EXAM 2 Flashcards
What are intentional Torts?
When the wrongdoer intends to impinge upon a protected interest and knew ( or should have known) the resulting consequences (Injuries)
Someone intends to do something wrong to the plaintiff. Intent the action the result doesn’t matter intent does.
What does scienter mean in fraud?
The defendant knew the information they were giving the plaintiff was false.
If the plaintiff knew the information given them by the defendant was false do they win or lose?
They lose. You can only win if you thought it was the truth and relied on it. If you knew it was false you lose on fraud.
SIAVAGE v. Gandy what does it hold and what are some details?
Anyone including a lawyer can be liable for fraud if they participate in the fraud.
Who can sue for fraud?
Only the parties who were directly involved in the fraud can sue for fraud. only those harmed can sue.
What are the two forms of misrepresentation?
Negligent or intentional.
What does intentional interference with contractual relations mean?
Wrongful interference in a contract with between a plaintiff and another party with the defendant. Ex - defendant interview in a contract and the contract fell through.
What is the holding of Techno Lite v. EMCOD? And give case details.
The court said employees violating a promise not to compete is fraud.
Employees were working in their own company while working in another company and they promised
What was the holding of MacPherson v. Buick? Give case details.
If you are the final manufacturers must inspect the parts put on the cars otherwise they are liable.
What is express warranty? How does it work with strict liability?
Make a promise it will work a certain way or function a certain way and it doesn’t there’s strict liability.
What does modern strict liability law entail?
Manufacturers and retailers are still liable even if the product wasn’t purchased directly from them
What was the holding of Baxter v. Ford Motor said about advertisements and express warranty? Give case details.
If the manufacturer creates an advertisement that promises something it counts as a express warranty it doesn’t matter if it wasn’t in the contract.
What was the holding of GreenMan v. Yuba power products? Give case details?
If you make a defective product and put it into commerce you are liable no matter what or who it hurts. Anyone who has ever possessed it is in the hook for it.
What was the holding of Paris v. ICON? Give case details.
The trampoline case guy ignored warnings and tried to do a back flip landed on his neck and turned paraplegic. With a lot of warnings and very visible warnings, the creator is not liable for damages.
What was the holding of Shin v. Starbucks Corp? Give case details.
Case of the woman who bought tee and fell over for being clumsy and sued for lack of handling in the cups.
If a reasonable person could no forsee the use of the company’s product then the company has no liability. If the customer uses the product in an unforeseen way the company is not liable.
What joint and several liability is in product liability.
Everybody who is in the chain of title is jointly and severally liable in product liability they can be made to pay the entire amount of damages. You can sue any if or all of them whoever is easier to sue.
What is the open and dovious doctrine?
Manufacturers are not responsible for defects or risk that consumers take when the risk is open and obvious. If a reasonable person can see its dangerous then they are not liable.
Define the difference between Personal property and Real Property.
Personal property is movable. Real property is not (attached to land/not movable).
What is included in Real Property?
Before they are extracted, trees, crops, oil, and minerals are real property. Chairs or tables screwed on also are real property.
How does tort law protect property interest?
Tort law helps enforce rights to property.
Suing for trespassing (Crossing personal property) or conversion (stole personal property)
How does contract law arranges the use of property?
Arrages the use of property.
How we decide what to sell to people what to lease and so on.
What is the definition of property?
Property is a protected expectation of using a thing for your own advantage.
What is the term that is the most common form of real property ownership?
Fee simple
What is the term for two or more people having an undivided interest in real property?
Tenancy in common
What does joint tenancy mean?
Where you have the right of survivorship. When one of the tenants passes away instead of going into descendants it goes to the survivor. Typically used for spouses to just get the stuff.
What is a life estate?
You have possession of the property for your life. When you die it goes back to whoever gave it to you.
What do easements allow the utility companies to do?
Gives them the right to use your property in a specific way without them having the land. EX - Allows them to put powerline across your property.
What was the holding of Four B Properties v. Nature Conservancy? Give case details.
The covenant runs with the land which means all owners are bound by it. Whether they know about it or not. Since its recorded in the property records.
What is the example given in the book for a restrictive land covenant?
Policies like only single families are allowed, no dogs are allowed, no pastel colors.
What is the implied warranty of habitability in residential leases?
There is an implied warranty of habitability in a residential lease.
What is the difference between commercial leases and residential leases?
Commercial leases are usually longer, for 5-10 years. Residential leases usually don’t go longer than 1 year.
What was the holding of Nielsen v. Gold’s Gym? Give case details.
The terms must be clear for an agreement to be enforceable.
What does the government have to do before they can take your private property?
Pay you fair market value.
What is the name of the power governments use to tell homeowners how they may use their land?
Police power.
When does the government must pay for a regulation that reduces the value of private real property?
when they reduce the usefulness to practically nothing
What was the holding of RDNT, LLC v. City of Bloomington Court? Give case details.
The city can make any decision it wants along as its for the best interest for the city.
What is the definition of Conversion?
When someone exercises dominion and control over your personal property without your permission.
What was the holding of Reyes v. Brookshire Grocery Co.? Give case details.
Since the store did proper warning of wet floor via a sign the company was not liable
What are the advantages of registering a trademark?
1 ()()()()- Forming the basis for obtaining registration in other nations.
2 - Nationwide notice of the trademark owners’ claim
3 - Federal court jurisdiction
4 - Legal presumption of the registrar’s ownership of the mark in the event of a dispute.
If you fail do use a (trademark) or (patent) notice, do you lose all legal protection?
No
What are examples of arbitrary and fanciful trademarks?
They get the most protection from trade mark. arbitrary is making up a word. Fanciful is using a standing word.
Examples - Polaroid, Lexus, Virginia Slims, Ivory, Clorox, Camel (Cigarettes)
Be able to recognize a suggestive trademarks.
Marks hint at the product such as “chicken of the sea” for canned tuna.
EX - Orange Crush, Roach Model, Dairy Queen, Passion (perfume) Copperstone, Playboy.
What was the holding of RDX Media, LLC v. IP Application Dev? Give case details.
Whoever use the trade mark in commerce gets it. The case is about apple and the Ipad trade mark they bought a trade mark from an older company to keep it over another company.
What is cybersquatting?
When someone uses a well-known trademark on a website address. Using the trademark to get people to go to their website.
What is trademark infringement?
Someone using your trademark
What is trademark dilution?
When someone is using a famous trademark but not in direct competition for the product the company use. The company still stop it if it damages the image.
What was the holding of Luxottica GRP, S.P.A v. Airport Mini Mall, LLC? Give case examples.
Contributory infringement means a trademark owner can get damages from a property owner that allows its tenants to directly infringe on the trademark.
What was the holding of Two Peses, Inc v. Taco Cabana, Inc? Give case details.
Trade dress, When you are making your thing look like someone else’s thing its a violation of trade dress. EX - Taco cabana making its build look like two pesos.
What is a certification mark?
Shows how or where it was made. Its an origin mark.
What is goodwill?
The good reputation of a company
What are the rights the Copyright Act gives copyright owners?
1 - The right to reproduce the work
2 - The right to publish or distribute the work
3 - The right to display the work in public
4 - The right to perform the work in public
5- The right to prepare derivative works based on the original work
How long does a copyright for a work for hire last?
95 years
What are the four considerations when determining whether something is fair use?
1 - The purpose and character of the copying (For commercial use or for nonprofit educational use)
2 - The nature of the copyright work
3 - The extent of the copying
4 - The effect of the copying on the market for the work.
What is the purposes of fair use where use of original material is allowed?
1 - The purpose and character of the copying (For commercial use or for nonprofit educational use)
2 - The nature of the copyright work
3 - The extent of the copying
4 - The effect of the copying on the market for the work.
What patents CAN and CANNOT be issued?
Can
- Something that is noble
- Something that is useful
- Something that is not obvious
Cannot
- The invention was known or used by other
- The invention was patented or described in a printed publication
What was the holding of Bowman v. Monsanto court held regarding making new seeds? Give case details.
Cannot copy something that is patented without the owners permission.
What is required to be a trade secret?
1 - Something that gives an advantage in business
2 - Takes steps to keep it secret
What was the holding of Walmart v. Cuker Interactive, LLC? Give case details.
Walmart was forced to pay them damages, and walmart had to stop using their trade secrets.
What does the Economic Espionage Act entail?
If you wrongfully steal someone’s trade secret you can go to jail
Know what a non-binding promise is what happens is someone breaks a non-binding promise
If a party fails to perform a nonbinding promise, contract law does not provide a remedy.
Know what is required to make promises legally binding
Serious intent, with clear details.
Know the definition of an express contract
A contract that uses words whether spoken or written
Know the definition of an offer
manifestation of willingness to enter into a bargain so made as to justify another person is understanding that assent to that bargain is invited and will conclude it.
An offer (from the offeror) and an acceptance (from the offeree) form a contract
Agreement - offer, and acceptance
To have a valid offer (and thereby a valid contract) there must be clear intent to be bound by the offer.
typeshit
Know whether Advertisements are considered offers
No, they are invitations to make an offer. They don’t have clear intent or enough details
Know the examples of termination of offer by operation of law
When there passes a law that makes the offer illegal its terminated, when the object is destroyed before the offer passes its terminated, when the offeror or offeree are injured or die the offer is terminated.
Know what the Caley v. Gulfstream Aerospace Court said that continued employment is valid consideration for a change in the employment contract
Continued employment is a valid consideration for a change in the employment contract.
Know what the court decided in Universal Truckload, Inc. v. Dalton Logistics, Inc. Give case facts.
There is promissory estoppel, dalton will get damages from the plaintiff.
Consideration does not have to be equal or at market value to valid
real.
Contracts to commit a crime are illegal and therefore void
legality. true
Know how a minor keeps a contract after they turn 18
they must ratify the contract. Can be them saying they want to keep it or keep paying it.
Know what would make a contract unenforceable
Legal when made but the law changed now its not legal thus not enforceable.
Know what an exculpatory agreement is
Where one party unfairly gets you to release them from the contract.
Know what the Crowley v. Empire Fire & Marine Ins. Co. said about an insurance contract excluding coverage for accidents caused by intoxicated drivers
The insurance can decline to pay the person drives drunk or does something stupid
What happens when one party makes an error in the contract, and the other party knows about the error, but does not say anything
Unilateral mistake. The party who made the mistake can get out of the contract.
Know what happens when there is a bilateral (mutual) mistake in a contract
either party can resend it. Take it back.
E-signing a contract is just as valid as signing it physically
True
Why was there no quantum meruit for the Plaintiff in Jones v. Four Corners Rod & Gun Club?
because the value of what the gun club gave was higher than the value of what he gave.
Know why most states adopted the UCC
Because it gave us similar laws and reduced costs.
Know the definition of a good under Article 2 of the UCC
A good is movable if it can be carried from one location to another. Real estate does not come under Article 2 because land cannot be moved.
Be able to determine what type of contract is covered by Article 2 of the UCC
Sales of goods. One of the parties has to be a merchant.
What did the Court decide in Erie Ins. Co. v. Amazon.Com, Inc. Give case facts
held that when a company only distributes products for a seller, and does not themselves sell a product, then the distributor is not responsible for product liability like the seller.
What is the default provision for when title to goods pass from Seller to Buyer in the UCC?
Once the seller has delivered it. Or when the title (documents) to the buyer it passes.
When a UCC contract is does not contain a specific term what happens?
The court will put the term in. They look at history to see what usually happens in the situation.
Know the UCC rule about accepting an offer to create a contract
the acceptance can change the terms. Unless it’s disputed prior to delivery.
Under the UCC a contract can be formed by the way the parties act
If they act like a contract is in place then it is. Contract is created by actions.
Under the UCC if you leave out a major term like the price, there is still a contract
True
UCC offers can be accepted even in new or different terms are included in the acceptance
yes
In a UCC contract a significant change in the contract (agreed to by the parties) does NOT require new consideration.
It is not required to modify.
Buyers have the right to inspect goods before accepting them. Who bears the cost of the inspection
The buyer unless they find something wrong then the seller must reimburse.
What was the ruling In Villabos v. Atlanta Motorsports, LLC. Give case details
the court allowed the buyer to try to prove he revoked his acceptance of the good once he learned the value of the good was impaired (meaning the truck was not worth what the Seller said it was worth).
Know the three situations an express warranty is created in
1 - The seller provides a sample or model
2 - They give a description on the contract
3 - They make promises
The Implied Warranty of Merchantability means a merchant who sells goods must meet the quality comparable to that generally acceptable their industry
true
Know the purpose of warranty disclaimers
Allow the merchant to not have to live up to the warranties
Know what the court said about warranty disclaimers in Lee v. R&K Marine. Give case facts
The warranties were displayed thus lee had to claim on them.
Know what incidental damages are
Such costs may include expenses associated with stopping delivery, transporting and taking care of the goods after the breach returning or reselling the goods, and taking any other necessary action.
