BLAW EXAM 2 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
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
3
Q
Involves the violation of a standard of behavior established by the parties themselves.
A
Breach of Contract
4
Q
Liability without regards to fault.
A
Strict Liability
5
Q
in most cases they can also be crimes
A
Intentional Torts
6
Q
Intentional Tort: Any unpermitted touching
A
Battery
7
Q
Intentional Tort: Occurs when one’s action creates in another a reasonable apprehension of bodily harm
A
Assault
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
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
10
Q
Type of Defamation: Written word. Existence of damages is presumed (amount must be proven).
A
Libel
11
Q
Type of Defamation: Spoken word.
A
Slander
12
Q
Intentional Tort: Must be published – requirement is that the statement be made to a third party.
A
Defamation
13
Q
2 torts of Defamation
A
Libel and Slander
14
Q
2 kinds of Slander
A
Slander per se & Slander per quod
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
16
Q
Type of Slander: All other slanderous statements. Require proof of damages
A
Slander per quod
17
Q
circumstances in which an individual is protected against liability for published false statements
A
Privilege
18
Q
2 types of privilege
A
Absolute Privilege and Qualified Privilege
19
Q
Type of Privilege: Statements made in judicial proceedings, legislative proceedings, and uncertain executive communications.
A
Absolute Privilege
20
Q
Type of Privilege: Statement must be made in reasonable manner and for a proper purpose.
A
Qualified Privilege
21
Q
Plaintiff has contract - defendant interferes with contract. Plaintiff suffers damages.
A
Interference with Contractual Relations
22
Q
The intentional, unprivileged detention of a person without his consent.
A
False Imprisonment
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
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
25
What 4 things MUST be proved to constitute Deceit/Fraud (contracts)
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
26
Results from a substantial interference with a right or an interest of another person, most often the right to enjoy and use his property.
Nuisance
27
Intentional Tort ______ causes: Excessive noise, Pollution and Smoke
Nuisance
28
Tort of Negligence: Behavior that is not intended to injure anyone but that involves a failure to exercise ____ _____.
Due Care
29
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.
Duty of Care - Duty
30
Most often used tort
Tort of Negligence
31
All automobile accident cases are based on this tort
Tort of Negligence
32
o Behavior that is not intended to injure anyone but that involves a failure to exercise due care.
Tort of Negligence
33
Define: Causation and Injury
It must be shown that the negligent behavior caused the injury in question
34
Palsgraf v. Long Island Railroad Established what element of the tort of negligence
Foreseeability - Must show defendant could have foreseen
35
N.C.'s complete defence to negligence
Contributory Negligence
36
Defense to negligence: Where plaintiff contributed to his injuries
Contributory Negligence
37
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
Last Clear Chance
38
Defense to negligence: Plaintiff knowingly enters an area of danger
Assumption of Risk
39
Negligence in and of itself
Negligence Per Se
40
Usually used in automobile accident cases where defendant violates a statute, such as speeding, etc.
Negligence Per Se
41
Facts speak for themselves
Res Ipsa Loquitur
42
But for negligence the accident would not have occurred
Res Ipsa Loquitur
43
Defendant (burden of proof) must prove he was not negligent
Res Ipsa Loquitur
44
persons who are aided voluntarily by others cannot sue them. Primarily for use of physicians and medical personnel.
Good Samaritan Statues
45
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).
Dram Shop Acts
46
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.
Contracts
47
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.”
The Offer
48
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.
Acceptance
49
Involves wrongful coercion by one party against another so that the innocent party does not enter into the contract of his own volition.
Duress
50
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.
Preexisting Duty
51
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.
Rescission and Modification
52
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
Unforeseeable Difficulties
53
Problem with Consideration: A party cannot use performance that he rendered in the past as consideration to support an agreement entered in the present
Past Consideration
54
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.
Payment of a Lesser Sum
55
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 ___________ ________
Compensatory Agreement
56
Substitution of one party for another in an existing contract
Novation
57
What are the 4 elements required for a valid contract?
(1) Offer and Acceptance (2) Contractual Capacity of the parties (3) A legal purpose and object (4) Consideration
58
Contracts are contracts “under seal”
Formal
59
When contract is under seal 2 things happen:
(a) there is a rebuttable presumption the contract is supported by consideration, and (b) statute of limitations is extended.
60
All contracts not under seal
Simple
61
Agreement that lacks one of the elements of a contract
VOID
62
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
VOIDABLE
63
Court will create (imply) a contract in order to avoid unjust enrichment. Not an actual contract
Quasi Contract
64
Quasi contract recovery is in:
Quantum Meruit
65
______ contract is an equitable action by the Court
Quasi
66
Reasonable value of good, services
Quantum Meruit
67
Eliminated most conflict of laws, but not all problems
Uniform Commercial Code
68
Not all promises are ______
Offers
69
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
Contractual intent
70
How do we determine whether a statement has been made with the intent to enter into a contractual relationship?
• 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
When does termination of an offer occur?
When offer is accepted, time expires on offer, revocation, Rejection, Rejection and Counteroffer, Death or Insanity and Illegality
72
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.
Firm Offer under the UCC
73
When can silence constitute acceptance of offer?
Implied Acceptance
74
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.
Mailbox Rule
75
Mailbox Rule
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
Communication in a unilateral contractual situation
In a unilateral contractual situation there is an offer that calls for some sort of performance.
77
Communication in a unilateral contractual situation: Acceptance is made by the performance of the act, and in general. No contract arises until
The Performance is Completed
78
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
Contractual Intent
79
The manifestation of assent must be _____ and ________ given – there are a number of circumstances that may interfere with this requirement
Freely and Voluntarily
80
5 Elements of Misrepresentation
(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
One may not actively conceal facts when there is a “____ __ _____”
Duty to Speak
82
Duress makes a contract:
Voidable
83
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”
Criminal Prosecution - Civil
84
when mistake is made only by one party – generally no relief is given.
Unilateral Mistake
85
Exception to _____ _____: when mistake is material; offeree has knowledge, and; offeree takes advantage
Unilateral Mistake
86
Where both parties are mistaken; Courts often give relief (rescission) – must be regarding “the subject matter
Bilateral Mistake
87
Exception to _____ ______: if mistake is regarding quality or value
Bilateral Mistake
88
Consideration for a promise is:
(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
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
Mutuality of Obligation
90
Rule – if the purchase of the output is strictly up to the buyer’s whim or caprice, there’s no consideration
Mutuality of Obligation
91
=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
Forbearance
92
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”
Sufficiency of Consideration
93
Means “one is not permitted to deny”
Promissory Estoppel
94
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
Promissory Estoppel Doctrine
95
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.
Promissory Estoppel Doctrine
96
Most often applied in cases of promises made for subscriptions (pledges) to “charitable subscription”
Promissory Estoppel Doctrine
