Blaw Test 2

Front 1

What are the four elements of an enforceable contract?

Back 1

1)An agreement= offer+acceptance

2)Consideration-promises of something of value

3)Capacity

4)Legal purpose

Front 2

Define the necessary elements of an offer.

Back 2

1) The offer has intention to be bound the individual

2) Has to be reasonably definite terms

3) Must be communicated.

Front 3

When can an offeror revoke an offer? How?

Back 3

The offeror can take the offer back by revocation at any time before the offer is accepted.

Front 4

Define acceptance. How can it be accomplished

Back 4

The action of consenting to receive or undertake something offered. Acceptance can be accomplished either by an oral or written acceptance.

Front 5

What constitutes valid consideration?

Back 5

The consideration can’t be questioned if there are two objects of value being exchanged.

Front 6

In what contractual context does mutuality of obligation arise?

Back 6

The mutuality of obligation arises in a bilateral contract. A bilateral contract is a contract that is established when one promise is given in exchange for another.

Front 7

Contrast requirements contract with output contract.

Back 7

Output contract is when the buyer promises to buy all of the output that the seller produces.(Restrains the seller from selling to anyone else) The requirements constrain the buyer from buying from another seller.These types of contracts are not enforceable if the requirement or output is unreasonable.

Front 8

Under what circumstances does the incapacity of a party to a contract not allow the contract to be voided?

Back 8

If the person is a minor and they misrepresent their age.

Front 9

What is promissory estoppel?

Back 9

This is unjust reliance. Applies only if the injured party can prove there was: 1) a promise, 2) justifiable reliance on the promise, 3) that was foreseeable, 4) resulted in injustice

Front 10

When might reliance on a promise NOT be justifiable to trigger promissory estoppel?

Back 10

If the promise did not cause the promisee to take an action that he or she would not otherwise have taken.

Front 11

What is unconscionability and when is it procedural and when substantive?

Back 11

This is when a contract is so oppressive or fundamentally unfair as to shock the conscience of the court. Procedural focuses on two elements: oppression and surprise. Substantive is when the contract is “overly harsh” or has one-sided results

Front 12

What does “meeting of the minds” mean?

Back 12

An agreement between parties or assent.

Front 13

To which contractual element is meeting of the minds relevant? How would you prove it?

Back 13

A contract can’t be enforced if there is not a meeting of the minds. The way you prove it depends on the facts of the case.

Front 14

How is a mistake of fact relevant to meeting of the minds?

Back 14

A bilateral mistake of fact dismisses a contract but a unilateral mistake of fact doesn’t dismiss a contract.

Front 15

Name three kinds of transactions voidable by the statute of frauds if not in writing. Which party’s signature is required to satisfy the statute of frauds?

Back 15

1) A contract for the transfer of any interest in real property (deed, lease, or option to buy)

2) A promise to pay the debt of another person

3)An agreement that by its terms cannot be performed within a year

4) A prenuptial Agreement

The party being charged

Front 16

What is parol evidence and what is the parol evidence rule?

Back 16

Oral evidence is what parol is. Parol evidence rule is that prevents a party to a written contract from presenting extrinsic evidence that discloses an ambiguity and clarifies it or adds to the written terms of the contract that appears to be whole.

Front 17

Compare the doctrines of impracticability and frustration of purpose.

Back 17

Impracticability is when the performance is possible but is commercially impracticable. Frustration of purpose occurs when performance is possible, but changed circumstances have made the contract useless to one or both parties. Frustration of purpose requires that 1) the expressed purpose in making the contract is frustrated, 2) without the defendants fault, 3) by the occurrence of an event, the nonoccurrence of which the contract was made.

Front 18

What is a general rule of thumb for determining if you are dealing fairly and in good faith in your contractual obligations?

Back 18

Managers should ask themselves whether an action would embarrass them or their company if it became public. They should also consider whether they would follow the same course of action if they were dealing with a friend or relative

Front 19

Compare consequential and incidental damages.

Back 19

A consequential damage is compensation for losses that occur as a foreseeable result the breach. 2 principles that limit consequential damages: 1) the damages must be reasonably foreseeable 2) they must be reasonably certain. Incidental damages are the lesser and relatively minor damages that a nonbreaching party incurs.

Front 20

When will specific performance be awarded as damages.

Back 20

1) the goods are unique 2)the subject of the contract is real property 3) the amount of the loss is so uncertain that there is no fair way to calculate damages.

Front 21

What is quantum meruit? When is it awarded?

Back 21

Quantum meruit is if one party has received a benefit for which it has not paid even though there was no contract between the parties. It is awarded when 1) a plaintiff seeks to rescind, or cancel, a contract that it entered into based on fraud or mutual mistake 2) the defendant has breached an executory contract.

Front 22

What are the four elements of an intentional tort?

Back 22

1)actual or implied intent

2) voluntary act

3)causation

4)injury/harm is done

Front 23

Under what circumstances might an intent to harm be implied? When might the circumstances suggest recklessness and not intent?

Back 23

Knowledge or should have knowledge to know what will happen. If you know what will happen if you do it and you still do it. Recklessness would be if the defendant did not have knowledge of what their actions would result in.

Front 24

Compare assault with battery

Back 24

Assault: Threat of violence is enough to constitute assault; no physical contact is necessary. Usually used to threaten. (threatening to beat someone)

Battery: physical contact is mandatory and is used to cause harm. (actually beating someone)

Front 25

In which kind of defamation does the plaintiff have to prove actual harm?

Back 25

Slander defamation is where the plaintiff has to prove actual harm because what was said is gone after it was said.

Front 26

How do you distinguish the case in no. 5 from Bodah v Lakeville Motor Express on page 235?

Back 26

It was not an invasion of privacy because the information they sent was not made public.

Front 27

If I am buying a car in the offices of the dealership and they have me in a cubicle with three walls and no ceiling, and they leave me there to discuss the offer alone with my wife, do I have a claim for any form of invasion of privacy if the dealership listens to my conversation through the desk top computer on the salesman’s desk?

Back 27

No because the expectation of privacy is not there since there is no way that this cubicle can be private with only 3 walls and no ceiling.

Front 28

If my neighbor has a 15 acre farm and insists on shooting ducks in season before five in the morning while on his property but near my house and while I am sleeping do I have a claim for trespass? For anything else?

Back 28

No, but this man may have a claim if he considering this as a nuisance because he is losing sleep

Front 29

If you steal my hunting dog do I have a civil tort action in addition to having you arrested for theft? What, if any?

Back 29

Yes, it is a tort of conversion

Front 30

What are the elements to prove tortious interference with contract?

Back 30

1) They know about the contract and intend to interfere

2) induce breach

3) breach

4) harm

Front 31

What are the elements of fraudulent misrepresentation?

Back 31

1)intent

2) Reliance

3) Causation

4) Harm

Front 32

What are the four elements of a claim for negligence?

Back 32

1) Duty

2) Breach of duty

3) Causation: 1. Actual/factual 2. Legal/proximate

4) Harm

Front 33

In defining whether a defendant has committed a negligent act what is the standard of care generally to prove a breach of duty?

Back 33

The standard of care is what a reasonable person of ordinary prudence would do in the circumstances.

Front 34

What are duties to trespassers and how does the Labaj case on page 244 assist us in analyzing them?

Back 34

A possessor of a property owes no duty to an undiscovered trespassers are in the habit of entering a particular place then the possessor of the property has a duty to take reasonable care to discover and to protect the trespassers from activities he or she carries on

Front 35

Define res ipsa loquitor. To what element of the negligence case is it relevant?

Back 35

The principle that the occurrence of an accident implies negligence but there is no direct proof. The thing speaks for itself.

Front 36

To what element of the plaintiff’s proof in a negligence case is the requirement of a foreseeable injury relevant?

Back 36

The plantiffs injury must have been caused by a condition or instrumentality that was within the defendant’s exclusive control.

Front 37

Compare actual cause and proximate cause.

Back 37

To prove actual cause the plaintiff must prove that he or she would not have been harmed but for the defendant’s negligence. To prove proximate cause, this comes after actual cause, the plaintiff has to prove that the defendant had a duty to protect the particular plaintiff against the particular conduct that injured him or her.

Front 38

Compare contributory negligence and assumption of the risk.

Back 38

Contributory negligence means that if the plaintiff was also negligent in any manner, he or she cannot recover any damages for the defendant. Assumption of the risk defense means that the plaintiff (1) knew the risk was present and understood is nature and (2) voluntarily chose to incur the risk

Front 39

A contractor hired two men, both unknown to him, to help him do some home repair inside a private residence. The contractor left the two men one day to finish some cleanup while the owner customer was not at home. The two men apparently stole $50,000 worth of jewelry the owner could prove had been there. The thieves disappeared. As it turns out both men had recently returned to town after serving a prison sentence for robbery. Is the contractor Liable?

Back 39

The contractor is liable for the two men that he hired which stole the jewelry because of negligent hiring. The plaintiff can show that if the employer would have investigated the employees it would have revealed the unsuitability of the employees for the job. Also the plaintiff can state that it was unreasonable for the employer to hire the employee in light of the information the employer knew or should have known

Front 40

What factual finding is required for a judgment for strict liability?

Back 40

1) serious harm

2) ultra-hazardous

3) uncommon risk

Front 41

If my prize bull kicks down his fence and gets into the road and causes you to wreck your Porsche is that strict liability? Why, why not? What if he had kicked the fence down several times before?

Back 41

No because the farmer is fulfilling his duty to try to contain the bull. If the bull has knocked down the fence many times before then the farmer is not fulfilling his duty.

Front 42

What if my factory uses water for cooling, adds no other harmful agents to it, and exhausts it into a drain pond for cooling and recycling which incidentally heats up the creek used by the community causing harmful algae to grow?

Back 42

No because this is not ultra-hazardous.

Front 43

Under what other law did we look at respondeat superior?

Back 43

Agency, Vicarious liability

Front 44

If you are acquiring a manufacturing company and all of its assets how might you avoid responsibility for successor liability?

Back 44

Higher an accountant and do an audit. Contract out of the successor liability.

Front 45

Define joint and several liability.

Back 45

Several liability is where the parties are liable for only their respective obligations. Joint is when the parties are each liable up to the full amount of the relevant obligation

Front 46

Define punitive damages.

Back 46

Damages exceeding simple compensation and awarded to punish the defendant. Punishes them based on what they are worth and in a way that makes them an example to others

Front 47

Define equitable relief.

Back 47

A court-granted remedy that requires a party to act or refrain from performing a particular act. (Ex. Making an industry be less harmful to environment or giving someone a restraining order)

Front 48

Define contribution.

Back 48

It is used to mitigate the harsh effects of joint and several liability. It distributes the loss among several defendants by requiring each to pay its proportionate share

Front 49

What is a tort?

Back 49

A civil wrong resulting in injury to a person or property.