Chapter Eleven Flashcards
Sales contract
a contract for the sale of goods under which the ownership of goods is transferred from a seller to a buyer for a price
sale
the passing of title to property from the seller to the buyer for a price
tangible property
property that has physical existence and can be distinguished by the sense of touch and sight
intangible property
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
predominate factor test
a test courts use to determine whether a contract is primarily for the sale of goods or for the sale of services
merchant
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
lease
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
lease agreement
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
lessor
a person who transfers the right to the possession and use of goods to another in exchange for rental payments
lessee
a person who acquires the right to the possession and use of another’s goods in exchange for rental payments
firm offer
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.
seasonably
within a specified time period or, if no period is specified, with in a reasonable time
conforming goods
goods that conform to contract specifications
tender of delivery
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
perfect tender rule
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
cure
the rights of a party who tenders nonconforming performance to correct that performance within the contract peroid
cover
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
replevin
an action to recover identified goods in the hands of a party who is wrongfully withholding them form the other party
express warranty
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
puffery
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
implied warranty
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
implied warranty of merchantability
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
implied warranty of fitness for a particular purpose
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
course of dealing
prior conduct between parties to a contract that establishes a common basis for their understanding
usage of trade
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
product liability
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
unreasonably dangerous product
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
market-share liability
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
requirements for strict liability
- 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.
defenses to product liability claims
- assumption of risk
- product misuse
- comparative negligence (fault)
- commonly-known dangers
- knowledgeable user
unreasonably dangerous products slides
something that a court may consider a product so defective as to be an unreasonably dangerous product.
unreasonably dangerous products situations
- the product is dangerous beyond the expectation of the ordinary customer, or
- a less dangerous alternative was economically feasible for the manufacturer, but the manufacturer failed to produce it.
market-share liability notes
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.”
market-share liability notes
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.”
market-share liability some courts
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.
market-share liability some courts
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.
strict product liability
public policy
strict product liability
public policy
strict product liability public policy
- 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
strict product liability public policy
- 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
strict product liability case
Bruesewitz v. Wyeth, LLC
strict product liability case
Bruesewitz v. Wyeth, LLC
