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74 Cards in this Set
- Front
- Back
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Acceptance
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An expression of agreement by the offeree to the terms and offer
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Breach of Contract
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The failure to perform some contracted act
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Capacity to Contract
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The ability to understand the terms of a contract and to understand also that failure to perform its terms can lead to legal liability
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Compensatory Damages
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Money awarded to the plaintiff to compensate for injuries of other expenses
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Consideration
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Something of value exchanged for something else of value
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Counteroffer
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A response to an offer that modifies one or more of its provisions
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Contract
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Promises made between 2 or more people that are enforcable
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Duress
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Threats of harm if a person does not sign a contract
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Fraud
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An international untruthful statement made to induce reliance by another person of for the purpose of misleading someone, usually for personal gain
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Genuine Assent
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Concept that the parties involved in a contract must genuinely agree to the contract terms
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Goodwill
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A favorable reputation producing an expectation of future business
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Illusory
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A contractual term that fails to contain a firm commitment
A promise that is so indefinite that the party making it has not if fact committed to doing anything |
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Mitigate
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Lessen; A rule that requires a plaintiff seeking to collect damages for breach of contract to prove an attempt was made to reduce or lessen losses and/or damages
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Offer
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A proposal to do or give something in exchange for something else
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Parole Evidence Rule
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What prevents the parties from successfully modifying a complete writing contract with evidence of oral agreements made prior to signing in writing
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Specific Performance
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A remedy for breach of contract requiring performance of the contract term
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Statue of Frauds
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The law requiring that certain contracts must be written to be enforceable
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Valid
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Enforceable in court
Voidable Contract 1 or both Parties can avoid the term of a valid court |
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Tort
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Refers to many Types of noncriminal wrong doings by one person that injures another ( but not to breaches of contracts)
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Assumption of Risk
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Doctrine that holds a plaintiff may may not recover for injuries received when the voluntarily expose themselves to a known risk
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Attractive Nuisance
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Potentially dangerous object or condition of exceptional interest to young people
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Comparative Negligence
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Majority Rule (is what usually happens)
- Rule followed by most States apportioning damages according to a comparative contribution of the negligence of the parties - Allocate the liability b/t the Plaintiff and Defendant depending on the degree of culpability based on a total of 100 percent |
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Contributory Negligence
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MInority Rule ( Seldom Happens)
- Plaintiff carelessness contributed to the injury, the Plaintiff cannot successfully sue a Negligent Defendant Only limited States still follow this Rule: -Alabama, North Carolina, Virginia, and DC |
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Last Clear Chance
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Plaintiff in certain cases used to support their Argument that the Defendant should be liable for failing to Prevent Injury
Defendant should be Liable for failing to prevent the Injury Even if negligent acts of the Plaintiff initially put the Plaintiff in peril |
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Negligence
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Carelessness that Causes Injury
Breach of a Legal Duty to Act Resonably that is the Direct (or Proximate) Cause of Injury to Another |
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Negligence Per Se
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Describes conduct that Violates the Law or Ordinance designed to Protect the Safety of the Public
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Invitee
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Someone who cones to an establishment for the purpose for which the business is open to the public
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Proximate Causes
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The Direct and Immediate foreseeable connection b/t a Breach of Duty and a Resulting Injury
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Res Ispa Loquitur
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Frees the Plaintiff from the burden of proving the Specific Breach of Duty Committed by the Defendant
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Strict Liability
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Also called ABSOLUTE LIABILITY
Doctrine that imposes all the risks of an ultra hazardous activity upon those who engage in it |
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Within the Scope of Employment
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Furtherance of duties performed for the employer
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Constructive Notice
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Knowledge of a fact imputed to a person by law because he or she could have discovered the fact by proper diligence.
Establishment should have known if Best Preventative Practices were being Followed. |
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Guest
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The visit must be for the primary purpose for which an inn operates-rental rooms suitable for overnight stays
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Bailment
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A transfer of possession of goods or personal property from a person in possession of the property to another with the Understanding that the Property will be Returned
**Directly affects Liability** *** Giving you car to the Hotel Valet to Park and Keep*** |
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Bailor
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The owner of the goods or personal property who transfers such property to the Bailee
*** The Hotel Guest who gives the Valet his Car to Park and Keep*** |
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Bailee
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The person receiving the goods or personal property
*** The Valet who is given the Car to Park & Keep*** |
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Essential Elements of Bailment
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1. Personal Property
2. Delivery of Possessions 3. Acceptance of Possessions by the Bailee 4. Bailment Agreement ** Bailment Directly Affects Liability** |
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Elements of a (K) Contract
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Capacity to Contract
Consideration Legality Agreement Mutuality Genuine Assent |
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Types of Written Contracts that are considered to be a Statute of Fraud
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Sale of Real Estate
Marriage Sale of Goods over $500 Assumption of Debt by Another Contract Not Completed within 1 year from when made |
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Both Parties can do this?
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Void a Contract
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When you cancel a contract it is also known as?
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Void Contract
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Legal Age and of Sound Metal Health are considered?
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Capacity to Contract
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What are 3 forms of Consideration?
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1) Tangible Item
2) Performance to Promise or Perform 3) Forbearance - Agreeing to refrain from doing something you have a legal right to |
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3 Examples of Implied-In-Fact Contracts
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1) P provides D some service or property
2) D knew or should have known Payment for Service or Property was expected 3) D had the chance to Reject said Service or Property and did NOT |
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What are the Legal Options Available to Plaintiffs in Breach of Contract (K) Cases?
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P sues D for Damages
Compensatory Damages Incidental Damages Court Costs / Attorney Fees P & D enter into ADR P and D Void (Cancel) Contract Reform Contract P sues D for Specific Performance ( ONLY if goods and services are unique) |
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What are Legality, Proper Form, Contractual Capacity, Mutuality, Consideration and Genuine Asset?
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Essential Elements for a Contract (K)
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What are the 4 Essential Elements of a Negligence Case?
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Existence of Duty to Act Reasonably
A Breach of that Duty Injury Proximate Cause Reasonable Person Standard (Sometimes not essential) |
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What is the correct order of Degree of Care (excluding children) ?
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Invitee
Licensee Trespasser |
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Why should an establishment have the highest Level of Care for Children in the case of Negligence?
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Children are not included as a Reasonable Person, b/c they DO NOT comprehend Danger or Dangerous Object.
This is also why Reasonable Person is not an Essential Element for Negligence |
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Is a Guest of a Guest a Guest?
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YES!!!
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When is a Guest No Longer a Guest?
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Within a reasonable amount of time after checking out.
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What are 3 Elements that must be proven for "Res Ipsa Loquitur"?
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1) P's Injury was caused by Accident that would not have normally happened without Negligence
2) Thing that causes injury was within the exclusive Control of the D 3) P did NOT Provoke the Accident |
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Legal Responsibility of the Employee of their Employees
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Respondent Superior
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What are the 2 Types of Negligence Doctrines that Favors the Defendant?
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1) Contributory Negligence (Minority)
2) Comparative Negligence (Majority) |
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What states still use Contributory Negligence Doctrine?
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DC, Virginia, Maryland, NC and Alabama
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What are 2 Comparative Negligence Rules?
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Last Clear Chance
Assumption of Risk |
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What are the 4 Elements that must be established to use Subsequent Negligence Rule (Last Clear Chance)?
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1) P has been Negligent
2) As result of Negligence, the P is in a position of peril that can not be escaped by the exercise of ordinary care. 3) D knew or should have known of the Plaintiff's Peril 4) D had a clear chance, by the exercise of ordinary care, to avoid the injury to the P, but failed to do so |
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In the Assumption of Risk Rule, what must be shown?
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1) Knowledge of Risk
2) Understood the Risk 3) Choice of Avoiding or Engaging in conduct that confronted the Risk 4) Voluntarily Chose to Take the Risk |
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What are some Negligence Doctrines that Favor the Plaintiff?
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1) "Res Ispa Loquitur"
2) Children and Responsible Person Test 3) Attractive Nuisance Doctrine 4) Negligence Per Se Doctrine 5) Strict Liability 6) Strict Products Liability 7) Respondent Superior |
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What is the difference between Constructive and Actual Notice?
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Constructive is when a business should have known about a problem through regular maintenance or monitoring, but did not.
While Actual Notice is when the problem has been reported. |
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When does a Guest-Innkeeper Relationship End?
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1) Contracted Time for the room Elapsed and has not been Extended
2) Bill is Not Paid when Due 3) Proper Notice is Given to Vacate Hotel 4) Reasonable Amount of time has passed since Checkout 5) Bill has been Settled and Paid |
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What does one have to do to be considered a guest in a hotel?
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1) Be there for the purpose of the hotel (get a room) or show the intent of that purpose.
2) Be a Guest of a Guest |
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What is the process of Bailment?
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When a Bailor gives a Bailee Personal Property with the understanding that the Property will be Returned
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An example of this is when a driver pulls up to a Valet Stand and hands the Valet attendant his keys to park his car and the driver is given a ticket for the service.
What is this called? Who is the Driver? Who is the Valet Attendant? What is the Ticket? |
Bailment
Bailor - Driver Bailee - Valet Attendent Proof of Agreement - Valet Ticket |
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What are the Essential Elements of Bailment?
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1) Personal Property (Tangible Objects)
2) Delivery of Possession 3) Acceptance of Possession by the Bailee 4) Bailment Agreement |
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What is the effect of Bailment on Liability?
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NO Bailment = NO Liability
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What are 3 Categories of People Lack Contractual Capacity?
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Minors
Mentally Incompetent Very Intoxicated |
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What is the Legal Effect of an Illegal Contract?
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The Contract is Void
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1) A Valid Contract must exist b/t 2 Parties
2) 3rd Party must be aware of existence of contract 3) 3rd Party must Intentionally Cause or Induce 1 of the Parties to Break the Contract |
Elements that are Necessary to prove a Claim of Interference with a Contractual Relationship
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An Agreement Barring Someone from Competing in the Same Geographical Area for a Specified Amount of Time.
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Agreement Not to Compete
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When can Pain and Suffering be Recovered in a Breach of Contract Case?
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Only if the Case involves Negligence
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When can Punitive Damages be Awarded in case of a Breach of Contract?
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Only if the Defendants Actions are Malicious
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What kind of Damages can a P be awarded in case of a Breach of Contract?
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Compensatory
Lost Profits Incidental Court Costs / Attorney Fees |
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What other options does a P & D have in the case of Breach of Contract?
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Enter into ADR
Cancel the Contract Reform Contract |
