chapter 9

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chapter 9
2010-06-07 19:30:33
bus law

business law
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  1. who is Elena Kagen?
    She was appointed Solicitor General by President Barack Obama on January 26, 2009. On May 10, 2010, Obama nominated Kagan to the Supreme Court to fill the vacancy from the impending retirement of Justice John Paul Stevens at the end of the Supreme Court's 2009–2010 term.
  2. What are goods?
    tangible, movable, personal property. Goods are defined under the Uniform Commercial Code as those things that are movable at the time of identification to a contract for sale. The term includes future goods, specially manufactured goods, and unborn young of animals, growing crops, and other identified things attached to realty.
  3. what is a patent?
    • the right to exclude others from making, using, or selling an invention or products made by an invented process that is granted to an inventor and his or her heirs or assigns for a term of years. A patent will not be issued if more than one year before patent application the invention was patented elsewhere, described in a printed publication, or in public use or on sale in the United States. Even though an invention fits one of the categories, it is not patentable if it lacks novelty, is obvious, or has no
    • utility
  4. who is the patentor and who is the patentee?
    the patentee is the patent holder. The patentee is the the person who offers the patent.
  5. what is a trademark?
    Distinctive mark, motto, device, or emblem that a manufacturer or service provider stamps, prints, or affixes to products it produces or services it performs to distinguish products or services from those of competitors. Registration with state or fed. government recommended, but not required. the law applicable to trademarks is the Lanham Act and it recognizes four times of trademarks: any word, name, symbol, device, or combination thereof used by a manufacturer or seller to identify its products and and distinguish them from the products of competitors.
  6. what is a copyright?
    Intangible right granted by statute to the author or creator of certain tangible literary or artistic productions Can’t copyright an “idea” Applicable law: Copyright Protection Act and the Copyright

    Term Extension Act. it gives certain exclusive rights to creators of original works of authorship. it prevents others from using their work, gives them an incentive to innovate, and thereby benefits society. Federal Copyright Act protects books, periodicals, compositions, art, motion pictures, lectures, computer programs etc.
  7. what are the the distinctive categories that trade marks fall into?
    1. Arbitrary or fanciful marks, 2. suggestive marks, 3. descriptive marks, 4. marks that are not inherently distinctive,. and 5. generic terms.
  8. What is infringement?
    Violation of intellectual property right: when someone uses, makes, or sells another’s trademarked, patented, or copyrighted intellectual property without owner’s permission, license, franchise.
  9. how do you require proof of infringement?
    infringement requires that the defendant had access to the protected work, defendant engaged in enough copying that it could not be coincidental, and substantial similarity exist between the work.
  10. Lambert V. Barron
    what Barron thought was not objective. There was reasonable indicaton that he was going to pay. there meeting was to informal and causal. It was like a friend helping a friend. It was not reasonable would pay and it was not foreseeable that Barron would expect to pay. No tacit acceptance was made of Lambert's offer for services was made by Barron. Particularly lacking from the record is evidence of any substantive business business benefit realized by Barron from his consultant friend. The trial court ultimately held that the parties' relationship was that of a "friend helping a friend", such that Lambert could not have reasonably believed that a contract was formed. for the reasons above, the trial court's determination that no contract was formed between the parties is affirmed. Barron never requested or accepted services. was Affirmed in favor of Barron.
  11. Pass V. Shelby Aviation
    regardless of of the percentage of the cost of the goods, viewing the transaction as a whole,it was concluded that the prominent purpose of the transaction was the provision of a service rather than the sales of a good. the language, nature of business, the purpose for which pass took his airplane to Shelby all indicate that service was the predominant factor in the transaction. even when cost of goods exceeds cos of services, main purpose of contract may still be deemed the provision of service where the other factors support such a finding. they held that contract was predominantly a contract for service with the sale of goods incidentally involved. it was subject to the warranty provisions of Article 2 of the UCC. Shelby is entitled to judgement as a matter of law on the UCC breach of warranty claims. it was reversed and remanded in favor of Shelby Aviation.
  12. what is a hybrid contract?
    a hybrid contract involves both goods and services. It has more than one thing.
  13. what is a utilateral contract?
    only one party makes a promise.
  14. bilateral contract?
    both parties exchange promises and the contract is formed as soon as the promises are exchanged.
  15. voidable contract?
    those in which one or more of the parties have the legal right to cancel their obligations under the contract. only injured party can cancel contract.if he does not, then the contract can be enforced by either party.
  16. unforeseeable contract.
    one that meets the basic legal requirements for a contract but may not be enforcible because of some other legal rule.
  17. Palese v. Delaware State Lottery Office
    • He was precluded from prevailing on his claim for unjust enrichment because a binding contract exists between the parties that addresses the particular subject matter - the procedure for claiming the prize money. Because an enforcible contract exists between the parties and the contract requires presentment of the ticket, Palese's claim for unjust enrichment must be dismissed. Under Delaware law, only persons with a winning ticket are eligible to receive the prize money. not only is his claimed defeted by a controlling contract term, it also is deficient because the Defendant's conduct was not absent of justification; non the contrary, the defendant acted within the bounds of their prescribes legal authority and in conformity with the governing statute of regulations. his claim under the doctrine of unjust enrichment must be dismissed his complaint was dismissed for failure to state a claim on which relief can be granted. (he was not entitled to a quasi-contract because a contract already existed).
    • The court was bound to honor the plain language of the Lottery Act, and the express terms of the parties' agreement.
  18. what is a quasi-contract?
    unjust enrichment or contract implied in law. it represents an obligation imposed by law to avoid injustices, not a contractual obligation created by voluntary consent. is imposed when one party confers a benefit on another who knowingly accepts it and retains it under circumstances that make it unjust to do so without paying for it.
  19. Holt v. Home Depot
    Home depots arguments arguments support both arguments primarily with the testimony of the three people involved in the termination decision. The jury was entitled to reject their testimony as pretextual, particularly in light of the close temporal proximity between Holt's initial steps to complain to higher-ups about Gray and the termination of his employment, as well as the sequence of events immediately preceding the termination, which fit Holt's theory that he was the victim of a preemptive strike instigated by Gray. Home Depot's motions were denied in favor of Holt.
  20. Stephen Gall and his family became ill after drinking contaminated water supplied to their home by the McKeesport Municipal Water Authority. They filed suit against the utility, arguing, among other things, that the utility had breeched the UCC implied warranty of merchantability when it sold them contaminated water. The utility moved to dismiss their complaint, arguing that since water was not "goods", the UCC did not apply. should the Galls' complaint be dismissed?
    No because water is a tangible good in which is movable. A goods are defined tangible, movable, personal property. Goods are defined under the Uniform Commercial Code as those things that are movable at the time of identification to a contract for sale. The term includes future goods, specially manufactured goods, and unborn young of animals, growing crops, and other identified things attached to realty.
  21. promissory estoppel
    • a promise that the promisor should foresee is likely to induce reliance, reliance on the promise by the promisee, and injustice as a result of that reliance. This protects reliance unlike regular contracts which only protect agreements or bargains.
    • legal def.- an estoppel that prevents a promisor from denying the existence of a promise when the promisee reasonably and foreseeably relies on the promise and to his or her loss acts or fails to act and suffers an injustice that can only be avoided by enforcement of the promise
  22. Meram V. MacDonald
    • 1. since he stated it about twice and Meram was aware that he was a millionaire he alleges he reasonable believed that defendants would pay the promised sum.
    • 2. allegations do not lead to an inescabable conclusion that the offer was a joke or that ManDonald meant anything other than wat he said. Accordingly the court could not conclude that no reasonable person could conclede the oofer was genuine.
    • 3. to form an enforcible contract, it's terms must be clear enough that the parties could understand what each was required to do. by alleged terms of offer, pool of potential winners was defined by business cards placed in th basket. would win so long as she he attended until end. stated " walk out f here.... which i sufficiently definite to support formation of a contract. Motion to dismiss the action for breech of contract was denied in favor of Meram.
  23. Jackson
    • 1. you from the viewpoint of a reasonable person. what would a reasonable person think? you do not look from the viewpoint of the owner.
    • 2. the contract as reasonable according to the offeree. It was a unilateral contract.
    • 3. no one cares about the offeror's secret thoughts.
    • 4. The court is going to therefore respect the oferree.
  24. Rewards
    1. generally treated as offers for unilateral contracts. To accept offer and be entitle to stated reward, offerees must perform the requested act, return the lost property, supply the requested information, or capture the wanted criminal.
  25. Termination of offers
  26. laps of time
    offers that fail to offer a specific time for acceptance are valid for a reasonable time. what constituted a reasonable time depends on the circumstances surrounding the offer.for example how long would a reasonable person in the offeree's position believe she had to accept the offer. things that are subject to very rapid fluctuations in value incluse stocks, bonds, commodoties etc. also involving goods that may spoil such as produce.
  27. Revocation
    offerors can give offeree's the power to bind them to contracts by making offers. they can also terminate that power by revoking offers. common law rule is that offeror's may revoke their offers at any time prior to acceptance, even if the have promised to hold the offer open for a stated period of time.Offers can be revoke through 1. Options, 2.offers for unilateral contracts, 3.promissory estoppel, 4.firm offers for the dale of goods. (goods only apply to merchants)
  28. Rejection
    offeree may expressively reject an offer by indicating that he is unwilling to accept it. He may also impliedly reject it by making a counter offer, an offer to contract on terms materially different from the terms of the offer. either form of rejection by offeree terminates his power to accept the offer.
  29. Death or insanity of either party
    autimatically terminates the offer without notice.
  30. destruction of subject matter
    if prior to acceptace, subject matter of offer of proposed contract is destroyed without the knowledge or fault of either party, the offer is terminated.
  31. question about Schiff
  32. Texas Savings Association promotion.
    yes she gets the the 5,000 dollar. When she accepted the offer an offer for a unilateral contract the terms of offer were that 89 now offer is accepted. when bank tried to change term its to late contract had already been accepted on 89.
  33. communication to offereee.
    only offeree can accept.
  34. Lefkowitz v. Great Minneapolis
    defendant contends that the offer was modified by a "house rule" to the effect that only women were qualified to receive the bargains advertised. The advertisement contained no such restriction. this objection may be disposed of briefly by stating that while an advertiser ha the right at any time before the acceptance to modify his offer, he does not have the right, after acceptance, to impose new or arbitrary conditions not contained in the published offer. The supreme court affirmed the trial court's jusgment, awarding the plaintiff the sum of $138.50 ($139.50 for the Lapin stole less than $1 purchase price) in damages for breach of contract against the defendant department store. the defendants sale was clear, definite, and explicit and left nothing open for negotiation. the plaintiff was entitle to performance on the part of the defendant. was sufficient mutuality of obligation to constitute a contract of sale.
  35. W.O. Lucy and J.C. Lucy v. A.H. Zhemer and IDA S. Zhemer.
    fact that it was under discussion for forty minutes, before it was signed, the Lucy; objection to the first draft, is evidence that it was a serious business transaction. not only did Lucy actually believe, but evidence shows that he was warranted in believing that the contract represented a serious business transaction and a good faith sale and purchase of the farm. the law imputes to a person an intention corresponding to the reasonable meaning of his words and acts. the sighing was the result of a serous offer by Lucy and a serious acceptance by the defendants, in either event it constituted a binding contract of sale between the parties.
  36. Carlos v. Clear Greek School corporation
    Carlos accepted the offer. It was too late because Carlos accepted the offer when he sent the mail. CCSC is not legally able to revoke. inquiry regarding terms.
  37. Acceptance?
    "manifestation of assent to the terms [of the offer] made by the offeree in the manner invited or required by the offer. to determine an accepted offer and created contract a court will look to 1. the offeree intended to enter the contract, 2. the offeree accepted on the terms proposed by the offeror, and 3. the offeree communicated his acceptance.
  38. UCC
    • The Uniform Commercial Code (UCC) is a set of suggested laws relating to commercial transactions. The UCC was one of many uniform codes that grew out of a late nineteenth-century movement toward uniformity among state laws. In 1890 the American Bar Association, an association of lawyers, proposed that states identify areas of law that could be made uniform throughout the nation, prepare lists of such areas, and suggest appropriate legislative changes. In 1892 the National Conference of Commissioners on Uniform State Laws (NCCUSL) met for the first time in Saratoga, New York. Only seven states sent representatives to the meeting.
    • a financing agreement form for using personal property (eg. equipment) to secure a loan under the provisions of the Uniform Commercial Code (UCC) adopted in almost all states.
  39. Okasa V. Hall
    the mailing of payment by regular mail was not deemed a renewal because the insured's contractual documents drew a distinction between certified mail and regular mail. Contract specifically provided if reg. mail was used instead, carrier would be bound only from the date which the payment was actually received. in permitting contractual between reg. And certified mail, they held that it was sufficient because that method enabled the sender to obtain proof of the date of mailing and guarded against a fraudulent back-dated submission. By authorizing use of mail as a means of paying premiums, the carrier constituted the postal authorities as it's agent. accordingly, the decision in this matter is controlled by the Mailbox Rule. As a consequence, the entry of summary judgement in favor of the carrier is reversed. Reversed and remanded in favor of the Okosas.
  40. State Farm Mutual Insurance
    Her insurrance policy was not in effect. the mailbox rule did not apply because she did not put the postage. she did not properly dispatch her checks. she was not protected by the mail box rule.
  41. Mailbox Rule
    UCC provides that an offer that does not specify a particular means of acceptance is considered to invite acceptance by any reasonable means of communication. A properly dispatched acceptance sent by a reasonable means of communication withing a reasonable time is effective on dispatch. what is reasonable depends on the circumstances in which the offer was made. under proper circumstances a mailed might be considered reasonable and therefore effective on dispatch.
  42. silence as acceptance
    general rule is that an offeree's silence is not acceptance. if it was the agreement of the party then it would count as acceptance.
  43. consideration
    legal value, bargained for and given in exchange for an act or a promise. A promise generally cannot be enforced against the person who made it unless the person whom the promise was made has given up something of legal value in exchange for the promise. A promise must pay the price that the promisor asked to gain the right to enforce the promisor's promise.
  44. legal value
    Act or promise
  45. Hamer v. Sidway
    • The Court of Appeals reversed and directed that the judgment of the trial court be affirmed, with costs payable out of the estate. Judge Alton Parker (later Chief Judge of the Court of Appeals), writing for a unanimous court, wrote that the forbearance of legal rights by Story II, namely the consensual abstinence from "drinking liquor, using tobacco, swearing, and playing cards or billiards for money until he should become 21 years of age" constituted consideration in exchange for the promise given by Story I. Because the forbearance was valid consideration given by a party (Story II) in exchange for a promise to perform by another party (Story I), the promisee was contractually obligated to fulfill the promise.
    • this was all that was required for consideration.
    • Yes. The mere abstention from a permissible legal conduct is sufficient consideration to make a promise based on that forbearance a valid contract. Consideration is not measured as a benefit to the promisor. When an offer is ambiguous regarding whether acceptance shall be in the form of performance or an exchange of promises, determining if the offeror was indifferent to whether acceptance be by performance or promise is accomplished by interpreting the language of the offer under the circumstances in which it was made. The court held that in this case, the language of the offer made it clear that the uncle sought acceptance by performance and not by a promise to perform.
    • reversed an remanded in favor of Hamer enough that he forbeared.
  46. forbearance
    • Refraining from doing something that one has a legal right to do. Giving of further time for repayment of an obligation or agreement; not to enforce claim at its due date. A delay in enforcing a legal right. Act by which creditor waits for payment of debt due by a debtor after it becomes due.
    • an intentional delay in collecting a debt or demanding performance on a contract, usually for a specific period of time. Forbearance is often consideration for a promise by the debtor to pay an added amount.
    • Forbearance is the willful grant of time allowed to a party to the contract to fulfill his part of obligation with or without claiming additional compensation
  47. Gottlieb v. Tropicana Hotel and Casino
    by Ms. Gottlieb participating in the casino and presenting her diamond club card allowing it it to be swiped into he casino's machine. she was permitting the casino to gather inf bout her gambling habits. also by participating she was part of entertainment. her participation was induce by the chance to win 1 million dollars. it offered promotion to generate excitement and was "in nowise altruistic". she provided adequate consideration to form a contract with Tropicana. Tropicana sys that computer records show she did not win and Ms. Gottlieb relies on her and her husbands testimony. it it for the jury, and not for the court, to resolve this factual dispute.motion for summary judgement on the contract claim denied in favor of Ms. Gottlieb.
  48. illusory promise
    a promise that really does not bind the promisee to do or refrain from doing anything, such a promise. such a promise could not serve as consideration. agreements often lack obligation required for an agreement to be enforceable. nothing legally given up or exchange for the promise.
  49. preexisting duty
    a general rule, performing or agreeing to perform a preexisting duty is not consideration. the promisor in this case has effectively made a gratuitous promise since she4 was already entitlled to the promisees performance.1. public duty, 2. contractual duties and modifications
  50. past consideration
    is not consideration at all. is an act or other benefit given in the past that was not given in exchange for the promise in question. because the past act was not given in exchange for the present promise, it cannot be consideration. must be bargained for and given in exchange for.
  51. promissory estoppel
    denotative promises are unenforceable because they were not supported by consideration.
  52. Dodson v. Shrador
    The law does not question a minors right to buy if they have money t pay for their purchases. it seems an intolerable burdensome on everyone concerned if merchants cannot deal with them safely, in a fair reasonable way. further, it does not appear consistent with practice of proper moral influence upon young people, tend to encourage honesty and integrity, or lead them to a good ad useful business future if they are taught that they can make purchases with their own money, for their own benefit, and after paying for them, and using them until they are worn out and destroyed , go back and compel the vendor to return to them what they have paid upon the purchase price. Such a doctrine can only lead to the corruption of principles and encourage young people in habits of trickery and dishonesty. this is a minority rule. Reverse and remanded in favor of t6he Shraders.
  53. Mitchell 17 year old girl
    yes the will be able to disafirm the contract.. and go back for more money. Even if if she was married that fact was that she was still an infant who was under 18. She got married when she was 17 which make is even more evident that she did not have the mental capacity to make reasonable decisions. only the minor or legal representative such as a guardian may disafirm the contract. no formal or written contract is required is needed. they are protected because they re in vulnerable positions.
  54. a boy who bought an Ernie Banks rookie card.
    no he cannot get his card back. this is only for the infant. he the clerk was not an infant so the assertion that the clerk lacked mental capacity does not hold.
  55. chapter 11