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109 Cards in this Set
- Front
- Back
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Bilateral Contract
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a promise for a promise
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Unilateral Contract
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a promise for an act
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Express Contract
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terms spelled out verbally or in writing
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Implied Contract
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implied from the conduct of the parties
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Quasi-contract
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implied at law
to prevent unjust enrichment |
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Void Contract
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contract element is missing
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Voidable Contract
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one party can get out of the contract
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Unenforceable Contract
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valid contract that cannot be enforced
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Common Law of Contracts
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real estate and services
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UCC Article 2
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Uniform Commercial Code
governs sale of goods (tangible and movable) drafted by the National Conference of Commissioners on State Laws adopted in part by all 50 states found in NC General Statutes |
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Contract formation/elements of a contract
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offer
acceptance consideration capacity legal |
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Option
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seller paid to hold the offer open
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Merchant's Firm Offer
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irrevocable without the necessity of consideration for a stated period of time or, if no definite period is stated, for a reasonable time (not to exceed 3 months)
must be in writing and must be signed by the offeror |
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Types of Consideration
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act
forbearance promise giving up a legal right NOT past consideration NOT a preexisting duty |
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Promissory Estoppel
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an exception to consideration
making a promise that someone relies on then backing out |
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Contract Defenses
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voluntary consent -- apparent consent of both parties must be voluntary
form -- contract must be in whatever form the law requires |
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Unilateral Mistake
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contract enforceable
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Mutual Mistake
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no contract
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Elements of Fraud
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intent (scienter)
misrepresentation material fact justifiable reliance damages |
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Innocent Misrepresentation
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same as fraud but without intent
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Undue Influence
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not voluntary
voidable parent-child, etc. |
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Duress
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threat of immediate physical force and threat of criminal action
NOT threat of civil action |
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Statute of Frauds
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certain contracts must be in writing to be enforceable under Article 2 of UCC
common law UCC 2-201 (goods $5,000+, $500+ in NC) |
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Parol Evidence Rule
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bars verbal evidence from coming into a contract
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Contract Discharge
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by performance
by agreement by operation of law performance impossible NOT if event is foreseeable and not dealt with in contract |
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Damages for Breach of Contract
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compensatory
consequential punitive nominal liquidated penalty |
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Compensatory Damages
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make whole again
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Consequential Damages
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need to be forseeable
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Punitive Damages
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to punish
usually not allowed |
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Liquidated Damages
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parties agre at the time of the contract what the damages are going to be
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Penalty Damages
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contract spells out the damages but they are extremely unfair
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Duty to Mitigate
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must try to minimize damages
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Equitable Remedies
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rescission and restitution
specific performance |
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Specific Performance
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breach of contract for something unique or land
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Election of Remedies
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choose damages
to prevent double recovery |
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Force Majeure
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liability escape clauses
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Express Warranties
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facts or promises, description, sample
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Implied Warranties
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merchantability
fitness for a particular purpose -- hard to prove |
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Merchantability
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fit for ordinary use
must be a merchant |
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Product Liability: Negligence
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design defect
failure to adequately warn |
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Privity
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can only sue who you bought it form
not anymore |
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Product Liability: Strict Liability
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product in a defective condition when sold
sold by a merchant (who regularly sells that product) good is unreasonably dangerous to the consumer because of defective condition injury to the plaintiff defect good proximately cause injury no change in good from when it left manufacturer and got to consumer |
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Product Liability: Torts
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negligence
fraud strict liability (NC does not use) |
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Product Liability: Defenses
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comparative negligence (NC does not recognize)
commonly known danger assumption of risk product misuse knowledgeable user |
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Statutes of Repose
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the statute of limitations within which a plaintiff must file their product liability lawsuit
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Caveat Emptor
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buyer beware
as is no warranty |
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Magnuson Moss Act
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a federal act which standardizes both full and limited warranties in the sale of consumer goods
the manufacturer does not have to give full or limited warranties, but if they do give them then it says what must be included in the full/limited warranty |
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Food and Drink Liability
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foreign vs. natural
reasonable expectations |
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Agency Relationships
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agent agrees to represent or act for the principal
principal controls the agent agent to act for the benefit of only the principal agent in a fiduciary relationship (one of trust and confidence) |
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Agency Authority
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express
implied apparent |
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Express Authority
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orally or in writing
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Apparent Authority
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agency by estoppel
principal holds out "agent" as having authority |
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Agency by Ratification
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agent acts outside of the scope of their authority and principal chooses to affirm
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Agency by Operation of Law
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spouse purchases basic essentials and charges to spouse
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Agent's Duties to Principal
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fiduciary/trust relationship
performance notification loyalty obedience accounting |
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Principal's Duties to the Agent
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compensation
reimbursement cooperation safe conditions |
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Disclosed Agent
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third party knows identity of principal
principal is liable |
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Partially Disclosed Agent
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knows employer signing employee but unsure identity of employer
principal is liable |
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Undisclosed Agent
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third party does not know person is an employee working for a principal
agent is liable |
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Respondeat Superior
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"let the master respond"
vicarious liability principal liable for the tort of employee if employee commits the tort within the scope of employment detour or frolic test |
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Negligent Hiring and Negligent Retention
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employ an incompetent or otherwise unfit employee
a tort was committed by that employee injury to the plaintiff was cause by that employee the employer knew or should have known the employee was unfit |
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Covenant Not to Compete
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a contractual promise of one party to refrain from competing with another party for a certain period of time and within a certain geographic area
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Employment at Will
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employee serves at the will/pleasure of the employer
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Employment at Will Exceptions
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implied contract
whistleblowing public policy |
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Fair Labor Standards Act
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wage hour laws
provides for minimum wage, overtime covers child labor laws |
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WARN Act
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requires large companies to notify employees and state/local governments prior to mass layoff
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OSHA
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part of DOL
helps provide for safe and healthful working conditions three agencies oversee employers must meet statutory regulations and must comply with General Duty Clause OSHA inspections |
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General Duty Clause
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if violation has not occurred
catch-all |
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Worker's Compensation
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covers accidental injury on the job and in the course of employment
administered in NC by the NC Industrial Commission 3 employees 3 types of insurance 3 types of damages (medical, time away from work, lost body parts) only for employees employee gives up right to sue employer |
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Social Security Act of 1935
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both employers and employees contribute under FICA to help pay for benefits that help pay for loss of income upon retirement
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Medicare
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federal government health insurance program for people 65 and older
both employers and employees contribute |
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Private Pension Plans
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do not have to be given by employers, but if employer does ERISA controls
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Unemployment Insurance
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unemployment compensation to eligible individuals
employer pays into fund worker not eligible if fired or voluntarily left (without good cause) worker must be willing and able to work and be actively seeking employment |
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COBRA
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prohibits the elimination of a worker's medical/optical/dental insurance on the voluntary or involuntary termination of employment
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FMLA
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Family Medical Leave Act
Labor Department Enforces 12 weeks unpaid 50 employees within a 75 mile radius have a child, adopt a child, foster child self spouse parents dependent military amendment |
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The Electronic Communications Privacy Act
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amended existing federal wiretapping laws
created exception |
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Employee Polygraph Protection Act
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limits private employers as to when they can/cannot require a lie detector test
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GINA
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Genetic Information Nondiscrimination Act
prohibits group health plans from denying coverage or charging higher premiums based solely on a genetic predisposition do developing a disease in the future |
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IRCA
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Immigration Reform and Control Act of 1986
makes it illegal to hire, recruit, or refer for a fee someone not authorized to work in the country ICE conduct random audits I-9 Employee Verification required civil and criminal penalties for violations employers are not allowed to discriminate against any individual in hiring or discharging from employment |
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ICE
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Immigration and Customs Enforcement Officers
conduct random audits under IRCA |
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Immigration Act of 1990
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places caps on the number of visas (entry permits) that are issued each year to immigrants
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Norris-LaGuardia Act
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protects peaceful strikes, picketing, and boycotts
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NLRA
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National Labor Relations Act
Wagner Act pro-employee created by NLRB 3 main functions: conduct union elections investigates unfair labor practices of both unions and employers determines collective bargaining units |
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Taft-Hartley Act
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Labor Management Relations Act
pro-employer US President given the power to intervene in strikes that "impair the national health/safety" |
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Right to work
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right to choose whether to join a union or not
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Union Shop
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must join union after a period of time
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Closed Shop
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must join the union to get hired
illegal |
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Landrum-Griffin Act
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Labor-Management Reporting and Disclosure Act
created internal controls on unions |
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Forming and Selecting a Union
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authorization cards
appropriate bargaining unit employer voluntary recognition or election |
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Collective Bargaining
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must be done in good faith
mandatory topics and permissive topics |
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Economic Strikes
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striking for money
they do not have to hire you back |
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Striking for Unfair Labor Practice
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they do have to hire you back
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Title VII of the Civil Rights act of 1964
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15 or more employees
applies to employees or job applicants protected classes (race, color, religion, sex, and national origin) plus amendments |
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Procedures under Title VII
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complaint -- within statute of limitations to the EEOC
right-to-sue letter -- administrative remedies exhausted |
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EEOC
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Equal Employment Opportunity Commission
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Lilly Ledbetter Fair Pay Act
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statute of limitation resets with every discriminatory paycheck (180 days)
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Disparate Treatment
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intentional
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Disparate Impact
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unintentional
pool of applicants and 4/5 rule |
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Affirmative Action
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federal contractor
court order for a company that has been sued for discriminating in the past self-imposed |
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Religions Discrimination
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employer must "reasonably accommodate an employee's sincerely held religions beliefs or practices unless in doing so he would cause the employer to suffer undue hardship"
broad protection |
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Pregnancy Discrimination Act of 1978
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basement floor
no maternity leave |
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Quid Pro Quo Sexual Harassment
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sexual favors
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Hostile Environment Sexual Harassment
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severe
pervasive |
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Civil Rights Act of 1991
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allows for capped punitive damages when malice/reckless indifference/intentional discrimination shown
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Equal Pay Act of 1963
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same establishment doing similar work
job content rather than job description |
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ADEA
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Age Discrimination in Employment Act
40 years old or older 20 or more employees employees and job applicants are protect |
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Federal Rehabilitation Act of 1973
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Labor Department enforces
applies to federal employees and federal contractors limited application |
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ADA
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American with Disabilities Act
Title I -- 15 or more employees Title II -- transportation Title III -- places open to public accommodation Title IV -- telephonic relay devices otherwise qualified disabled employees and job applicants reasonably accommodation unless undue hardship complain to EEOC cannot ask if disabled medical exam only after job offer made drugs tests not covers covers: major life function regarded as disabled having a record of a past disability |
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Employment Discrimination Defenses
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business necessity
BFOQ (bona fide occupational qualification) -- can never be race seniority systems |
