Final Flashcards
Click on agreement
An agreement that arises when an online buyer clicks on “I agree” or otherwise indicates her or his assent to be bound by the terms of an offer.
firm offer
An offer (by a merchant) that is irrevocable without the necessity of consideration for a stated period of time or, if no definite period is stated, for a reasonable time (neither period to exceed three months).
fair use
the use of copyright material for the purpose of criticism, comment, news reporting, teaching, scholarship, or research is not infringement of copy right
perfect tender rule
the legal right of a buyer or lessee of goods to insist on perfect tender by the seller or lessee
exclusive remedies
If the parties state that a remedy is exclusive, then it is the sole, or exclusive, remedy.
sale
The passing of title to property from seller to buyer for a price
remedies of breach
The Right to Cancel the Contract
The Right to Withhold Delivery
The Right to Resell or Dispose of the Goods
The Right to Sue to Recover the Purchase Price or the Lease Payments Due
The Right to Sue to Recover Damages for the Buyer’s Nonacceptance
lease
An agreement in which one person (the lessor) agrees to transfer the right to the possession and use of property to another person (the lessee) in exchange for rental payments.
statute of frauds
all states require certain types of contracts to be in writing or evidenced by a written memorandum or an electronic record.
negligence
The failure to exercise the standard of care that a reasonable person would exercise in similar circumstances.
trademark
distinctive word, symbol, sound, or design that identifies the manufacturer as the source of particular goods and distinguishes its products from those made or sold by others.
intellectual property
is an property resulting from intellectual and creative process
trade secret
is a formula, device, idea, process, or other information used in a business that gives the owner a competitive advantage in the marketplace
cybersquatting
occurs when a party registers a domain name that is the same as, confusingly similar to the trademark of another and then offers to sell the domain name back to the trademark owner.
typosquatting
a form of cybersquatting that relies on mistakes made by internet users when entering information into a web browser
copyright
is a tangible property right granted by federal statue to the author or originator of certain literacy or artistic productions
shipment contract
Seller is required or authorized to ship the goods by carrier.
destination contract
Seller is required or authorized to ship the goods by carrier and tender delivery of the goods at a particular destination.
bailment
A situation in which the personal property of one person (a bailor) is entrusted to another (a bailee), who is obligated to return the bailed property to the bailor or dispose of it as directed.
bilateral mistake
A mistake that occurs when both parties to a contract are mistaken about the same material fact.
unilateral mistake
A mistake that occurs when one party to a contract is mistaken as to a material fact.
conditions of contract
Conditions Precedent: A condition in a contract that must be met before a party’s promise becomes absolute
Conditions Subsequent: A condition in a contract that, if it occurs, operates to terminate a party’s absolute promise to perform
Concurrent Conditions: Conditions that must occur or be performed at same time
breach of contract
contract is the nonperformance of a contractual duty.
mutual rescission
The parties make another agreement that must satisfy the legal requirements for a contract.
accord and satisfaction
An agreement between two parties to accept performance that is different from what was promised in the original contract.
commercial impracticability
A doctrine that may excuse duty to perform.
Compensatory damages
to cover direct losses and costs
Standard Measure
Sale of Goods
Sale of Land
probable cause
reasonable grounds for believing search should be conducted or a person should be arrested
crime
a wrong against society proclaimed in statue and if committed punishable by society through fines, imprisonment, even death
Covenants not to compete in employment contracts
Noncompete agreements are generally legal in most states so long as the specified period of time is not excessive in duration and the geographic restriction is reasonable.
Covenants Not to Compete and the Sale of an Ongoing Business
A contractual promise of one party to refrain from conducting similar business for a certain time and within a specified geographical area
restitution
An equitable remedy under which a person is restored to his or her original position prior to loss or injury, or placed in the position he or she would have been in had the breach not occurred.
defamation
Anything published or publicly spoken that causes injury to another’s good name, reputation, or character.
slander
Defamation in oral form.
libel
Defamation in writing or another permanent form (such as a digital recording).
valid contract
A contract that results when the elements necessary for contract formation (agreement, consideration, capacity, and legality) are present.
void contract
A contract having no legal force or binding effect.
voidable contract
A contract that may be legally avoided at the option of one or both of the parties.
consideration
usually is defined as the value given in return for a promise. It is often broken down into two parts:
(1) something of legally sufficient value must be given in exchange for the promise, and
(2) there must be a bargained-for exchange.
rescission
A remedy whereby a contract is canceled and the parties are returned to the positions they occupied before the contract was made.
Burden of proof (civil)
preponderance of the evidence
burden of proof (criminal)
beyond a reasonable doubt
bribery
people make commercial bribes to obtain proprietary information, cover up an inferior product, or secure new business
UCC contract requirements
any contract for the sale of goods that are $500 or over must be written and signed by the person that the contract is being enforced against
compensatory damages
A monetary award equivalent to the actual value of injuries or damage sustained by the aggrieved party.
transferred intent in tort
A legal principle under which a person who intends to harm one individual, but unintentionally harms a different individual, can be liable to the second victim for an intentional tort.
Third party rights
usually, the third party is not a direct party in the contract, they don’t have rights under the contract. they can have rights if one of the parties assigns rights to them through an assignment (of rights) or delegation (of duty). and has third party beneficiaries
assignment of rights
the transfer of contractural rights to a third part. assignment of rights occurs after the original contract has been made
delegation of duties
transfer of contractural duties to a third party. delegations of duties occurs after the original contract has been made
novation
The substitution, by agreement, of a new contract for an old one, with the rights under the old one being terminated. Typically, novation involves the substitution of a new party for one of the original parties to the contract.
Third-party beneficiaries
A third party beneficiary is one who benefits from a contract between two other parties. If the party was an intended beneficiary, then the third party has legal rights and can sue the promisor directly to enforce the contract. If the contract benefits the third party unintentionally, then the third party cannot sue to enforce the contract.
What is a “good” for UCC purposes?
the good must be tangible, which means the good must be moveable, it is a physical existence
open terms of contract under UCC
Under the UCC, it is the actions of the parties that determine whether they intend to form a contract.
states that a sales or lease contract will not fail for indefiniteness even if one or more terms are left open as long as both of the following are true:
The parties intended to make a contract.
There is a reasonably certain basis for the court to grant an appropriate remedy
Offer between common law and UCC
The common law requires that the parties make their terms definite before they have a contract. The UCC applies general commercial standards to make the terms of a contract definite.
UCC acceptance of a contract
The UCC permits acceptance of an offer to buy goods “either by a prompt promise to ship or by the prompt or current shipment of conforming or nonconforming goods”
Minors and contracts
Minors can get into any contract that an adult can, it can’t be prohibited by the law of minority ( like signing into a contract that has alcohol beverage or tobacco)
Mistake of fact
- makes a contract voidable
-must involve material fact (a fact that a reasonable person would consider important when determining his or her course of action)
-two forms—unilateral and bilateral (mutual). A unilateral mistake is made by only one of the contracting parties, whereas a mutual mistake is made by both
mistake of value
-mistakes of value do not affect the enforceability of contracts is that value is variable.
-Each party is considered to have assumed the risk that the value will change in the future or prove to be different from what he or she thought
UCC sale of goods: tender of delivery
buyer’s duty is to accept the goods and unless agreed otherwise, they pay for the goods as well
Mental capacity
if the person entered a contract with a mental capacity, then the contract can either be void, voidable, or valid
diversity of citizenship and application of state law
-A basis for federal court jurisdiction over a lawsuit between citizens of different states or a lawsuit involving a U.S. citizen and a citizen of a different country.
-a federal court will apply the relevant state law (which is often the law of the state in which the court sits
Alternate Dispute Resolution
The resolution of disputes in ways other than those involved in the traditional judicial process, such as negotiation, mediation, and arbitration.
strict liability
Liability regardless of fault, which is imposed on those engaged in abnormally dangerous activities, on persons who keep dangerous animals, and on manufacturers or sellers that introduce into commerce defective and unreasonably dangerous goods.
fruit of the poisoned tree
evidence that is obtained illegally cannot be presented in court
usage of trade
Any practice or method of dealing that is so regularly observed in a place, vocation, or trade that parties justifiably expect it will be observed in their transaction.
contributory negligence
A rule in tort law, used in only a few states, that completely bars the plaintiff from recovering any damages if the harm suffered is partly the plaintiff’s own fault.
Damages in contract actions
-Compensatory (to cover direct losses and costs)
-Consequential (Foreseeable damages that result from a party’s breach of contract, or special damages)
-Punitive (designed to punish a wrongdoer and set an example to deter similar conduct in the future, they have no legitimate place in contract law)
-nominal - (When no actual damage or financial loss results from a breach of contract and only a technical injury is involved)
duty to mitigate damages
A rule requiring a plaintiff to do whatever is reasonable to minimize the damages caused by the defendant.
remedies of goods for sellers
Cancel (rescind) the contract.
Withhold delivery of the goods.
Resell or dispose of the goods and sue to recover damages.
Sue to recover the purchase price or lease payments due.
Sue to recover damages for the buyer’s nonacceptance.
remedies of the buyers
Cancel (rescind) the contract.
Obtain goods that have been paid for if the seller or lessor is insolvent.
Sue to obtain specific performance if the goods are unique or damages are an inadequate remedy.
Buy other goods (obtain cover), and obtain damages from the seller.
Sue to obtain identified goods held by a third party (replevy goods).
Sue to obtain damages.
warranties
issued to the purchaser of an article by its manufacturer, promising to repair or replace it if necessary within a specified period of time.
bill of lading
a detailed list of a shipment of goods in the form of a receipt given by the carrier to the person consigning the goods.
Predominant factor test
A test courts use to determine whether a contract is primarily for the sale of goods or for the sale of services
default judgment
A judgment entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff’s claim.
course of dealing
conduct regarding previous transactions which can reasonably be seen as evidence of a common basis of understanding between the parties
