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BLAW > FINAL EXAM > Flashcards

FINAL EXAM Flashcards

CH 12,7,24,35

1
Q

Consideration

A

something of value received or promised to convince a person to make a deal

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2
Q

Two parts of consideration

A
  1. legally sufficient value
  2. bargained-for-exchange
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3
Q

Legally Sufficient Value

A

something of value in the eyes of the law:
a promise to do something that you otherwise had no prior legal duty to do, performance of an action that you are otherwise not obligated to undertake, forbearance: refraining from an action that you have a legal right to undertake

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4
Q

Bargained-For-Exchange

A

the basis for a bargain struck between or among the contracting parties: distinguishes contracts from gifts

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5
Q

Adequacy

A

Involves “how much” consideration is given/if bargain was fair
General rule: courts do not typically get involved in determining adequacy as long as consideration is legally sufficient

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6
Q

Freedom of Contract

A

fundamental public policy recognizing one’s ability to enter freely into contractual arrangements; courts rarely interfere with contracts that have been voluntarily made
exceptions: illegal activities, unreasonably restrain trade, uneven bargaining power

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7
Q

Agreements that lack consideration

A
  1. Preexisting Duty: a promise to do what one already has a legal duty to do does not constitute legally sufficient consideration, prevent against extortion
  2. Past Consideration: promises made in return for actions or events that have already taken place are unenforceable (bargained for exchange is missing)
  3. Illusory promise: a statement that is uncertain and vague that is not considered a definite promise “as long as management thinks it is warranted”
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8
Q

Accord and Satisfaction

A

a common means of settling a disputed claim, whereby a debtor offers to pay a lesser amount than the creditor purports to be owed: typically occurs when amount of debt is in dispute
accord: agreement under which one party promises to give or perform and the other party to accept
satisfaction: performance (payment) which takes place after accord is executed

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9
Q

Release

A

a contract in which one party forfeits the right to pursue a legal claim against the other party
binding if given in good faith, stated in signed writing, accompanied by consideration

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10
Q

Promissory Estoppel

A

detrimental reliance: doctrine that can be used to enforce a promise when the promisee has justifiably relied on it when justice will be better served by enforcing the promise
- a promise may be enforced even though consideration was not given
- similar to quasi contact

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11
Q

Five elements of promissory estoppel

A
  1. must be a clear and definite promise
  2. promisor should have expected promisee would rely on the promise
  3. promisee reasonably relied on the promise by acting or refraining from some act
  4. promisee’s reliance was definite and resulted in substantial detriment
  5. enforcement of the promise is necessary to avoid injustice
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12
Q

Capacity

A

both parties must be competent

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13
Q

Contractual Capacity: Minors

A

18 years old cutoff, a minor can enter into any contract an adult can, provided that the contract is not one prohibited by law for minors.
voidable at option of minor, to avoid contract must clearly show intention not to be bound by it
exceptions: marriage, military, engaged in business as an adult, contracts for necessaries

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14
Q

Disaffirmance

A

legal avoidance or setting aside of a contractual obligation
- must express in words or conduct and disaffirm entire contract in a reasonable time period
*can disaffirm a contract after minor comes of age as long as it was entered into as a minor

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15
Q

Ratification

A

the acceptance or confirmation of an act or agreement that gives legal force to an obligation that previously was not enforceable
express: state orally or in writing
implied: behaves in a manner inconsistent with disaffirming

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16
Q

Contractual Capacity: Intoxication

A

condition in which a person’s normal capacity to act or think is inhibited by alcohol or some other drug: contract may be voidable at that person’s option. rare for contracts to be avoided due to intoxication as courts use an objective test

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17
Q

Contractual Capacity: Mentally Incompetent

A

Void: (not valid) if a court has previously determined that person is mentally incompetent and has appointed a guardian to represent them
Voidable: if a court has not previously judged a person to be incompetent and person did not know they were entering into an agreement with mentally incompetent person
Valid: if person was competent, lucid intervals (temporary period of sufficient intelligence)

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18
Q

Legality

A

purpose must be to accomplish a goal that is legal and not against public policy
contract prohibited by law is void and unenforceable from outset. if it become illegal the contract is discharged

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19
Q

Contract Contrary to Public Policy

A
  1. contracts in restraint of trade
  2. covenant not to compete: contractual promise of one party to refrain from conducting business similar to that of another party for a certain period of time within a specified geographic area
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20
Q

Unconscionable Contracts

A

contract or clause that is void on basis of public policy because one party was forced to accept terms that are unfairly burdensome and unfairly benefit stronger party
- procedural unconscionability: involves inconspicuous print, lack of an opportunity to read contract or ask questions
- substantive unconscionability: when contract or provision is oppressive or overly harsh: leave party without remedy for nonperformance

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21
Q

Adhesion contract

A

a standard form contract in which the stronger party dictates the terms on a take it or leave it basis: enforced unless terms unreasonably favor the drafter

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22
Q

Exculpatory Clause

A

a clause that releases a contractual party from liability in the event of monetary or physical injury, no matter who is at fault
not enforced: residential leases, employment contracts which remove employer’s potential liability for injuries to employees
can enforce: limit but do not release a party from liability, health clubs, etc

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23
Q

The Effect of Illegality

A

General rule: neither party to an illegal bargain can sue for breach and neither party can recover for performance rendered, except:
justifiable ignorance of facts, members of a protected class, severable contracts (divisible due to distinct parts), fraud, duress, or undue influence

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24
Q

Intellectual Property

A

any property resulting from intellectual and creative purposes

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25
Q

Trademark

A

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 other companies: person who used symbol is protected

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26
Q

Statutory protection of trademarks

A

Lanham Act of 1946: federal statute enacted in part to protect companies from losing business that use confusingly similar trademarked, based on common law
Federal Trademark Dilution Act: amendment of Lanham Act which allows trademark owners to bring a lawsuit in federal court for trademark dilution: protects against certain unauthorized uses even when the use involves noncompeting goods or is unlikely to confuse consumers

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27
Q

Dilution

A

unauthorized use of a distinctive and famous mark in a way that weakens the marks distinctiveness or harm its reputation: even if it is noncompeting goods

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28
Q

Trademark Registration

A

register with the US Patent and Trademark Office, can be registered if currently in commerce or intends to put it out within 6 (to 36) months
- USPTO gives notice of mark and receives symbol
- renew between 5th and 6th year and every 10 years after

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29
Q

Infringement

A

when someone else uses the registered trademark in its entirety or copies it to a substantial degree, intentionally or unintentionally without authorization
- must show it created likelihood of confusion
- remedy is injunction: restrains a person from committing an act

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30
Q

Distinctiveness of the Mark

A

must be sufficiently distinctive
most distinctive are outside the context of the particular product
- fanciful trademarks: involve invented words (Google)
- arbitrary: involve common words not associated with the product (Apple)
- suggestive: bring to mind something about product without directly describing (DQ)
- generic: refer to an entire class of products, weakest type, receive no protection
- secondary meaning: descriptive terms and color schemes that are not initially distinctive but customers associate them with specific items made (FedEx colors)

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31
Q

Service, Certification, and Collective Marks

A

service: distinguishes the services
certification: mark used by persons other than owner to certify quality or characteristics of specific goods or services
collective: mark used by members of a group or organization to certify certain characteristics (CPA)

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32
Q

Trade Dress

A

image and overall appearance of a product that is protected by trademark law. in trade dress infringement, the key issue is whether consumers are likely to be confused by the allegedly infringing use

33
Q

Counterfeit goods

A

goods that copy or otherwise imitate trademark goods but are not genuine

34
Q

Trade Names

A

name that refers to all or part of a business’s name to identify itself and its brand: directly related to business’s reputation and goodwill

35
Q

Licensing

A

license: agreement by the owner of intellectual property to permit another party to use it for certain limited purposes
licensor: party that owns the intellectual property rights and issues the license
licensee: party that obtains the license from the licensor

36
Q

Patent

A

a property right granted by federal gov that gives an inventor exclusive right to make, use, and sell an invention in the US for a limited time
America Invents Act: first person to file a patent application receives protection
Patents for invention: 20 years
Patents for design: 14 years
Once protected period ends, product enters public domain
must be novel, useful and non-obvious and not laws of nature, natural phenomena, and abstract ideas

37
Q

Patent infringement

A

a tort whereby a firm makes, uses, or sells another’s patented design, product of process without permission
- may occur even though the patent owner has not put the patented product into commerce or not all features of an invention are copied

38
Q

Copyright

A

intangible property granted by federal statute (Copyright Act of 1976) to author or originator of certain literary or artistic productions
- life plus 70 years
- company: 95 years from publication or 120 years from creation
- includes ways ideas are expressed like literary works, musical works, architectural works, etc
- protects against reproduction, development of derivative works, distribution, and public display

39
Q

copyright infringement

A

whenever the form or expression of an idea is copied. occurs only if a substantial part of the work is reproduced. may be held liable for damages or criminal penalties

40
Q

Fair Use exception

A

an exception to liability for copyright infringement: a person who reproduces copyrighted material may not have to pay royalties: purpose and character, nature, amount, effect of the use upon the potential market for or of the copyrighted work (most important)

41
Q

Trade Secret

A

formula, device, idea, process, or other information used in a business that gives the owner a competitive advantage in the marketplace: information of commercial value, protected under common law and now under Uniform Trade Secrets Act and federal statute

42
Q

International Protection

A
  • Paris Convention of 1883: file for patent and trademark protection in any other signatory country
  • Berne Convention of 1886: copyright protection afforded in all signatory countries for copyrighted materials originating in one country
  • TRIPS Agreement of 1994: standard for international protection, must include domestic laws rights
  • Madrid Protocol: simpler process and lower costs for trademark registration
43
Q

Employment at Will

A

common law doctrine that allows either party to end employment relationship at any time for any reason
exceptions are based on: contract theory, tort theory, and public policy

44
Q

Exceptions to Employment at Will based on Contract Theory

A

implied employment contract: a contract that is inferred or implied (as interpreted by court) between employer and employee even though no written contract exists: could be based on employment manual, it is employee’s reasonable expectations to whether an implied employment contract is said to have been formed

45
Q

Exceptions to Employment at Will based on Tort Theory

A

intentional infliction of emotional distress: an extreme act, intentionally committed, results in severe emotional distress
defamation: anything published or spoken that causes injury to another
fraud: involves intention deceit for personal gain based on misrepresentation of facts or conditions with knowledge they are false, intent to induce another, justifiable reliance, damage suffered, causal connection

46
Q

Exceptions to Employment at Will based on Public Policy

A

most common exception to employment at will.
whistleblowing: an employee’s disclosure to government authorities, upper-level managers, or the media that the employer is engaged in unsafe or illegal activities

47
Q

Wrongful Discharge

A

general cause of action for an employer’s termination of an employee’s employment in violation of the law or an employee contract, includes:
- fired due to discrimination
- subject to sexual harassment
- fired in retaliation
- discharged for refusing to break a law or opposes illegal practices

48
Q

Fair Labor Standards Act (FLSA)

A

federal statute enacted in 1938 which extended wage and hour requirements to cover all employers engaged in interstate commerce or in the production of goods for interstate commerce, plus certain other businesses

49
Q

Wages and Hours

A

establishes minimum wage: lowest wage, either by go regulation or union contract, than an employer must pay an hourly worked; increased by Congress from time to time
- many states establish a minimum wage that is higher than federal minimum wage. employee must be paid state wage if it is higher than federal

50
Q

Overtime

A

employees who work more than 40 hours/week paid 1.5 times regular pay
exemptions: certain employees
- administrative employees: must be paid salary not hourly wages, primary duty must relate to general business operations, must also exercise discretion and individual judgment
- executive employees: primary duty is management measured by value to employer, not strictly hours spent on tasks

51
Q

Family and Medical Leave Act (FMLA)

A

federal statute enacted in 1993 to allow employees to take time off work for family (to care for a newborn baby or child recently placed for adoption) or medical leave (when employee or employee’s family has a serious health condition requiring care)

52
Q

Occupational Safety and Health Act (OSHA)

A

federal statute enacted in 1970 that is the primary legislation protecting employee’s health and safety
- requires safe workplaces, prohibits discrimination against employees who believe workplace is unsafe, establishes industry standards, requires illness and injury records, can inspect facilities, employees may file complaints

53
Q

Workers compensation laws

A

state statutes that establish an administrative procedure for compensating workers injured on the job: instead of suing employer, employee files a claim. excludes domestic, agricultural, and temporary workers. can be self-insured

54
Q

Requirements for receiving workers compensation laws

A
  1. existence of an employment relationship
  2. accidental injury that occurred on the job or in the course of employment, regardless of fault
    - notify employer within 30 days, file claim in 60 days - 2 years, relinquishes right to sue employer
55
Q

Income Security

A

federal and state governments participate in insurance programs designed to protect employees and their families by covering the financial impact of retirement, disability, death, hospitalization, unemployment

56
Q

Social Security Act

A

federal statute that provides for old-age (retirement), survivors and disability insurance

57
Q

Federal Insurance Contributions Act (FICA)

A

federal statute that requires employers and employees to contribute (or pay in) to help pay for benefits that will partially make up for loss of income on retirement
- basis for contribution is annual wage
- employer withholds FICA 6% contribution and 6% matching employer contribution
- retired workers are eligible to receive monthly payments
- social security benefits fixed by statute but increase with cost of living

58
Q

Medicare

A

federal government health insurance program that is administered by Social Security Administration for people of 65 years of age and older and some under 65 years of age who are disabled
- no cap on amount of wages: 1.45% by employer plus 1.45% by employee
- self-employed persons pay both the employer and the employee portions of the social security and medicare taxes

59
Q

Federal Unemployment Tax Act (FUTA)

A

federal statute enacted in 1974 that regulates employee retirement plans
- created state-administered system that provides unemployment compensation
- employers pay into a fund and proceeds are paid out to qualified unemployed workers
- workers who have been fired for misconduct or who have voluntarily left their jobs are not eligible for benefits

60
Q

Consolidated Omnibus Budget Reconciliation Act (COBRA)

A

federal statute enacted in 1985 that requires employers to continue health care coverage for workers after their jobs have been terminated (when they are no long eligible for employer’s group health insurance plans)
- requires employee to pay premiums under COBRA
- only workers fired for gross misconduct are excluded from protection

61
Q

Health Insurance Portability and Accountability Act (HIPAA)

A

federal statute that regulates employer-sponsored group health plans
- restricts manner in which covered employees collect, use, and disclose health information
- employers must ensure health information is not disclosed to unauthorized parties
- employer can be subject to criminal prosecution for certain types of HIPAA violations

62
Q

National Labor Relations Act (NLRA)

A

federal statute that established the rights of employees to engage in collective bargaining and to strike
- formed NLR board
- prohibits employers from interfering with efforts to organize, dominating labor org, discriminating based on union affiliation, refusing to bargain

63
Q

Property

A

legally protected rights and interests in anything with an ascertainable value that is subject to ownership
personal property (chattel): property that is movable (cars, computers, art, etc)
real property (real estate): property that is immovable (land, buildings, subsurface, airspace, personal property that has been permanently attached)

64
Q

Land

A

soil on the surface, natural or artificial structures attached, waters contained on or under the surface, and much of the airspace above it
- ownership of land is a legal, abstract contstruct

65
Q

Airspace Rights

A

flights over privately owned land do not violate property rights unless flights are low and frequent, so they directly interfere with the owner’s enjoyment and use of land

66
Q

Subsurface Rights

A

land ownership may be separated so different people may own the surface vs. the subsurface of a piece of land
- can be valuable (oil, natural gas)
- each owner can pass title to what she/he owns without consent of the other owner
- conflicts can arise but statutory/common law may make one party’s interest subservient to the other party

67
Q

Fixtures

A

certain personal property which becomes so closely associated with the real property to which it is attached law views it as real property
- attached to real property in a permanent way
- if owner wants something to be a fixture, it is
- included in a sale of land if the sales contract does not provide otherwise

68
Q

Fee simple absolute

A

an ownership interest in land in which the owner has the greatest aggregation of rights, privileges, and power
- owner has rights of exclusive possession and use of property, can give away or transfer, transfers to heirs upon death
- subject to zoning, noise and environmental laws
- nuisance: use of a property in a way that interferes with others’ right to use or enjoy their own property

69
Q

Life Estates

A

ownership interest in land that lasts only for the duration of the life of some specified individual
- conveyance: transfer of title to real property by deed or other document
- life tenant cannot commit any waste (injury to land)

70
Q

Leasehold Estate

A

created when a real property owner or lessor (landlord) agrees to convey the right to possess and use the property to a lessee (tenant) for a certain period of time
- right to possess property is temporary
- owner can enter property and ensure tenant is not committing waste

71
Q

Non-possessory Interest

A

interest in land involving the right to use the land but not possess it or take it away
- easement: a non-possessory right, established by express or implied agreement to make limited use of another’s property without removing anything from the property
- license: the revocable right to enter onto another person’s land without obtaining any permanent interest

72
Q

Transfer of Ownership

A

ownership interests in real property can be transferred by: sale, will or inheritance, adverse possession, eminent domain

73
Q

Real Estate Sales Contracts

A

includes purchase price, type of deed, condition of premises, and any items that will be included
- must obtain a mortgage loan: loan that is not used to purchase property and is secured by that property
- implied warranty of habitability: guaranty by the seller of a new house that the house is fit for habitation
- seller has a duty to disclose any known defect that materially affects the value of the property

74
Q

Deeds

A

a written instrument which conveys real property from one person to another
- unlike a contract, a deed does not have to be supported by consideration
- to be valid it must include: name of buyer and seller, words indicating intent to convey property, description of land, signature of grantor, delivery of the deed

75
Q

Recording statutes

A

statutes that allow deeds, mortgages, and other real property transactions to be recorded so as to provide notice to future purchasers or creditors of an existing claim on the property
- recorded in county which property is located
- provided a library for buyers to review past transactions

76
Q

Will or Inheritance

A

property that is transferred upon an owner’s death is passed either by will or inheritance
- if owner dies with a will, land passes in accordance with terms of will
- if dies without a will, land passes according to state inheritance statutes

77
Q

Eminent Domain

A

the condemnation of power: the power of the government to take land from private citizens for public use as long as the government provides such citizens with just compensation

78
Q

Landlord-Tenant Relationships

A
  1. possession: must give tenant possession of property, cannot disturb enjoyment
  2. use and maintenance of the premises: tenant can use the leased property in any legal way, responsible for damages but not wear and tear
  3. implied warranty of habitability: ensure leased premises are habitable, landlord must repair substantial physical defects
  4. rent: tenant’s payment to the landlord for tenant’s occupancy of the leased property, may be able to withhold rent as remedy but must comply with applicable state law
79
Q

Assignment of Lease vs Sublease

A

assignment of lease: transfer of tenant’s entire interest in the leased property to a third party
- landlord’s consent is required
- does not release the original tenant from the obligation to pay rent should the assignee default
sublease: transfer of all or part of the leased premises by tenant to a third party for a period of time shorter than the lease term
- landlord’s consent is required
- sublease typically does not release original tenant from obligation

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