Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Business Law > BLAW EXAM 2 > Flashcards

BLAW EXAM 2 Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards MPRE flashcards Civil Procedure 1L flashcards
1
Q

A civil wrong – as distinguished from a crime – that is not a breach of contract, and for which the law provides a remedy for the person harmed.

A

Tort

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Consists of the violation of standard of behavior established by society. The same is true of a crime, except the State rather than an individual is offended

A

Tort

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Involves the violation of a standard of behavior established by the parties themselves.

A

Breach of Contract

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Liability without regards to fault.

A

Strict Liability

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

in most cases they can also be crimes

A

Intentional Torts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Intentional Tort: Any unpermitted touching

A

Battery

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Intentional Tort: Occurs when one’s action creates in another a reasonable apprehension of bodily harm

A

Assault

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Intentional Tort: The wrongful interference with one’s right to possession of personal property (Not real estate). The intent required is for the defendant to exercise control over goods that is inconsistent with the plaintiff’s right to possession.

A

Conversion

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Intentional Tort: A false communication that tends to injure one’s reputation by lessening his esteem, respect, or goodwill in the community.

A

Defamation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Type of Defamation: Written word. Existence of damages is presumed (amount must be proven).

A

Libel

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Type of Defamation: Spoken word.

A

Slander

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Intentional Tort: Must be published – requirement is that the statement be made to a third party.

A

Defamation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

2 torts of Defamation

A

Libel and Slander

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

2 kinds of Slander

A

Slander per se & Slander per quod

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Type of slander: unnecessary to prove damages (must prove amount). Consists of the imputation of a crime (accusing someone of a crime) or of a loathsome disease (uncommon to us), or statements affecting the plaintiff in his business, trade, profession, office, or calling.

A

Slander per se

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Type of Slander: All other slanderous statements. Require proof of damages

A

Slander per quod

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

circumstances in which an individual is protected against liability for published false statements

A

Privilege

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

2 types of privilege

A

Absolute Privilege and Qualified Privilege

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Type of Privilege: Statements made in judicial proceedings, legislative proceedings, and uncertain executive communications.

A

Absolute Privilege

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Type of Privilege: Statement must be made in reasonable manner and for a proper purpose.

A

Qualified Privilege

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Plaintiff has contract - defendant interferes with contract. Plaintiff suffers damages.

A

Interference with Contractual Relations

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

The intentional, unprivileged detention of a person without his consent.

A

False Imprisonment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Often occurred when one charged with crime of larceny.

Does not mean that the plaintiff must be locked up by a physical force.

A

False Imprisonment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Now, most defendants in “shoplifting cases” are charged with the crime of _________ __________ (don’t have to prove intent), which prevents, in most cases, a successful charge of false imprisonment.

A

Unlawful Consideration

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What 4 things MUST be proved to constitute Deceit/Fraud (contracts)

A

1) A false representation, (2) Made with knowledge of falsity, (3) Made with intention of inducing the plaintiff to rely on the statement, (4) Plaintiff justifiably relies on the statement and an injury results

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Results from a substantial interference with a right or an interest of another person, most often the right to enjoy and use his property.

A

Nuisance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Intentional Tort ______ causes: Excessive noise, Pollution and Smoke

A

Nuisance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Tort of Negligence: Behavior that is not intended to injure anyone but that involves a failure to exercise ____ _____.

A

Due Care

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

In order to recover for the tort of negligence, the plaintiff must prove that the defendant owed a ____ __ ____ to the plaintiff, and the ____ was violated.

A

Duty of Care - Duty

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Most often used tort

A

Tort of Negligence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

All automobile accident cases are based on this tort

A

Tort of Negligence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

o Behavior that is not intended to injure anyone but that involves a failure to exercise due care.

A

Tort of Negligence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Define: Causation and Injury

A

It must be shown that the negligent behavior caused the injury in question

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Palsgraf v. Long Island Railroad Established what element of the tort of negligence

A

Foreseeability - Must show defendant could have foreseen

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

N.C.’s complete defence to negligence

A

Contributory Negligence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

Defense to negligence: Where plaintiff contributed to his injuries

A

Contributory Negligence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

Defense to negligence: Used only in states that also use contributory negligence. Plaintiff negligent, but defendant had last opportunity to avoid injury and did not

A

Last Clear Chance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

Defense to negligence: Plaintiff knowingly enters an area of danger

A

Assumption of Risk

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

Negligence in and of itself

A

Negligence Per Se

40
Q

Usually used in automobile accident cases where defendant violates a statute, such as speeding, etc.

A

Negligence Per Se

41
Q

Facts speak for themselves

A

Res Ipsa Loquitur

42
Q

But for negligence the accident would not have occurred

A

Res Ipsa Loquitur

43
Q

Defendant (burden of proof) must prove he was not negligent

A

Res Ipsa Loquitur

44
Q

persons who are aided voluntarily by others cannot sue them. Primarily for use of physicians and medical personnel.

A

Good Samaritan Statues

45
Q

Tavern owner, bartender or social host may be held liable for injuries cause by a person who became intoxicated while drinking at the bar or at social situations (homes).

A

Dram Shop Acts

46
Q

Definition: The Restatement of the Law of Contracts states that a contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in someway recognizes as a duty.

A

Contracts

47
Q

Definition: a promise, which is in its terms conditional upon an act, forbearance, or return promises being given in exchange for the promise or its performance.”

A

The Offer

48
Q

Definition: ______ is the assent of the offeree, either expressed or implied, to be bound to the terms spelled out by the offeror in his offer.

A

Acceptance

49
Q

Involves wrongful coercion by one party against another so that the innocent party does not enter into the contract of his own volition.

A

Duress

50
Q

Problem with Consideration: If one is legally bound to perform an act either because of law or contract, promising to perform that same act is not valid consideration – Firemen, Policemen, etc.

A

Preexisting Duty

51
Q

Problem with Consideration: If both parties agree to a rescission of an agreement and then execute a new contract with the desired change, the new contract is enforceable.

A

Rescission and Modification

52
Q

Problem with Consideration: In some jurisdictions, but not all, a promise by one party to pay more money (usually for unforeseen difficulties) for the promised performance will be enforced. Example: Construction Problems not anticipated

A

Unforeseeable Difficulties

53
Q

Problem with Consideration: A party cannot use performance that he rendered in the past as consideration to support an agreement entered in the present

A

Past Consideration

54
Q

Problem with Consideration: General Rule: Where a debt is liquidated (amount is undisputed) payment of a lesser sum will not discharge the debt. When the debt is unliquidated and disputed, it will be discharged if a notation is made with the payment that the payment is in full and final satisfaction of the debt, and the creditor knowingly accepts the payment.

A

Payment of a Lesser Sum

55
Q

Problem with Consideration: An agreement by a large number of creditors to accept less for their debts from a single debtor. Binding even though debts is not disputed. The consideration for the promises of each creditor to accept the lesser amount is found in the similar promises given by the other creditors, hence there always must be two or more creditors involved in a ___________ ________

A

Compensatory Agreement

56
Q

Substitution of one party for another in an existing contract

A

Novation

57
Q

What are the 4 elements required for a valid contract?

A

(1) Offer and Acceptance (2) Contractual Capacity of the parties (3) A legal purpose and object (4) Consideration

58
Q

Contracts are contracts “under seal”

A

Formal

59
Q

When contract is under seal 2 things happen:

A

(a) there is a rebuttable presumption the contract is supported by consideration, and (b) statute of limitations is extended.

60
Q

All contracts not under seal

A

Simple

61
Q

Agreement that lacks one of the elements of a contract

A

VOID

62
Q

Contains all the elements of a contract, but for one reason or another one of the parties may be entitled to rescind the contract. Ex. Entered into under duress

A

VOIDABLE

63
Q

Court will create (imply) a contract in order to avoid unjust enrichment. Not an actual contract

A

Quasi Contract

64
Q

Quasi contract recovery is in:

A

Quantum Meruit

65
Q

______ contract is an equitable action by the Court

A

Quasi

66
Q

Reasonable value of good, services

A

Quantum Meruit

67
Q

Eliminated most conflict of laws, but not all problems

A

Uniform Commercial Code

68
Q

Not all promises are ______

A

Offers

69
Q

Definition: The statement, to be an offer, must be made by the offeror with the intent to enter into a contractual relationship with the offeree

A

Contractual intent

70
Q

How do we determine whether a statement has been made with the intent to enter into a contractual relationship?

A

• Objective Theory - Reasonable Man Test: Look at all surrounding circumstances – where, when, how. If a statement is made under circumstances that would indicate to a reasonable man that the offeror intended to be contractually bound, there is a valid offer even if he/she had some secret mental reservation.

71
Q

When does termination of an offer occur?

A

When offer is accepted, time expires on offer, revocation, Rejection, Rejection and Counteroffer, Death or Insanity and Illegality

72
Q

When a merchant promises in a signed writing to keep an offer open for a stated period of time, it may not be revoked. Does not need consideration as does an option. If no stated time is mentioned, it is a reasonable time not to exceed three months.

A

Firm Offer under the UCC

73
Q

When can silence constitute acceptance of offer?

A

Implied Acceptance

74
Q

If mail is an acceptable means of communicating an acceptance, the acceptance is communicated when it is placed in control of the postal authorities, i.e. a contract is formed the moment the acceptance is “dropped in the mailbox”, even if the offeror never receives the acceptance (mail lost, etc.) – Result: Offeror may be bound by contract and not know it. The offeror can prevent such a result by simply stating in his offer that the contract will not arise until the acceptance is received.

A

Mailbox Rule

75
Q

Mailbox Rule

A

Contract is formed the moment the acceptance is “dropped in the mailbox”, even if the offeror never receives the acceptance – Result: Offeror may be bound by contract and not know it.

76
Q

Communication in a unilateral contractual situation

A

In a unilateral contractual situation there is an offer that calls for some sort of performance.

77
Q

Communication in a unilateral contractual situation: Acceptance is made by the performance of the act, and in general. No contract arises until

A

The Performance is Completed

78
Q

Rely on the outward manifestations of an individual’s intent rather than trying to determine what might actually be secretly in a person’s mind

A

Contractual Intent

79
Q

The manifestation of assent must be _____ and ________ given – there are a number of circumstances that may interfere with this requirement

A

Freely and Voluntarily

80
Q

5 Elements of Misrepresentation

A

(1) False Representation of a material fact (2) Knowledge of the falsity by person making the statement or made with reckless disregard for the truth. (3) Statement made with intent that other party rely on the statement (4) Innocent party must justifiably rely on statement (5) Innocent party must suffer damage as a result of such reliance

81
Q

One may not actively conceal facts when there is a “____ __ _____”

A

Duty to Speak

82
Q

Duress makes a contract:

A

Voidable

83
Q

Courts generally refuse to find duress from the threat of ________ ________ if there may reasonably be liability for the illegal activity. Also, the threat of a _____ suit is generally not considered duress if the threat “is made in good faith”

A

Criminal Prosecution - Civil

84
Q

when mistake is made only by one party – generally no relief is given.

A

Unilateral Mistake

85
Q

Exception to _____ _____: when mistake is material; offeree has knowledge, and; offeree takes advantage

A

Unilateral Mistake

86
Q

Where both parties are mistaken; Courts often give relief (rescission) – must be regarding “the subject matter

A

Bilateral Mistake

87
Q

Exception to _____ ______: if mistake is regarding quality or value

A

Bilateral Mistake

88
Q

Consideration for a promise is:

A

(1) An act other than a promise, or (2) A forbearance, or (3) The creation, modification or destruction of a legal relation, or (4) A return promise, bargained for and given in exchange for the promise.

89
Q

Order for an exchange of promises to constitute a sufficient consideration, both promises must be legally binding. - Requirements and Output Contracts often have this problem

A

Mutuality of Obligation

90
Q

Rule – if the purchase of the output is strictly up to the buyer’s whim or caprice, there’s no consideration

A

Mutuality of Obligation

91
Q

=Rule: A _______ or promise to ______ from exercising a legal or equitable right is good consideration when given in exchange for the promise of another person. - it MUST be in response to a promise of another person. - Forms: covenant not to compete, giving up a right, or refraining from suing

A

Forbearance

92
Q

Rule: Generally, Courts will not inquire into the adequacy of consideration once it has determined that there is sufficient consideration to support the contract. - Exception: fraud, undue influence, duress - o Although small, a recital of consideration in a contract often will be sufficient – “one dollar ($1.00) and other valuable considerations”

A

Sufficiency of Consideration

93
Q

Means “one is not permitted to deny”

A

Promissory Estoppel

94
Q

Applied only in cases in which there is no contract because there is no consideration, but the Court will enforce because of detriment to promise

A

Promissory Estoppel Doctrine

95
Q

Situations in which a promise is made and the promise reasonably relies on that promise and suffers a detriment if the promise is not enforced.

A

Promissory Estoppel Doctrine

96
Q

Most often applied in cases of promises made for subscriptions (pledges) to “charitable subscription”

A

Promissory Estoppel Doctrine

Business Law (3 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions