Final Exam Law

Question 1

Breach

Answer 1

when one or both parties in the k fail to perform their duties or obligations under the k

Question 2

damages under law

Answer 2

compensatory, punitive, consequential

Question 3

compensatory damages

Answer 3

monetary damages are awarded to compensate for the actual loss incurred by the non-breaching party. damages must be proven and measurable against the loss or injury

Question 4

liquidated damages

Answer 4

these monetary damages are agreed upon in advance and are included in the terms of the k. liquidated damages clause eliminates the need to have a court resolution of a contractural breach and dispute. it is a provision that allows for the payment of a predetermined specified sum should one of the parties breach the k

Question 5

punitive damages

Answer 5

considered punishment to the party who breached. awarded at the discretion of the court when the behavior is found to be especially harmful or damaging to the other party. warning that this type of behavior will not be tolerated

Question 6

damages under equity

Answer 6

injunctions, specific performance, reformation

Question 7

injunction

Answer 7

court order requiring a person to stop a specific action. in court, an injunction granted would take place immediately upon issuance.

Question 8

specific performance

Answer 8

when the court orders a party to perform the “act” as closely as possible because monetary damages are not adequate to fix or cure the harm incurred.

Question 9

reformation

Answer 9

the courts equitable power to modify a k to reflect the true intent or value of the k when some error has occurred. Court can rewrite the k to what is determined to be fair or just

Question 10

mitigation

Answer 10

the party who has suffered a loss from the breach of a k, must act to try to avoid or reduce the loss or damages suffered, if it is reasonable to do so under the circumstances

Question 11

parker v 20th century fox

Answer 11

Bloomer girl role- offered different role of big country- parker did not accept and offer expired- fox refused payment and Parker sued- were the roles similar or comparable? no

Question 12

negligence

Answer 12

when the party has a duty, the party has breached the duty, and this breach has caused a direct injury or harm to another.

Question 13

goods

Answer 13

tangible and moveable property from the seller to the buyer at the time of the sales k. chattels

Question 14

merchant

Answer 14

a person who deals in goods, more knowledge and experience than the average consumer

Question 15

open terms

Answer 15

A contract that doesn’t specify a date range, and continues as long as both parties are satisfied. Open contracts can be used for many types of agreements, including partnership, disclosure, and payment agreements

Question 16

firm offer rule

Answer 16

a merchant makes a written offer and states that the offer will remain open for a specific time period, and then the merchant cannot revoke or amend the offer prior or during the time period stated.

Question 17

express warranty

Answer 17

when the seller makes a written or oral statement of fact relating to the goods being sold, and that the goods meet these standards, which are the benefit of the bargain. warranty ensures that the goods will conform to the statement or promise made by the seller.

Question 18

puffing

Answer 18

salespersons are allowed to give “opinions”, which do not constitute a warranty

Question 19

daughtrey v ashe

Answer 19

diamond bracelet- diamonds were specified as high quality- another jewler claimed the diamonds did not meet the standard- Mr Daughtrey insisted diamonds be replaced or pay difference in value- ashe refused claiming form was for insurance purposes- was a warranty formed between the seller and the buyer? yes

Question 20

implied warranty

Answer 20

where the product is fit for the purpose for which it is intended and is merchantable, i.e, conforms to the buyers expectations

Question 21

goodman v wendys

Answer 21

Wendys hamburger- bit a steak bone- broke 3 teeth- damage from medical costs- sued wendys for breach of implied warranty- wendys claimed this was not a foreign substance- does consumer expectation test apply? yes

Question 22

dolinski v coca-cola

Answer 22

Vending machine and squirt- mouse feces in drink- suffered physical distress- dolinski sued coca-cola on doctrine of strict product liability- wanted compensatory damages- was coca-cola ethical in denying liability? no

Question 23

strict product liability

Answer 23

an expectation that all products are safe. under this theory, anyone involved in the chain of distribution of a product may be held accountable if there is any injury to the consumers, even if the consumer may be at fault

Question 24

nowak v faberge

Answer 24

aerosol hair spray can- warning on back of can- 14 yr old used incorrectly and suffered severe burns- sued faberge claiming that company failed to properly warn of dangers- should doctrine of strict product liability apply? yes

Question 25

conspicuous disclaimer

Answer 25

a disclaimer is conspicuous if it is written, displayed, or presented in such a way that a reasonable person should have noticed

Question 26

intellectual properties

Answer 26

creations of the minds, inventions, literary and artistic works, designs, symbols, and names and images used in commerce

Question 27

trademark

Answer 27

any word, phrase, symbol, design, or a combination thereof, that can identify the origin of a business, or the goods, products or services affiliated with that business.

Question 28

copyright

Answer 28

(the right to copy)- exclusive right given to an originator to print, publish, perform, film, or record any literacy artistic or musical material, and to authorize others to do the same

Question 29

patents

Answer 29

exclusive property right granted to an investor for a specific time period in exchange for the complete disclosure of the invention

Question 30

trade secrets

Answer 30

information that is intended to be kept confidential and effort must be made to do so. includes customer lists and manufacturing processes, economic value in this information

Question 31

fair use doctrine

Answer 31

promotes freedom of expression by permitting the unlicensed use of intellectually protected works to be used under certain circumstances, without permission of the owner. ex. teaching

Question 32

parody

Answer 32

the use of an existing brand or logo, in a satirical or humorous way, can be used to comment/criticize the original brand

Question 33

infringement

Answer 33

when their is an unauthorized violation or a breach

Question 34

dilution

Answer 34

occurs in trademarks that diminishes the capacity of a famous mark used to identify its goods or services. lessens uniqueness

Question 35

cease & desist letter

Answer 35

to put an individual or a business on notice that they are engaging in some sort of activity that is believed to be causing harm, and if not stopped, legal action will be commenced

Question 36

counterfeit

Answer 36

these products are fake or unauthorized replicas of real products. often produced with the intent to take advantage of the superior value of the imitated products.

Question 37

knock-offs

Answer 37

products that copy or imitate the physical appearance of other products but do not copy the brand name or logo of a trademark

Question 38

mitigation

Answer 38

the principle that a party who has suffered loss (from a tort or breach of contract) has to take reasonable action to minimize the amount of the loss suffered.