Final Flashcards
1
Q
What are the guiding principles of Law? (2)
A
WHAT DOES SOCIETY DEFINE AS FAIR
WHAT DOES SOCIETY DEFINE AS REASONABLE
2
Q
Essential Elements of a Contract (4)
A
Mutual Assent
Consideration
Legality of Object and Performance
Capacity
3
Q
What makes consideration ‘of legally sufficient value’? (4)
A
- a promise to do something that has no prior legal duty to do
- the performance of an action that one is otherwise not obligated to undertake
- refraining from an action that one has a legal right to undertake (called forbearance)
AND
must provide the basis between the contracting party
4
Q
forbearance
A
refraining from an action that one has a legal right to undertake
5
Q
mutual assent
A
law requires that mutual assent be voluntary and knowing
6
Q
What are the two types of express contracts?
A
Bilateral and Unilateral
7
Q
express contract
A
a contract in which the terms of agreement are in words; oral or written
8
Q
characteristics of a bilateral contract
A
- two promises
- each exchanged for the other
- formed when promises exchanged
(promise given in exchange for a return promise)
ex. going to a restaurant is a bilateral contract. the person brings you food, in exchange you bring them money.
9
Q
charactersitics of a unilateral contract
A
- one promise
- exchanged for act or forbearance
- formed when performance completed
contract that results when an offer can be accepted only by the offeree’s performance
ex. putting up a ‘lost dog reward’ sign is unilateral. if a person finds the dog, you give a 30 dollars. if the person doesn’t find the dog, you don’t.
10
Q
What are the two classifications of contracts?
A
informal vs formal
11
Q
What kind of contracts are informal contracts?
A
Most contracts
12
Q
What kind of contracts are formal contracts?
A
contracts that are required by law to have a set of formalities and are ONLY valid by law if they are in a specific form
ex. check, seal
13
Q
duty
A
obligation the law imposes on a person to perform or refrain from performing an act
14
Q
right
A
capacity of a person with the aid of the law to require a person to perform or refrain from performing an act
15
Q
implied in fact - what it is and the conditions
3
A
based on conduct.
- plaintiff furnished service or product
- plaintiff expects to be compensated
- defendant had a chance to reject and did not
16
Q
quasi contract
A
- ‘as if’ contract existed
- courts impose a contract to ensure one party is not unjustly enriched at the expense of the other
ex: A delivers to B an envelope intended for c. A is entitled to get the $ back from B based on quasi contract
17
Q
elements of a quasi contract
A
- benefit conferred on defendant without the defendant’s knowledge
- circumstances would make it inequitable to permit defendant to retain benefit without paying for it
18
Q
promisory estoppel - what it is and conditions (3)
A
can be used only when there is detrimental reliance on promise
- promisor should reasonably expect promise to induce substantial act or forbearance
- promisee takes substantial action or forbearance in reliance on promise
- injustice can only be avoided by enforcing promise (ny requires that circumstances are unconscionable)
19
Q
What does it mean if someone says ‘unconscionable’
A
they ‘shock the conscience’
20
Q
What is an offer?
A
A manifestation of willingness to enter into a bargain to justify another person in understanding that his assent to the bargain is invited and will conclude the bargain.
21
Q
What is MUST an offer have? (3)
A
- Communication
- Intent
- Definiteness
22
Q
How long do offers stay open?
A
If not a stated time, a reasonable time under the circumstances at hand
23
Q
When can offers be revoked?
A
- unless offer is irrevocable, it can be revoked at any time before an offer has been accepted.
- however, to effect a revocation, the notice of or knowledge about revocation or revocable act must be received by offeree
24
Q
What are the conditions of a revocation of offer? (4)
A
-manifestation of unwillingness to enter into a contract on offeror’s terms
-must be express or implied
-may be by conduct
-effective on receipt by offeror
-terminates power to accept
(unless its an irrevocable offer, note estoppel theories)
25
estoppel
A legal principle that bars a party from denying or alleging a certain fact owing to that party's previous conduct, allegation, or denial.
26
*firm offer language* (4)
'this is a firm offer'
'will remain open'
'will not be withdrawn'
'is irrevocable'
27
all firm offers for merchants and non merchants MUST
give affirmative assurance
28
NON ACCEPTABLE language for firm offers (3)
'this offer will expire on...'
'you must reply by...'
'if i do not hear from you by...'
29
elements of a counteroffer (4)
* counteroffer terminates offer and power to accept, unless irrevocable offer*
- effective on receipt (i.e offer is terminated)
- offeror does not have to respond to offer to terminate
- offeror can accept counteroffer
30
elements of inquiries (4)
- *no indication of unwillingness* to accept the terms of the offer
- merely *proposes* new or different terms
- does not terminate the offer
- difference between counteroffer and inquiries may be subtle
31
If an offeree of a firm offer dies, what happens to the contract?
Terminates. Offer not transferable.
32
If the offeror of a firm offer dies, what happens to the contract? (2)
Irrevocable- treated as a contract
Revocable- Offer terminates upon end of offer or upon receipt of revocation
33
*What is effective only when received?*
An offer, a revocation, a rejection, and a counteroffer
34
*What is effective when sent?* *What are the exceptions?* (3)
```
An acceptance
UNLESS
-Offeree uses an unauthorized means
-Acceptance follows prior rejection
-Offeror requires acceptance to be received to be accepted.
```
35
What is the purpose of a contractual remedy? What it not?
The purpose is NOT to penalize the breaching party (punitive damages) rather to *compensate* the aggrieved party
ie to put the aggrieved party in the position she/he would have been in if contract had been performed
36
What are the common general rules of damages at law? (3 stages)
Start with: What would put the damaged party in the place he would have been if the contract had been performed
Then ask: What type of damages is damaged party entitled to (4 types)
**MITIGATION MUST ALSO OCCUR* the aggrieved party must take reasonable steps to avoid excess losses- what losses could you have avoided with reasonable efforts
37
What are the 4 main types of damages?
Compensatory damages
Incidental damages
Consequential damages
Nominal damages
38
*What are the conditions that damages must be* (3)
Proximate- where the act or omission plays a substantial part in causing the damages
Foreseeable- to know in advance the act of looking forward (foresight), what a reasonable person would be able to foresee as a result of the breach
Reasonably Certain- damages must be proved not merely speculated
39
What are the 2 other types of damages?
Liquidated damages
| Quantum meruit
40
Liquidated damages - what it is (3), the 2 types
Contract fixes amount other party has to pay if he breaches; must be reasonable and not punitive
Generally one of 2 types
Forfeit - e.g. down payment
Fixed amount - e.g. delay damages in construction contract
41
quantum meruit - what it means, (3) characteristics
Quantum meruit – “as much as he deserves”
Reasonable value of services
where services, issue may be value of services to other party
( the parties did not have an express contract, but one party enjoyed the benefits of the other party’s services.)
For court to determine
42
equitable contract remedies
If there’s NOT a remedy at law ( damages) i.e. if money won’t suffice to pay for the breach
43
types of equitable remedies (4)
specific performance, injunction, recission/restitution, reformation
44
specific performance (4)
- cannot get for non-unique personal property as there damages can be quantified
- cannot get for personal services agreement
- can be used to force someone to sell you a specific (unique) painting or a piece of land you agreed to buy
45
Injunction
eg. stop a union strike
46
recission and restitution
recission: returns to the party the consideration he gave,
restitution: puts party in position he would have been if no contract
when it might be available:
- if total breach
- if repudiation (i'm not going to perform)
- minor avoids a contract
- there is fraud in a procuring a contract
47
reformation
court rewrites contract to make it conform to parties' intent
48
What are potential causes of action when mutual assent is not both voluntary and knowing?
- fraud
- undue influence
- duress
- mistakes
49
elements of fraud
*all elements must be present for there to be a claim of fraud*
- false representation of material fact
- made with knowledge of falsity and intent to deceive (scienter)
- reliance
- detriment (damage, injury)
50
What should happen if all the elements of fraud are present?
The contract is *voidable*.
Breach of contract may be plead as a defense - must be affirmateively pled!
51
rescission
delete a contract like in never happened
52
resitution
return of benefits conferred
53
status quo ante
the pre contract position
54
Should you act prompted if you are defrauded and want to sue someone for fraud?
yes
55
types of contracts within the statute of frauds (4)
- real property
- one year
- suretyship (guarantee)
- sales of goods for price of $500 or more
* within* means the contract is of the type in the list
* not within* means contract is not of type on list
* satisfy the statue* happens if the contract is within the statue of frauds and the statute of frauds has been satisfied
56
What is the past performance exception on the Statue of Frauds? (4+1)
For oral real property transaction, the past performance exception requires all of the following:
- Part payment of price
- Possession/entry on property with owner's consent
- Substantial improvements ("reliance" "inequitable")
- performances must be unequivocally referable to alleged contract
*part payment insufficient by itself*
57
What is the one year provision on the statue of frauds? (3)
Contract which 'by its terms' cannot be performed within one year from the date it is made.
Key date is the date the contract was entered into ('made')
If contract made today, cannot be fully performed by that date next year, it is *within* the Statute
58
What is the exception to the one year provision?
EXCEPTION TO ONE YEAR PROVISION -
Bilateral contract, fully executed by one party, where other party’s performance is not to be completed within one year
E.g., loan, installment payments
Party whose performance is executory will not be permitted to use defense
EX: A orally agrees to pay back B in two years if B loans A money. B loans A the money
Since B has already fully performed the St of Fr is satisfied as nothing is left for B to do
59
How is a contract for the sale of goods that are a price of $500 or more satisfied? (3)
a. in signed writing
b. . Sufficient to indicate that a contract for sale has been made
c. Signature of pty to be charged
60
What happens if an original agreement was not within the Statute of Frauds but a modification brings it within the statue of frauds?
Then the Statute of Frauds must be satisfied.
| And vice versa.
61
accord and satisfaction
accord - agreement to accept a different performacne in satisfaction of an existing obligation
satisfaction- performance of that agreement
62
What is the difference between liquidated debt and unliquidated debt?
In liquidated debt, there is no dispute or uncertainty as to the existence of the debt or the amount of debt.
In unliquidated debt, there is a dispute over either the existence of the debt or the amount owed.
63
What happens if someone, ex. D, sends a check for an unliquidated debt clearly marked 'in full satisfcation' or 'in full payment' to C and C cashes it?
Then it is considered accord and satisfaction because C cashed it in.
64
What if someone, ex. D, sends a check for an unliquidated debt marked 'in full satisfaction' and C cashes it but writes 'under protest' or 'without prejudice' or 'with full reservation of rights' on it?
Then there is no accord and satisfaction since C did not just accept it; it was under protest still.
65
What can cause a termination of contractual obligations? (5)
- Agreement
- Failure of condition
- Performance
- Breach
- Operation of Law
66
What are the ways that a discharge can happen by agreement? (4)
Mutual rescission—parties agree to mutually end the agreement
Substituted contract—new contract replaces prior contract
Accord and Satisfaction—party accepts new consideration in lieu of promisee’s existing contractual duty
Novation ( new agreement)— a three party agreement in which a new party steps in to replace the existing promisor or promisee= new contract with new promisor and promisee; old contract gone
67
When will courts enforce reasonable restraint on trade (non competition agreements)? (3)
1. Ancillary to another agreement (restraint of trade cannot be primary purpose)
2. Restraint is necessary to protect a valid interest
3. Restraint must be reasonable in scope
*Time AND
Geography*
68
What kind of remedies can you get if a noncompetition agreement is enforceable?
- Injunction
| - Damages
69
When can an employee be fired?
An employee can be fired at any time for any reason.
70
When can't an employee be fired?
- Whistle blower statues
| - Anti discrimination statutes
71
What is the NY Whistle Blowers Statute? (3)
discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud;
(b) provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any such violation of a law, rule or regulation by such employer; or
(c) objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation.
72
What are the two main federal statues on employee discrimination rights?
- Title VII of the Civil Rights Act of 1964
| - Age Discrimination in Employment Act (ADEA)
73
What is the minimum age for age discrimination?
Over 40.
74
What is included in Title VII (6)?
- race, color, gender, religion, national origin
| - includes sexual harassment
75
What are the two types of sexual harassment?
- Quid pro quo
| - hostile environment
76
What does the Americans with Disabilities Act (ADA) require an employer to do?
Provide reasonable accomodation.
77
What does the Equal Pay Act require an employer to do?
Protect against discrimination by gender in regard to wages.
78
What does the Family Medical Leave Act require an employer to do?
Employee can get leave for birth of a child, care of spouse/child with serious medical condition
79
What are the possible defenses that an employer has against discrimination claims? (4)
Bona fide occupational qualification
Valid job related test or criteria
Seniority system
Undue hardship on employer
80
What are the elements of a claim of negligence?
Breach of duty of care
(which is the )Proximate cause / foreseeable result
(of) Injury of a type protected by the law
“But for” test - injury would not have happened but for negligent conduct of defendant
Superseding cause- -f event is judged to be superseding cause, defendant is relieved of liability for that cause but not the original negligent act
81
What are the must there be to validly claim a breach of duty?
Must find the existence of a legal duty and breach of that duty
82
What is a legal duty?
Legal Duty: Obligation imposed by law to conform to a particular standard of conduct toward another
83
What is the reasonable person standard?
It is an objective standard of a person. However, some charactersitics are taken into account like age, physical disability, and superior skill.
eg. what would a reasonable doctor be required to do vs. what would a reasonable janitor be required to do
84
invitor and invitee
invitor - business owner
| invitee - customer
85
licensor and licensee
licensor- home owner
| licensee- house guest
86
duty to invitee vs. duty to licensee
The duty that an invitor has to an invitee is GREATER than the duty that a licensor has to a licensee.
87
What is an invitor obligated to do for an invitee?
Store owner must warn invitee of dangerous condition he knows of or should discover and invitee is not likely to discover
88
What is a licensor obligated to do for a licensee?
Home owner must warn licensee of dangerous condition he knows of and licensee is not likely to discover
89
Who is liable for a defective good that causes injury?
Manufacturers, sellers, and lessors of goods
90
Is privity of contract required if you have an injury from a defective good?
*No. You can sue even if you didn't buy the good.*
Because: Manufacturers must exercise due care in: designing the product, selecting materials, production process, assembly, providing adequate warning labels. Adequate warning label for ordinary person.
91
What are the defenses to negligence? (2)
Comparative negligence
Assumption of risk
92
elements of comparative negligence (2)
modern rule
- jury can apportion fault
- damages decrease to extent of plaintiff's fault
93
elements of assumption of risk
plaintiff voluntarily and knowingly assumes risk of harm arising from defendant's negligent conduct
94
What is strict liability?
Liability without intentional or negligent conduct, constantly liable.
95
What are the six requirements of strict liability?
1) Product must be in a defective condition when sold.
2) Defendant must be engaged in selling that product
3) Product must be “unreasonably dangerous”: product is dangerous beyond ordinary expectation or less dangerous alternative not used.
4) Plaintiff must incur injury to self or property by use or consumption of the product
5) Defective condition must be cause
6) Goods have not substantially changed from time of sale.
96
What are the defenses to strict liability?
Comparative negligence – Maybe
---despite a warning sign and fence you walk into a site with explosives
Assumption of risk – maybe
-----you climb on the Macy’s fireworks barge to see the fireworks” up close” and dislodge them and they explode
97
What are the areas of consumer law regulated by statues? (6)
-Deceptive Advertising.
-Labeling and Packaging.
Sales.
-Credit Protections.
-Consumer Health and Safety.
-State Consumer Protection.
98
deceptive advertising: puffery
Vague generalities and obvious exaggerations are permissible and not considered deceptive.
99
deceptive advertising: bait and switch ads
The advertising of a product at an attractively low price to lure customers in to buy more expensive items.
100
Can a person's wrongful act be liable (or guilty) in both civil actions (tort) and criminal actions?
Yes
101
What must the State accomplish when trying someone for criminal liability? (2)
Show, *beyond reasonable doubt* that the defendant
- performed the criminal act (actus rectus)
- while performing the criminal act, had the required intent for the specific state of mind (mens rea)
102
What is required for criminal conviction?
Intent
103
What are the two conditions for corporate criminal liability?
Crimes must occur within scope of employment.
Corporations can be held criminally liable when they FAIL to fulfill certain statutory duties.
104
What does the 'Responsible Officer' doctrine entail?
Corporate officers and directors can be liable under the “Responsible Officer” doctrine
105
intellectual property
is any property that is the product of an individual’s mind, e.g, books, software, movies, music.
106
How does the constitution protect intellectual propety?
With Article 1 Section 8
Congress shall:
“promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive right to their respective Writings and Discoveries."
Ownership of I.P. is strategically important in the global economy.
107
How is intellectual property protected in the US?
You file an application in the USPTO (United States Patent and Trademark Office)
The filing prevents confusion among consumers/ others over what is protected
108
What characterizes a trademark? (3)
- Distinctive motto, mark or emblem.
- Stamped or affixed to a product.
- So that it can be identified in the market.
109
How long is copyright granted to the author?
for life + 70 years
110
What is protected expression?
Work must be original and “fixed in a durable medium.” Ideas are not protected, but the expression of an idea is.
Compilation of facts is protected.
111
patent
government monopoly that gives inventor the exclusive right to make, use or sell and invention for 20 years.
112
What is patentable?
Item must be novel and not “obvious”. Almost anything is patentable (excluding laws of nature, natural phenomena, abstract ideas).
