Chapter Eleven

Question 1

Sales contract

Answer 1

a contract for the sale of goods under which the ownership of goods is transferred from a seller to a buyer for a price

Question 2

sale

Answer 2

the passing of title to property from the seller to the buyer for a price

Question 3

tangible property

Answer 3

property that has physical existence and can be distinguished by the sense of touch and sight

Question 4

intangible property

Answer 4

property that cannot be seen or touched but exists only conceptually, such as corporate stocks and bonds. Article 2 of the UCC does not govern intangible property

Question 5

predominate factor test

Answer 5

a test courts use to determine whether a contract is primarily for the sale of goods or for the sale of services

Question 6

merchant

Answer 6

a person who is engaged in the purchase and sale of goods. under the UCC, a person who deals in goods of the kind involved in sales contract or who holds herself or himself out as having skill or knowledge peculiar to the practices or goods being purchased or sold

Question 7

lease

Answer 7

under article 2a of the UCC, a transfer of goods, an agreement in which one person (the lessor) agrees to transfer the right to the possession and use of property to another person (the lessee) in exchange for rental payments

Question 8

lease agreement

Answer 8

in regard to the lease of goods, an agreement in which one person (the lessor) agrees to transfer the right to the possession and use of property to another person the (the lessee) in exchange for rental payments

Question 9

lessor

Answer 9

a person who transfers the right to the possession and use of goods to another in exchange for rental payments

Question 10

lessee

Answer 10

a person who acquires the right to the possession and use of another’s goods in exchange for rental payments

Question 11

firm offer

Answer 11

an offer (by a merchant) that is irrevocable without the necessity of consideration for a stated period time or, if no definite peroid is stated, for a reasonable time (neither period to exceed three months). A firm offer by a merchant must be in writing and must be signed by the offeror.

Question 12

seasonably

Answer 12

within a specified time period or, if no period is specified, with in a reasonable time

Question 13

conforming goods

Answer 13

goods that conform to contract specifications

Question 14

tender of delivery

Answer 14

under the UCC, a seller’s or lessor’s act of placing conforming goods at the disposal of the buyer or lessee and giving the buyer or lessee whatever notification is reasonably necessary to enable the buyer or lessee to take delivery

Question 15

perfect tender rule

Answer 15

a rule under which a seller or lessor is required to deliver goods that conform perfectly to the requirements of the contract. A tender of nonconforming goods automatically constitutes a breach of contract

Question 16

cure

Answer 16

the rights of a party who tenders nonconforming performance to correct that performance within the contract peroid

Question 17

cover

Answer 17

under the UCC, a remedy that allows the buyer or lessee, on the seller’s or lessor’s breach, to obtain the goods, in good faith and within reasonable time, from another seller or lessor and substitute them for the goods due under the contract

Question 18

replevin

Answer 18

an action to recover identified goods in the hands of a party who is wrongfully withholding them form the other party

Question 19

express warranty

Answer 19

a seller’s or lessor’s written promise, ancillary to an underlying sales, or lease agreement, as to the quality, description, or performance of goods being sold or leased

Question 20

puffery

Answer 20

a seller’s or lessor’s exaggerated claims concerning the quality of goods. Such claims involve opinions rather than facts and are not considered to be legally binding promises or warranties

Question 21

implied warranty

Answer 21

a warranty that the law derives by implication or inference from the nature of the transaction or the relative situation or circumstances of the parties

Question 22

implied warranty of merchantability

Answer 22

a warranty that goods being sold or leased are reasonably fit for the ordinary purpose for which they are sold or leased, are properly packaged and labeled, and are of fair quality. The warranty automatically arises in every sale or lease of goods made by a merchant who deals in goods of the kind sold or leased

Question 23

implied warranty of fitness for a particular purpose

Answer 23

a warranty that goods sold or leased are fit for a particular purpose. The warranty arises when any seller or lessor knows the particular purpose for which a buyer or lessee will use the goods and knows that the buyer or lessee is relying on the skill and judgement of the seller or lessor to select suitable goods

Question 24

course of dealing

Answer 24

prior conduct between parties to a contract that establishes a common basis for their understanding

Question 25

usage of trade

Answer 25

any practice or method of dealing having such regularity of observance in a place, vocation, or trade as to justify an expectation that it will be observed with respect to the transaction in question

Question 26

product liability

Answer 26

the legal liability of manufacturers, sellers, and lessors of goods to sonsumers, users, and bystanders for injuries or damage that are caused by the goods

Question 27

unreasonably dangerous product

Answer 27

in product liability law, a product that is defective to the point of threatening a consumer’s health and safety. a product will be considered unreasonable dangerous if it is dangerous beyond the expectation of the ordinary consumer or if a less dangerous alternative was economically feasible for the manufacturer, but the manufacturer, failed to produced it

Question 28

market-share liability

Answer 28

a theory under which liability is shared among all firms that manufactured and distributed a particular product during a certain period of time. This forms of liability sharing is used only when the true source of the harmful product is unidentifiable

Question 29

requirements for strict liability

Answer 29

1. the product must be in defective condition when the defendant sells it. 2. defendant must be normally engaged in the business of selling (or distributing) that product. 3. product must be unreasonably dangerous. 4. plaintiff must incur physical harm to self or property 5. defective condition must be the proximate cause of the injury/ damage 6. goods must not have been substantially changed from the time the product was sold to the time of injury/ damage.

Question 30

defenses to product liability claims

Answer 30

• assumption of risk
• product misuse
• comparative negligence (fault)
• commonly-known dangers
• knowledgeable user

Question 31

unreasonably dangerous products slides

Answer 31

something that a court may consider a product so defective as to be an unreasonably dangerous product.

Question 32

unreasonably dangerous products situations

Answer 32

1. the product is dangerous beyond the expectation of the ordinary customer, or
2. a less dangerous alternative was economically feasible for the manufacturer, but the manufacturer failed to produce it.

Question 33

market-share liability notes

Answer 33

as a general rule, the plaintiff in a products liability lawsuit “must prove that the defective product that caused his or her injury was the product of a specific defendant.”

Question 33

market-share liability notes

Answer 33

as a general rule, the plaintiff in a products liability lawsuit “must prove that the defective product that caused his or her injury was the product of a specific defendant.”

Question 34

market-share liability some courts

Answer 34

however have “dropped this requirement when plaintiffs could not prove which of many distributors of a harmful product supplied the particular product that caused the injuries.

Question 34

market-share liability some courts

Answer 34

however have “dropped this requirement when plaintiffs could not prove which of many distributors of a harmful product supplied the particular product that caused the injuries.

Question 35

strict product liability

Answer 35

public policy

Question 35

strict product liability

Answer 35

public policy

Question 36

strict product liability public policy

Answer 36

• consumers should be protected against unsafe products
• manufactures/sellers should not escape liability because no privity
• manufactures/sellers in a better position than consumers to bear the costs associated with injuries

Question 36

strict product liability public policy

Answer 36

• consumers should be protected against unsafe products
• manufactures/sellers should not escape liability because no privity
• manufactures/sellers in a better position than consumers to bear the costs associated with injuries

Question 37

strict product liability case

Answer 37

Bruesewitz v. Wyeth, LLC

Question 37

strict product liability case

Answer 37

Bruesewitz v. Wyeth, LLC