Term
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Definition
| uncontested judgment (defendant doesn't show) |
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Term
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Definition
| one party (judgment typically rewarded to plaintiff) |
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Term
| accusation (starts a criminal case) |
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Definition
| formally charges a specified person with commission of a particular crime (filed by d.a.) |
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Term
| district attorney (accusation) |
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Definition
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Term
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Definition
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Term
| alternative dispute resolution |
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Definition
| alternatives to litigation (like arbitration) |
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Term
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Definition
| use of methods to learn about facts of dispute (most time consuming part) |
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Term
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Definition
| questioning of a witness or adverse party by opposing attorney (before trial, under oath) |
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Term
| interrogatories (less expensive than depositions because no court reporter needed) |
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Definition
| form of discovery in which written questions are directed to a party, who must reply under oath with written answers (concise, but also allow witness to draft an answer that discloses as little as possible, can't detect signs of uneasiness) |
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Term
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Definition
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Term
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Definition
| compels the opposing party to provide specified evidence that he or she currently controls and that is believed to be relevant |
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Term
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Definition
| a written order directing a person to appear in court and testify as a witness |
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Term
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Definition
| requiring identified documents or physical evidence be brought to court |
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Term
| privilege against self-incrimination |
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Definition
| defendant cannot be compelled to testify against him or herself (limits discovery, 5th amendment) |
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Term
| motion for summary judgment |
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Definition
| case decided without trial (when no real disputes to the facts |
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Term
| pretrial hearing (or conference) |
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Definition
| after discovery, purpose to identify matters that are in dispute and to plan the course of the trial) |
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Term
| jury "fairest instrument of justice" |
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Definition
| decide fact (also known as trier of fact), unbiased |
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Term
| right to a jury (civil, federal) |
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Definition
| has right where value in dispute exceeds 20 dollars |
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Term
| right to a jury (civil, state) |
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Definition
| right is not gauranteed by constitution |
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Term
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Definition
| right in any matter, federal or state, where penalty like jail sentence or imprisonment over six months may be the outcome) |
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Term
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Definition
| criminal admits guilt to a lesser offense than charged with |
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Term
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Definition
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Term
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Definition
| judge (whether law constitutional or not) |
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Term
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Definition
| judge has power to overturn jury verdict |
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Term
| jury ignores law (criminal) |
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Definition
| judge can declare defendant not guilty even if jury decided to convict defendant (cannot overturn verdict of not guilty, unless finds jury corruption) |
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Term
| jury selection and service act |
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Definition
| provides that names selected from voter registration should be supplemented with names from other lists to better represent diverse community) |
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Term
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Definition
| questioning of prospective jurors to find possible bias |
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Term
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Definition
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Term
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Definition
| bias or appearance of bias is shown |
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Term
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Definition
| dismissal of a juror for an undisclosed personal reason of the dismissing party |
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Term
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Definition
| extra jurors if trial is expected to be long |
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Term
| # jurors (federal criminal) |
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Definition
| 12, although verdicts have been upheld with 11 |
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Term
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Definition
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Term
| unanimous jury verdict (criminal) |
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Definition
| required in most federal and state criminal prosecutions |
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Term
| unanimous jury verdict (civil) |
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Definition
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Term
| disputes in equity (no jury) |
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Definition
| no remedy at law, monetary damages not sought, or didn't satisfy party seeking relief (monetary remedy at law was inadequate or unavailable) |
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Term
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Definition
| in equity when buyer wants performance, not monetary damages |
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Term
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Definition
| in equity when court rescinds contract |
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Term
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Definition
| order requiring the person or persons to whom it is directed to do a particular act or to refrain from doing a particular act |
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Term
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Definition
| injury caused by negligence, loss of earnings caused by defamation, money loss because of fraud, profits lost due to breach of contract |
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Term
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Definition
| defiance of a judge's order (arrest and imprisonment) |
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Term
| burden of proof (first step civil case for plaintiff) |
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Definition
| duty to present evidence that supports allegations in the complaint (the facts) & satisfied by preponderance of evidence |
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Term
| preponderance of evidence |
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Definition
| according to evidence, more likely than not that allegations in the complaint are true |
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Term
| burden of proof (criminal) |
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Definition
| state (represented by prosecutor) has the burden of proving the guilt of the defendant beyond a reasonable doubt |
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Term
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Definition
| fact finder convinced of guilt |
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Term
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Definition
| being tried twice for the same offense (unconstitutional & violation of 5th amendment) |
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Term
| opening statement (begins trial) |
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Definition
| plaintiff's attorney gives summary of what plaintiff expects to prove in trial |
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Term
| case in chief (after opening statement) |
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Definition
| plaintiff's attorney questions witnesses and introduces evidence |
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Term
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Definition
| everything the finder of fact is entitled to consider in arriving at a determination of the facts |
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Term
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Definition
| evidence, irrelevant evidence (not related to the fact in dispute is not admissible) |
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Term
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Definition
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Term
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Definition
| judge will not allow question to be answered (question is compound) |
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Term
| after case in chief comes.. |
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Definition
| motion to dismiss (defendant claims plaintiff has failed to establish a prima facie) |
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Term
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Definition
| sufficient evidence of defendant's wrongful conduct (must be proved before defendant responds with defense) |
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Term
| if motion to dismiss denied.. |
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Definition
| defendant's attorney makes an opening statement (if it was not made at beginning of trial) |
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Term
| after defendant's opening statement.. |
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Definition
| plaintiff may offer additional evidence to rebut the defense (but not opening new issues). then defendant has one more chance to rebut |
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Term
| motion for a directed verdict (follows defendant's opening statement) |
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Definition
| request to a judge that he or she enter the requested verdict instead of allowing the jury to present its verdict (unusual) |
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Term
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Definition
| speech made by attorney designed to persuade the jury (plaintiff, defendant, plaintiff) |
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Term
| after summation comes jury instructions |
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Definition
| judge instructs jury on law |
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Term
| after instructions come deliberation and return of verdict |
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Definition
| discussion in private room & jury's decision |
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Term
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Definition
| judge in civil case has power to render a contrary judgment (criminal case judge can't veto verdict of not guilty) |
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Term
| after verdict comes motion for a new trial |
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Definition
| judge will grant if serious mistake of law occurred |
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Term
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Definition
| pronouncement of a court (declare status, an order, impose sentence, resolves controversy) |
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Term
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Definition
| one against whom a judgment has been entered but who has not paid the judgment |
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Term
| collecting dollar amount of judgment |
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Definition
| provided by executive branch |
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Term
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Definition
| one who has won judgment but is unpaid (must provide copy of judgment and defendant's assets) |
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Term
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Definition
| court order directing sheriff to confiscate property of defendant |
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Term
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Definition
| shows judgment creditor has been paid in full (signed document) |
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Term
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Definition
| authorized inquiry about the judgment debtor's assets |
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Term
| appellate courts (3 or more justices) |
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Definition
| hear appeals from trial courts, don't conduct trials (decide whether or not law was applied correctly, don't consider new evidence or hear witnesses) |
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Term
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Definition
| appellate courts find law was upheld correctly |
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Term
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Definition
| official copies of proceedings in trial court for appellate courts |
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Term
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Definition
| written legal argument addressed to appellate court discussing or arguing why judgment from below should be affirmed, reversed, modified, or remanded |
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Term
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Definition
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Term
| cole v. chief of police of fall river |
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Definition
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Term
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Definition
| actual harm or immediate threat of harm |
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Term
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Definition
| controversy ceases to exist or plaintiff otherwise achieves the results sought after the case is filed |
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Term
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Definition
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Term
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Definition
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Term
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Definition
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Term
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Definition
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Term
| law of torts (private wrongs) |
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Definition
| shifts risk of injury from victims to other can better afford the costs by awarding punitive damages (manufacture, display, purchase, use) |
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Term
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Definition
| manufacture, distribution, buying, selling |
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Term
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Definition
| people involved decide to resolve their dispute privately (what happens for most civil lawsuits) |
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Term
| expanding scope of tort liability |
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Definition
| determining that manufacturers and sellers of defective products could be sued for injuries without proof of negligence or fault |
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Term
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Definition
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Term
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Definition
| private wrong (other than breach of contract) committed by one person that injures another's person and/or property, for which the law allows legal remedy of monetary damages |
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Term
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Definition
| person who commits wrongful act (if two or more, called joint tortfeasors) |
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Term
| classifications of tort law |
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Definition
| intentional, negligent, strict liability |
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Term
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Definition
| when a person purposely commits some act that injures the victim (requires some act be intended that causes injury like firing a hand gun), many aren't crimes because people don't act with guilty mind |
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Term
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Definition
| carelessness, failure to act reasonably, inadvertently causes injury that was foreseeable |
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Term
| strict liability (including product liability) |
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Definition
| victim need not prove that the defendant acted negligently or was guilty of an intentional tort (liability without fault). victim has to prove injury, damages suffered, and injury was caused by product |
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Term
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Definition
| an intentional threat or attempt that places victim in fear or apprehension of an immediate harmful or offensive touching |
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Term
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Definition
| harmful or offensive touching of another person without justification, consent, or excuse |
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Term
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Definition
| doctors must tell patients what risks are involved and what available alternatives exist |
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Term
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Definition
| unauthorized taking of personal property of another and wrongfully exercising rights of ownership |
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Term
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Definition
| a person to whom goods are entrusted for use, storage, or other purposes (like coat checking and parking garage) |
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Term
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Definition
| temporary unauthorized interference with personal property rights of another (owner entitled to damages for limited loss of possession and harm to property) |
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Term
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Definition
| detention of victim and restraint of movement (confinement within a given area) |
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Term
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Definition
| variety of false imprisonment by officer (or someone who pretends to have legal authority) |
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Term
| intentional infliction of mental distress (outrageous conduct) |
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Definition
| someone intentionally acts in manner that may be expected to cause severe mental distress to victim |
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Term
| defamation (no defamation without publication) |
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Definition
| wrongfully hurting another person's reputation through false & unprivileged statements made to others (truth is an absolute defense) |
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Term
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Definition
| wrongfully hurting another person's reputation orally (victim must prove monetary loss) |
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Term
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Definition
| wrongfully hurting another person's reputation in writing (don't need to prove monetary damages, more durable) |
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Term
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Definition
| legislative, executive, judicial officials |
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Term
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Definition
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Term
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Definition
| gives media right of freedom of expression (with reference to articles about public officials) |
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Term
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Definition
| statement made it prior knowledge that it was false or with reckless disregard as to whether it was true or false (public figures must prove actual malice in regards to libel) |
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Term
| invasion of privacy (4 categories) |
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Definition
| unreasonable intrusion, appropriation of another's name, unreasonable publicity given to another's private life, publicity that place another in a false light before public (wrongful opening of mail, telephone wiretapping) |
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Term
| fraud (deceit, misrepresentation) |
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Definition
| mostly committed in sales of goods or services (not including feelings of affection or regard to marriage, or someone who innocently doesn't know information is false) |
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Term
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Definition
| capable of being settled by law |
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Term
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Definition
| intentional tort that requires fair dealing of insurance companies (can lead to punitive damages) |
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Term
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Definition
| usually caused by negligence even though unexpected and unintended |
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Term
| for negligence to have been committed.. |
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Definition
| actual cause & proximate cause |
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Term
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Definition
| an injury wouldn't have occurred without the defendant's act ("but for" wrongful act injury wouldn't have happened) |
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Term
| proximate cause (direct, close) |
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Definition
| act not only was an important factor, it caused all remote damages (the ability to see or know in advance that injury is likely result of acts) |
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Term
| preponderance of evidence |
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Definition
| evidence of plaintiff is more convincing than evidence of defendant |
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Term
| intervening cause (wrongdoer not liable) |
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Definition
| an independent force (either an act or failure to act) that comes or happens after the defendant's negligent conduct has commenced (natural sequence of events don't take place & an injury results that couldn't have been foreseen) |
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Term
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Definition
| shield doctors and other from liability to an injured person when they stop along the way and render emergency aid. |
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Term
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Definition
| negligence committed by a professional person (failure to use degree of care & skill ordinarily possessed by average member of profession) |
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Term
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Definition
| (owner liable) like a swimming pool that invites trespassers to property |
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Term
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Definition
| anyone who's upon or inside homeowner's property with implied or express permission (owner has duty to warn of dangerous conditions) |
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Term
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Definition
| shoppers and costumers in retail stores and patrons of restaurants, hotels, theaters, amusement parks (business purposes & occupier seeking to earn profit from presence) |
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Term
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Definition
| negligence (and to receive damages), if no injury results from action there is no tort |
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Term
| res ipsa loquitor (thing speaks for itself) |
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Definition
| when court infers duty was breached because event doesn't normally occur without negligence (the defendant must prove he or she was not negligent) |
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Term
| defenses to negligence (victim did one of following) |
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Definition
| assumed risk, was also negligent |
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Term
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Definition
| plaintiff who knows a given risk and voluntarily puts himself or herself in risky situation (thereby absolving defendant of liability) |
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Term
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Definition
| victim who is negligent may nevertheless recover damages from a defendant who is more negligent (damages reduced in proportion to amount of negligence attributable to plaintiff) |
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Term
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Definition
| two persons were involved in accident and both were negligent, neither could recover any damages |
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Term
| strict liability (worker's compensation, imposed on employer when worker is injured or killed on job) |
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Definition
| businesses must compensate persons who are injured by products, services, or activities (defendant liable even if not at fault), product has defect, shifts burden of resulting injuries from user to manufacturer |
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Term
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Definition
| devices whereby groups of injured person who are similarly situated can obtain redress in single lawsuit (rather than filing bunch of separate cases) |
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Term
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Definition
| special statute of limitations that applies to specified defective products (cuts of liability after specified number of years following manufacture or sale regardless of when victim's injury occurs) |
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Term
| compensatory (actual) damages |
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Definition
| money awarded to plaintiff for real loss or injury |
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Term
| special damages (out of pocket costs) |
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Definition
| can be specified and measured in terms of money (cost of a hospital stay) |
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Term
| general damages (2nd type of compensatory damages) |
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Definition
| actual and proximate result of loss or injury, compensate for other than out of pocket monetary losses (like pain, suffering, mental distress) |
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Term
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Definition
| spouse may recover loss with injured or deceased mate (includes companionship, affection, sexual relations, not recoverable by unmarried persons) |
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Term
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Definition
| compensate immediate dependent relatives for loss of companionship and financial support resulting from death |
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Term
| punitive (exemplary) damages (conduct has damaged society as a whole not just individual) |
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Definition
| purpose to punish and make an example of wrongdoer in order to deter him or her and others from a repetition of offense (never breach of contract, unless intentional tort like fraud or bad faith) |
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Term
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Definition
| prescribe reasonable periods of time during which civil claims for damages may be filed (3 to 4 years), doesn't begin until plaintiff becomes aware of injury |
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Term
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Definition
| defendant doesn't have insurance or sufficient resources to pay (barrier to collection of damages) |
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Term
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Definition
| legal doctrine that a contract confers rights and imposes liabilities only on its contracting parties. they, and not any third-party, can sue each other (or be sued) under the terms of the contracts. |
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Term
| thomas and wife v. winchester |
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Definition
| extract of belladonna mistaken for dandelion, can recover damages without privity if product is dangerous |
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Term
| loop v. litchfield (first and second case) |
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Definition
| defective flywheel and boiler (products ruled not dangerous, like poison or dynamite) |
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Term
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Definition
| person who was at fault building scaffold held liable and contractor absolved (didn't do anything careless), broadened thomas v. winchester |
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Term
| macpherson v. buick motor co. |
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Definition
| employee's lack of due care in inspecting the wheel which rendered buick liable |
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Term
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Definition
| master should answer for acts of servant, employer is responsible for employees |
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Term
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Definition
| promise explicitly made either orally or in writing |
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Term
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Definition
| changing law but not saying you're changing it |
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Term
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Definition
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Term
| contract (express or implied in fact) |
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Definition
| agreement, promise or set of promises for breach of which law gives a remedy (most involve sale or purchase of goods |
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Term
| breach (most cases don't go to court) |
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Definition
| contract not performed (party required to pay money damages) |
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Term
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Definition
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Term
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Definition
| person to whom promise is made |
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Term
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Definition
| governs contracts (a uniform code adopted by states) |
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Term
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Definition
| makes an offer to a second person (offeree) |
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Term
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Definition
| manifested in conduct or body language |
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Term
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Definition
| no true agreement between parties (but would be unjust enrichment of one person unless he or she was required to pay value for a benefit received from someone else) |
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Term
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Definition
| promise made in exchange for another promise |
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Term
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Definition
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Term
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Definition
| attempt to create contract ineffective, so there is no contract |
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Term
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Definition
| an essential element of contract is missing & a party has power to perform or withdraw without liability |
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Term
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Definition
| time provided under statute of limitations has passed |
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Term
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Definition
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Term
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Definition
| something remains to be done by either or both of parties |
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Term
| 6 requisites for contracts |
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Definition
| competent parties, mutual agreement & general assent, reciprocal consideration, formation & execution, form prescribed by law |
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Term
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Definition
| legal capacity to enter into contract (not infancy, mental condition, intoxicated) |
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Term
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Definition
| food, clothing, shelter, medical care |
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Term
| mutual agreement & general assent |
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Definition
| an offer by one and acceptance by other |
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Term
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Definition
| affirmation of desire to enter into contract on terms of offeror (must be properly posted) |
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Term
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Definition
| value given in exchange for a promise or an act (not a gift, two-sided) |
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Term
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Definition
| more subtle than duress, deprives party of freedom of will in choosing a course of action |
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Term
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Definition
| misrepresentations of fact known to be false |
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Term
| mutual or bilateral mistake (not including value or quality, is fact) |
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Definition
| both parties mistaken about an important fact, either party may rescind |
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Term
| legality in formation and execution |
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Definition
| must be legal (can't contradict statute or public policy) |
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Term
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Definition
| then contracts are enforceable (if any, most contracts don't have form) |
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Term
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Definition
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Term
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Definition
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Term
| warranty (express or implied) |
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Definition
| assurance given by seller of goods concerning quality or performance of product |
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Term
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Definition
| put you back where you were before you were injured |
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Term
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Definition
| judges say you waited too long, bizarre facts don't fit past cases, statute of limitations doesn't apply |
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Term
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Definition
| carriage wheel breaks, C has privity with B but not with A (who is the bad guy), no privity, no recovery |
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Term
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Definition
| something of value has to go both ways (unless charity) |
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Term
| contracts for illegal purposes.. |
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Definition
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Term
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Definition
| contract (mutual agreement and general assent) |
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Term
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Definition
| has privity (privity = contract) |
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Term
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Definition
| something wrong with contract but made a deal and did something else |
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Term
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Definition
| substitution of new debtor or new creditor (susie for bob, bob no longer part of contract) |
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Term
| compensatory (monetary damages) |
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Definition
| restitution (prevent unjust enrichment), reliance (put parties back to original position), expectation (give loss of profits), special performance (make them perform contract) |
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