Shared Flashcard Set

Details

BUSI Test 2
BUSI Test 2
187
Business
Undergraduate 3
02/11/2014

Additional Business Flashcards

 


 

Cards

Term
What is the first rule of contract law?
Definition
Stupid is as stupid does
Term
What is another name for "Implied Contract"?
Definition
Implied-by-fact contracts
Term
What are implied contracts judged by?
Definition
The "reasonable person standard"
Term
What can you do in order to make a Quasi contract binding or legal?
Definition
Throw yourself to the mercy of the courts and just admit you're stupid.
Term
What are the three types of contracts?
Definition
Conditional subsequent, conditional precedent, conditional concurrent
Term
What is a Conditional Subsequent contract?
Definition
A contract where something must NOT occur for you to enter into the contract.
Term
What is a Conditional Precedent contract?
Definition
Something must occur for you to enter into a contract.
Term
What is a Conditional Concurrent contract?
Definition
No body has to do anything until both parties take action toward the contracts.
Term
What are the Bilateral and Unilateral parties?
Definition
Offeror - makes the offer
Offeree - offer is made to
Promisor - promise to do/not do
Promisee - Promises are made to
Term
What Parties are always the same person?
Definition
Offeror and the Promisor
Term
What is a Bilateral Contract?
Definition
-Mutual exchange of legally enforceable promise
-"Promise for a Promise"
Term
What is a Unilateral Contract?
Definition
-One Promisor
-Offeree accepts by performance
Term
When is a Bilateral and Unilateral contract enforced?
Definition
Bi - enforced once promise is made by the offeree
Uni - enforced once performance is performed by offeree
Term
What is a Voidable contract?
Definition
A valid contract where one of the parties has the right to avoid any obligation w/o legal issues.
Term
What is the most common form of law suit?
Definition
breach of contract
Term
What laws are commonly used in contract law?
Definition
Common law (can be supplemented by statutory law)
Term
What are the elements of a contract?
Definition
-Mutual Agreement
-Consideration (Payment term)
-Capacity
-Legality
-Genuine and Real assent to the contract (You wanted to enter contract)
-Some contracts must be in writing
Term
What does "Meeting of the Minds" mean?
Definition
An intent to enter into a contract
Term
What are the types of "non-offeres"?
Definition
-Preliminary negotiations
-Advertisements
-Auctions (Not like eBay)
Term
Can the courts supply minor or immaterial terms to a contracts' conditions?
Definition
Yes
Term
What is required for the Communication of an Offer?
Definition
Offeree must know of offer
Term
What is involved in Revocation?
Definition
-Offeror takes back the offer prior to acceptance by the offeree.
-Not effective until received by offeree
-Irrevocable offer-option contract
Term
What is an "Option Contract"?
Definition
(Under Common Law) second contract and it expires with determined time and payment.
Term
What "R" word is not used when referring to contracts?
Definition
resurrection
Term
What can you Revoke and what can you not?
Definition
You can revoke an offer, not a contract
Term
What does "unequivocal" mean?
Definition
Definite and exact
Term
What does the Consideration phase involve?
Definition
What is given or taken in a contract. -Money and/or terms.
Term
What is the second rule of Contract law?
Definition
The Court doesn't care about adequacy.
Term
What is "Legal Detriment"?
Definition
an act, promise to act, or refraining from an act, which not legally obligated to do.
Term
What is "Legal Benefit"?
Definition
legal right acquired by promise due to promise's legal detriment.
Term
What is an "Illusionary Promise"?
Definition
A promise with no real commitment, No contract and cannot be enforced
Term
What is another name for Promissory Estoppel
Definition
Detrimental Reliance
Term
What are the characteristics for a Promissory Estoppel?
Definition
-is a irrevocable Offer
-is extremely difficult to prove
-there is no consideration in promise
-Are enforceable as a matter of social policy
-a reasonable would rely on promise and change position, thereby will suffer a substantial loss if promise is not kept.
Term
Parents are not...
Definition
Legally bound to pay a child's debt.
Term
What are the contracts that a child is not automatically void out of?
Definition
Necessities
Enlistment into the Military
Marriage
Statutes
-insurance
-banking
-public transportation
-student loans
Term
What are the two courses of action if a minor misrepresents his/her age?
Definition
Common law-minor can still disaffirm a contract
Trend- hold a minor to said contract if they lied about age
Term
What contingency exist if you nullify a contract with the "intoxication" defense?
Definition
You must pay restitution
Term
What are the two types of Crazy People?
Definition
Adjudicated-declared in court
Unadjudicated-not declared in court
Term
What is an "Unconscionable Contract"?
Definition
One party, due to unequal bargaining power takes advantage of other person.
Example-Price Gauging
Term
What is a "Exculpatory Agreement"?
Definition
Releases one parety from consequences of WRONGFUL ACTS OR NEGLIGENCE.
Term
What are the characteristics to Texas Gambling law?
Definition
-very grey and difficult to understand
-Some forms of gambling are legal, but most are not.
Term
What is Useary Law?
Definition
Charging to much interest. Texas laws are very confusing.
Term
Parts to "Genuine and Real Assent to a Contract" (Part 1)
Definition
-Must freely enter contract
If unilateral mistake then there is no relief
-If mutual mistake of value then no relief, if material fact either party can void contract
Term
Parts to "Genuine and Real Assent to a Contract" (Part 2)
Definition
-Fraud (tort)
-Duress (against own will)
-Undue influence (Exp. Anna Nicole)
Term
What are the types of contracts that must be written?
Definition
-Cant be completed in one year
-have amounts over 500$ (UCC)
-transfer of interest in real property
-Promise to perform obligations of others.
-Promise made in contemplation of marriage
Term
What is the Parole Evidence rule?
Definition
(Oral Evidence Rule)-prohibits the use of oral evidence or extraneous evidence if contrary to terms of written contract.
Term
Exceptions to the Parole Evidence rule?
Definition
-Subsequent oral modification of written contract (Chiuaua Example)
-Oral evidence to prove contract was void
-Ambiguous or incomplete contract
-Prove a condition
Term
What are the Discharge of Contracts?
Definition
Good-completion
Bad - Substantial performance
Ugly- Material breach
Term
Types of "Discharge by Conditional Contracts"
Definition
-Conditions Precedent(something has to happened)
-Conditions Subsequent(stated event terminates contract)
-Concurrent Conditions(Parties are to simultaneously perform duties)
Term
What is "Novation"?
Definition
A new contract negotiated after another contract is nullified.
Term
What is an Accord?
Definition
Agreement between parties for different performance than required in contracts.
Term
What is an "Unliquified Debt"?
Definition
A debt that neither party can provide a number value for.
Term
Types of Discharge by Impossibility?
Definition
Subjective Impossibility-self determined
Objective Impossibility-Court determined
Term
Objective Impossibility?
Definition
-someone dies
-specific subject matter of contract is destroyed
-Change of law
-performance becomes commercially impractical. (massively more difficult than originally planned, Very rare)
Term
What is Repudiation?
Definition
(Anticipatory Breach)-One party in advance of time of performance notifies innocent party that they will not perform under contract.
Term
What are the Remedies for Breach of Contracts?
Definition
Monetary Damages
-Compensatory(Construction contracts) damage allowed for work not completed.
-Consequential(damages only known by one party)
-Liquidated
Term
Are punitive damages given in contract law?
Definition
no
Term
Equitable Remedies are...
Definition
When monetary damages are insufficient to make the non-breaching party whole after a breach.
Term
Rescission and Restitution
Definition
Rescission undoes a contract where as Restitution rewrites a contract.
Term
When is Reformation used?
Definition
when there are clerical errors or a divisible portion of the contract is invalid.
Term
What is Specific Performance?
Definition
Court ordered performance of the contract.
-very rare
-only avail. if unique exp. land, antiques.
Term
What is Mitigation of Damages?
Definition
To lessen the damages to the contract breacher.
Term
What is Agency Law?
Definition
An extension to contract law.
Term
What is an Agency by Agreement?
Definition
written or oral contract which the agency is given expressed powers coupled with implied powers.
Term
What is an Agency by Ratification?
Definition
(Grand Prix Example) non agent enters into contract for principal without consent of principal.
Term
What is an Agency by Apparent Authority?
Definition
(Agency by Estoppel)
-No actual authority by the agent
-3rd party can bind principal by actions of the principal through the agent.
-Principal must lead 3ed party to believe agent can represent principal.
Term
What is an Agency by Operational Law?
Definition
Law implies as agency relationship
Rises out of necessity or emergency (baby sitter)
Term
What are the Duties of Agents to Principals?
Definition
Fiduciary duty on agent-agent must subordinate his self interest to those of the Principal.
Term
What are the types of partially disclosed agencies?
Definition
Disclosed-third party knows of agency and who principal is
Partially Disclosed-third party knows of agency and who principal is
Term
If the Agent is the actual authority then...
Definition
-The Principal is bound to third party
-Agent has no contractual liability
Term
If the agent has apparent authority then...
Definition
-Principal is bound to third party
-agent is liable to Principal for disobedience
Term
What is an undisclosed Principal?
Definition
third party doesn't know principal exist.
-agent liable to third party
-if agent acting within authority, Principal is liable to third party
Term
What is Vicarious Liability?
Definition
Principal can still be liable for unauthorized, intentional or negligent torts.
-agent must act within authority
Term
What is a Tort?
Definition
CIVIL wrong other than breach of contract for which the law provides a remedy in the form of damages.
-Primarily Common Law
Term
Torts are crimes against?
Definition
individuals
Term
What are the 3 types of torts?
Definition
Intentional Torts
Negligence
Strict Liability
Term
What is the main thing to know about intentional torts?
Definition
"You intend to do the act that resulted in the harm."
Term
What are some examples of Strict Liability Torts?
Definition
-Owning a wild animal and it killing someone.
-Building implosions
Term
What are all the purposes of Tort law?
Definition
-Appeasement
-Justice
-Deterrence
-Social Insurance
-Damages
Term
What is an example of Social Insurance?
Definition
-Manufacturer makes product that hurts someone
Term
What is another name for Punitive Damages?
Definition
Exemplary Damages
Term
Which amendment does not normally apply to punitive damage ruling?
Definition
Eighth
Term
What case led to Tort reform?
Definition
Browning-Ferris-Industries of Vermont, Inc v. kelco
Term
What are the points of reform in Tort Reform?
Definition
-State Legislature
-Statutory Limitations on punitive damages (3 or 4 times the damage)
Term
What are the three ways businesses are involved in Torts?
Definition
-Due to actions of business or its employees
-Business actions toward other businesses
-Business products
Term
What are most large verdicts against businesses reduced by?
Definition
The trial judge and/or appellate judge
Term
Types of intentional Torts?
Definition
-Personal
-Property
Term
What is the definition of Assault in Civil law?
Definition
Intentional act placing a person in fear or apprehension of immediate bodily harm or offensive contact.
Term
What was Hill V. Western Union Telegraph about?
Definition
Drunk dude makes lewd comments towards uptight slut, she sues, court said intent was enough. Ruled in favor of the slut.
Term
Is physical harm required for someone to be charged with battery?
Definition
no, but physical contact is required.
Term
What are the defenses to battery?
Definition
Permission
privilege
Self-Defense
Term
What does Privilege entail?
Definition
-Police being able to search a draw weapon on you.
Term
What is shopkeepers privilege?
Definition
Merchant has the right to REASONABLY detain suspected thief on business premises for a reasonable amount of time.
Term
Illinois has statutory protection for the merchant in shopkeepers law which means...
Definition
-Codifies the common law of shop keepers privilege
-gives the merchant an affirmative defense
Term
What is "Intentional Infliction of Mental Distress"?
Definition
A personal tort that is very hard to prove. It is very new and involves outrageous or extreme conduct that creates mental illness to someone.
Texas looks at this as a gap filler, meaning if no other tort will stick then to use this one.
Term
Do public figures lose all of their privacy rights?
Definition
No, but most of them.
Term
What are the points to remember about invasion of privacy?
Definition
-Unwarranted does not mean unwanted
-public records render info public
-public figures lose most privacy rights
Term
Difference between Libel and Slander?
Definition
Slander is unrecorded in every way. Libel is not.
Term
What is Constitutional privileges?
Definition
Statements made by legislators and other public officials. (Official Capacity)
Term
What is Conditional or Qualified privileges?
Definition
statement made in good faith with proper motives.
Term
In what state can you not talk badly about the dead?
Definition
Texas
Term
Who does Libel in the Civil Practice and Remedies Code, Chapter 73 add to statutory defenses?
Definition
-Newspapers
-Broadcasters
Term
What is Malicious Prosecution?
Definition
Wrongful use of legal proceedings, civil or criminal. (Putting weed in someones car.)
Term
What must be done in order to prove malicious prosecution?
Definition
-Must win all cases against you
-must prove opposing part had NO probable cause
Term
Do Texas courts favor Malicious Prosecution cases?
Definition
No
Term
What are the higher degrees of proof required in Texas to pursue malicious prosecution?
Definition
-positive
-clear
-satisfactory
Term
What does Texas have that is similar in nature to Malicious Prosecution?
Definition
a tort called Abuse of Process
Term
What is "Disparagement"?
Definition
Defamation of a Business by a Business
Term
What are the most common types of defamation towards businesses?
Definition
-Slander of title-false statements about the ownership of property.
-Slander of Quality (trade libel)
Term
What is Intentional Interference with Contractual Relations?
Definition
-Established in England
-Damages include punitive and 2nd party
-Valid Contract (2 parties)
-3rd party, must know of contract
-defendant must attempt to get one party break contract
Term
If you agree to a contract and under the terms of the contract you must begin performance immediately and perform under the contract until a stated event in the contract occurs, you have entered into what type of contract?
Definition
Condition subsequent contract
Term
A contract where Tom and Jerry entered into a contract and Tom has fully performed all of the obligations of the contract but Jerry has not completed the requirements of the contract, is called a/an:
Definition
Partially executed contract
Term
What are the most common type of damages in a contract case?
Definition
compensatory
Term
To be voidable a mistake must be?
Definition
A mutual mistake of material fact
Term
Junior enters into a contract to buy a car from Sleezy Sam's Car lot when he is 16 years old. If he takes the car back what is true?
Definition
Junior has disaffirmed the contract
Junior has to pay resititution
Term
Which of the following is not a true contract?
Definition
Implied by law contract
Term
If you live in a minority jurisdiction then...
Definition
You would take the money after a substantial amount of the work is done.
Term
If you sell your herd of cows at a normal cattle auction and there are several bids on your cattle, you are..
Definition
The offeree and involved in a reserve sale
Term
What intentional tort does Texas not recognize?
Definition
Interference with prospective economic advantages
Term
Strict liability in torts is...
Definition
Liability w/o fault and Normally limited to abnormally dangerous activities.
Term
What intellectual property is protected only under state law or common law?
Definition
Trade names
Term
Take a picture of something cool and want to legally protect it. What would you use?
Definition
Copyright
Term
MacPhearson V. Buick established which type of product liability?
Definition
Negligence theory
Term
What does Texas case law say about express contracts and what case did it rule this?
Definition
-an express contract arises when its terms are stated by the parties.
-Harrison v. Williams Dental Group
Term
What case set the precedent for Quasi Contracts?
Definition
Ferrous Products C. v. Gulf States Trading Co
Term
What is another name for Quasi Contracts?
Definition
Implied in law contracts
Term
What is an executory contract?
Definition
a contract that is not fully completed
Term
What defines how contract law operates?
Definition
State common law and sometimes state statutory law
Term
Is Texas one of the few states that looks at genuine and real assent to a contract as a valid defense?
Definition
yes
Term
When there are missing contractual terms, what will the courts not provide as far as the verbiage?
Definition
the quantity
Term
What is consideration?
Definition
Something of value that is given up in return for the promise of the other party to the contract.
Term
Are gratuitous promises enforceable contracts? What are they?
Definition
No, like a promise to buy a gift
Term
What promises are enforceable as a matter of social policy?
Definition
Promissory Estoppel or detrimental reliance
Term
If a minor disaffirms and executed contract then what do they usually have to do with the property? What is this called?
Definition
give it back, restitution
Term
What is an exculpatory agreement?
Definition
an agreement that releases one party in a contract from all liability.
Term
Is there any punitive relief for a mistake of value claim?
Definition
No
Term
If substantial performance is seen in a contract is the other non-breaching party required to fulfill their side of the contract?
Definition
Yes, but can be suspended
Term
What is a recession?
Definition
When both parties disaffirm a contract and start a new one.
Term
What type of debt does an accord and satisfaction discharge?
Definition
Unliquidated debt
Term
What are Compensatory Damages for?
Definition
designed to compensate the injured party for the loss of the bargain.
Term
What are liquidated damages?
Definition
a pre agreed upon amount that will be paid for damages when/if there is a breach of contract
Term
What is specific performance usually only used for?
Definition
When a breach causes a loss of land for one of the parties since land is finite and no substitute is the same as the lost land.
Term
Are punitive damages available for contract law?
Definition
no
Term
What is vicarious liability?
Definition
if an agent acts in unauthorized intentional tors, the principal is bound if the agent was within the scope of duty
Term
What is a tortfeasor?
Definition
the person who intended to do the tort, but may or may not have intended harm
Term
What is ethical retribution?
Definition
one of the theories of the tort morale principle that places emphasis up on the fact that the payment of compensation is harmful to the tortfeasor and that justice requires that the person suffer the harm.
Term
What is ethical compensation?
Definition
emphasizes that the payment of compensation is a benefit to the victim of the wrong and declares that justice requires that the victim should receive payment.
Term
Why wont the liability rule alter behavior?
Definition
B/C it is cheaper to pay for the cost associated with the accident rather than to try to prevent the accident.
Term
What is the deep pocket theory?
Definition
states that the business has greater wealth than the injured consumers so the business should have to pay for torts.
Term
When are punitive damages usually rewarded?
Definition
intentional torts and gross negligence cases
Term
What did the Supreme Court rule in Browning Ferris of Vermon v. Kelco with regards to the 8th amendment?
Definition
The court ruled that the 8th amendment gave no protection against "excessive fines" in gross negligence cases because the jury didn't award fines. They awarded damages.
Term
What is the Castle Doctrine?
Definition
The issue in which a person has the right to use deadly force to defend themselves and property
Term
Is using force or threatening someone's property considered false imprisonment?
Definition
yes
Term
Does Texas have an antishoplifting statute?
Definition
no
Term
What is absolute privilege?
Definition
applies in those situation where freedom of speech is required. It protects statements made in a civil or criminal action so long as the statements are relevant to an issue in the proceeding.
Term
What is absolute privilege often referred to as?
Definition
Constitutional Privilege
Term
What case limited Constitutional Privilege?
Definition
Hutchinson v. Proxmire
Term
What is puffery?
Definition
an opinion and since fraudulent misrepresentation requires that the tortfeasor knows that the statement is untrue, this not fraud.
Term
Does the failure to speak amount to fraud?
Definition
yes
Term
What is disparagement?
Definition
when a company knowingly makes false claims about another company's products and the plaintiff suffered damages
Term
What is slander of title?
Definition
publishing false info about the legal ownership of property
Term
What is slander of quality often referred to as?
Definition
trade libel or business disparagement
Term
What does Lection 43(a) of the Lanham Act do?
Definition
establishes an action for damages for any false description or representation of one's goods
Term
What is intentional interference?
Definition
When a third party knowingly disrupts another party's contract.
Term
What was Lumley v. Gye about?
Definition
the opera singer contract
Term
What is the leading case in the area of intentional interference?
Definition
the Texaco and Pennzoil case
Term
What is an interference with prospective economic advantage?
Definition
when a tortfeasor must intentionally interfere with someone else's business in an unreasonable and improper manner.
Term
What is Trespass to personal property also known as?
Definition
trespass to chattel
Term
What is an artisan's lien?
Definition
when an artisan keeps personal property they did work on until payment is received
Term
When does the statute of limitations begin for a permanent nuisance?
Definition
when the nuisance is discovered
Term
When can a copyright author file chargers against infringers?
Definition
after full registration of the copy right
Term
What are the damages for copyright infringement set by and what is the range?
Definition
Copyright Act
750-30,000, 300 for accidental infringement
150,000 for flagrant infringment
Term
Can an author of a trademark receive both actual and statutory damages for infringement?
Definition
no, one or the other
Term
What does the exception to copyright law (compulsory licensing) allow people to do?
Definition
allows people to record copyrighted work after it has been distributed to the public.
Term
What are the two main music licensing organizations and what do they do?
Definition
-American Society of Composers, Authors and Publishers
-Broadcast Music Inc.
-They represent various recording artist and their interest
Term
When is a patent no longer good?
Definition
20 years after the filing date
Term
How many defenses are there for patent infringements?
Definition
21
Term
What are the 4 types of potential trademarks?
Definition
-arbitrary or fanciful
-descriptive
-suggestive
-generic
Term
Which is easier, getting a trademark registration from the Lanham Act or one of the States?
Definition
Lanham Act
Term
How long is a trademark good for?
Definition
10 years and can be extended indefinitely
Term
What changes did the Trademark Law Revision Act make to the trademark laws?
Definition
-it gave business owners the right to 3x damages for infringement
-made it possible to apply for a trademark ahead of time instead of while it was already in the market
Term
What did the Trade mark Dilution Act do?
Definition
allowed trademark holders to sue even non-competitors for blurring and tarnishing a trademark
Term
What is the fine for cybersquatting?
Definition
100,000
Term
Can trade names be registered under the Lanham Act?
Definition
no
Term
What is the Federal Espionage Act about?
Definition
corporate espionage via stealing trade secrets
Term
Did the Fairness in Asbestos Injury Resolution Act pass?
Definition
no
Term
What is the amount of the Federal Asbestos relief trust?
Definition
30 billion
Supporting users have an ad free experience!