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| Three Main Elements of a Contract: |
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| Mutual Assent, Consideration, No contrat Offenses |
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offer acceptance or meeting of the minds
In Marriage, when both parties recognize they are there to get married and want to get married |
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each side has to give something or give up something
In a Marriage contract, giving the promise to honor, trust, and care for to the other person and vice versa…giving up some things |
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contracts can’t appear where you don’t really expect them, any reason why the contract should not be a valid agreement
Marriage – “Is there anyone here who thinks these two should not be united?”
If they are 12 years old, brother / sister, or already married |
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| B2B: Business to business |
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Involves a transaction involving an electronic charge (EDI)
Ex: Wal-Mart’s high tech inventory system where judging by weather, consumers what they need is connected with their suppliers |
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| B2C: Business to consumer |
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Definition
| Ex: Amazon.com takes order in and they send message electronically to the supplier and then shipment goes to the customer (simply IT, not a “shop”) |
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| C2C: Consumer to consumer |
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| Ex: e-Bay, put control in pricing |
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promises in exchange for another promise; most contracts are bilateral
Ex: McDonald’s – promise to pay and promise for money; employee contracts |
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promise on one side in exchange for an action or act on the other side
Ex: Reward for a lost dog sign put up by your neighbor. Once you start looking for the dog (the action), the contract is set. The neighbor doesn’t want YOUR promise and they don’t care WHO finds their dog or WHO they pay the money to. You are allowed to finish it once you start, even if they take the sign down. So, when you bring home the lost dog they have to pay you, even if they don’t want it anymore. |
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Term
| Express v. Implied Contracts: |
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Definition
Express: all the terms are specifically communicated by language, written or spoken
Ex: Gas station with display cost of gas
Implied: all the terms come from conduct
Ex: Going to McDonald’s in Netherlands where there are no words communicated so order plain cheeseburger by conduct / gestures
Most contracts are partially one and partially the other |
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Term
| Quasi Contract aka Implied-in-Law Contract: |
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Definition
| a situation where you don’t really have a contract but you are going into court to pretend that you have a contract; for some reason, there is not an actual contract; one party conferred a benefit on the other |
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| Imply-in-Law contract (quasi) |
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Definition
imply in law that there is a contract and then its like there is a contract since the beginning
When situation does not perfectly fit any of the aforementioned contracts and the lawyer wants to pretend that there was one in place
Ex: Is there a contract if your neighbor calls emergency repairs on your house when a tree falls on it when you are out-of-town? No actual contract
Need 4 things for a Quasi Contract:
(1) benefits from it: both parties conferred benefits on homeowner
(2) reasonable expectation of compensation
(3) benefits have to come at consent of someone: neighbor
(4) question of whether there would be unjust enrichment: if the homeowner got benefits without paying for them
Ex: Car accident and a good Samaritan brings an unconscious person to the hospital and the injured person does not want to pay the bills that incur. Doctors would go after him under Quasi Contract ideology |
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| Ex: a contract to kill someone – a woman asks her 21-year old lover to kill her husband, and he says he’ll do it in exchange for a car. It meets the requirements for a contract but it would not hold up in court if he was successful then sued because he didn’t get the car. Suing for breach of contract wouldn’t work because court is going to say it’s VOID |
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Definition
at least one side to the contract can get out of the deal – voidable by somebody
Ex: Contract with landlord and 17-year old. Landlord charges $600 for a $500 apartment. 17-year old wants out of contract after 30 days. Because he is under 18 he can get out of it and because it is a “necessity” he does not get all $600, just the $100 he was ripped off
Necessities include basic food, clothing, shelter, health-care
If it is a non-necessity, like a car, he can get all of his money back
Ex: In a contract with an 18-year old and he totals the car. He can say he wants out of the deal and get all of his money back
also applies to insane and intoxicated persons |
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can have a perfectly valid contract that is unenforceable in court
Ex: Want to see your car to a college student for $2500, you discuss it on a Friday, on Monday the student brings in the money and you tell him you changed your mind over the weekend and decide not to sell the car. Since nothing was ever put in writing, it is not enforceable. If you went through the exchange, then it is perfectly valid but it is still unenforceable in court
If you are buying / selling goods over $500, contract MUST be in writing to be enforced |
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Term
| Executed Contract and executory contract |
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Definition
have to look at context, could mean two things:
“Entered the contract”
“Performed the contract”
Executed contract: all promises are fulfilled
Partially executed: glass half full
Executory contract: promises exist but none of them have been performed
Partially executory: glass half empty |
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Definition
If you have a valid offer (like a red ball) and then someone comes and accepts the offer, imagine the ball turns to gold – then we have a contract. Instead, if someone accepts the offer and the red ball isn’t there, then there is no contract because there was nothing there to receive. Offeror can retract / revoke the offer UNTIL someone has accepted (aka dispatched a letter, started the action, verbally accepted). Counter offers kill initial offer
Ex: Make sign “Attn SLU Students,” and neighbor sees it and says she wants to buy
Not a deal because offer was made to SLU students. Not effective until given to offeree – never made an offer for the neighbor to accept
If neighbor offered to buy car, different story if you accept it (w/o sign)
Ex: At an auction we are the offerors – when the hand goes down, that’s the acceptance
Under common law, ads were not offers, they were just an invitation to make an offer for something
Now, ads in this country are only viewed as offers when they are targeted to a specific group of people
Ex: ad to give furs away to first 5 people, guy came and store didn’t want to. By law and contracts, he was supposed to get it
Ads are protected by Consumer Statutes |
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Term
| Mutual Assent: Acceptance |
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Definition
different from everything else we have talked about so far in one way – effective when it is dispatched (sent). Therefore, as the offeror, you need to make sure your conditions are specific so you can control everything
Ex: With e-commerce, if you are ordering software and downloading it, before you finalize your acceptance of payment, you have to click “I Agree”: Click-Wrap Agreement
Ex: Two letters with an offer are sent at same time – not actually an offer until the letter is opened by the offeree. Once the offeree has that letter, the contract is set, then when the offeree puts the acceptance letter in the mail, the contract is set and done
Ex: Landlord gives tenants a few days to accept offer and then dies before that period is over – then, contract dies
Ex: You give your money to move int o a new apartment and the landlord dies, you still have the right to be there for one year because the contract was completed. Since the money would go to the man’s estate, you can live there for the minimum that the contract allows for |
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Term
| Mutual Assent: Consideration |
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Definition
benefit to promisor OR legal detriment to promise:
For a contract, consideration has to be from both sides – both sides have to give up something for give something
Ex: With McDonald’s contract – who is making the promise?
McDonald’s and you – so both are promisor
From point of view of you, you are promising to pay and McDonald’s is going to make and provide your food in exchange for your money
Food is benefit to you and legal detriment to McDonald’s – something they did not have to do before entering into a contract with you
From point of view of McDonald’s, they are promising to make food for you. Legal detriment to you is loss of your money that you didn’t have to give them before entering contract with them and benefit to them is getting the money |
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Term
| Mutual Assent: Consideration, Hamer vs. Sidway |
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Definition
1891, then there was no age limit to having you do something or give up something: Agreement between nephew and uncle
Uncle asked nephew to refrain from smoking, gambling, cussing, etc until 21 years old and then he would give him $5000 when he turned 21
Uncle refused to pay him, and uncle had to because boy followed through with contract and the boy had given up his rights for a few years. That was his legal detriment so because there was a contract with consideration – uncle had to give him the $5000 |
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Term
| Mutual Assent: Consideration, Promissory Estoppel |
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Definition
Substitute for consideration; you will be stopped from denying your promise
Ex: Pledge a certain amount of money to an organization through a news channel. Next day you wreck your car and decide you don’t have the money to pay your pledge and then decide that since your pledge was just a gift you aren’t going to pay it.
In the past, charitable organizations wouldn’t sue
Now, the charity would say they counted on your pledge to use for their business/charity and judge would rule that there was promissory estoppel |
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Term
| 4 things required for Promissory Estoppel |
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Definition
(1) must be a clear and definite promise
(2) promise must justifiably rely on the promise
(3) the reliance normally must be of a substantial definite character
(4) justice will be better served by the enforcement of the promise |
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Definition
| means that there is something bad or a problem with the contract. Judges try not to throw out an entire contract by taking out the particular issue with the contract |
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means that there are statutes (Federal or State) that can impose certain things on contracts. Judges will not impose the contract on you like that because it would force you to break the law
Ex: state gambling statutes – states determine which activities under gambling are illegal and which ones are okay and if there are any exceptions to these activities
Some give-aways (like cereal box offers) are illegal because you have to pay money just to enter the contest, others specifically say if you want to enter freely do so by mailing in to get an entry form
What is the difference between insurance and gambling? – insurance protects risk that already exists and gabling creates risk that wasn’t there before |
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Term
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Definition
point of license? To protect the public or just another form of tax.
Ex: If you have a bike with a bike license and you want to sell it without the license? Would the contract be okay? YES since the city just wants to get $10 and the license is not there to protect the bike rider / the public
Ex: If health officials are not licensed, it would definitely endanger the public |
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Definition
found primarily in the south and the Bible belt states
Ex: Cannot work / operate on Sundays
Demise of this was brought about by women working and if both parents work you need to be able to shop on Sundays
Car dealerships have an agreement amongst themselves to be closed on Sundays |
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Term
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Definition
state laws about putting a cap on the amount of interest that can be charged on loans
First place in history that we have evidence of usury laws is in the Code of Hammurabi (2000BC)
A state has numerous usury statutes that all require 3 things:
(1) need to know the lender
(2) know who the borrow is
(3) know the purpose/reason of the loan
Ex: With Pawn industry, they work with people who banks won’t deal with, so interest rates can be over 100% in some places because of the emergency of these peoples’ situations
Ex; By law, the most you can charge is 15% interest on someone’s loan. You charge 18%. The court would either (1) make you rewrite at 15% and the rest of the loan would be 15% interest or (2) some would say that since the person was cheated 3%, the new interest rate should be 12%, and (3) some would say that the new loan should be 0% |
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Term
| Resale Price Maintenance Agreements |
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Definition
At top is manufacturer, next is wholesaler, then retailer, and at the bottom is the consumer. There are separate contracts between each of these sections – which level determines the price of the widgets in the first contract? Supply and demand between each level – good because of competition. What happens if the first one agrees to sell to the next one but with strings attached to the contract? This is illegal, violating the Sherman Anti-Trust Law (1890) and the Clayton Anti-Trust Law (1940)
Back in 30s and 40s, more mom-and-pop stores which did not sell at great quantities, suggested retail price did not exist. Today, there is a whole lot more competition and price comparison so you cannot set prices at each level – they have to be in terms of supply and demand or they are breaking the law (price setting does happen under the table though) |
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Term
| Violation of Public Policy |
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Definition
| public policy can be anything the judge wants it to be – in some states statutory but in others it could be public policy. |
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Term
| Violation of Public Policy: (1) you want to get contract with someone to destroy evidence or sway jury, etc… under civil law this violates public policy |
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Definition
| Ex: Lobbyist – hired by group at set sum, regardless of how lawmaker votes. If the sum changes depending on outcome, violation of public policy. They get better pay next time through their reputation |
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| Violation of Public Policy : (2) restrictive covenant (fancy word for promise) or non-compete clauses |
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idea is to prevent people from getting trade secrets, etc by preventing them from competing. So it doesn’t go against public policy of competition and “everyone in for the fight”:
These can’t be stand alone – have to be with another contract and have consideration
See them with employment contract and geographical contract
Employment
Ex: someone works as a hair stylist – they open their own salon and get a following of customers – decide to sell business and move across the street. Person who buys the old salon won’t get as many benefits then from buying the salon because the new salon would be so close and get the customer following. Would have to add something about geographical distance in the contract
Non-compete clauses: tend to be enforced on the East coast more than the West coast – based on philosophies about work – whether or not the courts deem to fit to tie someone’s hand on the types of living they can do
Ex: H & R Block doesn’t want to be the Tax School of America so there is a clause in the employment contract saying that you can’t do taxes with another company if you leave them |
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| Violation of Public Policy: (3) Exculpatory Clauses (part of contracts) |
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Definition
About signs and means of people getting out of legal responsibility for injury or losses while on or using someone else’s property: When will the courts enforce?
Won’t enforce a clause that says you are not responsible for intentional actions (“I am not responsible for anything I do” sandwich board) - exception is with negligence, which is viewed more as an accident
Ex: in some cases against law to put a “not responsible” clause in a contract – like in residential leases in Chicago – free rent if the contract includes exculpatory clauses
“Not responsible for my negligence” would be upheld
Ordinances
Recreational activity – upheld for most part
Ex: Schnucks carts in parking lot – if employees aware that wind is blowing carts into cars and do nothing – the sign that they are not responsible for damage will not uphold in court |
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concept that vies judge a lot of power – judge can look at a contract as a whole and if he thinks the contract as a whole is unconscionable then he can throw it out
Ex: Urban ghetto where single parent needed a refrigerator in the summer, goes to furniture store and signs contract, pays $2000 for $500 machine because she didn’t realize she was being cheated. Free lawyer got a hold of this and when the court looked at the contract he determined it would be unconscionable to uphold it
Things to go by to consider if conscionable exists:
(1) unequal bargaining power
(2) language or reading difficulties
(3) poverty
(4) fraud
(5) hidden terms within the contract
(6) high pressure sales |
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Term
| Contracts Dealing with Minors |
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Definition
voidable contracts
Ex: someone under 18 goes in and buy something, minor can get out of the deal up to his 18th birthday and a reasonable time thereafter
Necessity vs. Non-Necessity |
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Term
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definition varies from state-to-state
Adjudicated insane: # of people in asylums has lowered, more and more people getting Alzheimer’s disease and are being taken to court by their children /r elatives to find them incompetent sot hey don’t throw away their belongings, etc.
Incompetent and insane are interchangeable in most circumstances
Ex: old man and his son. Dad is declared incompetent with son as guardian. As neighbor don’t realize he is incompetent and see his Chevy, make him an offer, and you buy the car. Contract is VOID since the dad is incompetent (even if everything goes okay)
People who are plain crazy but have not yet been deemed insane by the court
Ex: man on sidewalk with Boone and his book about extraterrestrial – could be witness to prove that the man in incompetent even though the court has not found him to be so in the past |
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applies to alcohol and drugs
Can void a contract made for a short time after being drunk |
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Term
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Definition
as a contract offense, if you meet these elements the innocent party can get out of a deal: Elements of fraud include:
False representation (a lie – car says it has 25,000 but has 75,000)
Of a material fact (not a opinion a real important fact– mileage is a deal maker/breaker)
Made with scienter (intent to fraud – doing it on purpose / knew you were lying in order to make it a better deal for you)
Justifiable reliance (would a reasonable person have been fooled? Doesn’t protect idiots)
Damages (cheated by $1700)
Ex: with broken odometer – driving around for another 250000 miles past the 75000 miles you had when it broke. Put it up for sale, knowing it had 100,0000 but said less |
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| Contracts that have to be in writing to be enforceable |
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Definition
| Sale of Goods, Agreements dealing w land, One year rule, debts of others, marriage, non possessory security interest in property, contact involving intangibles |
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Definition
$5000 minimum for sale of goods that need proof of contract in writing
Some states changed this to $5000 |
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Term
| Agreements dealing with Land |
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Definition
| leases (generally speaking), sales agreements, options to buy real estate, etc |
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Definition
if there are contracts that can possibly be performed within a year, then they do not have to be in writing – if they cannot be performed within a year, then the contract must be written
Ex: 4th grade teacher enters into contract with a school district – does it have to be in writing? NO because school year is performed in less than a year
Ex: business buy has a successful career, dumb daughter finds a nice, smart guy and father says he will give the guy a job for life. Does it have to be in writing? NO because the guy could possibly die within the next year so it could possibly be performed within one year |
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Term
| Debts of others (suretyship / guarantor or co-signer): |
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Definition
Suretyship: “If x does not pay, I will”: First have to sue the person who made the contract, then go after the person who said they will pay it if the first person doesn’t
Co-Signer: joint and several liability
Ex: Wife and Husband co-sign. Divorce. Judge says wife has to pay entire credit card bill in settlement. No payments have been made so VISA sues only the husband. Does the husband have to pay? YES because when they co-signed, they made joint and several liability. (Husband could then turn it around and go after the wife but VISA has the right to go after just the husband) |
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Definition
things in exchange for marriage other than the marriage itself
Ex: promise of marriage in return for the deed to a ranch… must be in writing |
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Term
| Non-Possessory Security Interest in Property |
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Definition
special name for this if it is real estate it is called mortgage
Ex: Who lives in a house? Me, not the bank. To give bank the non-possessory security interest in the property, have to make a mortgage and make payments on it
Ex: Car.. have to sign a security interest in the car by signing a paper about car repossession. It is non-possessory since the bank does not own the car. Must be done in writing |
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| Contract involving Intangibles |
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Definition
property that cannot be seen or picked
Ex: stocks / patents so must be in writing |
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Term
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Definition
| Kings Courts would give monetary damages – and if there was a problem that could not be solved by money then the problem would have to be handled in an ecclesiastical court – Courts of Equity |
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Term
| Monetary damages: compensation |
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Definition
(most common): with 2 types:
Actual damages: out-of-pocket expenses
Pain and suffering: terribly subjective – comes down to acting ability of trial attorney most of the time |
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Term
| Monetary damages: consequential |
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Definition
| indirect damages: “because this happened, this other thing happened over here as a consequence, so you are responsible for both . Law does not like consequential damages – to get it you have to show that both sides understood that A could lead to B to C, and that was part of the risk they took |
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Term
| Monetary damages: punitive |
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Definition
state law for the most part – come in on court actions more than likely because they are uncommon
Based on case law or statute whether you can get punitive damages at all
Punitive is like punish, so in a way it is to set an example to send a message out to society that you are not tolerating that behavior of the person being punished
These damages seek to punish (more severely than other cases) and to set an example
In MO you need clear and convincing evidence in order to get punitive damages – more than a preponderance of evidence and you need it to get punitive damages awarded |
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Term
| Monetary damages: punitive examples |
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Definition
Ex: Stella who went through McDonald’s to get coffee, puts it between legs, goes over bump and is severely burned. Medical bills were $800. After the episode, goes to McDonald’s to get money, but they say no. Sues them on basis of negligence, asking for a jury trial
Jury sided with Stella, awarding her $200,000 in compensatory damages (less: 40,000 because Stella was found to be 20% at fault - $800 actual and $159,200 pain and suffering). Jury also asked judge what the daily coffee sales revenue is for McDonald’s – judge got them the information and they then awarded Stella over 2 million dollars in punitive damages based on that number.
Big problem for all restaurants because insurance does not cover punitive damages
Ex: BMW repainted and passed off as new without any scratches. Court determined that by being repainted the worth of the car lowered to $36000 from $40000. Supreme Court remanded the case because the punitive damages were too great so no guidelines given as was expected
Ex: State Farm v. Campbell – set guidelines for punitive damages – Campbell passed 6 cars on a 2-lane highway. As a result, an accident occurred and Campbell responsible for death of a family. Campbell sued State Farm for not properly representing him in the first case. The court came in with 145 million punitive damages.
State Farm appealed and went all the way to SC, where punitive damages were reduced to 1 million
Court looks at 2 things when deciding if punitive damages are in order and are justifiable:
(1) what they looked at was the reprehensibility of the defendant’s conduct?
(2) What’s the ratio of punitive damages to compensatory damages?
Court decided that a 4:1 ratio was okay and that a single number for the ratio was okay
Court reform has continued to move forward since this case, with many states putting caps on punitive damages – some states have special rules for what happens to the money (ex: Indiana says only 25% of the award goes to the litigant and congress said punitive damages are taxable now) |
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Term
| Monetary damages: nominal |
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Definition
moral victory: you win a small amount of money but you can advertise it to show that you won
Ex: trade disparagement (form of defamation with people lying about your product) where you can send out information about the case and use htat in your advertising to help you with your “defamed” reputation
Ex: Bill Cosby’s wife being followed by a paparazzi too closely. Cosby pushed him twice and the court decided Bill was 25% at fault so he owed $0.20 / push. Court costs clearly not worth it but he’s rich and had a moral victory |
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Term
| Monetary damages: liquidated |
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Definition
every day you are late on a rent payment, you owe us so much money. damages that are decided when you enter the contract.
Ex: Pre-Nups – saying that if the marriage fails we already agree on damages (those are liquidated damages) |
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Term
| Equitable damages: injuctive orders |
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Definition
usually written in the negative – people cannot do certain things (ie, protection order). They are only limited by the law and by the judges imagination
Ex: Christmas lights and next door neighbor upset – everything must be turned off by a certain time, can only be so load, limit parking, etc. Tries to balance rights of both neighbors |
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Term
| equitable damages: Order for Specific Performance |
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Definition
rder to do something – judge has to be careful
Ex: Want a family portrait – look at a lot of different artists to do the picture and then come up with contract – when the painting is half-done the artist goes to Tahiti and you go to court to get an order for specific performance
Judge, however, cannot technically directly order him to do this so he says the artist cannot do any other artwork until he finished this painting according to the customer’s standards
Ex: In English law, every piece of property is considered to be unique, so if someone has specific land and won’t give it to you after making a contract, the court can make an order for specific performance since every piece of land is viewed as unique |
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Term
| equitable damages: an accounting |
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Definition
seen in cases of divorce or where a business is splitting up.
Situation: one person does not trust another person, thinking that they are hiding assets so court supervision over assets insures that all assets come out on the table and can be split fairly
Ex: two Greek brothers in Michigan – business partners and one of their wives realizes her husband has been being cheated for the entire partnership.
Brother who did not do the finances need an accounting court order so that all funds and assets would be out on the table and nothing would be overlooked or hidden |
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Term
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Definition
| tort is any civil wrong, excluding breech of contract and crimes (42% of tortes are car wrecks, premises liability are 22%, malpractice are 16%, and products liability is 4%, the rest are other) |
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Term
| Tort law and areas of increasing liability |
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Definition
| Passive tobacco smoke: now, if people smoke in workplace and other workers end up getting emphysema down the hall/building/road, the workplace is now liable for that illness. Also, with smoking in the home and with landlords not making sure previous tenants did not contaminate with apartment with carcinogens |
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Term
| Direct and Vicarious Liability |
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Definition
Ex: Man was shot at Hardees by Fred: Who is responsible?
Direct liability: Fred would be responsible
Or Hardees could be responsible under direct liability for not having the proper security and safety measures from the get-go… negligence)
Ex: landlord leaves door open and thief comes in – can sue him directly for not having proper security (this is all new)
Vicarious liability: must meet 2 requirements (1) agency relationship and (2) action within the scope of the agency
Ex: Husband asks for something in the Sears catalogue, go into Sears and ask deck clerk for it. Worker negligently drops the box on your foot and beaks your foot in 3 different places.
First sue is the person who dropped the box through direct liability
Next person is Sears through vicarious liability (Was it part of the person’s job to lift the box? Yes.. did the agency have a relationship with the party? Yes.) |
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Term
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Definition
| first appeared in case in airport with Hertz who hired a man who raped a woman in a parking lot – said on his application he had been convicted before. Hertz is not vicariously at fault because only meet the first condition. Now have direct liability against the business if they didn’t take proper security measures – determined to have direct liability (civil suit has to take into account evidence of prior criminal record, not the case with criminal proceedings) |
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Term
| College students suing universities: in loco parentis |
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Definition
Ex: University of Alaska has a sign that says no sledding on hill to warn students from danger – student died and parents sued
Ex: Princeton University student riding on train, fell off and almost died – parents sued saying Princeton should have stopped him from doing that
Ex: Brown University students were in shower, soap dish fell off and severely lacerated one of the students, who sued for improper installation of the soap dishes
All of these people lost their cases |
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Term
| Intentional torts: 3 kinds of intent |
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Definition
Specific intent example: after class, you and two students walk down Lindell and spot your ex and your ex decides to drive over you – if your ex is successful, then this is specific intent
Transferred intent example: same set up and at last minute you leap to safety and she hits your two classmates, with his defense being “I meant to hit my ex, not them.”
General intent example: what the reasonable person would consider intent, so if someone shoots a gun and doesn’t know if he will hit someone or something or nothing, and the reasonable person would say, you know what, there’s a good chance you will hit someone |
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Term
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Definition
harmful / offensive touching of a person without permission. Can be direct or indirect.
Ex: guy was a serviceman at car dealership and went to Christmas party. Goes around party looking for best friend and decides to touch him with a charged condenser as a joke. Still battery, because friend didn’t give him permission to do that
Ex: in a contact sport, you give permission to being touched in a way that the game calls for but not in other ways
Ex: medical malpractice, rape |
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Term
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Definition
| different definitions in tort law than in criminal law. Assault is a threat, usually more than words (ie, a step forward, making a fist). Assault is a tort because we don’t want people feeling threatened all the time – it is whether the person actually feels threatened |
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Term
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Definition
forcing someone to stay against their will
Affects business in area of shopping / shoplifters
Shopkeepers’ privilege and merchant protection statutes hold if business has reasonable belief that person has shoplifted, they can detain that person as peacefully as possible and must call cops immediately
Don’t call names or accuse because if you go t it wrong, then he can sue for defamation of character. need resonable grounds for suspicion, resonable time to be detained and all conducted in a resonable manner. |
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Term
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Definition
either written (libel) or spoken (slander) communication that lies about a person
Ex: young professional bathing suite model – her photos were sold to a magazine who was doing an article on anorexia and it distorted her body to show their point of how the brain distorts what anorexics see in the mirror. The face of the girl was recognizable so she sued for defamation. Ruins her image as a model.
Ex: walk down cereal isle and you see your face on a cereal box and the first thing you want to do is sue since they are making money by using your face – you have to get permission in order to use someone’s name or picture for commercial purposes |
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Definition
| defaming of product or company |
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Term
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Definition
same five ideas as with a contract:
(1) misrepresentation (a lie)
(2) of a fact (not an opinion)
(3) that is material (a real important fact)
(4) made with scienter (intent to fraud – doing it on purpose to get a deal)
(5) justifiable reliance (would a reasonable person have been fooled?)
Can sue for breach of contract in one paragraph or for intentional torte of fraud |
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Term
| Interference (Tort of Contractual Interference |
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Definition
A and B have a contract and C either (1) tries to encourage breaking of contract or (2) tries to make it harder for them to keep the contract
Ex: Frat house has a contract with Photographer A to begin in August. In June Photographer B (tortfeaser) comes along and says he would like to do business with them for cheaper and better, telling them to get out of contract with A. If they do, who can sue?
Photographer A can sue frat for breech of contract
Photographer A can also sue Photographer B for interference with contractual relations |
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Term
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Definition
can’t take those out of the company – higher up in the company the offender is, usually the harsher the punishment (patents, recipes, designs, etc)
Ex: person works for VW was sued and VW was sued – company who has trade secret can sue whoever took trade secret out of the company and they could also sue whatever company used the secret |
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Definition
| most of the action is in this area for torts. Has 4 elements- duty, breach, proximation cause, damages |
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Definition
Ex: two identical twins – one in office, one on a plane. The plane crashes and the twin in the office starts hyperventilating and panicking. De-energized and cold once plane was down. If sister in office is suing airlines, need to determine if the airline owed the sister the duty to de-ice the wings? NO so the case was dismissed
Ex: guy shows up to work drunk and Otis Elevator says go home, you are drunk. He does and when driving home kills two people. First, did the man on a duty have a duty to all the people driving on the road that night not to send the drunk man out there? The courts said yes – answer would have been different 30 years ago. |
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Term
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Definition
If you have duty, move onto breach. Need to measure the person’s behavior against some measuring stick (reasonable man) to see if his behavior was good
Ex: What would the reasonable person be doing when driving down Lindell? Eating a hamburger? Changing radio station?
Good Samaritan Statutes: if a professional is doing his job, he his measured by what reasonable professional would do in that job, so he is not measured by the reasonable person standard
Good Samaritan Statute says that if it is an emergency situation and a person with medical training stops to help, then they are going to be measured by what the reasonable person would do in that emergency situation to encourage medical people to stop and get involved without fear of legal action |
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Term
| Proximate Cause: aka Probable Cause |
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Definition
need to have BOTH:
(1) “But for” clause: but for A happening, B would have happened. Too broad, you could be responsible for anything with the “but for” clause, so need…
(2) “Forseeability”: asks the reasonable person if A happens, do you think B would have happened?
This is where Ozzie Osborne case failed because kid had drug and alcohol problems – killed himself for those reasons, not because of the song |
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Definition
there has to be damages for a cause for action for negligence to occur
Ex: with highway and reckless driving |
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Definition
| lawsuit would be plaintiff v. defendant where defendant was negligent |
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what if plaintiff is also at fault / partly negligent? Then you have no case
Ex: with religious cult laying on black pavement with black capes in the middle of the night run over by kid trying to see how fast would go out in the middle of nowhere |
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Term
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Definition
| you have some blame on both sides, so jury has to assign certain percentage of blame for each side so that the percentage the plaintiff is at fault can be deducted from the award |
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Term
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Definition
when you have been put on notice about the risks and you decide to do that activity anyway
Ex: Form that set up assumption of risk defense in case something is to happen |
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Term
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Definition
smallest area in terms of numbers and cases
Only comes into play in certain circumstances and places
Can be based on case law (precedent) or if courts have specified that it falls under strict liability
Using explosives falls into this category
Ex: company implodes building so that demolition will prevent damages to surrounding buildings – if they use explosives and blow up building, causing damages / injury / death to a person then that company has strict liability for those actions – insurance for those companies is really high because of that
Owners of wild animals also have strict liability for the actions of those animals
Includes any animal other than a domestic cat / dog
First time offense for domestic animals is negligence
If they have a record then put on wild animal category with strict liability |
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Term
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Definition
| Can sue for various causes of actions to try and get awards for various damages, for product liability there are 6 aspects: |
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Term
| Product Liability: intent |
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Definition
| someone goes into drug store and poisons Tylonel on purpose – intentional tort on civil side, and it’s a good side to seek punitive damages |
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Term
| Product liability: negligence |
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Definition
| weren’t careful enough in making product – ie, engineering defect, manufacturing defect, warning defect, packaging defect. only the manufacturer is liable and can be the defendant. |
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Term
| Product Liability: Strict Liability |
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Definition
Section 402A liability: if a product leaves seller (who is in business of selling that product) and leaves in a defective state and reasonably dangerous, then there will be strict liability against that seller for damages. liability without fault. a seller can be found strictly liable even tho he or she has exercised all possible care in prepatarion and sale of his product. applies only to products, not services, cannot be disclaimed. everyone in the chain of distribution of that product is held liable and can be the defendant.
Ex: manufacturer sends defected product ot whole-seller, who sends it (unknowing it was defective), to retailer who sends it to consumer who then opens it and gets hurt – all stages of product selling are held to strict liability |
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Term
| Product liability: breach of warranty |
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Definition
| set time fo product reliability and responsibility for product functionality |
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Term
| Product liability: breach of implied warranty |
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Definition
| Warranty is implied, so if product doesn’t live up to one of the implied liabilities, then you can sue |
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Term
| product liability: statutory violation |
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Definition
| a lot of state and federal statutes and regulations that talk about product safety are out there and if you violate these statutes, then you are in violation of the law – need to know these statutes to know which widgets are limited or affected by them |
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Term
| Before 1960s, product liability law was contract law – now it falls under tort law |
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Definition
Ex. Under contract law, two people enter into contract to buy a widget, but widget is defective so buyer wants to sue seller, since there is privity of contract the person sues for breach of contract – but if the widget hurt anyone buy you then because of privity of contract you could not sue
So, CA judge said that anyone affected by the widget should have cause of action and used courts to abolish privity in CA
Product Law is American Law – other places hold people more to personal responsibility, so do not really have law like this
Good because our products are much safer; however, our products are also more expenseive, needing more engineering, thinking outside of the box and safety requirements – keeping useful stuff off the market in some cases |
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