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BLAW 301 > Exam 2 > Flashcards

Exam 2 Flashcards

0
Q

Caveat Emptor

A

Let the buyer beware

doctrine in which the buyer of a product assumed any risk associated with the purchase or use of the product

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1
Q

Acceptance

A

manifestation of assent to the terms of an offer in the manner required or authorized by the offeror

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2
Q

Compensatory Damages

A

damages necessary to place the aggrieved party in the same position he or she would have occupied had the contract not been breached in the first place

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3
Q

Consequential Damages

A

special damages that could have been foreseen at the time of the breach of contract but which do not directly flow from the breach of contract

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4
Q

Contract

A

an agreement, obligation, or legal tie whereby a party binds himself or herself, expressly or impliedly, to pay a sum of money or to perform or omit to do a certain act or thing

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5
Q

Contract of Adhesion

A

a contract heavily weighted to favor the party that possesses significantly more bargaining power

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6
Q

Counter-Offer

A

an offer made by the offeree to the offeror that would materially alter the original offer and thus require acceptance by the offeror

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7
Q

Fraud

A

A deliberate misrepresentation or nondisclosure of a material fact made with the intent that the other party will rely on it, and in fact the party to whom the statement is made does rely on it to her or his detriment

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8
Q

Implied Agency Rule

A

in contract law, if the offer does not state that the acceptance will not be effective until it is received, the moment an acceptance is sent by an authorized means a contract is effective

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9
Q

Incidental Beneficiary

A

a person who is not a party to a contract who obtains a benefit that was not intended by the parties to the contract

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10
Q

Injunction

A

an order by a court that prohibits or restrains a party from doing a particular act

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11
Q

Intended Beneficiary

A

the person who the parties to a contract wanted to benefit through the performance of the contract

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12
Q

Legal Benefit

A

receiving something that one had no prior legal obligation to receive

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13
Q

Legal Detriment

A

the requirement that a party does or promises to do something which there was no prior legal duty to do or refraining from doing something that there was no prior legal duty to refrain from doing

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14
Q

Material Breach

A

a substantial failure of one of the parties to a contract to perform his or her obligations pursuant to the contract

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15
Q

Mirror Offer Rule

A

the common law rule of contracts that requires an acceptance to be in exactly the same terms as the original offer

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16
Q

Mitigation of Damages

A

the obligation of the injured party in a breach of contract to keep losses or damages as small as possible

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17
Q

Nominal Damages

A

a token sum awarded to a party in light of a breach of contract that did not produce any financial loss to the aggrieved party

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18
Q

Offer

A

a manifestation by a person of a desire to enter into a contract

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19
Q

Offeree

A

the person to whom an offer is made

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20
Q

Offeror

A

the person who makes and offer

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21
Q

Parol Evidence Rule

A

a rule of evidence that prevents the introduction of oral testimony in a court proceeding which adds to, alters or varies the terms of a written agreement

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22
Q

Promise

A

voluntary commitment by a person to another person to perform in some manner or refrain from some action in the future

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23
Q

Promisee

A

the person to whom a promise is made

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24
Q

Promisor

A

the person who makes a promise

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25
Q

Promissory Estoppel

A

the doctrine that makes certain contracts binding although they are not supported by consideraton

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26
Q

Public Policy

A

Generally accepted standards of conduct in the community

27
Q

Punitive Damage

A

Damage that is awarded by a court in order to punish a party that has violated the law

28
Q

Specific Performance (Doctrine of)

A

an order compelling a party to perform his or her obligations under a contract

29
Q

Statute of Frauds

A

the statute which requires the certain types of contracts be in writing to be enforceable

30
Q

Substantial Performance

A

the performance of contractual obligations with only minor deviations from the specifications in the contract

31
Q

Third Party Beneficiary

A

a person who is not a party to a contract but who will benefit from the performance of the contract

32
Q

Unconscionability

A

a lack of meaningful choice in a contractual relationship coupled with a contract term that is so one-sided as to be oppressive

33
Q

Uniform Commercial Code

A

a model code that deals with sale of goods, commercial paper, secured transactions, and other commercial activities

34
Q

Consideration

A

a kind of exchange where parties give up or get something from one another

35
Q

Complete Performance

A

parties have fully performed their contractual obligations

36
Q

Duress

A

if a person by a wrongful act or threat, coerces someone else to agree to the provisions of a contract

37
Q

Equitable Remedies

A
  1. ) Specific Performance–a court order requiring a party to do something specified by the court
  2. ) Injunction–a court order requiring a party to refrain from engaging in a particular activity
38
Q

Misrepresentation

A

when a person, by words or actions, creates in the mind of another person an impression that is not in accordance with the true facts

39
Q

Undue Influence

A

is present if a person agrees to a contract because of the stronger personality or will of the other party

40
Q

Void Contract

A

never a contract and never enforceable

41
Q

Voidable Contract

A

one or both parties can decide they don’t want the contract enforced

42
Q

Why are some contracts not promises?

A
  1. ) Ethical or Social Value Reasons
    - subject of promise is not acceptable (illegal subjects, racism)
    - bargaining process is not acceptable (Duress-coerced by wrongful threat/act to agree, Incapacity-mental, minor(excluding necessities), Unconscionability-extremely unfair agreement entered into by person with minimal bargaining power)
  2. ) Legal System Reasons
    - inconsequential promises (everyday activities-reservations)
    - compliance with formalities (offer, acceptance, etc)
    - conflicting bodies of law (labor or civil rights or bankruptcy law may void contracts even if valid under state contract law)
43
Q

Contracts That Are Not Based On Promises

A

Implied Contracts- based on behavior

Contracts Based on Ethics, Justice, Fairness Considerations- QuasiContract and Promissory Estoppel

44
Q

Quasi-Contracts

A
  • would be unfair unjust unethical for the person who receives a benefit not to be required by law to pay for it
  • elements to satisfy:
    1. ) some benefit conferred
    2. ) no other legal recourse for one who conferred benefit to get paid
    3. )would be unfair unjust etc. for recipient to keep the benefit for free
  • key is fairness
  • we must be willing to accept outcome as universal rule to meet fairness test
45
Q

Promissory Estoppel

A
  • Elements to look at at the time the promise was made:
    1. )should have expected that promise would induce some sort of action on part of person to whom promise is made
    2. )person to whom promise is made does, in fact, take some sort of action in reliance on the promise
    3. )injustice may be avoided only by enforcement of the promise
  • key is reliance
46
Q

Building blocks of a contract

A
  • offer
  • acceptance
  • consideration
  • capacity
  • legality
47
Q

offer

A

Elements:
-intent (derived from surrounding facts and circumstances)
-definiteness (terms are obvious and clear)
-communicated to offeree (they have to know they received an offer)
Offeror-makes offer
Offeree-receives offer

48
Q

Offer at Auction

A

auctioneer solicits offers. handwaiver is one who makes offer. auctioneer hitting the gavel accepts the offer.

49
Q

Offer in Advertising

A

fails as an offer due to definiteness mainly (not specific enough) but also intent problem (not really intent to buy, it is solicitation)
***if specific enough, could possibly be considered a valid offer

50
Q

Offer and Reward

A
  • needs to cover definiteness requirement
  • need to consider communication (have to see poster, etc)
  • consider claims based on fairness (finding missing woman should be rewarded whether or not you knew about reward)
51
Q

Acceptance

A

Elements:

  1. )who can accept(offeree)
  2. )unambiguous (yes or no, no negotiations)
  3. )by act or promise (indicates closing of the deal)
52
Q

Consideration

A

Refraining: you have right to do, but you bargain not to do that thing
Subjective Value: do not need to be of equal value (but if extremely unfair then look at unconscionable contracts)
Lacking: promise to make a gift (no exchange of anything), pre-existing obligations (nothing is exchanged, you are already obligated to do something legally), illegality (is consideration act is illegal then it is not sufficient)

53
Q

Remedies

A
  • **almost always going to be money damages
  • **aimed to put the injured party in the same position they would have been in had the contract be carried out fully
  • compensatory damages: basis of the bargain (did not get 10 units @ $10 each so you get that amount to put you in the same position you would be in had the contract been upheld)
  • consequential damages: damages which don’t derive directly from the breach, but from the result of the breach; more indirect in nature (include losses buyer incurs which the supplier has reason to know at time of contracting and which buyer could not reasonably have prevented; and injury to person or property resulting from any breach of warranty)
  • incidental damages: expenses incurred by the injured party as a result of the other party’s breach of contract (include expenses for inspection, receipt, transportation, and storage of rejected goods and services, expenses associated with buying replacement goods or services, and any other expense related to delay in delivery or non-delivery)
54
Q

HYPO #1

Mary Collins’ car is the dirtiest in Douglas County. One evening, while she was away, her neighbor Bob Thomas spent two hours washing and waxing her car. It sparkled. Collins had no idea that Thomas did this, but was pleased with her car’s spiffy look. Bob Thomas is a professional car detailer and usually receives $200 for similar work. However he only charged Collins $75 because she is his neighbor. Collins refused to pay.

A

Expressed Contract: Fails
Quasi-Contract: he normally gets paid to do this. low probability that she will have to pay for car getting cleaned out because she didn’t say that she wanted it cleaned out but he is a professional so they must also consider his case which raises the probability a little.

55
Q

HYPO #2

The door to Mary Jenkin’s movie theater was wide open. A come in sign was posted on it. Jack Smith noticed this when he was walking by and so he entered the theater’s lobby. No one was around. He was about to leave when he heard the opening lines of “Casablanca” his favorite film, coming from the screening room. He went inside the screening room, took a seat and watched the movie. When the movie was over, he went back out to the lobby where Jenkins saw him. She demanded that he pay $7.50, the price of a movie ticket. Smith refused. Assess the probability that he will be required to pay, under contract law principles.

A

Expressed Contract: fails because the sign is not definite enough
Quasi-Contract: high probability to pay because movie theaters always get paid when we watch a movie there.

56
Q

HYPO #3

Bill Smith was angry at Bank, Inc. he promises to pay Ann Jones $500 if she would throw a brick through the bank’s front window. Jones agreed to do so. The next day, Jones heaved a brick through the Bank’s front window. Smith, however, refused to pay her the $500. Assess the likelihood he will be legally obligated to do so under contract law principles

A

low probability to pay because the court cannot enforce illegal act of destruction of property

57
Q

HYPO #4

Tim Johnson wanted a racing bike just like the one Tour de France riders use. However, his parents did not think such equipment was suitable for a twelve year old. Nonetheless, Tim was persistent. He went to XYZ Outdoor Gear, which carried such bicycles and found the exact model he was after. It cost $5000. Since Tim’s parents gave him a generous allowance, XYZ agreed that he could buy the bike on the installment plan, paying $200 per month. A document was drafted that outlined the terms they agreed upon. Both Tim and XYZ signed it. Tim took the bike home. However, his parents were livid. They ordered him to return the bike. When he tried to do so, XYZ refused and threatened to sue if the monthly payments were not made as agreed. Asses the probability that Johnson will be legally obligated to make the payments under contract law principles.

A

-Tim is a minor and the bike is not a necessity so he will have low probability of an obligation to pay for the bike.

58
Q

Intentional Torts

A

Battery
Defamation
False Imprisionment

59
Q

Battery

A

Elements:

  • voluntary act
  • they must intend either harm/touch offensively
  • touch must produce physical injury OR offense to reasonable persons sense of dignity
60
Q

Defamation

A

**words only
**to a third party, not between two people (insult, argument)
**affirmative defense: Plaintiff does not have to show statements are false, Defendant has to prove statements were true
Elements:
-communication to third party orally, written or in media
-communication must be intended
-third party must have understood statements were derogatory

61
Q

False Imprisionment

A

Elements:

  • wrongful, complete restraint of a person’s mobility
    - not limited to incarceration
    - no time requirement
    - no physical immobility requirement
    - no tort of consent
62
Q

Judgement Proof

A

have no money and no assets to pay for damages so they do not have to (***sue someone who has money you can take)

63
Q

Purposes of tort law

A

1 allocation of risk of loss (who bears the burden)
2 provide compensation for injuries
3 incentives for changing behaviors

64
Q

conduct scale for tack situation:

a) give negligence example
b) give reckless example
c) give intentional tort example

A

a) negligence example: drop tack and someone accidentally sits on it
b) reckless example: put tacks on purpose and video so you can laugh at them **not reasonable and you know it
c) intentional tort example: know where bob sits every class and you dont like him so you put a tack in his exact chair only to hurt him

65
Q

Tort

A
  • literally “wrong” in excerpt
  • Person was hurt or wronged
  • victim gets award of money to make up damages
  • civil system
  • live up to or exceed the measuring stick of a reasonable person or you could have committed a tort
66
Q

Functions of Contracts

A

1 transfer property rights (land, car, apt. lease, bonds/stocks, etc)
2 manage future risks (buying insurance, etc)
3 facilitate reaching goals (college degree, etc)
4 structuring organizations (relationships within company)

BLAW 301 (3 decks)

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