CH 8 - Sales, Licensing, and E-Commerce

Question 1

Either implied or expressed ___ of the terms of an offer. __ can be implied when a party starts acting according to the terms of the offer they received.

Answer 1

acceptance

Question 2

Compensatory damages (identical meaning)

Answer 2

Actual damages

Question 3

A type of contract in which a seller gives an offer to a consumer without any chance to negotiate the terms, on a take-it-or-leave-it basis.

Answer 3

Adhesion contract

Question 4

the parties negotiate the essential terms of the contract (for example, quantity, quality, and delivery date) but neglect to bargain over items that are less immediately important (for example, whether disputes will be subject to arbitration, for how long a period after delivery the buyer may assert complaints of defects, or on whom the risk of loss during shipment falls)

___ refers to the not uncommon situation in which one business firm makes an offer in the form of a pre-printed form contract and the offeree responds with its own form contract. At common law, any discrepancy between the forms would prevent the offeree’s response from operating as an acceptance.

Answer 4

Battle of the forms

Question 5

The online agreement which does not require the user to explicitly accept to it to make it valid (e.g. “By continuing to use our website, you agree…”).

Answer 5

Browse-wrap agreement

Question 6

An online license agreement which requires the user of the website to consent to its terms by clicking on a button or icon.

Answer 6

Click-wrap license

Question 7

An UCC doctrine stating that one cannot be sued for not performing their part of the contract if it is made impractical by the event unforeseen by the contract.

Answer 7

Commercial impracticability

Question 8

The compensation for the economic losses which stem directly and immediately from the act that breached the contract. Damages are calculated based on the proven harm, loss, or injury suffered by the plaintiff

Answer 8

Compensatory damages

Question 9

In the context of the contract breach, it is a compensation for the losses that occur as a foreseeable and traceable, but not immediate result of the breach (as compared to direct damages)

Answer 9

Consequential damages

Question 10

A buyer’s obligation to buy substitute goods elsewhere (and be reimbursed for the extra costs by the original seller) if a seller wrongfully fails to deliver the tendered goods

Answer 10

Cover

Question 11

___ are generally the difference between the value of the performance received and the value of the performance promised as measured by contract or market value

Answer 11

Direct damages

Question 12

An exception in the Copyright law limiting the IP rights of the author/owner. This doctrine from the Copyright Act states that after a physical copy is sold, the owner of the IP rights no longer controls what the owner of the copy does with it. Internationally known as “exhaustion of rights”.

Answer 12

Doctrine of the first sale

Question 13

An explicit guarantee that the purchased good will have certain qualities, with guaranteed remedies in case it does not.

Answer 13

Express warranty

Question 14

In UCC, it is a signed offer by the merchant with indication of the time for which the offer will be kept open; if not stated, it is open for up to 3 months. it cannot be revoked.

Answer 14

Firm offer

Question 15

An item which was sold as a good and was since attached to the real property (land or real estate) and cannot be removed from it anymore. Examples: sewage pipes, electricity system.

Answer 15

Fixture

Question 16

A warranty that gives the consumer the right to a free repair or replacement of a defective product

Answer 16

Full warranty

Question 17

An item which is transferable (either physically or as a digital copy) and can be sold.

Answer 17

Goods

Question 18

___ means the designation
by marking, setting aside, or other means—of the particular goods that are to be supplied under the contract.

In some way separating goods from other common goods so that they become “assigned” to a particular sale of goods contract.

Answer 18

Identification to the contract

Question 19

A form of warranty (protection of the buyer) that is implied unless otherwise disclaimed by the seller, based on the fact that the buyer relies upon the seller to use their expertise and awareness of the buyer’s purpose to provide a suitable product/service

Answer 19

Implied warranty of fitness for a particular purpose

Question 20

A warranty that is implied unless otherwise disclaimed. To be “___”, goods must reasonably conform to an ordinary buyer’s expectations (claims/promises are fulfilled) and be suitable for use for their stated purpose

Answer 20

Implied warranty of merchantability

Question 21

In a breach of contract, these are the minor damages that a nonbreaching party incurs in mitigating damages resulting from the breach (e.g., delivery cancellation costs, goods holding costs etc.); and the expenses incurred in connection with the return or subsequent disposal of goods that are the subject of the contract

Answer 21

Incidental damages

Question 22

In case the offer and acceptance contain conflicting terms, UCC allows the court to ignore both of them and instead replace them with “UCC gap-filler provisions”.

Answer 22

Knockout rule

Question 23

A warranty which does not guarantee full replacement/repair of a defective good.

Answer 23

Limited warranty

Question 24

A person who deals in goods of the kind or, otherwise by his/her occupation hold themselves out as having knowledge or skill peculiar to the practices or goods involved in the transaction

Answer 24

Merchant

Question 25

A rule in the common law that the contract is only valid if the offer and the acceptance have the same offer terms. UCC has abolished it.

Answer 25

Mirror image rule

Question 26

A UCC rule which gives the buyer the absolute right to reject any goods in case any of the requirements of the contract are not met, such as quality or time of delivery.

Answer 26

Perfect tender rule

Question 27

An expression of opinion regarding the good; it does not provide any guarantee. It is sometimes hard to distinguish whether the statement was a warranty (presented as fact) or just ___ (opinion).

Answer 27

Puffing

Question 28

A license agreement that software purchasers can only read after purchasing it and opening the packaging.

Answer 28

Shrink-wrap license

Question 29

In case of a contract breach, it is a ruling by the court which obliges the party to perform its obligations according to the contract.

Answer 29

Specific performance

Question 30

A statute stating that certain types of contracts must be written and signed to be enforceable.

Answer 30

Statute of frauds

Question 31

If a seller is not a merchant, a risk is passed from seller to buyer once seller informs the buyer that the goods are ready for delivery; this announcement is called ___.

Answer 31

Tender of delivery

Question 32

It is the quality of being oppressive or unfair. If the contract is ___, court can rule against enforcing its clauses or even entire contract.

Answer 32

Unconscionability