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Business Law
N/a
79
Law
Undergraduate 2
05/12/2010

Additional Law Flashcards

 


 

Cards

Term
Contract
Definition

a set a promises the breach of which the law will provide a remedy for

Term
Contractual Requirements
Definition

 

1. Agreement (a meeting of the minds)

2. Competent Parties (has to understand contract, minors sometimes are incompetent, 

3. Genuine Assent

4. Consideration

5. Legal Purpose (Lawful Objection)

6. Form

 

Term
Intent
Definition

 

 

1) Agreement

2) Competent Parties

3) Consideration

4) Legal Purpose

 

 

Term

 

Freedom to contract

 

Definition

 

The law does not require parties to be fair, kind, reasonable in returns, etc. when entering a contract.

 

Term

Contract under seal, signature, etc.

Definition

shows intent to be legally bound (they're really just formalities and not required in any way)


Term
Express Contract
Definition
Expressly communicated; specific
Term
Implied Contract
Definition
not expressly communicated; ex: house painting
Term

Void contract 

Definition

could be void because it's illegal; in the case of an illegal contract, the court simply will not help you out.


Term

Voidable contract 

Definition

a contract that essentially one or both parties has the option of walking away from. (a minor buys a car with case. the minor has the status and compacity to avoid the contract, get the money back.) The law tries to protect minors from adults who may have the business savvy or experience to exploit a minor. In a lot of times when minor can avoid a contract, the minor is buying a luxury item.

Term

Executed contract 

Definition

a fully performed contract

Term

Executory contract

Definition

in progress

Term

Bilateral contract

Definition

both parties have obligations under the contract (usually the case)

Term

Unilateral contract 

Definition
Only one party has an obligation. For example, a reward.
Term

Quasi contract 

Definition

This is not a contract. It's a remedy that a court supplies to prevent unjust enrichment (one party has accepted a benefit from the other party which is unjust) In other words, it's an equitable remedy in the law.

Term

Rescission

Definition

both parties have to agree to rescind the contract

Term

Offeror 

Definition

master of the offer, person who makes the offer; you make the terms, what constitutes acceptance; can withdraw that offer and any time before its accepted


Term

 

Mirror Image Rule 

 

Definition

 

terms of acceptence have to perfectly match the offer; **if the terms are not exactly the same this is a rejection of the offer called a counter-offer.

 

Once you make a counter-offer you can't change your mind and accept the original offer because it's already been rejected and is no longer valid.

 

Term

Option Contracts

Definition

when the offeree porvides consideration to the offeror to keep good on his offer (for example, I'll pay you $100 to keep this offer open for this long), this binds the offeror to keep good on his offer because it establishes a contract

Term

Firm Offers

Definition

UCC, (as far as commercial contract law goes, there is the same law in all states) - if an offer is made in writing between merchants and it is not good for more than 3 months, this is a firm offer and the offeror cannot revoke it.

Term

Mailbox Rule of  Acceptence

Definition

Acceptence is valid when it is put in the mailbox.

Term
What validates acceptence?
Definition
Time and Manner; if manner is not specified, a reasonable manner of acceptance is implied.
Term

Contractual Capacity

Definition

Ability to understand that a contract is being made and its general meaning. Can't get out a of a contract because you didn't understand a specific part. It's more about your general capacity to understand

Term

4 aspects of Fraud

Definition

1) Untrue statement, reckless disregard

2) Intent that the listener relies on the statement

3) Listener does rely

4) Listener is caused harm

Term

7 Reasons a Contrat may be Avoided

Definition

1) Minor

2) Capacity

3) Mistake

4) Fraud

5) Nondisclosure

6) Pressure/ Undue Influence

7) Duress (Physical or Economic)

Term

Illusory Promise

Definition

If one party has the option to walk away for any reason and any time three is no committment

Without consideration, saying you will give someone money is just a promise

Term

Forebearance is?

Definition
a type of consideration
Term

3 Requirements of Modificaiton

Definition

- Additional consideration

- Good faith

- Pre-existing duty

Term

4 aspects of Good Faith

Definition

- Voluntary

- Contract must be executory (in-progress)

- Unanticipated underlying circumstances

- Fair/ Equitable

Term

Promissory Estoppel 

Definition
a promise with no consideration. If injustice is going to result, the Court my say that they are going to enforce the promise.
Term
Equitable Remedies
Definition
Quasi K and Promissory Estoppel. The Court uses both of these to avoid injustice.
Term
4 reasons a contract could be illegal
Definition

- calls for the comission of a crime

- calls for the comission of a tort

- it's against public policy

- unconscionable


Term
Licensing Statutes
Definition

If you're required to have a license that's in place to protect the public (doctor, attorney, etc.) and the license is illegal, the contract is void

Term

Blue Pencil Rule

Definition

the court can modify a non-compete agreement on its own initative if it's too harsh

Term

if a contract is using an illegal rate of interest, the Court will do one of three things...

Definition

 1. the court will sometimes allow the party to recover the original amount of principle without any interest

2. they change it to a reasonable rate of interest  

3. the loan is completely void and doesn't have to be paid back.

Term

Parole Evidence

Definition

If there is a written contract, it is final, complete, and integrated (This is uniquely a US mentality)

Term

Intergration Clause

Definition

clause that says that the contract is a final and complete contract

Term

Anticipatory Breach

Definition

occurs when one party (clear and inequivicable statement) that they won't be able to perform. This is allows for the other party to be proactive and sue right then and there and then go contract somewhere else.

Term

Waiver of Breach

Definition

A breach occurs but both parties ignore the breach. .. eventually the Court will see this as a modification of the contract unless there is an anti-modification clause.

Term

Money Damages

Definition

It usually means putting the parties in the position they would have been in if the contract had been performed. This does not include emotional damages (this is only viable in a tort case).

Term

Compensatory Money Damages (Direct Damages) 

Definition

damages that flow directly from the breach

Term

Consequential Money Damages

Definition

generally more controversial and speeculative. In order to get consequential damages,

A) the person whose victim of the breach has to try to use reasonable measures to mitigate the damages.

B) it has to be clear at the time the contract was madet hat these damages were forseeable. 

Term

Specific Performance

Definition

Discretionary with the judge. Usually involved unique subject matter within the contract (art, racehorse, land). Can't make someone perform.

Term

Injunction

Definition

If you can't make someone perform, you can injoin them from partaking in something else.

Term

Reformation

Definition

Usually when there's some kind of technical error in the contract. Bascially, it's correcting an error rather than throwing out the entire contract.

Term

Recission

Definition

Undoing on a contract by the court.

Term

 

Exculpatory Clause

 

Definition

 

Provision in a contract under which (1) one party is relieved of any blame or liability arising from the other party's wrongdoing, or (2) one party (usually the one which drafted the agreement) is freed of all liability arising out of performance of that contract.


It must be 1. Clear  and Unambiguous 2. Strictly Construed (resolved against the drafter) 3. Cannot violate public interests

 

Term

1964 Civil Rights Act protects against what 4 things?

Definition

1. Race,

2. Religion,

3. National Orgin,

4. Sex (Gender and Sexual Harrasment)

Term

Title II

Definition

prohibits discrimnation in places of public accomidation

Term
What constitutes a private club?
Definition

 The court will look at it is more business oriented or more socially oriented. As soon as the a country club opens its facilities up to the public, that will usually destroy the private club exemption.

Term

Reasonable Accomodation

Definition

An employer is required to reasonably accomodate an employee.

If it is a undue hardship on the employer, than the employer is not required to make the accomodation


Term

Sexual Harrassment

Definition

Unwelcome advances in the workplace that a reasonable person would consider offensive or not tolerate. The statute of limitations for these cases is short. (Something like within 100 days)

Term
Two types of Sexual Harrassment
Definition

1. Quid Pro Quo (Tangible Employer Action)

2. Hostile Work Environment (frequency, severity, physical threat or humiliation, work performance interference, or mental health?)

Term

Age Discrimination in Employment Act (ADEA) 

Definition

prevents employers to fail to hire or fire because of an employees age. It only applies to people who over 40 and over, must be doing a satisfactory job, can't have a younger replacement

Term

Americans with Disabilities Act (ADA)

Definition

- person must have a disability (What did Congress mean by this? How is a disability defined?)

- person has to be otherwise qualified to perform the job

- reasonable accomodation is required (What's reasonable for one company may not be reasonable for another.)

- not an undue hardship

Term
Landham Act
Definition
Protects Trademarks and Tradedress potentially indefinitely
Term
Patents
Definition

Generally last 20 years, when it expires, it passes into the public domain.

 

 In order to get something patented, it must be new and non-obvious. That means non-obvious to a person familiar with the business or industry.


Term

Unconscionability 

Definition

Courts often look at both procedural and substative unconscionability

Term
What is tort?
Definition
Torts are actions that are not straight but are crooked, or civil, wrongs. A tort is an interference with someone’s person or property. It is a violation of a private duty.
Term
Intentional Tort
Definition

·      Torts that occur when wrongdoers engage in intentional conduct. Ex: striking another person

Term
Negligence
Definition
Careless action, or actions taken without thinking through their consequences, constitute negligence
Term
Strict Liability
Definition
a type of tort that imposes liability without regard to whether there was any intent to harm or any negligence occurred. Imposed without regard to fault because the activity involved is so dangerous that there must be full accountability.
Term
Intentional infliction of emotional distress
Definition
a tort involving conduct that foes beyond all bounds of decency and produces mental anguish in the harmed individual. Requires proof of outrageous behavior and resulting emotional distress.
Term
Invasion of privacy – Consists of which 3 different torts?
Definition

1.) intrusion into the plantiff’s private affairs,

2.) public disclousure of private facts,

3.) appropriation of anothers’ name, likeness, or image for commercial advantge (right of publicity) designed to protect celebrities and their identities..

a. for value associated with name

b. i dentification of plantiff in publication

c. advantage or benefit to defendent

Term
Wrongful interference with contracts:
Definition

occurs when parties are not allowed the freedom to contract without interference from third parties. Basically, the law affords a rememdy when a third party intentionally causes another to break a contract already in existence.

            

Term
Defemation - libel/slander (3 things)
Definition

1. must be an untrue statement that would harm a reputation

2. must be published to a third party

3. about a particular person

Term
8 factors that influence Liklihood of Confusion?
Definition

1. strength of mark

2. relatedness of goods

3. similiarity of mark

4. evidence of actual confusion

5. marketing channels

6. likely deegree of purchase care

7. defendent intent in selecting mark

8. liklihood of expansion of market

Term
Federal Trademark Dilution Act (1995)
Definition
Made to protect famous marks
Term
Assumption of risk
Definition
defense for negligence
Term
4 things that prove negligence
Definition

1. Duty (if there's no forseeability of harm, there's no duty.)

2. Breach of Duty

3. Causation

4. Harm

Term
Malpractice Lawsuits
Definition

1. Determined by professional standard

2. Many lost on causation. Can you prove that the specific breach of duty caused the harm?

Term
Tort Reform
Definition

Damages should be capped

 

Maybe there shouldn't be punative damages

 

Should there be a loser pay provision?

Term
usury
Definition
interest above the rate allowed by law
Term
EEOC
Definition
The agency of the United States Government that enforces the federal employment discrimination laws.
Term
BFOQ
Definition
bona fide occupational qualification (exception to Title VII)
Term
Defenses in a defemation suit?
Definition

that a statement is opinion

that it is true

 

Term
product disparagement
Definition
any statement about a company or a product that is false and likely to affect its profits.
Term
quantum meruit
Definition
Quantum meruit is the measure of damages where an express contract is mutually modified by the implied agreement of the parties, or not completed.
Term
length of copyright protection
Definition
As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first.
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