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ACTG 2P40 > Exam > Flashcards

Exam Flashcards

1
Q

Tort - general damages

A

Damages that can’t be calculated.

Ex. Pain & suffering from injuries, disability, mental health, loss of benefits, reduced quality of life

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2
Q

Tort - special damages

A

Damages that can be calculated

Ex. Loss of income, medical expenses, property damages

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3
Q

Verbal & physical torts (list 3 and describe)

A

Assault: no touching, put person in state of fear & anxiety, intentional. Ex. Threatening

Battery: unwanted touching, harmful or not, intentional. Ex. Getting operation for something didn’t give consent to, getting hit. (Defence: 1. Consent 2. Self-defence)

Defamation: false statement to detriment a person

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4
Q

Types of defamation (2) & its defences

A

Libel: written & broadcasted

Slander: verbal & published

Defence:
1. Justification
2. Fair comment
3. Absolute privilege (in parliament)
4. Qualified privilege (doctors, lawyers, etc)

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5
Q

Property torts (list 3 & describe)

A

Invasion of property: when privacy is expect (ex. Looking though window)

Trespassing: going onto property without permission or invitation, or permission revoked

Nuisance: inappropriate use of property (private & public)

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6
Q

Unintentional tort

A

Negligence: creates conduct causing injury, unintentional

Involves:
1. duty of care for normal individuals
2. Standard of care for professionals

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7
Q

Types of negligent liabilities (list 3)

A
  1. Occupiers liability
  2. Product liability
  3. Professional liability
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8
Q

Occupiers liability

A

Owner, tenant, landlord decide who enters property & must keep property safe

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9
Q

3 type of people that can enter properties & describe, when liable or not

A
  1. trespassers: have no legal right or permission to enter. LIABLE: if injured in traps set up. NOT LIABLE: injured on own accord
  2. Licensee: have permission to enter. LIABLE: don’t tell of hazards & get hurt. NOT LIABLE: tell & don’t listen.
  3. Professional liability: not doing job properly.
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10
Q

Fiduciary duty

A

Highest duty. Doing or providing service in best interest of client without personal gain. Exists only when trust exists.

Ex. Doctor-patient, lawyer-client

Liable when:
1. Talk about patients’ condition in public
2. Lawyer goes into trust fund
3. Lawyer buys house from client
4. Architect overcharges for original price

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11
Q

Product Liability

A
  1. Product fails to work how intended
  2. Companies have duty to warn customers if dangers & have duty to compensate to repair
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12
Q

Vicarious liability

A

Company/employer liable for actions of employee.

  • when done during work time with work related objects
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13
Q

Strict liability

A

Removes the onus on the plaintiff to show the defendant is at fault. No proof required for negligence.

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14
Q

Business torts (list 4)

A
  1. Fraud
  2. Product defamation
  3. ER stealing EE’s from companies (inducing breach of contract)
  4. Taking others’ property
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15
Q

Public nuisance

A

Unreasonable use of public amenities.

Ex. Roads & parks

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16
Q

Private nuisance

A

Unreasonable use of property.

Ex. Loud noise, property damage

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17
Q

Other torts (list & describe 4)

A
  1. Inducing breach of contract
  2. Unlawful interference with economic benefits (inducing person to discontinue business with another)
  3. Unlawful means (trigger civil liability under common law)
  4. Product defamation (false & damaging statements about products)
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18
Q

Restitution

A

Order to restore property wrongfully taken

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19
Q

Injunction vs mandatory injunction

A

Injunction: court order restraining party of doing something

Mandatory injunction: order party to do something

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20
Q

Duty of account

A

Duty of person committing breach to give back profits earned from breach

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21
Q

Contact terms (4)

A

Terms

Acceptance

Consideration

Offer

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22
Q

Acceptance: must be

A

must be communicated & completed exactly how contract says (silence can be acceptance).
Counteroffer is a rejection

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23
Q

Post-box rule (acceptance)

A

through carrier, accepted when sent

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24
Q

Consideration

A

exchange of goods, $ or services must happen for every item involved in contract

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25
Q

Gratuitous promise

A

promise to give something without being given something back
(consideration only goes 1 way)

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26
Q

Quantum meruit

A

the amount one deserves

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27
Q

Offer

A

tentative promise of participation in contract. An intention to enter contract must exist. Must contain all important terms (parties involved, price, acceptance terms, property involved, etc)

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28
Q

Invitation to treat

A

ads, catalogues, discounts. Are not offers.

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29
Q

What results in an end of offer (4)

A
  1. Insanity/death of offeror
  2. Revocation
  3. Rejection or counteroffer
  4. Option agreement (open til certain time and date)
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30
Q

Standard form contract

A

have no bargaining power over. Ex. Phone plans

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31
Q

Statute of frauds

A

needs purchase of land, marriage, leases, debt, contracts of 1 year, high value
sales. If not in writing, unenforceable

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32
Q

Summary judgement

A

claim is so silly it’s decided outside court

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33
Q

If offer not accepted what happens

A

Offer lapses

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34
Q

If request service & is performed what is expected

A

payment is implied

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35
Q

Revocation takes effect when

A

received

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36
Q

Promises between family members are

A

not enforceable

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37
Q

If no intention to form contract is shown it is

A

Not enforceable

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38
Q

If contract has seal & authenticated but lacks consideration it is

A

enforceable

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39
Q

Negative option billing

A

adding services & sending bills without request & relying on customer to notice & cancel

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40
Q

For a contract to be valid it requires (3)

A
  1. Each party to have requisite capacity
  2. Contract must not be contrary to law
  3. Contract entered voluntarily by each party (can repudiate as soon as sober if intoxicated or bc of insanity)
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41
Q

Can‘t enforce contracts that were made for (3)

A
  1. Illegal acts
  2. Gambling acts
  3. Bankruptcy (sell home b4 declare to save it from being taken)
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42
Q

Void contract

A

was never a contract, parties free from obligations & return exchange of goods

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43
Q

Voidable contract

A

1 party has option to get out of contract

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44
Q

Rescission

A

allows a party to cancel the contract

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45
Q

Minors can enter contracts + exceptions

A
  • can’t have contracts enforced on them except when are for
  1. necessaries
  2. Beneficial contracts of services (ex. Employment)
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46
Q

Restrictive covenants (list & describe 3)

A
  1. Non disclosure agreement (can’t discuss)
  2. Non solicitor agreement (can’t use or contract another business’ customers)
  3. Non competition agreement (can’t work for a competitor company)

*Not given out often since it can affect an individuals economic situation

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47
Q

Contract disputes happen for (3)

A
  1. Contract
  2. Conduct
  3. Performance
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48
Q

Contract mistakes happen for (3)

A
  1. Terms
  2. Assumptions
  3. Performance
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49
Q

Shared mistake

A

all parties made same mistake, contract is void bc of lack of consensus or mistake in recording

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50
Q

Mutual mistake

A

courts imply interpretation since parties have different understandings.

*if reasonable understating is reached contract is void

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51
Q

Misrepresentation

A

mislead / induce person to enter contract

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52
Q

Misrepresentation types (list 3)

A
  1. Deceit (fraudulent) misrepresentation
  2. Innocent misrepresentation
  3. Negligent misrepresentation
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53
Q

Deceit / fraudulent misrepresentation + elements (4)

A
  • victim seeks damages & rescission, intentional, results in loss & damages.
  • If innocent & become aware of mistake but still don’t do anything to correct, fraudulent.

Elements
1. Misrepresentation committed by defendant
2. Defendant had knowledge of falseness
3. Falseness causes plaintiff to act
4. Actions result in a loss

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54
Q

Innocent misrepresentation

A

mislead without knowing, carelessness.

Ex. Goods destroyed & can’t remedy

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55
Q

Negligent misrepresentation

A
  • should have known of falseness, carelessness.
  • Made an incorrect statement without care for its accuracy.
  • Only requires breach of duty of care & skill
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56
Q

Duress

A

→ entering contract bc of coercion, threats which can come from a non-contract party

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57
Q

Undue influence

A

→ abuse thrust, voidable, control of mind of other party to deprive them of independent decision making

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58
Q

Unconscionability

A

→ take advantage of vulnerable person’s situation ex. Poverty, mental impairment,
unequal bargaining power

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59
Q

Non est factum

A

→ not my fault. Places loss on person guilty of carelessness & depends on each case

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60
Q

Minor is a person who is

A

→ less than the age of maturity

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61
Q

Ratify

A

→ awcknoledges & promises to perform

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62
Q

If a minor reaches minority age, a contract will continue to be unenforceable until it is →

A

ratified

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63
Q

Contracts made by minors are →

A

can’t be enforceable against them

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64
Q

Repudiate

A

→ reject/declare intention to not be bound

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65
Q

Severed

A

→ cut from document, contract, etc.

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66
Q

Unconscionable and voidable contracts happened when

A

→ those created between parties with unequal bargaining power

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67
Q

Rectification of contract

A

→ changing part of the contract that is incorrect. Must show attempts to reach understanding failed

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68
Q

Rescind

A

→ undo/revoke contract, parties return to original positions & goods & $ are return to
respective parties

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69
Q

Common mistake

A

→ believe the same mistake

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70
Q

Unilateral mistake

A

→ 1 is wrong, 1 knows truth

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71
Q

Exemplary damages

A

→ awarded to punish wrongdoer

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72
Q

Performance

A

completion of obligations in contract. Each party must be aware of completion & ending of contract

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73
Q

(Performance) Minor breach means

A

→ don’t end contract

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74
Q

Performance - Major breach means

A

end contract, breach of contract

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75
Q

Substantial performance

A

→ when all but trivial obligations are completed. Ex. doors. During this
contract ends, entitled to damages to fix defects

76
Q

Tender of performance

A
  • attempt to perform obligations, indicate willingness, readiness, & ability
    to complete.
  • If buyer rejects delivery, seller not entitled to return & can sue for breach of contract
77
Q

Ways to end contract & describe (5) ↓

A
  1. Performance: complete or perform obligations
  2. Agreement: agree to not continue
  3. Frustration: unforeseen event makes it impossible to perform obligations or complete contract or changes it completely
  4. Operation of law: statute reqs end of contract (bankruptcy & stature of limitations (have to file within time frame))
  5. Breach of contract
78
Q

(Agreement) Waiver

A

→ ends contract when parties agree not to perform. Can be gratuitous if waiver
under seal

79
Q

(Agreement) new agreement

A

→ the original contract is replaced by substitute

80
Q

(Agreement) clause + 2 types of condition

A
  • discharges on occurrence of condition (condition precedent or subsequent)

Condition subsequent → an uncertain event occurs & ends contract. Ex. Will keep job provided that get certification

Condition precedent → gets something provided that something is completed. ends when certain condition is not met. Ex. Gets job provided get certification, get home provided get loan

81
Q

Novation

A

→ a type of contract that terminates the original contract & substitutes it for a new one bc of a change in terms or change in parties

82
Q

Self-induced frustration

A

→ party purposefully disables themselves from performing contract so it can
be frustrated. Breach of contract

83
Q

Frustration with sale of goods happens when (3) ↓

A
  1. Goods are specific, identified & agreed upon during sale
  2. Risk will be with seller who will responsible for safety of goods
  3. Frustration must occur bc perishing/destruction of goods
84
Q

For contract to be discharged by frustration (4) ↓

A
  1. Obligations become impossible to perform
  2. Long delay occurs
  3. No party is in default
  4. Each party is innocent
85
Q

Express vs implied repudiation

A

Express repudiation → verbal or written intention to not perform

Implied repudiation → intention to not perform is implied though lack of or actions

86
Q

Anticipated breach

A

→ express repudiation that happens b4 time agreed to perform

87
Q

Condition vs warranty

A

Condition → essential term of contract, would result in breach of condition & contract

Warranty → non-essential term of contract. If fails to perform & results in breach of warranty, innocent party must still perform but can sue for damages

88
Q

Limitation of liability clause

A

→ places limit on amount of damages paid for a breach of contract

89
Q

Liquidated damages clause →

A

negotiated estimate of amount of damages that would follow a breach of contract

90
Q

Exclusion clause →

A

removes liability & damages after certain specified breaches

91
Q

Indemnification →

A

promise to bear monetary costs for loses & damages incurred by another party

92
Q

Remedies (list) for breach of contract: common law damages (5) & equitable remedies (4) ↓

A

common law damages
1. (Award of damages) punitive damages
2. (Award of damages) expectation damages
3. (Award of damages) reliance damages
4. General damages
5. Consequential damages

Equitable damages
1. Specific performance
2. Injunction
3. Rescission
4. Quantum meruit

93
Q

What are award of damages & type of award damages (list and describe 3) ↓

A

Why award of damages: done to put victim in economic position that would have been in had contract been completed

Types:
1. Punitive damages: a set of amount to punish party for breach

  1. Expectation damages: compensation for loss of profit
  2. Reliance damages: compensation for expenses incurred bc relied on performance of contract
94
Q

Quasi-contract

A

→ obligation arises bc party received unfair benefits @ expense of other

95
Q

Restitution

A

→ done to enrich defendant & restore benefit

96
Q

Between time of contract formation & date of performance promisee is entitled to →

A

continuous expectation of performance

97
Q

Sales of goods act & what it doesn‘t apply to ↓

A
  • applies to tangible goods
  • Doesn’t apply to property, services, exchange of goods without $, bailments or leases, provision of services, consignments
98
Q

Sales of goods act - Contract exists when

A

→ goods are exchanged for $ or transfer of ownership in future (order made for item)

99
Q

Terms of sales of goods (4)↓

A
  1. Should inspect good
  2. Should be of certain quality
  3. Breach of condition = breach of contract = ends contract
  4. Breach of warranty = damages = contract doesn‘t end
100
Q

Implied condition in sales of goods (5)↓

A
  1. Goods sold by description must conform to description
  2. Goods sold by sample must correspond to sample
  3. Seller has rights to sell item
  4. Goods fit for purpose & do what they are supposed to
  5. Goods have merchantable quality (no defects)
101
Q

Implied warrants in sales of goods (2) ↓

A
  1. Buyer gets quite possession
  2. Goods free of debt
102
Q

Ownership & title with condition sales agreement (instalment agreement) →

A

possession will be with seller while title passes as a security for payment

103
Q

Title can be passed by →

A

owners or selling agents.

  • If sold fraudulently, innocent party retains
    ownership & original owner doesn’t have recourse against the innocent party.
104
Q

Title passing rules (list & describe 5) ↓

A

Rule 1 - specific goods if deliverable: a specific item in store, like sample chair, in a deliverable
state (can be taken home rn). Ownership passes when contract is made

Rule 2 - not yet in deliverable state: good is modified, title passes when modifications complete & buyer is notified & given enough time to pick up

Rule 3 - weigh for pricing: if good must be weighed, measured/tested, title passed when act is completed & buyer notified

Rule 4 - delivered on approval: goods delivered when buyer & seller agree, title passes when buyer signifies acceptance or keeps goods for (un)specified amount of time

Rule 5 - goods not identifiable: not yet manufactured. Title passes when there’s unconditional appropriation & buyer counsels

105
Q

Bill of landing →

A

proof of title & contract

106
Q

Title Remedies of seller (6) ↓

A
  1. Sellers’ lien - can keep property until payment
  2. Repossession - if seller still has good, buyer needs to let seller know it b4 sale
  3. Resale
  4. Damages for non-acceptance
  5. Action for the price
  6. Retention of deposit
107
Q

Remedies for buyer with sale of goods (5) ↓

A
  1. Rescission or damages for misrepresentation - can reject it, if not get all of order at once
  2. Refuse paying if breached
  3. Partial payment if breached
  4. Performance if goods paid but not delivered
  5. Defective goods led to injury
108
Q

Consumer contracts involve (4) ↓

A
  1. Cooling-off period
  2. Don’t have to pay for what didn’t ask for
  3. Deceptive telemarketing
  4. True cost of credit must be disclosed
109
Q

Contract of sale vs agreement of sale →

A

contract of sale is transfer of goods for $ / agreement of sale is transfer of ownership

110
Q

If good is not delivered on time buyer can →

A

rescind contract

111
Q

If get delivered a substantially different quantity buyer can →

A

reject goods

112
Q

if goods are damaged or lost →

A

buyer or seller must compensate for loss

113
Q

When title has passed to buyer they are entitled to →

A

pay full price or remaining $ despite not having
delivered yet

114
Q

If pay a down-payment & title has not transferred & buyer rejects →

A

seller can retain downpayment for damages from non-acceptance & gives back any surplus

115
Q

If pay a down-payment & title has transferred & buyer repudiates →

A

seller can retain downpayment & sue for balance owed

116
Q

If pay a down-payment & seller still has ownership →

A

must return all of downpayment

117
Q

Wrongful detention →

A

is when seller refuses to deliver goods who title already passed

118
Q

Ownership & possession are →

A

separate concepts.

Ownership means have title of good.

Possession means have item but not title

119
Q

Caveat emptor & when it applies →

A

let buyer beware the seller has made a misrepresentation of goods, buying at own risk so if good has issues after its the buyer’s risk

120
Q

Seller of stolen goods can be sued for →

A

breach of implied condition

121
Q

Employee policy manual contains & ERs must (6) ↓

A
  • has dress code, benefit entitlement, harassment policy, reduce potential for wrongful dismissal actions
  1. Give employees a copy
  2. Clearly drafted
  3. Applied consistently
  4. Have up-to-date copies
  5. Give notice
  6. EEs are aware of consequences
122
Q

If minor changes are made what happens to contract→

A

ratify & give new copy

123
Q

Major changes example →

A

asking to move away

124
Q

Managing employees methods (6) ↓

A
  1. Performance appraisals
  2. Progressive discipline
  3. Probation
  4. Suspension without pay
  5. Temporary layoffs
  6. Attendance management
125
Q

Characteristics of independent contractor (9)↓

A
  1. Hired to complete task or deliver result for fee
  2. Owns tools
  3. Controls hours & time of work
  4. Controls how work is done
  5. May work for others
  6. No tax, pension, benefit or government deductions withheld from payment
  7. Invoices for work done & charges tax
  8. Pays own expenses
  9. Assumes risk of profit or loss
126
Q

Dismissal with cause entails →

A

being let go without severance pay

127
Q

To get severance pay (2)

A
  1. company must have $2.5M in payroll
  2. employee must have worked for 5 years
128
Q

Near cause →

A

misconduct or incompetence falls short of serious

129
Q

Just case dismissal means an EE…& allegation requirements (3)↓

A
  • employee Has committed significant breach & is no longer bound by its obligations of notice or pay
  1. EE must be given time to respond to allegations
  2. Allegation investigated
  3. Investigation is confidential
130
Q

Culpable & innocent absenteeism

A

Culpable absenteeism → a single incident rarely justifies just cause

Innocent absenteeism → if absences result from disability, not just cause

131
Q

Can‘t fire for just cause for (6) ↓

A
  1. Human rights
  2. Pregnancy leave
  3. Refusal of unsafe work
  4. Absence for work-related cause
  5. Pay equity
  6. Union-related activity
132
Q

Dismissal without cause means ERs must give →

A

must give notice or pay lieu of notice

133
Q

3 things used to determine length of notice & payment↓

A
  1. Employment contract
  2. ESA
  3. Common law
134
Q

Wrongful dismissal (dismissed without cause) →

A

happens when contract doesn’t have termination provision & ER doesn’t follow law requirements

135
Q

Bardal factors looked at to determine reasonable notice (7) ↓

A
  1. Length of service (1 week for e/ year, up to 8 weeks for 8+years
  2. Character of employment (seniors get more time)
  3. Employees’ age (elders get longer notice)
  4. Availability of similar employment (employees’ marketable skills & economic climate)
  5. Secondary factors like being pregnant, poor language skills
  6. Education or training
  7. Experience
136
Q

Provide working notice when employee is →

A

when employee can remain productive and motivated

137
Q

Provide pay in lieu of notice when employee is →

A

when employee is terminated because of poor performance or access to sensitive info

138
Q

Pay in lieu of notice is

A

pay would have earned during notice period

139
Q

Duty to mitigate →

A

employees must do everything to fine work and mitigate damages

140
Q

Wrongfully dismissed employees are entitled to (7) ↓

A
  1. Salary (raises, commissions, overtime pay)
  2. Benefits (discounts)
  3. Company car (if provided for personal use)
  4. Insurance (life, death, disability, dental)
  5. Bonuses (if part of compensation package)
  6. Stock options (unless stated)
  7. pensión entitlement
141
Q

Remedies for wrongful dismissal from ER to EE (6)↓

A
  1. payment in lieu of notice
  2. Damages of mental anguish, pain and suffering
  3. Special damages with cost of mitigation
  4. Moral, punitive damages
  5. Reduction for failure to mitigate damages
  6. Reinstatement
142
Q

Constructive dismissal occurs when

A

→ when ER makes fundamental change to contract without giving reasonable
time.

Employee resigns & claims damages or rejects new terms & sues constructive dismissal

143
Q

Constructive dismissal happens with (5)↓

A
  1. Changes to compensate package/duties
  2. Change in location
  3. Change in hours and scheduling
  4. Unauthorized layoffs
  5. Workplace harassment & untenable work environment
144
Q

Wallace damages →

A

when ERs fail behave appropriately and give extended notice to compensate for mental distress from poorly handled dismissal

145
Q

Dismissal without notice & with cause happen because (2) ↓

A
  1. Violates essential term of employment
  2. Breaches faith in relationship or fundamentally conflicts with employees’ obligations with employer
146
Q

Jurisdictional vs Recognition vs Interest vs Rights disputes →

A

Jurisdictional dispute → disagreement between unions competing to represent

Recognition dispute → arises between ER & union when negotiating contracts

Interest dispute → between ER & union when can’t reach agreement with terms to be involved in collective agreement

Rights dispute (grievance) → difference in opinion between employer & union on interpretation of terms in collective agreements

147
Q

A record of employment insurance must be made when →

A

earnings interruptions & must be done within 5 days

148
Q

Employment insurance interruptions may occur because (3) ↓

A
  1. EE resigns or is dismissed
  2. Had 7 consecutive days without work
  3. Bc of injury etc receives less than 60% of earnings
149
Q

Classes protected under OHRC (17) ↓

A
  1. Citizenship
  2. Race
  3. Place of origin
  4. Ethnic origin
  5. Colour
  6. Ancestry
  7. Disability (includes physical, malformation, disfigurement, brain injury, blindness, learning disability, pregnant, disorder, drugs & alcohol addiction
  8. Age
  9. Creed (religion)
  10. Sex
  11. Sexual orientation
  12. Gender identity
  13. Gender expression
  14. Marital status
  15. Family status
  16. Receipt of public assistance (housing)
  17. Record of offences (in employment)
150
Q

Meiorin test - Bona Fide Occupational requirements (3) ↓

A
  1. Adopted for purpose connected to performance of job
  2. Adopted in belief it was necessary to satisfy business purpose
  3. Necessarily to accomplish purpose & impossible to accommodate without undue hardship
151
Q

Undue hardship + factors involved (3) ↓

A
  • point at which ER not expected to accommodate anymore
  1. Cost
  2. Health & safety requirements
  3. Outside source funding
152
Q

For costs to be considered for undue hardship they must be (3) ↓

A
  1. Quantifiable compared to options
  2. Related to accommodation (ex. Cause bankruptcy for company)
  3. So substantial will alter the essential nature & affect its viability
153
Q

When determining undue hardship courts will look at (5) ↓

A
  1. Financial cost
  2. Employee morale
  3. Facility requirements
  4. Disruption of collective agreement
  5. Inter-changeability of workplace
154
Q

Balance of probabilities →

A

More likely than not to have occurred

155
Q

over-qualification

A

→ disproportionately discriminates immigrants

156
Q

Prima facie

A

→ on surface looks like this

157
Q

Direct & indirect discrimination examples

A

Direct discrimination example → “Irish cant apply”

Indirect discrimination example → ”must be 6’1 & press 250 lb

158
Q

Duty to accommodate also applies to →

A

unions

159
Q

Drug & alcohol test only permitted when (4) ↓

A
  1. Safety sensitive positions (ex. Driving car)
  2. Workplace accidents that suggest impairment
  3. Random alcohol (not drug) testing in safety-sensitive areas
  4. Random testing for employees identified for having a problem
160
Q

Workplace harassment →

A

doesn’t require a formal complaint & parties other than victims can report it

161
Q

Sexual harassment + what courts consider to determine remedy (7) ↓

A

have rights to be free of harassment

  1. Nature of harassment (verbal or physical)
  2. How aggressive
  3. Length of time it lasted
  4. Frequency
  5. Age (ex. If older should know what’s appropriate or not)
  6. Vulnerability of victim
  7. Psychological impact
162
Q

Patent + what it must be to be eligible (4) ↓

A
  • for a creation of a work
  1. Have a physical form or be capable of having a physical form
  2. Must be new (absolute novelty: not in use or patented by another)
  3. Be useful ex. Makes process cheaper
  4. Not obvious (inventive ingenuity)
163
Q

Abuse of patent rights occur when (3) ↓

A
  1. Demand for patented article is not met
  2. Patentee is hindering creation of new industry or allowing or licenses to be granted
  3. Anyone involved in unfairly prejudiced
164
Q

Trademarks ↓

A
  • protects words, shoals & pictures associated with a firm’s name, brand or product
  • Expires after 15 years but can renew if keep product in commerce
  • If not registered gives rights to it only based on geographical area
  • Ex. Just do it or I’m lovin’ it
165
Q

Certification mark vs distinguishing guise

A

Certification mark → identifies good or service

Distinguishing guise → packaging or wrapping of product

166
Q

Copyright + when does registration happen ↓

A

Copyright: for literary works, computer software, dramatic works (tv), live broadcast, musical & artistic works, performances

  • registration happens with the creation of work
167
Q

Rights given with copyrights (7) ↓

A
  1. Right to reproduce or produce
  2. Right to perform work in public
  3. Right to publish work
  4. Right to translate work
  5. Right to convert work into another
  6. Right to make a recording
  7. Right to authorize all the above
168
Q

Duration of copyright ↓

A
  • 50 years after 1st photo taken
  • 50 years after cinematography 1st published
  • 50 years for posthumous work not yet posted
  • 50 years after last survivor’s death for joint authored
169
Q

Remedies of copyright infringements →

A

statutory damages $

170
Q

Franchising →

A

Legal relationship between owner of trademark and individual given rights to use identification of business.

Some assets are provided by franchiser & business operates under franchisor guidance

171
Q

Franchising agreement includes (11) ↓

A
  1. Costs
  2. Franchise fee
  3. Royalty fee
  4. Advertising fee
  5. Premises (lease or own)
  6. Use of trademarks
  7. Training requirements
  8. Use of operation manuals
  9. Purchase products & supplies
  10. Territorial protection
  11. Term, renewal rights, resale & termination
172
Q

Franchising disclosure documents include (7) ↓

A
  1. Business background
  2. Outstanding litigations (if being sued)
  3. Bankruptcy, insolvency, criminal proceeding
  4. Names & addresses of former franchisees
  5. Ad fund commitments
  6. Financial statements
  7. Earnings claim
173
Q

Sole proprietorship →

A
  • created as sons as person starts business.
  • Owner is the business & income taxed as personal tax.
  • Unlimited liability: liable for all debts & taxes
174
Q

Partnerships ↓

A
  • between 2 or more people
  • Share liabilities & debts of each other
  • Share costs
  • Vicariously liable
  • Can be created through contracts or implied conduct or by estoppel
  • Have fiduciary duty
  • If one doesn’t have money, the other pays or it
175
Q

Estoppel →

A

prevents person from arguing what they previously said or agreed to by law

176
Q

When does dissolution of partnerships occur (5) ↓

A
  1. Death, bankruptcy or insolvency of a partner, retirement, mentally incompetent (exception clauses can be put into agreement)
  2. Person gives notice
  3. Completion of project
  4. Activity becomes illegal
  5. Court order
177
Q

Limited partners →

A

liability is limited to amount invested by person (but only if name of person is not on business name or is in management of business

178
Q

Limited liability partnerships →

A

protects other partners from negligent acts or omissions of the partners. One partner has to have unlimited liability. If get into management lose limited liability. Not restricted to their professions.

179
Q

Corporation ↓

A
  • separate legal entity.
  • Has right separate from the shareholders & directors.
  • Limited liability.
  • If someone gets hurt in business, landlord is responsible if the unsafe conditions were created by landlord
180
Q

Broadly-held vc closely-help corporations

A

Broadly-held corporations ↓
1. Public reporting corporations
2. Shares traded in stock market
3. Highly regulated

Closely-held corporations ↓
1. Private & few shareholders
2. Shareholders agreement
3. Restrictions on free transfer of shares

181
Q

Corporation Shareholders can & owe (4)↓

A
  1. Owe no duty to corporation
  2. Separate from corporation
  3. Right to vote
  4. Elect directors & CEOs
182
Q

Type of shareholder rights in corporations (list & describe 3) ↓

A

Oppression action: for actions negatively impacting corporation & shareholders

Pre-emptive rights: new shares must be offered to existing shareholders 1st

Representative actions: minority shareholder brings action for damage on behalf of corporation

183
Q

Limited liability in corporations ↓

A
  • Debt & liabilities stay with corporation (other participants not liable)
  • If criminal activities (fraud, some cases actions may be brought to individual rather than corporation)
  • Management separate from corporation & answers to directors
184
Q

Joint liability

A

where each person is liable for the full amount of debt

185
Q

Joint venture ↓

A
  1. Agreement between 2 or more parties to collaborate on managing a project
  2. Spreads risk amount members
  3. No creation of separate legal entity

ACTG 2P40 (1 decks)

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