LAW FINAL Flashcards
Statute of frauds (definition)
Merely a writing requirement If oral only, unenforceable
Statute of frauds (5 types)
- LAND
-Part performance can substitute for writing - Cannot be performed in one year
- Measure from date contract formed
- Lifetime contracts - oral OK - Prenuptial agreements
- Collateral Promises
- UCC – Sale of Goods greater than $500
Statute of frauds (3 Writing requirements)
- Formality not required
- Ok if several different documents
- Signature needed of party being sued
Parol Evidence rule (Definition)
If a written contract, no evidence can be admitted about statements, writing from before the contract was formed.
(Evidence of later statements can be admitted)
Parol Evidence rule (2 Exceptions Where earlier evidence ok)
Evidence before contract formed can be admitted to
1. To resolve ambiguities or gaps
2. To prove fraud
Delegate Duties (definition)
have another perform for you
4 Limits on delegation
- Special Skills (a quarterback can’t delegate to another quarterback for a game)
- Special Trust
- Recipient of performance (obligee) will be getting something different
- Contract can prohibit
Assign Rights (definition)
transfer your rights to another
4 Limits on assignments
- Prohibited by Statute (Workers Comp)
- Personal Services (a butler u contract to be a butler for yourself u can’t assign to someone else)
- Significantly Alters Risk of the Obligor (assigning insurance policy to someone else)
- Contract can prohibits rights to be assigned
- Exception = $
Assignment & delegation (4 Basics)
- Can occur separately or together
- Can assign or delegate some or all
- Delegatee of duty must accept
- Delegator of duty remains responsible
notice issue (Assignment to 2 Assignees)
Most states The first person that gets assigned the obligation regardless of notification to the obligor
3rd party beneficiaries (who can sue)
- Any intended beneficiary can sue
- Creditor (landlord in sublease agrement)
- Donee (gift recipient) - Incidental Beneficiaries cannot sue
3rd party beneficiaries (2 types)
1.Present when contract is formed
2. Contract calls for another to be benefitted
Discharge of duties
party has done all that is needed under the contract
Performance
doing what contract requires
Substantial Performance
doing almost all of what contract requires
- Some amount of $ could be subtracted if tasks not complete cost money
Mutual Rescission
Both agree to call off the deal
(Enter into another contract to discharge the old one)
Agreement to discharge
(4 ways)
1.Mutual Rescission
2.Novation
3.Substituted contract
4.Accord and Satisfaction
Novation
Replace one party
Requires all 3 parties agree
(A sublease structured like this means the original leaser can’t be sued)
Substituted contract
new contract immediately discharges duties of 1st contract
Accord and Satisfaction
New agreement to replace old
- Key: in settlement of dispute over old agreement
(Discharge of duties in old contract does not occur until new agreement is performed)
(If accord not performed, can sue on either original or accord)
Impossibility to discharge
(4 ways)
- Death of promissor
- Destruction of subject matter
- Supervening Illegality
- Death of promisee
Supervening Illegality
If importing 10 patriots, 2 have arrived, importing parrot becomes illegal, you have to pay for the 2 but rest of contract discharged
Free
3 Subjective impossibility
- Must be due to unforeseeable circumstances
- Commercial Impracticability
- Frustration of Purpose
Commercial Impracticability
- Makes it so contract is extremely burdensome to perform
- Price change usually not enough
Frustration of Purpose
No harder to perform, but no longer “makes sense”
Damages
Used to compensate the non-breaching party for anything short of full performance
Damages calculated
No single damage formula
Court has flexibility in remedies
benefit of bargain (definition)
- Compare the values of: What was promised To What was delivered
- (If seller breaches price paid is not relevant!!)
- Can’t use benefit of bargain if can’t determine the 2 values
cover transaction
another buyer,
another seller,
someone else to do the work, or
other work to do, etc., etc.
Benefits of bargain: alternate performance
After someone breaches, the non-breacher finds a “cover” transaction
Damages = what it takes for non-breacher to get same “deal”
Consequential damages
Must be Foreseeable OR Known to breaching party
Consequential damages
(case)
Hadley v. Baxendale
Mitigation
Non-breaching party has duty to minimize damages
Liquidated damages
Fixed in advance…OK if: Not excessive (too low is ok)
(damage deposit)
Rescission and restitution
Transaction reversed (returns the parties to the positions they were in before the contract)
Specific performance by cort
Making the other party do what he was supposed to do
(Never for personal services)
Tort
A civil wrong, entitling the victim to compensation (Usually based on common law)
Intentional torts 7
- Battery
- Assault
- False imprisonment
- Emotional Distress
- Defamation
- Wrongful interference with a contract
- Invasion of privacy
Battery
improper touching
Assault
The threat of intimate battery
EX: Pull a gun on someone
False imprisonment
Has to be actual physical imprisonment
Defamation (4 Requirements (all are needed))
- False statement
- Factual in nature
- Communicated to 3rd party
- Injury to reputation
(Actual monetary loss often must be proven in slander)
Privileged conversation
No defamation liability if privilege applies
Absolute Privilege
Court proceedings
In legislative debate
Qualified Privilege
Private interest related to the statement
Defamation Public Figures
Intent (actual malice) must be proven to recover
Libel
Written Defamation
Slander
Spoken Defamation
Invasion of privacy Example case
Vanna White case: Robot like Vanna White was made and she sued because they didn’t have persimmon to use her likeness
Invasion of privacy
Intrusion into private affairs Public disclosure of private info
Truth is not a defense
Wrongful interference with a contract
Tort to induce other to breach a contract
Negligence
involves accidental carelessness that injures another
Negligence recover only if all 5 requirements are met
- Duty
- Breach of that duty
- Injury
- Actual Causation
- ”But for” test
- Would it have happened anyway? - Proximate Causation
Palsgraff case
railroad case
4 reasons why defendant can win
- Assumption of risk
- Superseding cause or event
- Contributory Negligence
- Comparative Negligence
Res Ipsa Loquitur
Shifts burden of proof to defendant (prove not negligent)
Negligence Per Se
assumes a defendant is negligent if they violate a law or regulation that was designed to protect people from harm
Negligence Per Se
EXAMPLE
If you park in front of fire hydrant and a fire breaks out u are responsible if the
The harm that is caused must be related to the to the harm that the statue is meant to protect
Danger Invites Rescue Doctrine
holds a person responsible for damages if their negligence creates a hazardous situation that prompts someone else to attempt a rescue.
Good Samaritan laws
For medical professionals
If try to help in a situation but your helps makes it worse you won’t be liable
Dram Shop Acts
business can be held liable for damages caused by a person to whom they sold or served the intoxicating beverage.
Trademark defintion
distinctive word, phrase, logo, sound, “trade dress”
Trademarks protection source
Federal statute, state laws, common law
Trademarks Federal Registration time
10 yr (renewable)
Constructive notice
if you register in one state you get priority over all others in all other states
Trademarks Test in court
Likelihood of Consumer Confusion
Trademark dilution
Protection even if cannot show likelihood of confusion (since 1995)
Strength of Marks Fanciful
words that are not words just used for mark (Exon)
Strength of Marks Arbitrary
words that are words but used in different way for the mark (Apple computers)
Strength of Marks Suggestive
marks where the word itself suggests something about the product (coppertone sunscreen)
Strength of Marks Descriptive
(General motors) (IBM)
Strength of Marks Generic
(Kleenex) (If trademark term becomes generic, protection is lost)
Patents protection from filing
20-year (First to file gets patent)
Patents 3 GENERAL REQUIREMENTS
- Useful
- Novel (new & different)
- Non-obvious
PRO (1) of obtaining patent
Legally-sanctioned monopoly
CONS (3) of obtaining patent
Disclosure
Limited time
Expensive
Patent holder rights (5)
- You can sell invention
- You can license invention
- You can sell the patent
- You can will the patent
- You can sue others for infringing
Copyrights
Protection is automatic
Once u put in physical form (write a song down)
Fair use Doctrine (4 cases)
- Quotes for review or criticism
- Use in parody or satire
- Brief quote in news report
- Reproduction by teacher of small part to illustrate a lesson
Trade Secrets
Owner of secret must try to protect to get legal protection
OK to obtain trade secrets through (2)
- Reverse engineering
- Going through competitor’s garbage
