Mgmt 211 Exam 2

Front 1

Executory Contract

Back 1

Negotiations are not immediately followed by simultaneous performances on both sides of the transaction. Not been performed by either party. "Fix" future obligations, eliminating uncertainty and allocating the risk of future unforeseen contingencies. (Ex: repaying a loan w/ interest)

Front 2

Express Contract

Back 2

The terms of the agreement are fully and explicitly stated in words, written or oral

Front 3

Harrison v. Williams Dental Group, PC

Back 3

An express contract "arises when its terms are stated by the parties". An implied contract "can arise from the acts and conduct of the parties".

Front 4

Implied Contract

Back 4

Contract that is implied from the conduct of the parties

Front 5

Quasi Contract

Back 5

Almost a contract, but there's something missing and therefore is not a true contract

Front 6

Ferrous Products Co v. Gulf States Trading Co

Back 6

A promise that is "implied in fact" is inferred from the expressions other than words by the promisor. A promise "implied in law" is one that nothing is promissory in form or justifies an inference of a promise.

Front 7

Unconditional Contract

Back 7

Only occurrence necessary to require performance is the passage of time

Front 8

Conditional Contract

Back 8

Something other than the passage of time must occur before performance is required

Front 9

Bilateral Contract

Back 9

A return promise is required. Both parties are promisors.

Front 10

Unilateral Contract

Back 10

Offeree can only accept by performance

Front 11

Executed contract

Back 11

contract that has been performed by all parties

Front 12

B L Nelson & Associates v. City of Argyle

Back 12

"Executed contracts exist where nothing remains to be done by either party while an executory contract is one which is still unperformed by both parties or one with respect to which something still remains to be done on both sides"

Front 13

Partially executed contract

Back 13

A executory contract where one party has completed their part and the other has not

Front 14

Valid Contract

Back 14

contract with all the elements necessary to entitle at least one of the parties to enforce it in court

Front 15

Void Contract

Back 15

no contract at all. Not recognized by law. Produces no legal obligations by any of the parties.

Front 16

Voidable Contract

Back 16

Valid contracts, but one of the parties to the contract has the right to avoid his contractual obligations without incurring legal liability

Front 17

Unenforceable Contract

Back 17

Valid contract that cannot be enforced because of certain legal defenses. (It was valid, but now the law has changed and is rendered unenforceable)

Front 18

Intent

Back 18

both parties must intend to create a legal obligation

Front 19

MG Bldg. Material, Ltd v. Moses Lopez Custom Homes, Inc

Back 19

Intent = "An expression of the terms of the contract with sufficient certainty so that there is no doubt regarding the parties' intentions"

Front 20

Baroid Equipment, Inc v. Odeco Drilling, Inc

Back 20

Elements of a contract: Offer, acceptance, meeting of the minds, mutual consent, if written then it must be executed and delivered with the intent that it be mutual and binding

Front 21

Roman v. Roman

Back 21

Texas requires consideration to have a legally enforceable contract

Front 22

TMC Worldwide, LP v. Gray

Back 22

Texas requires legality and capacity to have a legally enforceable contract

Front 23

Revocation of an offer

Back 23

Offerror revokes his offer prior to the acceptance of the offeree. is not effective until communicated to the offeree

Front 24

Rejection of an offer

Back 24

Offeree does not accept the offer. Rejections terminate offers

Front 25

Counteroffer

Back 25

Rejecting offer to make a new offer

Front 26

Termination of an offer by law

Back 26

Intervening illegality. Law terminates an offer that was once valid but is not anymore

Front 27

Consideration

Back 27

Something of value that is given up in return for the promise

Front 28

Legal detriment

Back 28

requirement of something by the contract that one was not already previously obligated by law to do or give up a legal right they have

Front 29

illusory promise

Back 29

expression cloaked in promissory terms that does not actually involve a commitment by the promisor

Front 30

promissory estoppel / detrimental reliance

Back 30

doctrine used to enforce certain promises that are not supported by consideration

Front 31

contractual capacity

Back 31

ability of the contracting party to understand that a contract is being made and to understand its general nature

Front 32

restitution

Back 32

duty to return the object of the contract to the other party

Front 33

ratification

Back 33

after reaching the age of majority, an individual can do this to contracts formed as a minor, removing the ability to disaffirm

Front 34

unconscionable contracts

Back 34

grossly unfair one-sided contract where one person is taking advantage of the situation

Front 35

exculpatory agreement

Back 35

releases one party from the consequences brought about by his wrongful acts or negligence

Front 36

unilateral mistake

Back 36

mistake in contract by one party which gives no relief to the contract terms

Front 37

mutual mistake of value

Back 37

no relief (buy a "diamond" for 30k and it turns out to be a gem)

Front 38

mutual mistake of material fact

Back 38

relief. either party can void the contract. (10 acres selling but find out it's 7 acres)

Front 39

Substantial Performance

Back 39

performance that is just below what is reasonably expected

Front 40

material breach of contract

Back 40

totally incomplete or insufficient performance well below what is reasonably expected

Front 41

conditional precedent

Back 41

clause in a contract that identifies some condition or obligation-triggering event that must occur prior to the creation of an obligation under the contract

Front 42

condition subsequent

Back 42

condition that is subsequent to the duty to perform

Front 43

concurrent conditions

Back 43

each party's absolute duty to perform is conditioned on the other party's absolute duty to perform

Front 44

Recission

Back 44

discharge by agreement with consideration

Front 45

Novation

Back 45

substitutes a new party for one of the original parties

Front 46

Accord and satisfaction

Back 46

Accord is the agreement between parties for different performance, and satisfaction is the performance of the substituted obligation.

Front 47

Repudiation / anticipatory breach

Back 47

one of the parties of the contract, prior to the time of performance announces that he will not perform as required under the contract

Front 48

punitive damages

Back 48

damages that are designed to punish the defendant for breaching the contract

Front 49

legal / monetary damages

Back 49

compensate the non-breaching party for the loss of the bargained-for exchange

Front 50

compensatory damages

Back 50

compensate an injured party for the loss of the bargain

Front 51

consequential damages

Back 51

arise from the breach as a result of the special needs or unique position of the buyer

Front 52

liquidated damages

Back 52

certain amount shall be paid in the case of default

Front 53

equitable remedies

Back 53

court-ordered action to do or not do something

Front 54

Rescission

Back 54

an action to undo or cancel a contract and return the parties to the position they occupied prior to forming the contract

Front 55

Reformation

Back 55

remedy used to rewrite the contract to express the true agreement between the parties

Front 56

specific performance

Back 56

court orders the breaching party to perform the exact bargain promised in the contract

Front 57

types of agencies

Back 57

agency by agreement, agency by ratification, agency by apparent authority/estoppel, agency by operational law

Front 58

Agency by Agreement

Back 58

Normally created by agreement of the parties, often with a written agreement called power of attorney, but doesn't have to be written

Front 59

Agency by Ratification

Back 59

"agent" acts on behalf of "principal" without being an agent, and the principal agrees to these actions

Front 60

Agency by Apparent Authority/Estoppel

Back 60

There is no agreed agency relationship, but "agent" acts on behalf of "principal," "principal" doesn't accept or deny, but does nothing and lets the "agent" continue. "Principal" gives third parties the impression that the "agent" is in fact an agent.

Front 61

Agency by Operational Law

Back 61

Normally in emergency situations when a decision must be made and legal guardians are not available to make the decision

Front 62

Duties of Agent to Principal

Back 62

Loyalty, obedience, reasonable care, accounting, notification

Front 63

Duties of Principal to Agent

Back 63

cooperation, payment if not gratuitous, reimbursement of reasonable expenses, providing a safe work environment, indemnifying agent of losses suffered

Front 64

undisclosed agency

Back 64

agent does not disclose the existence of a principal

Front 65

disclosed agency

Back 65

agent tells third party the identity of their principal

Front 66

partially disclosed agency

Back 66

agent tells third party he is working for a principal but doesn't disclose the identity of said principal

Front 67

intentional tort

Back 67

involves a deliberate action, harm may be intended or unintended

Front 68

negligence

Back 68

unintentional tort resulting from the failure to use reasonable care to one whom duty is owed, resulting in harm

Front 69

strict liability

Back 69

liability without fault. you did the acts whether you knew the outcome or not, so you're liable.

Front 70

appeasement

Back 70

purpose of the law is to limit the negative impact of the infliction of injury to the event of injury itself

Front 71

Assault definition

Back 71

intentional action that places a person in fear or apprehension of immediate bodily harm or offensive contact

Front 72

battery definition

Back 72

intentional act of physical contact or offensive touching of someone else without his or her permission

Front 73

defenses to assault and battery

Back 73

Consent, privilege, self-defense

Front 74

false imprisonment definition

Back 74

intentionally causing the confinement of another person without consent or legal justification

Front 75

intentional infliction of mental or emotional distress definition

Back 75

intentional or reckless causing of severe mental suffering in another by means of outrageous and extreme conduct or language that goes beyond the bounds of decency

Front 76

invasion of privacy definition

Back 76

interference with the right of someone else to be left alone unless there is reasonable public interest

Front 77

defamation definition

Back 77

publication of a false statement that tends to injure a person's reputation or good name, causing the public to hold that person up to hatred, contempt, or ridicule, or to cause him to be shunned or avoided.

Front 78

libel

Back 78

defamation through some permanent form, such as print or recording

Front 79

slander

Back 79

defamation through some transitory means such as unrecorded speech

Front 80

Defenses to defamation

Back 80

truth and privilege

Front 81

absolute privilege

Back 81

protects statements made in a civil or criminal action so long as the statements are relevant to an issue in the proceeding

Front 82

conditioned / qualified privilege

Back 82

a defamatory statement is published in good faith and with proper motives

Front 83

Malicious prosecution definition

Back 83

wrong use of legal proceedings, civil or criminal

Front 84

fraudulent misrepresentation definition

Back 84

misrepresentation of facts, knowing it was false or with reckless disregard for the truth, with intent that the innocent party rely on the misrepresentation and the innocent party suffers damages because of that misrepresentation. typically, con-man work

Front 85

disparagement definition

Back 85

defendant publishes a malicious untruth about plaintiff's property/goods knowing it's false that causes damages

Front 86

slander of title

Back 86

publishing false information about the legal ownership of property

Front 87

slander of quality / trade libel

Back 87

publishing false information about the quality of the property of someone else

Front 88

false advertising definition

Back 88

false statements are being made about the defendant's own products that give a false impression that the defendant's products are superior to the plaintiff's

Front 89

Texaco, Inc v. Pennzoil, Co

Back 89

Getty Oil Co was merging with Pennzoil, Texaco bought instead and promised to indemnify Getty of damages to Pennzoil, leading to a $10bil lawsuit

Front 90

real property

Back 90

land or anything permanently attached to land

Front 91

personal property

Back 91

anything besides real property, including tangible and intangible (ex: clothes, car, stocks, money)

Front 92

tangible property

Back 92

touchable property

Front 93

intangible property

Back 93

property you cannot touch

Front 94

Trespass to Real Property / Trespass to Land / Trespass definition

Back 94

unauthorized physical intrusion or entry upon land where someone else has a superior right to the property

Front 95

attractive nuisance law

Back 95

you must take whatever reasonable steps are necessary to protect a trespasser from something on your property that you know attracts trespassers

Front 96

trespass to personal property / trespass to chattel definition

Back 96

wrongful invasion of ownership rights in property other than land

Front 97

Conversion definition

Back 97

personal property is taken by the wrongdoer and kept from its true owner or prior possessor. permanent disenfranchising of the owner from his personal property

Front 98

How to differentiate between Trespass to Personal Property and Conversion

Back 98

- The extent of dominion or control over property

- How long the interference lasted

- Damage done to property

- Inconvenience/expense to the owner

Front 99

Nuisance definition

Back 99

conduct that unreasonably and non-contractually interferes with the enjoyment or use of land

Front 100

private nuisance

Back 100

nuisance that affects only one or a few people

Front 101

public nuisance

Back 101

nuisance that affects the community or the public at large

Front 102

temporary nuisance

Back 102

normally reoccurring and thus the statute of limitations accrues anew upon each injury and can thus be ongoing and it then becomes subject to the Statute of Limitations, a time period in which the lawsuit must begin, normally 2 years

Front 103

permanent nuisance

Back 103

statute of limitations begins when the nuisance is discovered

Front 104

intellectual property

Back 104

property created from the ideas or thought processes of the creator

Front 105

Sonny Bono Copyright Term Extension Act

Back 105

time period of an individual copyright owner is their lifetime plus 70 years and for a publisher, 95 years after the fate of the publication or 120 years after the date of creation (lesser of the two)

Front 106

compulsory licensing

Back 106

owners of sound recordings under certain conditions must grant anyone permission to record their music once it has been distributed to the public

Front 107

patent

Back 107

grant from the federal government that gives the applicant the exclusive right to make, sell, use, or allow others to use an invention for 20 years from the date of the filing of the application for the patent

Front 108

trademark

Back 108

any word, name, symbol, design, or combination thereof used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods

Front 109

service mark

Back 109

any word, name, symbol, design, or combination thereof used in commerce to identify and distinguish the services of one manufacturer or seller from those of another and to indicate the source of the services

Front 110

Trade dress

Back 110

an infringer steals the entire inherent distinctive look of a competitor

Front 111

Trade Names

Back 111

part or all of a business name

Front 112

trade secrets

Back 112

anything a business wants to keep secret

Front 113

misappropriation

Back 113

taking or stealing a trade secret and using it without the owner's permission

Front 114

negligence definition

Back 114

careless or reckless conduct.

-Duty

-Breach

-Harm

-Causation

Front 115

Element of Negligence: Duty

Back 115

Duty of Care arises whenever a person should foresee that his or her conduct would create an unreasonable risk of harm to others

Front 116

Element of Negligence: Breach

Back 116

Failure to Exercise Care - reasonable duty of care is breached

Front 117

Element of Negligence: Harm

Back 117

harm results from the negligence - physical harm to person or property, and some types of mental harm

Front 118

Element of Negligence: Causation

Back 118

There must be a casual connection between the breached duty and the harm

Front 119

Cause in Fact

Back 119

evidence shows that the complained-of act is the cause of the event that caused the injury

Front 120

Proximate Caues

Back 120

foreseeable risks having a reasonable relationship to the conduct

Front 121

defenses to negligence

Back 121

assumption of risk by the plaintiff and the plaintiff's own negligence, or superseding cause

Front 122

Assumption of risk

Back 122

voluntary exposure to a known risk

Front 123

Contributory negligence

Back 123

failure of the injured party to exercise reasonable care, which contributes to the injury. completely bars any recovery of damages

Front 124

comparative negligence

Back 124

allows a proration of the damages resulting from the combined negligence of the parties

Front 125

moral hazard

Back 125

under a simple negligence standard those at risk do not have the incentive to take self-protective or loss-avoidant measures

Front 126

superseding cause

Back 126

something occurs that breaks the casual connection required to have a negligence case

Front 127

strict liability

Back 127

applied to activities that are recognized as hazardous or dangerous, but are not so unreasonable as to be prohibited altogether

Front 128

Caveat Emptor

Back 128

let the buyer beware - purchaser bore all risks as to a product's use - no product liability

Front 129

Express Warranty

Back 129

can occur based on the statements of the manufacturer in advertising, sales literature, statements of their reps, etc

Front 130

Implied Warranties

Back 130

warranties that arise due to the facts and situation of the case

Front 131

Caveat Venditor

Back 131

Let the seller beware

Front 132

market share liability

Back 132

strict liability where all manufacturers of a product are responsible for the percentage of damages equaling their percent share in the market