exam 2 Flashcards
contract
agreement between parties enforceable under law (legally) binding promise
steps involved in formation of a contract
mutual agreement offer: starting point of a contract acceptance consideration legality capacity/competence
interpretations used by the courts
contracts are interpreted as integrated whole
in event of ambiguity, contract will be interpreted mostly strictly against party drafting documents
worst case scenario
parol evidence rule
once parties have agreed to a complete written understanding, no prior or written evidence may be introduced.
ways that contracts can be rendered unenforceable
misrepresentation
under influence
duress
mutual mistake
misrepresentation
a false assertion of facts which induces another party to enter into a contract
unduer influence
when a dominant party unfaily persuades the weaker party to enter into a contract
duress
any wrongful act or threat which coerces a party to enter into a contract
mutual mistake
when both parties share a common mistaken assumption about a vital existing fact upon which they based their contract
remedies for a breach of contract
monetary
liquidated and compensatory
monetary
compensate non-breaching party in a comparable manner as if contract has been performed as promise
liquidated
allows parties to establish a reasonable approximation of damages. used in employee contract-cannont be punitive. (don’t know the exact amount of damages)
compensatory
arise directly from the loss of the bargain-used when exact amount of damages is known (reduced damages)
specific performance
courts generally relucant to require specific performance (rarely occurs)
requires that the performance of the contract be carried out in the specific form in which it was made-used when damages would be inadequage compensation for the breach an agreement
rescission
If one party is in breach of the contract, the other party may rescind the contract without being in breach
Restores parties to pre-contract position
restitution
Restitution - Return goods, property, etc. transferred under contract
Equivalent amount of $$
Used when fraud, misrepresentation, or mistakes have occurred
provisions found in contracts
duties and responsibilities terms of employment reassignment clause compensation clause provision for outside and/or supplemental income termination clause buy out provision arbitration agreement
reassignment clause
should place termination burden on coach if he/she chooses not to take assignment
compensation clause
fringe benefits, bonuses, incentives
termination clause
death, disability, just cause
fee simple absolute:
owner with complete control
purchases, gifts, dedication, emincent, domain/condemnation
less than fee simple
property based upon a contract
rental agreements, leases, cooperative/ joint use agreements
public trust doctrine
the principle that certain resources are preserved for public use and the government is required to maintain them from public’s reasonable use
invitee
individual who paid for the use of premises
HIGHEST STANDARD OF CARE
licensee
person who uses premises with constent of owner; provides no economic benefit: warn of hazards not able to discover on own
trespasser
person who enters premises without permission of operator; retain from intentional conduct causing injury
types of users
invitee
licensee
trespasser
actual notice
the notice has been delivered in a way that there is sufficient reassurance that the recipient has knowledge
constructive
not positive recipient has seen notice
ex: posted on the door
6 legal obligations of a premises operator
- inspect premises to discover obvious or hidden hazards
- maintenance and repair
- warn of concealed dangers
- advise of participatory risk
- hire competent personnel
- design safe facilities
open and obvious dangers
a premises owner is to protect the invitee from an unreasonable risk of harm caused by dangerous condition on land generally does not encompass a duty to protect from open and obvious dangers but they are obligated ti undertake reasonable precautions to protect invitees from the danger
distractions factor into premises liability
a distraction is something that would keep a person from noticing an open and obvious danger and because of this distraction, fail to take reasonable precautions to avoid the risk of danger
responsibility of a landowner 3rd party criminal attack on participants using their premises
the “totality of the circumstances” test requires landowners to take reasonable precaution to prevent forseeable criminal actions against invitee
recreational user statue
is to protect landowners from liability when their lands are open to public for free recreational use.
recreational user statue characteristics
types of owners: public and private fees umiproved and undeveloped rural lands retained innatrual conditions (not obligated to remedy natural condition and cant be held liable to alternations made obligations 2 pronged test
fees
admission and any type of consideration
obligation
warn of concealed and knows danger
2 pronged test
is it recreational activity?
is the land suitable for activity?