Mod 5 Flashcards
Breach
When one party does not perform as promised in a contract
Capacity
Ability to understand both the nature and consequence of one’s acts
Consideration
Something of value given by both parties to a contract that induces them to agree to exchange mutual performances
Contract
A binding agreement between 2 or more parties
Disaffirm
To revoke or deny a contract
Express contract
A contract which specifically states all of its elements, either orally or in writing
Implied in fact contract
A contract agreed upon by nonverbal conduct rather than by explicit words
Legality
The state of being in accordance with the law
Mirror image rule
The requirement that a contract be accepted exactly as it is, without modifications
Mutual assent
An agreement by both parties to enter into a contract
Restatement of contracts
A compilation of the general principles of contract common law
Uniform commercial code
A set of suggested laws concerning commerce with the intent to provide uniformity across states to simplify business activity
Valid contract
A contract that complies with the four essential elements of a contract and is binding and enforceable on all parties
Copyright
The exclusive right to reproduce, publish, sell, or distribute the matter and form of an artistic effort
Design patent
A patent that offers protection for a way a product looks
Fair use doctrine
Permits limited use of copyrighted material without acquiring permission from the rights holder
Infringe
To encroach upon in a way that violates the law or the rights of another
Intellectual property
Non physical property that is the product of original thought and the law may protect
Novelty, utility, nonobviousness
Three criteria that must be met to qualify for patent protection
Misappropriation
The unauthorized use of another’s name, likeness, or identity without permission, resulting in harm to that entity
Patent
An exclusive right granted by law to an inventor to make, use, and sell an invention for a limited period (20 years from filing of application)
Reverse engineering
Process of taking apart and object to see how it works to duplicate the object
It is legal to acquire a trade secret through reverse engineering
Trademarks
A distinctive mark or feature that is particularly characteristic of or identified with an entity, product, or brand
Trade secrets
Any business info that is proprietary and gives the business a competitive advantage
Utility patent
A patent that protect the way an invention is used and works
At will employment
The contractual employment relationship where the business can fire a worker without warning and justification
Bona fide occupational qualification
Employment qualifications that employers are allowed to consider while making decisions about hiring and retaining employees
Business necessity
A legit business purpose that justifies an employment practice as valid and necessary for the business
Disparate impact
A discriminatory business practice that has a greater impact on one group over another
Disparate treatment
A discriminatory business practice where an employee is treated differently than other employees who were in a similar situation
Hostile environment sex harassment
Occurs when a supervisor or other employee makes sexually suggestive comments, gestures, advances, pictures, text, touch, or humor that unreasonably interferes with work performance
Quid pro quo sexual harassment
Occurs when a more senior manager or employee demands sexual favors in exchange for some workplace benefit
Sexual harassment
Unwelcome sexual advances, requests for favors, and other verbal or physical harassment of a sexual name
Actual cause
A cause or action without which the event could not have occurred
Assumption of risk
A defense in the law of torts that reduces a plaintiff’s right to recovery if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks associated with the activity at issue
Breach of duty
Occurs when one person or company has a duty of care owed towards another person or company but fails to live up to that standard
Deep pockets theory
In tort law, employers will often be held liable for the actions of a negligent employee
Since employers usually have more money than the employee to pay for negligence, they would be in a better position to pay the victims
Defamation
Intentionally making untrue statements about an individual in the presence of another or communicated to a third party that has the effect of lessening the individual’s reputation in the community
Design defect
A problem with the product’s design that makes the product inherently dangerous or useless, even if it is manufactured perfectly with the best quality materials
Disparagement
Intentionally making false statements about the quality or ownership of someone’s goods
Duty
A legal obligation that entails mandatory conduct or performance
Express warranty
A verbal or written statement that guarantees that a product is of a certain quality or will work in a certain way or for a certain amount of time
Failure to adequately package
Relates to the duty the manufacturer has to package products appropriately and safely for the consumer
Failure to adequately warn
A party will be held liable for injuries caused to another, where the party had the opportunity to warn of any dangers of the product but failed to do so
Implied warranty
A guarantee that the item sold is merchantable and fit for the purpose intended
An implied warranty is in addition to an express warranty provided at the time of sale to protect consumers who might otherwise pay for products that are not as represented by the merchant
Intentional tort
A civil wrong resulting from an intentional act of the defendant
Manufacturing defect
A defect in a product resulting from a departure from its design specifications during production
Negligence
Failure to use reasonable care, resulting in damage or injury to another
Negligence action or personal injury
Harm done to a party through the unreasonable and foreseeable risky actions of the defendant
Palming off
Misrepresenting someone else’s good or services as one’s’ own in business
Product liability
The area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible fo the injuries those products cause
Proximate cause
Determining whether or not an event is sufficiently related to an injury to be held as the cause of that injury
Respondent superior
A legal doctrine which states that an employer is responsible for the actions of employees performed within the course of their employment
Strict liability
A legal doctrine that makes a person or company responsible for their actions or products which causes damage regardless of any negligence or fault on their part
Tort
A civil wrong which unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the wrongful act
Tortfeasor
An individual who commits a wrongful act that injures another and which the law provides a legal right to seek relief
Vicarious liability
A legal doctrine that assigns liability for an injury to a person who did not cause the injury but who has a particular legal relationship to the person who did act negligently
Administrative procedures act
A federal statute that governs how administrative agencies of the government of the United States may propose and establish regulations
Administrative law judge
A judge who both presides and issues judgment over the claims and disputes involving administrative laws and agencies
Due process of law
A fundamental, constitutional guarantee that proceedings will be fair, the government will notify affected parties of the proceedings, and the parties have the opportunity to be heard before the government acts to take away their rights
Enabling statute
Congress delegates its rulemaking authority to agencies via enabling statutes. These statutes establish and authorize administrative agencies to issue specific rules and regulations and carry out other activities to fulfill broad aims defined by Congress
Federal register
The official daily publication for rules, proposed rules, and notices of federal agencies and organizations, as well as executive orders and other presidential documents
Quasi judicial authority
The powers granted to a public administrative agency to objectively determine facts and draw conclusions from them to provide the basis of an official action, often resembling the procedures of a court of law
Quasi legislative authority
When an administrative agency exercises its rule-making authority. Administrative agencies acquire this authority to make rules and regulations that affect legal rights through statutes. This authority is an exception to the general principle that laws affecting rights should be passed only by elected lawmakers
4 Requirements for a contract
Legal subject matter
Capacity of parties to enter into contracts
Exchange of consideration or something of agreed value
Mutual assent between parties
Infants
Those under legal age
Intoxicants
Those whose mental faculties are temporarily impaired
Incompetents
Mental impairment that would prevent them from understanding
Requirements of mutual assent
Definiteness of terms
Understand what is being offered
Intent
Ensure the offerer meant to make an offer
Communication
Must be made to the offeror’s agent by the offeree
