Random Flashcards
Torts vs Contract
Both have four parts and provide a cause of action.
Contract is a consensual relationship; tort is not consensual.
Tort involves personal injury.
Contractual relationships — damages are more precise and usually lower than torts
Tort/Contract Equation
Duty + Breach = Negligence
2 components for Causation
But/For Causation (cause in fact)
Proximate cause- scope of cause must have proximity (legal cause)
Defenses to Tort
Assumption of Risk
Contributory Negligence
Application of Fault
Comparative Fault
Tortious Wrongful interference with contractual relationship
Valid contract
3rd party must know about contract (intent)
3rd party must entice person to break contract
Statute of Frauds
preventive measures, must be in writing and signed by parties unless the contract is fully executed
Ways to discharge a contract
Performance
Substantial Performance
Judicial Discharge
Mutual Termination
Duty to Mitigate Damages
party must make reasonable measure, not extraordinary
usually plaintiff who must mitigate
Anticipatory Repudiatin
if the other party has communicated they intend to breach, you can begin to seek alternatives
State Courts can hear what cases
Any cases since general SMJ
Federal Judges
appointed by president with advice/consent of senate (impartiality)
Can a state interpret and use the federal constitution?
Yes because they have general subject matter jurisdiction
Elements of Lawsuit (5 Boxes)
Cause of action
Right of Action
Subject Matter Jurisdiction
Jurisdiction over the person/parties
Venue
Appellate Court consists of
3 judge panel or “en banc”
5th Circuit Court of Appeals in New Orleans
handles all cases in TX, LA, and MS
Location of US Supreme Court
Washington, D.C.
Federal Court have exclusive jurisdiction over…
Bankruptcy
Federal Income taxes
Maritime/Admiralty
Requirements for Contract
Agreement
Capacity Consideration
Legality
Quasi-Contract
Quasi Contract — Implied in Law (not a real contract)
Detrimental Reliance
Unjust Enrichment
Constructive Receipt
The doctrine of constructive receipt stipulates that a taxpayer is subject to tax on an item of income when they have an unrestricted right to determine when that income will be paid, even if the actual funds have not yet been physically received. In other words, it focuses on the control or ability to utilize the money, regardless of whether it is immediately available in hand.
Capacity vs Legality in summary
if the issue is capacity, contract is VOIDABLE.
If the issue is legality, contract is VOID (unenforceable).
Unconscionability
Procedural — language is hidden (legalese), or really small font (should be at least 5-pt font size)
Substantive — See text summary, and other instances of Against Public Policy Situations!
Unilateral or Bilateral Mistake of Value
normally cannot be rescinded
Statute of Fraud vs Parol Evidence Rule
Parol Evidence Rule — if contract is in writing, no oral evidence will be considered; judicial efficiency and effectiveness
Statute of Frauds — the law requires the confract to be in writing
Most contracts subject to Statute of Frauds are
also subject to PER, except executed contracts!
Exceptions to Parol Evidence Rule
- Verbal testimony is allowed to cover ambiguities in the written contract
- Verbal modifications to agreement (after signed) — subsequent modification
Types of Remedies
- Monetary Damages: Compensatory, Consequential, Liquidated, Nominal, and Punitive.
- Equitable Relief: Rescind Contract, Specific Performance, and Injunction.
Negligence Per Se
Breach of a Statute
