civil wrong other then breach of contract

Front 50

intentional tort

Back 50

deliberate action that causes injury

Front 51

negligence tort

Back 51

injury following a failure to use reasonable care

Front 52

strict liability tort

Back 52

impose legal liability for injury even though a liable party neither intentionally nor negligently caused the injury

ex. defective products

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duty and causation

Back 53

one is not liable for another's injury unless they have a duty to protect the person and they caused the injury

Front 54

typical tort remedies

Back 54

dollar damages

Front 55

assault

Back 55

intentional tort involving placing another person in immediate apprehension of their physical safety (including the expectation of)

Front 56

battery

Back 56

intentional tort involving illegal touching of another

Front 57

Intentional Infliction of Mental/Emotional Distress (IIED)

Back 57

intentional infliction of mental distress by battery to the emotions

to prove most states require that physical symptoms also be displayed (sleeplessness, headaches, etc.)

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3 basic elements of IIED

Back 58

1. the defendant's conduct was extreme and outrageous

2. defendant intended to inflict severe emotional distress or knew that there was a high probability that his conduct would inflict severe emotional distress
3. the defendant's conduct did cause severe emotional distress

Front 59

invasion of privacy

Back 59

evolving tort involving one of these actions:

1) use of a person's name or likeness for personal use

2)intrusion of a person's physical solitude

3) disclosure of highly objectionable private information about a person (media is protected from this under 1st amend)

Front 60

false imprisonment

Back 60

tort involving the intentional and unjustified confinement of the non-consenting person

Front 61

malicious prosecution

Back 61

tort involving causing someone to be arrested without criminally proper grounds (false arrest)

Front 62

trespass

Back 62

tort involving a person entering someone else's land without consent and remains there after being asked to leave

Front 63

conversion

Back 63

the wrongful and unlawful exercise of power and control over the personal property of another (stealing office supplies)

Front 64

defamation

Back 64

the publication (heard by a 3rd party) of untrue statements about another that hold up that individual's character or reputation to contempt or ridicule

consempatory AND punitive damages available

Front 65

libel

Back 65

written defamation

Front 66

slander

Back 66

oral defamation

Front 67

can corporations sue for defamation?

Back 67

yes, if it affects the way their ability to conduct business

Front 68

fraud

Back 68

the intentional misrepresentation of a material fact that is justifiablely relied upon by by someone to his or her injury (ex. padding expense report)

Front 69

injurious falsehood or trade dispargement

Back 69

similar to defamation for businesses, but applies to product not reputation/character

Front 70

intentional interference with contractual relations

Back 70

when one person intentionally interfere's with another's contractual relations

Front 71

negligence

Back 71

a tort where one who has a duty to act reasonably acts carelessly and causes injury to another

Front 72

5 elements of a negligence

Back 72

duty of care - unless through nonconduct

unreasonable behavior by the defendant that breaches that duty

causation of fact - actually caused injury

proximate causation - those engaged in the activity are actually legally liable for the foreseeable risk of their actions

actual injury - the plaintiff must have actually been hurt

Front 73

aggravated negligence

Back 73

negligence is willful and wanton or shows an extreme lack of care

Front 74

contributory negligence

Back 74

a plaintiff would be absolutely barred from any damages if the plaintiff's actions were shown to contribute to the injury

no longer applies today

Front 75

comparative responsibility

Back 75

replaced contributory negligence.

means if plaintiff contributed 20% to the injury, then the money damages received will be deducted by 20%

Front 76

strict liability in tort

Back 76

the legal responsibility for injury-causing behavior that is neither intentional nor negligent.

Front 77

strict products liability

Back 77

rules in most states about defective products that make them liable under this law

Front 78

two types of product defects

Back 78

production defects - when products are not manufactured to a manufacturer's own standard

design defects - when a product is manufactured according to the manufacturer's standards, but the product injures a user due to its unsafe design

Front 79

is contributory negligence a defense for strict liability?

Back 79

no, but assumption of risk is

Front 80

respondent superior

Back 80

an employer may be held liable for their employee's tortuous acts unless they can prove the employee was frolic and detour meaning what he was doing was outside of his duty as a worker

Front 81

ultrahazardous activity

Back 81

one is engaged in ultrahazardous activity and they may be held strictly liable for any injuries.

Front 82

dram shops act

Back 82

liability on tavern owners for injuries to third parties caused by their intoxicated patrons

Front 83

3 kinds of compensatory damages

Back 83

past and future medical expenses

past and future economic loss

past and future suffering

Front 84

punitive damages

Back 84

used to punish defendant for committing intentional torts and for negligent behavior considered gross or willful or wanton

Front 85

contingency fees

Back 85

allows plaintiff to sue without paying attorneys fees

Front 86

workers compensation act

Back 86

statutes designed to protect employees and their families from the risks of accidental injury, death, and disease resulting from their employment

Employers must pay worker's compensation when:
- The injury is accidental (i.e. can sue for intentional injury)
- The injury arose out of and in the course of employment

Front 87

felony

Back 87

punishable by fine or imprisonment for more then 1 year

cases are heard by grand jury to decide if enough evidence to bring to trial

Front 88

misdemeanors

Back 88

punishable by fine or imprisonment less then 1 year

Front 89

intent

Back 89

knowingly or willfully (varies by state) purposefully wanting to commit a crime

Front 90

3 types of pleas

Back 90

guilty
not guilty
nolo contendre (no contest)

Front 91

no contest

Back 91

sentenced as if guilty, but not admitting guilt

this means if you plead no contest in a criminal court and still have to be tried in a civil court --> the civil court must prove you're guilty

Front 92

grand jury

Back 92

5th amendment states that before a serious crime can be tried, a grand jury must decide that there is enough evidence to try.

all proceedings are secret, except witnesses may submit their testimonies to the public.

a majority of the at 16-23 participants must say there is probable cause a crime has been committed and the evidence is sufficient to warrant the accused standing trial

Front 93

legal counsel in grand jury

Back 93

legal counsel is allowed, but they may not participate in the grand jury hearings (i.e. can't go inside)

Front 94

fourth amendment

Back 94

protects against illegal search and seizure. probable cause is needed to obtain a warrant. exigent circumstances may allow a police officer to skip this however

Front 95

fruits of the poisonous tree

Back 95

evidence obtained illegally (ex. searching a place w/o a warrant) may not be used in a court of law

Front 96

fifth amendment

Back 96

protects against self incrimination, but you still have to produce evidence that the court asks for

Front 97

double jeopardy

Back 97

prevents government from retrying an individual for the same offense

Front 98

mail and wire fraud

Back 98

each time a criminal uses the post office, telephone, or computer to do business --> 1 count of mail fraud

penalty: fines and up to 20 years in prison

Front 99

health care fraud

Back 99

fraud related to inflating a medical bill

Front 100

bankruptcy crimes

Back 100

when a company hides some of its assets to keep for itself when they should be given to the trustees to distribute to their creditors

Front 101

conspiracy

Back 101

agreement or partnership for criminal purposes

anyone who has even listened in on a conspiracy is considered part of it

Front 102

overt act

Back 102

any knowingly effort by a conspirator to carry out the conspiracy plan

Front 103

what is needed to prove conspiracy?

Back 103

gov must prove:
1. 2 or more persons came to a mutual understanding to try and accomplish a common and unlawful plan

2. defendant willingly became a part of this group

3. during the conspiracy, at least one of the overt acts described by US was committed

4. such overt act was carried out in a way to accomplish a goal int he conspiracy

Front 104

obstruction of justice

Back 104

attempts to interrupt due process

ex. destroying evidence, or telling someone to destroy evidence for you

5 years in prison and/or 5k fine

Front 105

false statement to a bank

Back 105

making a false statement that changes the way a bank would lend money to you (even if it doesn't mislead bank)

2 years in prison or up to 5k fine

Front 106

false statement to a federal agency

Back 106

making a false statement to any federal agency (sec, epa, etc)

5 years and 10K fine

Front 107

larceny

Back 107

unlawful taking of personal property with intent to deprive owner of it permanently

Front 108

robbery

Back 108

larceny by violence (weapon was used)

Front 109

burglary

Back 109

breaking into a building with the intent of larceny or another felony

Front 110

RICO

Back 110

racketeer influenced corrupt organizations

imposes civil and criminal damages against organization if persons participate in interstate commerce and illegal activity (mafia)

severe criminal penalties and civil fines

Front 111

cyber crime

Back 111

crimes committed using the internet

Front 112

endangering workers

Back 112

placing employees at risk to their health and safety of work enviornment - unusual to be prosecuted because workers comp makes up for it, but OSHA can also bring these violations up as well

Front 113

aiding and abetting

Back 113

ex. the getaway driver versus the guy who was in the room planning the conspiracy