Miscellaneous - Contract & tORT Flashcards
Specific points I want to remember
What happens when goods are destroyed before risk of loss passes?
If goods that were identified when the contract was made were destroyed (i) without fault by either party and (ii) before risk of loss passes, the contract is avoided (seller’s performance is excused).
If the goods were not identified until after the contract was made, seller needs to prove impracticability
Can a promise to perform a pre-existing duty owed to a third-person (ie not the promisee) constitute consideration?
Yes. Under the modern and majority rule, a duty is a preexisting duty only if it is owed to the promisee. Thus, a promise to perform a duty is valid consideration as long as the duty of performance is not already owed to the promisee. In other words, if the duty is owed to a third party, a promise to perform given to another is valid consideration as long as it was bargained for.
When does the modern view permit modification without consideration?
The modern view permits modification without consideration if it is fair and equitable in view of unanticipated circumstances. This exception contemplates an unanticipated circumstance arising in performance of the contract that makes performance more difficult or expensive.
What is a direct cause case, and is the unusual manner in which the injury occurred relevant in such cases?
A direct cause case is one where the facts present an uninterrupted chain of events from the time of the defendant’s negligent act to the time of plaintiff’s injury. If a particular harmful result was at all foreseeable from the defendant’s negligent conduct, the unusual timing of cause and effect or the unusual manner in which the injury occurred is not relevant to the defendant’s liability.
Where will a defendant be liable for an unforeseeable intervening force?
The defendant will be liable only where the plaintiff can show that the defendant’s negligence increased the risk that the force would cause harm to the plaintiff. In the case of criminal acts of third persons, if the def’s negligence created/increased the risk that a 3rd person would commit a crime then defendant’s liability will not be cut-off by the act
When are the criminal acts of 3rd persons considered superseding forces?
whether criminal acts of third persons are superseding depends on foreseeability. If the criminal activity was foreseeable under the circumstances it would not constitute a superseding cause.
What is the general rule of proximate cause?
he general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of, and within the increased risk caused by, his acts.
What are the elements for a prima facie case for negligence?
(i) the existence of a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury; (ii) breach of that duty by the defendant; (iii) the breach of the duty by the defendant was the actual and proximate cause of the plaintiff’s injury; and (iv) damage to the plaintiff’s person or property.
When is an owner of animals strictly liable (types of animals)?
1) If the animal is wild;
2) If the animal is domestic, but with known dangerous propensities (ie dangerous for that species); or
3) the animal commits a foreseeable trespass.
NB: strict liability for animals includes liability for the harm that results when a person is attempting to flee from what is perceived to be a dangerous animal.
What is the effect of the following on strict liability for an abnormally dangerous activity:
- an unforeseeable intervening force
- an unforeseeable plaintiff
- a type of harm that is unforesseable
All of these can serve to negate a claim of strict liability for an abnormally dangerous activity.
- An unforeseeable intervening force may allow a defendant to avoid liability in a strict liability action for an abnormally dangerous activity. Same rules of causation for strict liability as for neglignce
- The defendant’s liability for an abnormally dangerous activity extends only to foreseeable plaintiffs, who are persons to whom a reasonable person would have foreseen a risk of harm under the circumstances. Note, though, that the nature of the abnormally dangerous activity may create a large class of foreseeable plaintiffs.
- If the type of harm was not foreseeable, the plaintiff cannot establish a strict liability claim. The harm must result from the kind of danger to be anticipated from the abnormally dangerous activity.
4.
Who must the defendant be in a case of strict liability for defective products?
A commercial supplier, i.e. someone in the chain of distribution of the product.
When is an owner of animals liable to trespassers?
Strict liability is generally not imposed in favor of undiscovered trespassers against landowners. Trespassers cannot recover for injuries inflicted by the landowner’s wild animals or abnormally dangerous domestic animals in the absence of negligence.
What type of damages are recoverable under products liability cases (both negligence and strict liability)?
Personal injury and property damages; economic loss cannot be the sole damage claim.
How does indemnification work/arise in strict products liability?
Each supplier has a right of indemnification against all previous suppliers of the defective product in the distribution chain, with the manufacturer of the defective product ultimately liable.
