Term
| Assignment Assignor Assignee |
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Definition
| Transfer of contract rights to a third person contract party who assigns the rights Third person to whom the rights are assigned |
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Term
Assignment
Assignor
Assignee |
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Definition
Third person to whom the rights are assigned
Contract party who assigns the contractual rights
Third person to whom the contract rights are assigned |
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Term
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Definition
Duty to notify
-Assignee must notify obligee that assignments have been made and performance must be rendered to the assignee
Failure to give notice
-If the assignee fails to give proper notice to the obligor and the obligor renders performance to the assignor, the assignee's only course of action to recover is from the assignor |
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Term
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Definition
| This prohibits the assignment of rights under a contract |
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Term
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Definition
| This permits assignment of the contract only upon receipt of the obligor's approval |
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Term
| If obligee makes successive assignments of the same right, one of the following rules applies: |
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Definition
American Rule: First assignment in time precails, regardless of notice. Aka. The New York Times rule
English Rule: First assignee to give notice to the obligor prevails |
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Term
Delegation
Delegator
Delegatee |
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Definition
Trans. of contractual duties to contract to 3rd party
Party who transfers his or her contractual duties
3rd person whom contractual dutys are delegated
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Term
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Definition
| Delegatee is liable to obligee for nonpreformance. Obligee may sue either the delegatee or the delegator |
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Term
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Definition
| Delegatee is not liable to the obligee for nonperformance. Obligee can sue only the delegator. |
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Term
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Definition
| The delegatee is liable to the delegator for any damages suffered by the delegator because of the delagatee's nonperformance |
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Term
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Definition
| Prohibits the delegation of duties under a contract |
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Term
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Definition
| Third person who is owed performance under other parties' contract. There are two types |
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Term
Donee Beneficiary
Person who is not to be rendered performance gratuitously under a contract. |
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Definition
Person who is not to be rendered performance gratuitously under a contract.
or
Donee beneficiary may sue the promisor for nonperformance |
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Term
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Definition
| Creditor who becomes a beneficiary to a contract between the debtor and a third party who agrees to perform the debtor's obligation. If the debt is not paid the creditor may sue either the debtor under the original contract or the third party as a creditor beneficiarry |
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Term
| Conditions of performance |
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Definition
Condition Predcedent
-Personal satisfaction test
-Reasonable person test
Condition subsequent
Concurrent condition
Implied in fact Condition |
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Term
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Definition
Requires the occurrence of an event before a party is obligated to perform. Conditions precedent based on "satisfaction" are measured by one or two standards:
Personal Satisfaction Test
Reasonable person Test |
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Term
Personal satisfaction test
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Definition
| The subjective intent of a reasonable person in the circumstances applies to contracts involving mechanical fitness or commercial contracts |
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Term
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Definition
| The objective intent of a reasonable person in the circumstances applies to contracts involving mechanical fitness or commercial contracts |
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Term
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Definition
| This provides that the occurrence of a specific event automatically excuses performance under a contract. Ex. Failed Drug Tests |
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Term
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Definition
| This arrises when the parties to a contract must render performance simultaneously |
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Term
| Implied-in-fact condition |
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Definition
| A condition that is implied from the circumstances surrounding a contract and the parties' conduct |
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Term
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Definition
Mutual Recscission
Substituted Contract
Novation
-Parties agree to the substitution of a third party for one of the original parties the exiting party is relieved of liability
Accord and Satisfaction
-Parties agree to settle a contract dispute. The satisfaction of the accord discharges the original contract |
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Term
| Discharge by impossibility |
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Definition
Impossibility of Performance
Commercial Impracticability
-Contract is impractical for the promisor to perform because of an event
Frustration of Purpose
-The object of a contract, of which both parties have knowledge, becomes worthless because of an unforeseeable event
Force Majeure Clause
-The parties stipulate in the contract what events will excuse performance. Ex. Natural Disaster |
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Term
| Discharge by Operation of Law |
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Definition
Statute of Limitations
-contract not brought within the stipulated limitations period discharges contractual duties
Bankruptcy
-Discharge in bankruptcy relieves the debtor of legal liability to pay the discharged debts
Alteration of a Contract
-If party intentionally alters the contract materially, innocent party may discharge or enforce it on original terms |
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Term
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Definition
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Term
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Definition
Complete Performance
Substantial Performance
Inferior Performance |
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Term
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Definition
| A party renders performance that deviates only slightly. There is a minor breach. The non-breaching party may recover damages caused by the breach |
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Term
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Definition
| A party fails to perform express or implied contractual duties that impair or destroy the essence of the contract. There is a material breach. The non-breaching party may either rescind the contract and recover restitution or affirm the contract and recover damages |
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Term
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Definition
| One contracting party informs the other party that he will not perform his contractual duties when due. This gives IMMEDIATE cause of action to the non-breaching party to sue for breach of contract |
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Term
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Definition
Compensatory Damages
Consequential Damages
Nominal Damages
Liquidated Damages |
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Term
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Definition
| Foreseeable damages that arise from circumstances outside the contact and which the breaching party either knew or had reason to know of |
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Term
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Definition
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Term
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Definition
A small amount of damages awarded to a non-breaching party who has suffered no financial loss because of the defendant's breach of contract. It is usually awarded on principle
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Term
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Definition
Damages payable upon breach of contract that are agreed on in advance. Liquidated damages substitute for actual damages. For a liquidated damage clause to be lawful the following two conditions must be met:
1) The actual damages must be extremely difficult or impracticable to determine
2) The liquidated amount must be a reasonable estimate of the harm that would result from the breach
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Term
Liquidated Damages
Cont'd |
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Definition
| A liquidated damage clause is considered a penalty if actual damages are clearly determinable in advance or the liquidated damages are excessive or unconscionable. A penalty is unenforceable and the non-breaching party may recover actual damages |
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Term
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Definition
Are available if the non-breaching party cannot be adequately compensated by a legal remedy or to prevent unjust enrichment
Specific Performance
Reformation
Quasi Contract
Injunction |
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Term
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Definition
| Court order that requires the breaching party to perform his contractual duties. Only available if the subject matter of the contract is Unique |
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Term
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Definition
| Permits the court to rewrite a contract to express the parties true intention. Available to correct clerical and mathematical errors |
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Term
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Definition
| Permits the court to order recovery of compensation even though no enforceable contract exists between parties. Used to precent unjust enrichment |
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Term
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Definition
| Court order that prohibits a person from doing a certain act. The requesting party must show that he will suffer irreparable injury if the injunction is not granted |
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Term
| Intentional Interference with contractual relations |
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Definition
| A third party intentionally interferes with another party's contract and induces the other party to that contract to breach it, cause the non-breaching party injury |
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Term
| Breach of the implied covenant of good faith and fair dealing |
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Definition
| A party to a contract does not act in good faith or fails to deal fairly in achieving the object of the contract. This duty is only implied in certain contracts. ex. insurance contracts |
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Term
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Definition
| These include compensation for personal injury, pain and suffering, emotional distress, and other injuries cause by the defendant's tortious conduct |
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Term
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Definition
| These are recoverable against a defendant for intentional or egregious conduct. They are awarded to punish the defendant, to deter the defendant from similar conduct in the future and to set an example for others |
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Term
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Definition
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Term
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Definition
| Is a product formula, pattern, design, compilation of data, consumer list, or other business secret that makes a business successful. The owner of a trade secret must take reasonable precautions to prevent its trade secret from being discovered by others |
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Term
| Misappropriation of a Trade Secret |
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Definition
| Obtaining another's trade secret unlawfully. One can recover profits, damages, and an injunction against the offendor |
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Term
| The Economic Espionage Act |
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Definition
| A federal statute that makes it a crime for any person to convert a trade secret for his or anothers benefit, knowing or intending to cause injury to the owners of a trade secret |
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Term
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Definition
To be patented an invention must be:
Novel
Useful
Nonobvious
Only valid for 20 years |
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Term
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Definition
In State Street Bank and Trust co V. Signature Financial Group Inc.
US court of Appeals held that business plans are patentable |
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Term
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Definition
| An application containing a written description of the invention must be filed with the US Patent and Trademark Office in D.C. |
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Term
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Definition
| A patent may not be granted if the invention was used by the public for more than one year prior to the filing of the patent application |
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Term
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Definition
| The unauthorized use of author's patent. The patent holder may recover damages and other remedies against the infringer |
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Term
| The American Inventors Protection Act |
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Definition
Permits an inventor to file a provisional application with the US PTO three months pending the filing of a final patent application
Requires the PTO to issue a patent within three years after the filing of a patent application |
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Term
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Definition
Only tangible writings can be copyrighted.
The writing must be the original work of the author |
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Term
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Definition
| Copyright Registration is permissible and voluntary. Published and unpublished works may be registered with the US Copyright Office |
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Term
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Definition
Individual Holder
- life of the author plus 70 years
Corporate Holder
- Either 120 years from the date of creation or 95 years from the date of publication, whichever is shorter |
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Term
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Definition
| The copying of substantial and material part of a copyrighted work without the holder's permission. The copyright holder may recover damages. |
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Term
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Definition
| Permits use of copyrighted material without the consent of the copyright holder for limited uses. (Ex. Scholarly Work, parody or satire, and brief quotation in news reports) |
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Term
| Digital Millennium Copyright Act |
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Definition
Provides civil and criminal penalties that:
1) Prohibits the manufacture and distribution of technologies, products, or services primarily designed for the purpose of circumventing wrappers or encryption protection
2) Prohibits unauthorized access to copyrighted digital works by circumventing the wrapper or encryption technology that protects the intellectual property |
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Term
| Visual Artists Rights Act |
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Definition
| A federal statute that gives artists moral rights in their creation after the sale of the artwork |
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Term
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Definition
| A federal statute that makes it a crime for a person to willfully infringe a copyright work exceeding 1,000 dollars in retail vaule |
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Term
| Trademarks and Service Marks |
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Definition
Mark
-Trade name, symbol, word, logo, design, or device that distinguishes the owner's goods or services. Marks often referred to collectively as trademarks.
Trademark
Service Mark
Certification Mark
Collective Mark |
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Term
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Definition
Trademark
-Identifies goods of a particular business
Service Mark
-Identifies services of a particular business
Certification Mark
-Certifies that goods or services are of a certain quality or origin
Collective Mark
-Used by cooperatives, associations, and fraternal organizations |
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Term
| Requirements for a Trademark |
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Definition
| The mark must either be distinctive or have acquired a secondary meaning. The mark must have been used in commerce or the holder intents to use the mark in commerce and actually does so within six months after registering the mark. |
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Term
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Definition
| The original registration of a mark is valid for 10 years and can be renewed for an unlimited number of 10-year periods |
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Term
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Definition
| A mark that becomes a common term for a product line or type of service loses its protection under federal trademark law. |
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Term
| Federal Dilution Act of 1995 |
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Definition
| A federal statute that protects famous marks from dilution. A violation of the act requires that mark be famous, the use by the other party was commercial, and the use caused dilution of the distinctive quality of the mark |
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Definition
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Term
| Electronic Communications |
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Definition
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Term
The Environmental Protection Agency
(EPA) |
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Definition
| Federal Administration created in 1970 that is empowered to implement and enforce federal environmental protection statutes. The EPA can adopt regulations to interpret and enforce the laws it is authorized to administer |
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Term
National Environmental Policy Act
(NEPA) |
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Definition
| Federal statute that mandates that the government consider the adverse impact a government action would have on the environment before the action is implemented |
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Term
Environmental Impact Statememt
(EIS) |
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Definition
A document that must be prepared for all proposed legislation or major federal action that significantly affects the quality of the human environment
The EIS must 1) describe the affected environment, 2) describe the impact of the proposed federal action on the environment, 3) identify and discuss alternatives to the proposed action, 4) list the resources that will be committed to the action, and 5) contain a cost-benefit analysis of the proposed action and alternative actions |
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Term
| Air Pollution and the Clean Air Act |
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Definition
| Federal Statute enacted in 1963 and amended sever times that regulates air polution |
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Term
National Ambient Air Quality Standards
(NAAQS) |
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Definition
Standards for certain pollutants set by the EPA that protect human beings (primary) and vegetation, matter, climate, visibility, and economic values (secondary)
State Implementation Plan (SIP)
Air Quality Control Regions (AQCRs)
Non-attainment Areas
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Term
State Implementation Plan
(SIP) |
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Definition
| A document issued by each state that explains how the state plans to meet federal air pollution standards |
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Term
Air Quality Control Regions
(AQCRs) |
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Definition
| Divisions by the EPA of each stat into geographical areas that are monitored to ensure compliance with federal air pollution standards |
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Term
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Definition
| Regions that do not meet federal air quality standards. They are classified into one of five categories: 1) marginal, 2) moderate, 3) serious, 4) severe, and 5) extreme. Based upon the degree to which they exceed federal air quality standards. States that fail to develop or implement an approved plan to correct deficiencies are subject to sanctions |
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Term
| Stationary Sources of Air Pollution |
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Definition
Sources of air pollution such as industrial plants, oil refineries, and public utilites.
Public Controller
-Stationary sources are required to install pollution control equipment |
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Term
| Mobile Sources of Air Polution |
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Definition
Sources of air pollution such as cars, trucks, buses, motorcycles, and airplanes.
Pollution Controls
The Clean Air Act requires air pollution controls to be installed on cars and other sources of mobile air pollution |
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Term
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Definition
Pollutants that cause serious illness or death
Pollution Controls
-The Clean Air Act requires stationary sources to install equipment and technology to control emissions of toxic substances |
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Term
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Definition
Pollution of bodies of water
River and Harbor Act of 1886
-Established a permit system for the discharge of refuse, wastes, and sewage into US navigable waters |
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Term
| Point Sources of Water Pollution |
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Definition
Sources of water pollution such as, paper mills, manufacturing plants, electric utility plants, and sewage plants.
Pollution Controls
-Point sources are required to install pollution control equipment |
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Term
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Definition
| Heated water or material discharged into waterways that upsets the ecological balance and decreases the oxygen content. Thermal pollution is subject to the provisions of the Clean Water Act |
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Term
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Definition
| Areas that are inundated or saturated by surface or groundwater that support vegetation typically adapted for life in such conditions. The Clean Water Act forbids the filling or dredging of wetlands unless a permit has been obtained from the Army Corps of Engineers |
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Term
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Definition
| The Safe Drinking Water Act of 1974 authorizes the EPA to establish national minimum quality of water standards for human consumption. States are primarily responsible for enforcing the act. If a state fails to do so, the government can enforce the act |
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Term
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Definition
Marine Protection, Research, and Sanctuaries Act
-Federal Statute that extends environmental protection to oceans. It requires a permit for dumping wastes and other foreign materials into ocean waters |
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Term
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Definition
| The Clean Water Act authorizes the US government to clean up oil spills and spills of other hazardous substances in ocean waters within 12 miles of the shore and on the Continental Shelf. The act authorizes the government to recover the cleanup costs from responsible parties |
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Term
| Toxic Substances Control Act |
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Definition
| Federal Statute that requires manufacturers to test new chemicals to determine their effect on human and environmental health before the EPA will allow them to be marketed. The EPA requires special labeling of toxic substanes |
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Term
| Resource Conservation and Recovery Act |
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Definition
| Authorizes the EPA to regulate facilities that deal with hazardous waste |
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Term
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Definition
| Gives the government a mandate to deal with hazardous wastes that have been spilled. |
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Term
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Definition
| CERCLA (superfund act) requires the EPA to identify sites in the the US where hazardous wastes have been disposed and to rank these sites regarding the severity of the risk. The EPA has identified more than 25,000 hazardous waste sites |
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Term
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Definition
| CERCLA created a fund to finance the cleanup of hazardous waste sites. The fund is financed through taxes on chemicals, feedstocks, motor fuels, and other products that contain hazardous substances |
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Term
| Liability for Cleanup Costs |
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Definition
| The EPA can order a responsible party to clean up a hazardous waste site. If that party fails to do so, the EPA can clean up the site and recover the cost of the cleanup from the responsible parties. Superfund imposes strict liability. Liability can be associated with parties who are only partially responsible |
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Term
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Definition
| A provision in the superfund act that requires businesses to disclose of the presence of certain listed chemicals to the community, annually disclose emissions of chemical substances released into the environment, and immediately notify the government of spills. |
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Term
Nuclear Regulatory Commission
(NRC) |
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Definition
| Agency that licenses the construction and opening of commercial nuclear power plants. The NRC may deny or revoke a license. |
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Term
| Nuclear Waste Policy Act of 1982 |
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Definition
| Government must select and develop a permanent site for the disposal of nuclear wastes |
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Term
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Definition
Critical Habitat
-The act requires EPA to designate critical habitats for each endangered and threatened species
Taking
-The act prohibits the taking of any endangered speices |
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Term
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Definition
Authorizes EPA to establish noise standards for products sold in the US
Quiet Communities Act
-Authorizes the government to provide financial and technical assistance to state and local governments in controlling noise pollution |
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Term
| State Environmental Protection Laws |
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Definition
| States and local governments are entitled to set pollution control standards that are stricter than federal requirements |
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