Term
| What is the first rule of contract law? |
|
Definition
|
|
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. |
|
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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
|
|
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
|
|
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
|
|
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
|
|
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
|
|
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. |
|
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Term
|
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
|
|
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. |
|
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Term
|
Definition
| Legally bound to pay a child's debt. |
|
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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
|
|
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
|
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
|
Definition
| A new contract negotiated after another contract is nullified. |
|
|
Term
|
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
|
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
|
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
|
|
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
|
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
|
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
|
|
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
|
|
Term
| Which amendment does not normally apply to punitive damage ruling? |
|
Definition
|
|
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
|
|
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
|
|
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
|
|
Term
| Who does Libel in the Civil Practice and Remedies Code, Chapter 73 add to statutory defenses? |
|
Definition
|
|
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
|
|
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
|
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
|
|
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
|
|
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
|
|
Term
| Take a picture of something cool and want to legally protect it. What would you use? |
|
Definition
|
|
Term
| MacPhearson V. Buick established which type of product liability? |
|
Definition
|
|
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
|
|
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
|
|
Term
| When there are missing contractual terms, what will the courts not provide as far as the verbiage? |
|
Definition
|
|
Term
|
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
|
|
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
|
Definition
| When both parties disaffirm a contract and start a new one. |
|
|
Term
| What type of debt does an accord and satisfaction discharge? |
|
Definition
|
|
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
|
|
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
|
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
|
|
Term
| Does Texas have an antishoplifting statute? |
|
Definition
|
|
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
|
|
Term
| What case limited Constitutional Privilege? |
|
Definition
|
|
Term
|
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
|
|
Term
|
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
|
|
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
|
|
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 |
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Term
| When is a patent no longer good? |
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Definition
| 20 years after the filing date |
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Term
| How many defenses are there for patent infringements? |
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Definition
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Term
| What are the 4 types of potential trademarks? |
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Definition
-arbitrary or fanciful
-descriptive
-suggestive
-generic |
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Term
| Which is easier, getting a trademark registration from the Lanham Act or one of the States? |
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Definition
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Term
| How long is a trademark good for? |
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Definition
| 10 years and can be extended indefinitely |
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Term
| What changes did the Trademark Law Revision Act make to the trademark laws? |
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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 |
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Term
| What did the Trade mark Dilution Act do? |
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Definition
| allowed trademark holders to sue even non-competitors for blurring and tarnishing a trademark |
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Term
| What is the fine for cybersquatting? |
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Definition
|
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Term
| Can trade names be registered under the Lanham Act? |
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Definition
|
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Term
| What is the Federal Espionage Act about? |
|
Definition
| corporate espionage via stealing trade secrets |
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Term
| Did the Fairness in Asbestos Injury Resolution Act pass? |
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Definition
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Term
| What is the amount of the Federal Asbestos relief trust? |
|
Definition
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