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study guide Flashcards

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1
Q

What is “intent” in torts?

A

a desire to cause the consequences of an act - does not require hatred

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2
Q

What is the intentional infliction of emotional distress?

A

Extreme and outrageous conduct intentionally or recklessly causing severe emotional distress. Hard to sue and win

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3
Q

What is public disclosure of private facts?

A

Highly offensive publicity given to private information about another person

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4
Q

What is the name of the tort where company A induces company B to breach a valid agreement with company C? If A is successful, what is C entitled to from A in such situation?

A

Tort Interference with Contractual Relations. Injured party entitled to economic loss from breach of contract.

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5
Q

What element, in addition to false statements made with knowledge of its falsity and with intent to induce another to act, is needed to have a claim for fraudulent misrepresentation?

A

Fraudulent misrepresentation imposes liability for monetary loss caused by a justifiable reliance on a misrepresentation of a fact intentionally made to induce relying party to act.

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6
Q

What is negligence?

A
  • Conduct that fall below the standard established by law for the protection of others against unreasonable risk of harm
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7
Q

Which law governs the sale of good?

A

UCC- Uniform Commercial Code. It is governed by Article 2, Section A

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8
Q

What is a bilateral contract?

A

It is a contract in which both parties exchange promises.

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9
Q

2 Parts to Duress

A

2 Parts to Duress (forced):
Improper Threat: Voidable
Physical Compulsion: Void

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10
Q

When is a tort committed?

A

A civil wrong causing injury to persons, their property, or their economic interests. It is also committed when a duty is owed by one person.

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11
Q

When are business liable for the torts committed by their employees?

A

Businesses that conduct their business activities with employees are liable for the torts their employees commit within the scope of employment.

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12
Q

What standard of care is expected from those under 18 of age?

A

Must conform to conduct of a reasonable person of the same age, intelligence, and experience. Children engaging in dangerous activities usually undertaken by adults will be held to the same standard of care applicable to adults.

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13
Q

What duty does the law impose on a person as to others and their property?

A

A person is under duty to all others at all times to exercise reasonable care (what would a normal person do) for the safety of the others’ person and property; however, except in special circumstances, no one is required to aid another in peril. Duty to act arises within the scope of the relationship.

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14
Q

Do all contracts have to be in writing?

A

No they have contracts like implied in fact contract. For example// selling goods.

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15
Q

What is an offer?

A
  • A proposal indicating a willingness to enter into a contract.
    REASONABLE PERSON STANDARD: “Would a reasonable person believe an offer was made?”
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16
Q

A is B’s attorney. B wants to sell a house. A tells B that he will buy the house from him and do all the paperwork for a quit claim deed. B later finds that the house is worth a lot more than A paid. Can B back out of the contract of sale? Is the contract void?

A
  • The contract is voidable. B was in a situation of trust with A, and therefore was undue influence. B can use this defense to back out of contract since she was in a vulnerable situation with attorney.
  • It is not enough just because you’re in a situation of trust & vulnerable to say you were taken advantage of so the contract is voidable - MUST be able to PROVE someone took advantage (facts,etc.) while you were vulnerable
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17
Q

List the four conducts invalidating assent and their effect on a contract?

A 
Duress by physical force : VOID
Duress by improper threat : Voidable
Undue influence : Voidable
Fraud in the execution : VOID
Fraud in the inducement : Voidable
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18
Q

What are punitive damages?

A

They are damages awarded in excess of normal compensation to punish a defendant for a serious civil wrong.

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19
Q

What are the ways that injuries may be inflicted in torts?

A

Injuries may be inflicted intentionally, negligently, or without fault (strict liability).

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20
Q

As to torts/wrongful conduct, what is the purpose of the law?

A

The purpose of tort law, unlike criminal law, is to compensate the injured party, not to punish the wrongdoer. (in more extreme cases punitive damages). Keep other people/ business from doing it. The purpose is to punish and deter.

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21
Q

When are punitive damages imposed?

A

when the defendant’s conduct has been intentional, outrageous, showing malice or a evil motive

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22
Q

According to the court in State farm, what is the purpose of imposing punitive damages?

A

Imposed to punish defendant and deter others

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23
Q

Give examples of defenses to intentional torts?

A

self-defense, defense of property, and defense of others. Additionally, plaintiff’s consent to defendant’s conduct. (called privileges)

24
Q

What is harm to person?

A

intentional torts: battery, assault, false imprisonment, infliction of emotional distress

25
Q

What is battery?

A

Intentional infliction of harmful or offensive bodily contact. (i.e. punching someone in the face)

26
Q

What is false imprisonment? In the light of the decision in Vaughn v. Wal-Mart, how should a shopkeeper exercise the authority to detain suspected shoplifters?

A

False imprisonment is intentional infliction with a person’s freedom of movement by unlawful confinement. They would need 3 factors: reasonable suspicion, duration, and manner.

27
Q

What are the elements of defamation?

A
  • A false and defamatory statement concerning another
  • Unprivileged publication (communication) to a third-party
  • Depending on the status of the defendant, negligence or recklessness on her part in knowing or failing to ascertain the falsity of the statement (burden of proof on plaintiff to prove falsity)
    defemation personal repitation
28
Q

How do employers avoid defamation claims when giving references for former employees?

A

Verify only employment date and and job titles- or provide only statements known to be true, ask existing employees to give written consent for reference.

29
Q

What is the tort of invasion of privacy?

A

Appropriation of a person’s name, unreasonable intrusion on the seclusion of another, unreasonable public disclosure of private facts, unreasonable publicity that places another in a false light in the public eye.

30
Q

What is a nuisance?

A

Non-Trespassory invasion of another’s interest in the private use and enjoyment of his land

31
Q

What is disparagement?

A

Publication of false statements resulting in harm to another’s monetary interests; also called injurious falsehood.

Persons property or economic interest

32
Q

What is the key factor that makes a company liable for disparagement?

A

if they cannot prove what they are saying (back it up with facts, etc.) Cannot make false statements made with knowledge of its falsity and to place doubt on others property or products.

33
Q

Give examples of relations that impose a duty to aid or protect another?

A

Doctors to their patients, Babysitter to children, etc.

34
Q

What duty is owed to a trespasser?

A

not liable to adult trespassers- BUT possessor is NOT free to inflict intentional injury on a trespasser.

35
Q

What duty is owed to a licensee?

A

possessor owes higher duty of care to licensees than to trespassers. Possessor must warn the licensee of dangerous activities and conditions.

36
Q

What duty is owed to an invitee?

A

Possessor of land must exercise reasonable care to protect invitees against dangerous conditions they are unlikely to discover. Liability extends to conditions possessor knows of and those she would discover by the exercise of reasonable care.

37
Q

If a business owner discovers a dangerous condition on their premises, what should they do?

A

Show reasonable care to persons coming onto land (Third Restatement) by fixing the dangerous condition or posting a prominent warning sign of any dangerous conditions.

38
Q

Many courts hold contracts for assumption of risk unenforceable as a matter of public policy, why do businesses still have customers and clients sign waivers of liability and assumption of risk forms?

A

Businesses still have them because you never know what a judge will do. It is some protection from being sued (not liable for future harm) since the plaintiff consented to the risks

39
Q

Give examples of instances where a person may be held liable for injuries he has caused even though he has not acted intentionally or negligently?

A
  • If engaged in abnormally dangerous activity: strictly liable (ex: blowing up the bridge in Land Between the Lakes- could have affected people living in area)
  • Keeping of Animals: strict liability imposed for wild animals and for trespassing domestic animals
40
Q

Which law would control if there is no specific provision of UCC applicable?

A
  • Common (Case) Law of contracts continues to apply
  • Process: first look for statute, if no statute look at common law, if no common law see if other states have had cases on it (and check Constitution).
41
Q

What is a contract?

A

a binding agreement that the court will enforce.

42
Q

What are the four basic requirements of a contract

A

offer, acceptance, consideration, legality, capacity

43
Q

What is the difference between a void, voidable and an unenforceable contract?

A
  • Void- agreement w/o legal effect
  • Voidable- can be void
  • Unenforceable- not in writing
44
Q

A sees B painting A’s house. A did not hire B. A says nothing. Would A be liable to pay B for the painting of his house? On what basis?

A

Yes because of the quasi contract (A said nothing). A will pay market value (price according to expert in that field).

45
Q

Name some of the ways in which an offer may be terminated.

A
  • Can’t accept an offer you don’t know about.
  • Rejection: refusal to accept an offer
  • Counteroffer: counter-proposal to offer
  • Death or Incompetency of the Offeree or Offeror.
  • Destruction of Subject Matter to which the offer relates
  • Subsequent Illegality of the type of contract offer proposes.
46
Q

Why is it a good idea to always specify clearly the duration of an offer one makes?

A

If the offer does not state the time within which the offeree may accept, the offer will terminate after a reasonable time. Because of the uncertainty as to what “reasonable time” is, it is advisable to specify clearly the duration of offers you make. (otherwise you do not know exactly when contract will be terminated)

47
Q

Can an offer be revoked after it has been accepted?

A

No, when someone accepts the offer it cannot be revoked.

48
Q

Offers to sell his bike for $25. B asks if A would accept $15. Did B make a counteroffer that if accepted would bind B? Is the offer terminated?

A
  • B made a counteroffer. This did not blind A, A has the ability to reject. B terminated A’s first offer of the bike for $25 by making a counter offer.
  • “Would a reasonable person believe an offer was made?”
  • Can’t accept an offer you don’t know about
  • Take back offer = Revoke
  • Refusal to accept = Rejection
  • Counteroffer = rejecting the first offer- cannot go back- operates as rejection
  • Negotiation = “I’m not saying no but…” could still accept first offer- does NOT operate as rejection
49
Q

On the eve of A’s wedding, the bride’s father B gives A a contract to sign indicating that he would owe the bride 100,000 in the event of the dissolution of the marriage. B indicates to A that if A does not sign there would be no wedding. Assuming all other formalities for a valid contract are met under that state’s law, what is A’s defense to this contract? Is this contract void or voidable?

A

his contract was signed under duress of improper threat and is rendered voidable.

50
Q

A what are the requisites for fraud in the inducement? Is a contract entered with fraud in the inducement void or voidable?

A
  1. A false representation
  2. Of a fact
  3. That is material and
  4. Made with knowledge of its falsity and the intention 5. to deceive (scienter) and
  5. Which representation is justifiably relied on
    * VOIDABLE
51
Q

Difference between Disparagement and Defamation

A

Defamation:
- personal reputation
Disparagement:
- Person’s property or economic interests

Can be BOTH

If defamatory, a disparaging statement must allege dishonesty or other misconduct
(Criticism of a product alone does not defame the producer)

52
Q

Statement that a hotel is dirty

is it Disparagement or defemation

A

disparagement

53
Q

Statement that a hotel owner has a sexual aberration

is it Disparagement or defemation

A

defemation

54
Q

Statement that the owner operates his hotel as a brothel

is it Disparagement or defemation

A

disparagement and defemation

55
Q

what is statue

A

It is a written law

56
Q

common law

A

Common law is a body of unwritten laws based on legal precedents established by the courts. Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law.

Buisness law (29 decks)

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