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LAW FINAL Flashcards

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1
Q

Statute of frauds (definition)

A

Merely a writing requirement If oral only, unenforceable

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2
Q

Statute of frauds (5 types)

A
  1. LAND
    -Part performance can substitute for writing
  2. Cannot be performed in one year
    - Measure from date contract formed
    - Lifetime contracts - oral OK
  3. Prenuptial agreements
  4. Collateral Promises
  5. UCC – Sale of Goods greater than $500
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3
Q

Statute of frauds (3 Writing requirements)

A
  • Formality not required
  • Ok if several different documents
  • Signature needed of party being sued
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4
Q

Parol Evidence rule (Definition)

A

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)

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5
Q

Parol Evidence rule (2 Exceptions Where earlier evidence ok)

A

Evidence before contract formed can be admitted to
1. To resolve ambiguities or gaps
2. To prove fraud

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6
Q

Delegate Duties (definition)

A

have another perform for you

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7
Q

4 Limits on delegation

A
  1. Special Skills (a quarterback can’t delegate to another quarterback for a game)
  2. Special Trust
  3. Recipient of performance (obligee) will be getting something different
  4. Contract can prohibit
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8
Q

Assign Rights (definition)

A

transfer your rights to another

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9
Q

4 Limits on assignments

A
  1. Prohibited by Statute (Workers Comp)
  2. Personal Services (a butler u contract to be a butler for yourself u can’t assign to someone else)
  3. Significantly Alters Risk of the Obligor (assigning insurance policy to someone else)
  4. Contract can prohibits rights to be assigned
    - Exception = $
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10
Q

Assignment & delegation (4 Basics)

A
  1. Can occur separately or together
  2. Can assign or delegate some or all
  3. Delegatee of duty must accept
  4. Delegator of duty remains responsible
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11
Q

notice issue (Assignment to 2 Assignees)

A

Most states The first person that gets assigned the obligation regardless of notification to the obligor

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12
Q

3rd party beneficiaries (who can sue)

A
  1. Any intended beneficiary can sue
    - Creditor (landlord in sublease agrement)
    - Donee (gift recipient)
  2. Incidental Beneficiaries cannot sue
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12
Q

3rd party beneficiaries (2 types)

A

1.Present when contract is formed
2. Contract calls for another to be benefitted

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13
Q

Discharge of duties

A

party has done all that is needed under the contract

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14
Q

Performance

A

doing what contract requires

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15
Q

Substantial Performance

A

doing almost all of what contract requires
- Some amount of $ could be subtracted if tasks not complete cost money

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16
Q

Mutual Rescission

A

Both agree to call off the deal
(Enter into another contract to discharge the old one)

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17
Q

Agreement to discharge
(4 ways)

A

1.Mutual Rescission
2.Novation
3.Substituted contract
4.Accord and Satisfaction

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18
Q

Novation

A

Replace one party
Requires all 3 parties agree
(A sublease structured like this means the original leaser can’t be sued)

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19
Q

Substituted contract

A

new contract immediately discharges duties of 1st contract

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20
Q

Accord and Satisfaction

A

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)

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21
Q

Impossibility to discharge
(4 ways)

A
  1. Death of promissor
  2. Destruction of subject matter
  3. Supervening Illegality
  4. Death of promisee
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22
Q

Supervening Illegality

A

If importing 10 patriots, 2 have arrived, importing parrot becomes illegal, you have to pay for the 2 but rest of contract discharged

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23
Q

Free

A
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24
Q

3 Subjective impossibility

A
  1. Must be due to unforeseeable circumstances
  2. Commercial Impracticability
  3. Frustration of Purpose
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25
Q

Commercial Impracticability

A
  1. Makes it so contract is extremely burdensome to perform
  2. Price change usually not enough
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26
Q

Frustration of Purpose

A

No harder to perform, but no longer “makes sense”

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27
Q

Damages

A

Used to compensate the non-breaching party for anything short of full performance

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28
Q

Damages calculated

A

No single damage formula
Court has flexibility in remedies

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28
Q

benefit of bargain (definition)

A
  1. Compare the values of: What was promised To What was delivered
  2. (If seller breaches price paid is not relevant!!)
  3. Can’t use benefit of bargain if can’t determine the 2 values
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29
Q

cover transaction

A

another buyer,
another seller,
someone else to do the work, or
other work to do, etc., etc.

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29
Q

Benefits of bargain: alternate performance

A

After someone breaches, the non-breacher finds a “cover” transaction
Damages = what it takes for non-breacher to get same “deal”

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30
Q

Consequential damages

A

Must be Foreseeable OR Known to breaching party

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31
Q

Consequential damages
(case)

A

Hadley v. Baxendale

32
Q

Mitigation

A

Non-breaching party has duty to minimize damages

33
Q

Liquidated damages

A

Fixed in advance…OK if: Not excessive (too low is ok)
(damage deposit)

33
Q

Rescission and restitution

A

Transaction reversed (returns the parties to the positions they were in before the contract)

34
Q

Specific performance by cort

A

Making the other party do what he was supposed to do
(Never for personal services)

35
Q

Tort

A

A civil wrong, entitling the victim to compensation (Usually based on common law)

36
Q

Intentional torts 7

A
  1. Battery
  2. Assault
  3. False imprisonment
  4. Emotional Distress
  5. Defamation
  6. Wrongful interference with a contract
  7. Invasion of privacy
37
Q

Battery

A

improper touching

38
Q

Assault

A

The threat of intimate battery
EX: Pull a gun on someone

39
Q

False imprisonment

A

Has to be actual physical imprisonment

40
Q

Defamation (4 Requirements (all are needed))

A
  1. False statement
  2. Factual in nature
  3. Communicated to 3rd party
  4. Injury to reputation
    (Actual monetary loss often must be proven in slander)
41
Q

Privileged conversation

A

No defamation liability if privilege applies

42
Q

Absolute Privilege

A

Court proceedings
In legislative debate

43
Q

Qualified Privilege

A

Private interest related to the statement

44
Q

Defamation Public Figures

A

Intent (actual malice) must be proven to recover

45
Q

Libel

A

Written Defamation

46
Q

Slander

A

Spoken Defamation

47
Q

Invasion of privacy Example case

A

Vanna White case: Robot like Vanna White was made and she sued because they didn’t have persimmon to use her likeness

48
Q

Invasion of privacy

A

Intrusion into private affairs Public disclosure of private info
Truth is not a defense

49
Q

Wrongful interference with a contract

A

Tort to induce other to breach a contract

50
Q

Negligence

A

involves accidental carelessness that injures another

51
Q

Negligence recover only if all 5 requirements are met

A
  1. Duty
  2. Breach of that duty
  3. Injury
  4. Actual Causation
    - ”But for” test
    - Would it have happened anyway?
  5. Proximate Causation
52
Q

Palsgraff case

A

railroad case

53
Q

4 reasons why defendant can win

A
  1. Assumption of risk
  2. Superseding cause or event
  3. Contributory Negligence
  4. Comparative Negligence
54
Q

Res Ipsa Loquitur

A

Shifts burden of proof to defendant (prove not negligent)

55
Q

Negligence Per Se

A

assumes a defendant is negligent if they violate a law or regulation that was designed to protect people from harm

56
Q

Negligence Per Se
EXAMPLE

A

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

57
Q

Danger Invites Rescue Doctrine

A

holds a person responsible for damages if their negligence creates a hazardous situation that prompts someone else to attempt a rescue.

58
Q

Good Samaritan laws

A

For medical professionals
If try to help in a situation but your helps makes it worse you won’t be liable

59
Q

Dram Shop Acts

A

business can be held liable for damages caused by a person to whom they sold or served the intoxicating beverage.

60
Q

Trademark defintion

A

distinctive word, phrase, logo, sound, “trade dress”

61
Q

Trademarks protection source

A

Federal statute, state laws, common law

62
Q

Trademarks Federal Registration time

A

10 yr (renewable)

63
Q

Constructive notice

A

if you register in one state you get priority over all others in all other states

64
Q

Trademarks Test in court

A

Likelihood of Consumer Confusion

65
Q

Trademark dilution

A

Protection even if cannot show likelihood of confusion (since 1995)

66
Q

Strength of Marks Fanciful

A

words that are not words just used for mark (Exon)

67
Q

Strength of Marks Arbitrary

A

words that are words but used in different way for the mark (Apple computers)

68
Q

Strength of Marks Suggestive

A

marks where the word itself suggests something about the product (coppertone sunscreen)

69
Q

Strength of Marks Descriptive

A

(General motors) (IBM)

70
Q

Strength of Marks Generic

A

(Kleenex) (If trademark term becomes generic, protection is lost)

71
Q

Patents protection from filing

A

20-year (First to file gets patent)

72
Q

Patents 3 GENERAL REQUIREMENTS

A
  1. Useful
  2. Novel (new & different)
  3. Non-obvious
73
Q

PRO (1) of obtaining patent

A

Legally-sanctioned monopoly

74
Q

CONS (3) of obtaining patent

A

Disclosure
Limited time
Expensive

75
Q

Patent holder rights (5)

A
  1. You can sell invention
  2. You can license invention
  3. You can sell the patent
  4. You can will the patent
  5. You can sue others for infringing
76
Q

Copyrights

A

Protection is automatic
Once u put in physical form (write a song down)

77
Q

Fair use Doctrine (4 cases)

A
  1. Quotes for review or criticism
  2. Use in parody or satire
  3. Brief quote in news report
  4. Reproduction by teacher of small part to illustrate a lesson
78
Q

Trade Secrets

A

Owner of secret must try to protect to get legal protection

79
Q

OK to obtain trade secrets through (2)

A
  1. Reverse engineering
  2. Going through competitor’s garbage

Business Law (7 decks)

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