Exam Two Flashcards
Assault
(1) The threat of immediate harm or offensive contact
(2) Any action that arouses reasonable apprehension of imminent harm. Actual physical contact is unnecessary
Battery
Unauthorized and harmful or offensive direct or indirect physical contact with another person
False imprisonment
The intentional confinement or restraint of another person without authority or justification and without that person’s consent
Tort
A wrong. There are three categories of torts
(1) intentional torts
(2) unintentional torts
(3) strict liability
Invasion of the right to privacy
The unwarranted and undesired publicity of a private fact about a person. The fact does not have to be untrue
Defamation of character
False statement(s) made by one person about another. In court, the plaintiff must prove that (1) the defendant made an untrue statement of fact about the plaintiff and (2) the statement was intentionally or accidentally published to a third party
Libel
A false statement that appears in a letter, newspaper, magazine, book, photograph, movie, video, and so on
Slander
Oral defamation of character
Disparagement
False statements about a competitor’s products, services, property, or business reputation
Also known as trade libel, product disparagement, and slander of title
Intentional infliction of emotional distress (tort of outrage)
A tort that says a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable, for that emotional distress; also known as the tort of outrage
Malicious prosecution
A lawsuit in which the original defendant sues the original plaintiff. In the second lawsuit, the defendant becomes the plaintiff and vice versa
Negligence (duty of care)
A duty of corporate directors and officers to use care and diligence when acting on behalf of the corporation
Fraud
An intentional tort based on someone’s lies or mispreprensations
Tort or appropriation
When a defendant uses a plaintiff’s name, likeness, or image without their permission for commercial purposes
Negligence (breach of care)
When a person’s conduct fails to meet an applicable standard of care
Negligence (legally recognizable injury)
A plaintiff must prove legally recognizable harm, usually in the form of physical injury to a person or to property
Negligence (actual causation)
Where a plaintiff suing for negligence will have to prove that the defendant’s violation of a duty was the actual and proximate cause of his or her injuries
Negligence (proximate causation)
Relates to the scope of a defendant’s responsibility in a negligence case
Negligence
The failure to do something that a reasonable person would do or doing something that a reasonable person would not do, in like or similar circumstances
Professional Malpractice
The liability of a professional who breaches his or her duty of ordinary care
Negligence per se
A tort in which the violation of a statute or an ordinance constitutes the breach of the duty of care
Res ipsa loquitur
A tort in which the presumption of negligence arises because (1) the defendant was in exclusive control of the situation and (2) the plaintiff would not have suffered an injury but for someone’s negligence. The burden to the defendant to prove that he or she was not negligent
Gross negligence
A finding that a person has engaged in willful misconduct or reckless behavior that caused injury or death to another person
Attractive nuisance doctrine
A special tort rule that imposes liability on a landowner or possessor of land to children who have trespassed onto the owner’s or possessor’s real property by an attractive nuisance with the intent to play and are injured or killed while doing so
Strict liability
Liability without fault
Strict liability (liability without fault)
Liability that is imposed on a party even though he or she has exercised all possible care and has not been at fault for the injuries suffered by the plaintiff
Strict liability (chain of distribution)
The chain of manufacturers, distributors, wholesalers, retailers, lessors, subcomponent manufacturers, and others who distribute a defective product
Strict liability (privity of contract)
The state of two specific parties being in a contract. Parties to a contract can sue one another for breach of the contract, but third parties (with few exceptions) cannot sue for such breach because they are not parties to the contract
Strict liability (punitive damages)
Damages that are awarded to punish the defendant, deter the defendant from similar conduct in the future and set an example for others
Strict liability (product defect)
Something wrong, inadequate, or improper in the manufacture, design, packaging, warning, or instructions about a product
Strict liability (product liability)
The liability of manufacturers, sellers, and others for the injuries caused by defective products
Defense against negligence (superseding, or intervening event)
In tort law, an event for which a defendant is not responsible. The defendant is not liable for injuries caused by the superseding or intervening event
Defense against negligence (assumption of the risk)
A defense a defendant can use against a plaintiff who knowingly and voluntarily enters into or participates in a risky activity that results in injury
Defense against negligence (contributory negligence)
A doctrine that says a plaintiff who is partially at fault for his or her own injury cannot recover against a negligent defendant
Defense against negligence (comparative negligence)
A doctrine under which damages are apportioned according to fault
Statute of limitations
A statute that establishes the period during which a plaintiff must bring a lawsuit against a defendant
Statute of response
A statute that limits the seller’s liability to a certain number of years from the date the product was first sold
Caveat Emptor
“Let the buyer beware,” the traditional guideline of sales transactions
Express warranty
A warranty that is created when a seller or lessor makes an affirmation that the goods her or she is selling or leasing meet certain standards of quality, description, performance, or condition
Implied warranty
A warranty that is not expressly states in the sales or lease contract but instead is implied by the law
Four elements of a contract
Agreement, consideration, contractual capacity, legality
Objective theory of contracts
A theory that says the intent to contract is judged by the reasonable person standard and not by the subjective intent of the parties
Bilateral contract
A contract entered into by way of exchange of promises of the parties; “a promise for a promise”
Unilateral contract
A contract in which the offeror’s offer can be accepted only by the performance of an act by the offeree; a “promise for an act”
Formal contract
A contract that requires a special form, words, or method of creation
Informal contract
A contract that is not formal. Valid informal contracts are fully enforceable and may be sued upon if breached
Offer
The manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it
Express terms
Terms in offers and contracts that expressly identify the parties, the subject matter of the offer or contract, the consideration to be paid by the parties, and the time of performance, as well as other terms of the offer and contract
Implied terms
A missing term that is not expressly stated in an offer or a contract that can reasonably be supplied by the courts if a reasonable term can be implied from other sources
Advertisement
An invitation to make an offer, or an actual offer
Reward
An award is given for the performance of some service or attainment. To collect a reward, the offeree must (1) have knowledge of the reward offer prior to completing the requested act and (2) perform the requested act
Auction
A sale in which a seller of goods offers goods for sale through an auctioneer
Termination of an offer by act of the parties
The termination of an offer when one party takes an action that indicates that he is not interested in forming a contract under the terms of the offer, including (1) rejection of an offer by the offeree, (2) counteroffer by the offeree, and (3) revocation of an offer by the offeror
Termination of an offer by operation of law
The termination of an offer by the operation of law, including (1) the destruction of the subject matter, (2) the death or incompetency of the offeror or the offeree, (3) supervening illegality, and (4) lapse of time of the offer
Option Contract
A contract that is created when an offeree pays an offeror compensation to keep an offer open for an agreed-upon period of time. An option contract prevents the offeror from revoking his or her offer during the option period
Acceptance
A manifestation of assent by the offeree to the terms of the offer in a manner invited or required by the offer as measured by the objective theory of contracts; a manifestation of assent required for a gift to be effective
Unequivocal acceptance
An offeree’s acceptance of an offer that is clear, unambiguous, an has only one possible meaning
Mirror image rule
A rule that states that for an acceptance of a contract to exist, the offeree must accept the terms as stated in the offer
Silence as acceptance
SIlence does not constitute acceptance
Time of acceptance
The number of calendar days available for awarding a contract from the date specified in this solicitation
Consideration
Something of legal value given in exchange for a promise
Requirements contract
A contract in which a buyer contracts to purchase all of its requirements for an item from one seller
Minors
A person who has not reached the age of majority
Mentally incompetent
A situation in which a person is mentally incompetent but a court or administrative agency has not declared that person to be mentally incompetent. Contracts and negotiable instruments entered into by the person are voidable
Intoxicated person
A person who is under contractual incapacity because of ingestion of alcohol or drugs to the point of incompetence
Disaffirmance
The act of a minor rescinding a contract under the infancy doctrine. Disaffirmance may be accomplished orally, in writing, or by the minor’s conduct
Contract to contrary law
A contract to perform activities that are prohibited by law
Contract contrary to public policy
A contract to perform activities that have a negative impact on society and welfare. Thus constitutes an illegal contract
Gambling Statutes
Statues that make certain forms of gambling illegal
Contract in restraint of trade
A contract that unreasonably restrains trade
Licensing statute
A statue that requires a person or business to obtain a license from the government prior to engaging in a specified occupation or activity
Exculpatory agreement
An agreement relieves one (or both) of the parties to a contact from tort liability for ordinary negligence
Covenant not to compete
A contract that provides that a seller of a business, an employee, or another covered party will not engage in a similar business or occupation within a specified geographical area for a specific time following the sale of the business or termination of employment
Genuiness of assent
The requirement that a party’s assent to a contract be genuine and not have been obtained by duress, undue influence, or fraud
Mistake
A situation that occurs when one or both of the parties to a contract have erroneous beliefs about the subject matter, value, or some other aspect of the contract
Unilateral mistake
A mistake in which only one party is mistaken about a material fact regarding the subject matter of a contract
Mutual mistake of a material fact
A mistake made by both parties concerning a material fact that is important to the subject matter of a contract
Mutual mistake of value
A mistake that occurs if both parties know the object of the contract but are mistaken as to its value
Misrepresentation of law
A type of fraud that occurs when one party misrepresents the law to another party. Usually not actionable as fraud unless a professional who knows what the law is intentionally misrepresents the law to a less sophisticated contracting party
Innocent misrepenrtation
Fraud that occurs when a person makes a statement of fact that he or she honestly and reasonably believes to be true even though it is not
Duress
A situation in which one party threatens to do a wrongful act unless the other party enters into a contract
Undue influence
A situation in which one person takes advantage of another person’s mental, emotional, or physical weakness and unduly persuades that person to enter into a contract or make a will; the persuasion by the wrongdoer must overcome the free will of the innocent party
Promissory estoppel (equitable estoppel)
An equity doctrine that permits enforcement of oral contracts that should have been in writing. It is applied to avoid injustice
Assignment of a right
The transfer of rights under a contract; a transfer by a tenant of his or her rights under a lease to another party
Anti-assignment clause
A clause that prohibits the assignments of rights under the contract
Delegation of a duty
A transfer of contractual duty by an obliger to another party for performance
Third-party beneficiary
A third party who benefits by the performance by others of the others’ contracts
Covenant
An unconditional promise to perform
Condition
A qualification of a promise that becomes a covenant if it is met
Condition precedent
A condition that requires the occurrence of an event before a party is obligated to perform a duty under a contract
Condition Subsequent
A condition in which the occurrence or nonoccurrence of a specific event automatically excuses the performance of an existing contractual duty to perform
Concurrent conditions
COnditions that exist when the parties to ao contract must render performance simultaneously; each party’s absolute duty to perform is conditioned on the other party’s absolute duty to perform
Implied condition
A condition that can be implied from the circumstances surrounding a contract and the parties’ conduct
Statute of limitations
A statute that establishes the period during which a plaintiff must bring a lawsuit against a defendant
Breach of contract
A contracting party’s failure to perform an absolute duty owed under a contract
Complete (strict) performance
A situation in which a party to a contract renders performance exactly as required by the contract. Complete performance discharges that party’s obligations under the contract
Substantial performance
Performance by a contracting party that deviates only slightly from complete performance; there is a minor breach
Inferior performance
A situation in which a party fails to perform express or implied contractual obligations and impairs or destroys the essence of a contract; there is a material breach
Anticipatory breach
A breach that occurs when one contracting party informs the other that he or she will not perform his or her contractual duties when are due
