BLAW Midterm

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shannonsolstice
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311703
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BLAW Midterm
Updated:
2015-11-19 00:39:16
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law torts contracts
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Business Law I Midterm Chapts 1-4
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  1. 9 intentional torts against person
    battery, assault, false imprisonment, intentional infliction of emotional distress, defamation (libel/slander), invasion of privacy, fraud, interference in contractual/business relations, malicious prosecution
  2. 4 privacy torts
    appropriation: using plaintiff's name/pic for commercial advantage w/o permission, intrusion: intruding on plaintiff's private life/affairs in their private domain, false light: public disclosure of view or opinion plaintiff does not have, public disclosure: revealing private info like medical records
  3. defenses to defamation
    consent, truth, absolute privilege, qualified/conventional privilege
  4. fraud
    intentional misrepresentation/deceit
  5. intentional interference w/ contractual/bus. relations
    reqs presence of contract, bus relationship, or expectancy thereof which defendant is aware of and interferes w/ improper means to advance his own bus interests
  6. 4 elements of defamation
    false and defamatory lang of or concerning plaintiff, identifying plaintiff to reasonable listener, publication of lang to 3rd party, resulting injury to plaintiff's rep
  7. 2 types of defamation
    • libel: written/permanent (book, movie, tv); libel per se is so ugly in its face, libel per quod needs further explanation in court
    • slander: spoken (less permanent); slander per se, slander per quad
  8. 4 elements of slander per se
    accused of moral turpitude, statement adversely affects profession/business, accused of having loathsome disease, accusing unmarried woman of not being a virgin,
  9. malicious prosecution
    private defendant wrongfully institutes criminal proceedings against party which end in party's innocence
  10. 4 intentional torts against property
    trespass to land, trespass to chattels, conversion, defamation
  11. 3 defenses for intentional torts against person/property
    consent, self-defense (if person has reasonable grounds to believe he's being attacked or about to be attacked), defense of property (request to desist must precede)
  12. 4 elements of intentional torts
    wrongful act by another, requisite intent, causation, damages
  13. 3 types of intent
    • requisite intent can be general, specific, or transferred
    • general intent: person does not have specific goal, but acts knowing with substantial certainty that certain consequences will ensue
    • specific: objective is to cause certain result
    • transferred: intends to cause harm to 1 person but actually injures another
  14. tort defined
    wrongful act against a person or property for which legal cause of action may be brought for harm sustained
  15. 4 elements of negligence cause of action
    • duty of care: plaintiff must show existence of duty recognized by law, requiring him to conform his established std to protect plaintiff from risk of harm
    • breach of duty: fail to conform to reqd std of care, conduct falls below reqd std of care owed to plaintiff
    • causation: evidence that defendant's actions were cause in fact of plaintiff's injuries
    • damages: plaintiff suffers loss or damage; objective is compensatory to restore plaintiff's condition to before damages (punitive damages are to punish defendant for gross negligence and deter others from doing the same)
  16. 4 special negligence doctrines
    • purpose of them was to reduce harshness of technicality.
    • Res ipsa loquitur: the thing speaks for itself; fact that injury occurred may in and of itself establish breach of duty
    • negligence per se: involves statute (if there's law and you broke it, ..)
    • negligent infliction of emotional distress: if there's no physical impact/injury but plaintiff suffers shock or frights, damages are permissable
    • nonfeasance: not acting; no legal duty is placed on a person to aid, rescue, or benefit another
  17. 3 defenses to negligence
    • contributory negligence: designed to prevent scammers; careless conduct on plaintiff's part that contributes to his injury
    • comparative negligence: not a complete defense; jury determines each party's fault and damages are reduced according to proportion of plaintiff's own fault
    • assumption of the risk: plaintiff encounters known risk voluntarily (ex. going on stairs that're being repaired)
  18. strict liability in tort
    • even if harm wasn't intended and he acted carefully, actor may be liable for harm
    • 3 areas -
    • ultra-hazardous activities: highly dangerous activities that threaten substantial injury to public (construction blasting, fumigation, etc)
    • owners and possessors of dangerous animals:
    • sellers and manufacturers of defective products:
  19. one who sells product in defective condition unreasonably dangerous to user is liable to ultimate user if (1-2, 1-2, 1-2-3, 1-2-3, 1-2-3)
    • 1) seller is engaged business of selling AND 2) product is expected to and does reach consumer without substantial change in condition in which it was sold
    • 1) strict liability tort still applies although they exercised all care in preparation, distribution, and sale AND 2) user/consumer did not purchase product from or entered in contract with seller (doesn't matter who used it)
    • product's deemed defective if it 1) has a flaw (not in accordance with manufacturer's own specifications) 2) lacks warning 3) defectively designed
    • To determine if product's defectively designed 1) does it meet "state of the art" at time when product was made? factor in constraints of 2) practicality of use and 3)economic feasibility
    • defenses are 1) assumption of the risk (user assumed risk by being aware of danger yet still used product, 2) misuse/abuse of product, 3) disregarding manufacturer's instructions for proper & safe use
  20. contract
    agreement bet 2 or more persons that is enforceable at law
  21. mere agreement
    not a contract; when two people's minds meet on subject, but don't intend to be legally bound
  22. 3 types of contracts
    • express contract: in words (oral/written) in which parties signify intention to enter into contract as well as terms of contract expressed at time of agreement
    • implied contract: duties and obligations parties assume are not done expressly , but implied by acts/conducts/deduced from circumstances
    • quasi-contract: legal fiction created by law to prevent unjust enrichment of one person at expense of another; based on theory of quantum meruit; court pretends contract was formed (ex. docs rendering services to unconscious person can still charge for service)
  23. quantum meruit
    used to recover val of products/services provided in good faith in absence of contract in circumstances where services were necessary but person couldn't contractually agree to them (ex. unconscious)
  24. 5 elements of valid contract
    • ACCLW
    • agreement: valid offer and acceptance
    • consideration
    • capacity: must be 18
    • legality: subject matter must be legal
    • writing: contract must be in writing to be enforced when MYLEGS marriage, can't be performed within one year from date formed, sale of land, executor of estate to pay debts from personal funds, guaranty (guarantor is collateral and is only reqd to pay after primary debtor defaults), sale of goods over $500
  25. void contract
    legal nullity; no legal effect and not enforceable; ex. agreement to commit illegal act/ agreement with insane person
  26. voidable contract
    enforceable contract, but one party has choice to perform/reject contract and withdraw w/o liability (ex. contract bet adult and minor that may be voidable at option of minor but enforceable against adult
  27. unenforceable contract
    valid contract, but not enforced by court because party has affirmative and superseding defense
  28. executed contract
    terms have been fully performed by all parties
  29. executory contract
    terms have not been fully carried out by all parties yet (ex. still paying for a purch)
  30. unilateral contract
    promise for performance (ex. I promise to pay $100 if you fix my roof); can only be accepted by FULL performance of requested act
  31. bilateral contract
    promise for promise; one party wants a return promise not the immediate performance of act (ex. I promise to sell you my car for 1000; I promise to buy your car for 1000); if either party refuses to perform, there is breach of contract
  32. 4 types of damages (remedies at law)
    • nominal: plaintiff proves defendant breached contract, but fails to establish loss (ex. court fees)
    • compensatory: proves breach of contract and loss; monetary compensation for exact amnt of loss; place aggrieved party in fin position they'd be in before breach of contract
    •    - mitigation rule: benefits defendants who wrongfully breach contract; plaintiff has legal duty to make reasonable and good faith effort to minimize his damages
    •     - expectation damages: encompassed by compensatory; compensate aggrieved party for amount lost because of breach/place aggrieved party in position they'd be in if contract had been performed
    •       - reliance damages: compensate aggrieved for expenditures made in reliance on contract that was breached; purpose = return aggrieved to position before contract was ever formed
    • consequential: above and beyond compensatory damages and which parties should have foreseen as likely at time contract was made; breaching party must have/shouldve been aware of special circumstances
    • liquidated: when parties include explicit provision in contract that fixes amnt of damages to be recovered if one party breaches; WILL GOVERN (if considered reasonable) even if actually loss is more, less, or nonexistent!
  33. equitable remedies (not money!)
    • RISF
    • rescission: order from court that cancels contract and releases injured party from all obligations; "tear it up"
    • specific performance: make party go through with contract; not for personal services/employment contract
    • injunction: court order forbidding defendant from doing something (ex. stop press/don't release)
    • reformation: court order rewriting terms of agreement to conform to actual intent of parties that wasn't in contract because of error
  34. 4 elements of valid offer
    • manifestation of intent by offeror to enter into contract (if lang is tentative, exploratory, or reqs more info, there's no intent)
    • definite terms: making subject matter clear, price, quantity, time, other material terms
    • must be serious or offeree is reasonably certain it's serious
    • offer is presented by offeror (/agent) to offeree (/agent)
  35. terminating an offer
    • revocation: retraction of offer by offeror before offeree can accept; effective when offeree receives it; can be implied (if product is sold to someone else)
    • rejection: statement by offeree to offeror that he does not accept offer
    • by law: if offeror dies, illegality of subject matter, or subject matter's destroyed
  36. option
    firm offer in which offeree gives something of value to offeror to keep offer open; offer can no longer be revoked or terminated by rejection of option
  37. 5 elements of valid acceptance
    • offer must have been presented to offeree
    • offeree must manifest intent to accept
    • acceptance must be qualified/unconditional (ex. will you take $500 as opposed to I will give you $500; latter is counteroffer which is a rejection thereby terminating offer)
    • acceptance is in manner requested by offeror
    • acceptance is communicated to offeror by offeree
    • * in unilateral offer, offeree can only accept by fully performing the act; therefore, offeror (person who promises to pay) can revoke at any time before performance
  38. consideration
    • present if promisee has incurred legal detriment
    • making promise to do something he is not obligated to do
    • doing something he is not obligated to do
    • making promise not to do something he has right to do (forebearance)
    • not doing something he has right to do
  39. capacity
    if in contract with minor (voidable), minor has right to disaffirm (intention not to be bound) until age of majority or reasonable time afterwards (month)
  40. exceptions to minor's voidability
    • ratification: when minor turns 18, he can ratify contracts made earlier; occurs when he indicates intent to be bound by expressly stating it or by starting payments/continuing to use goods
    • subject matter is necessity: if contract is executed, minor is liable but only for reasonable value of necessity (not contract price)
    • lying: if minor lied about age and contract is executed, he can only disaffirm if there's no loss to other party; minor must restore consideration received and account for losses
  41. genuineness of agreement
    • MFDUI
    • mistake: mutual mistake of fact makes contract voidable by party adversely affected
    • fraud: negligent, innocent, or intentional misrepresentation
    • duress: forcing person to enter in contract by threats to person, his fam, or his property
    • undue influence
  42. third party rights
    • 3rd party beneficiary: parties intend for 3rd party to benefit from contract; only donee/creditor beneficiary can sue to enforce contract
    • assignment of contract rights: one party transferred rights to 3rd party (assignor, assignee, obligor)
    • delegation of duties: one party delegates duties to 3rd party; if delegatee messes up, delegator can be liable
  43. discharge of contracts
    • all parties are happy because everything's been performed
    • anticipatory breach: one party, before time set for performance, announces intent not to perform (innocent party can sue immediately)
  44. 3 trouble areas with party's performance
    • time of performance:
    • satisfactory performance:
    • substantial performance:
  45. law defined
    entire body of principles that govern conduct and which can be enforced by courts/other gov tribunals
  46. common law/case law
    • law expressed by judges in court
    • 2 critical concepts - precedent and stare decisis
  47. precendent
    earlier case w/ same or similar facts which has enunciated certain legal rules
  48. stare decisis
    court will follow established precedents when resolving case at bar
  49. substantive law
    defines legal relation of people with other people or people with state, and sets forth their respective rights and duties
  50. procedural law
    legal method, means, or process by which substantive law is administered and parties'/society's rights/duties enforced
  51. statutory law
    enacted by legislative body (Congress/state), encompasses ordinances and codes promulgated by counties and municipalities
  52. 5 steps of legal reasoning
    • FIRAR
    • facts
    • issues
    • rules
    • apply
    • reason
  53. 3 rules of conflicts of laws
    • if case is contract case and deals with validity of contract, law of state where contract was made rules; if deals with performance of contract, law of state where performance took/is to take place rules
    • if tort cause, law of state where injury occurred rules
    • if other case, law of state with most significant relationship to lawsuit applies

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