Final Exam Law Flashcards
Breach
when one or both parties in the k fail to perform their duties or obligations under the k
damages under law
compensatory, punitive, consequential
compensatory damages
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
liquidated damages
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
punitive damages
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
damages under equity
injunctions, specific performance, reformation
injunction
court order requiring a person to stop a specific action. in court, an injunction granted would take place immediately upon issuance.
specific performance
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.
reformation
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
mitigation
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
parker v 20th century fox
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
negligence
when the party has a duty, the party has breached the duty, and this breach has caused a direct injury or harm to another.
goods
tangible and moveable property from the seller to the buyer at the time of the sales k. chattels
merchant
a person who deals in goods, more knowledge and experience than the average consumer
open terms
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
firm offer rule
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.
express warranty
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.
puffing
salespersons are allowed to give “opinions”, which do not constitute a warranty
daughtrey v ashe
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
implied warranty
where the product is fit for the purpose for which it is intended and is merchantable, i.e, conforms to the buyers expectations
goodman v wendys
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
dolinski v coca-cola
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
strict product liability
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
nowak v faberge
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