Card Set Information

2011-03-02 17:11:03

Show Answers:

  1. Property
    legally protected rights and interests in anything of value that is subject to ownership; how we measure wealth

    Real and Personal

    can be tangible (land) or intangible (reputation of a company)
  2. Bailments
    temporary transfer in possession and control of personal property

    "borrowing with a contract"

    EXAMPLE: FedEx man
  3. Transfers of a Bailment
    • -shipping goods
    • -lending or renting objects
    • -giving clothing to the dry cleaners
    • -giving your car and keys to a parking attendant
  4. Bailor
    owner transferring possession
  5. Bailee
    person receiving the property

    • MUST:
    • -care for the property
    • -return the property in the agreed upon condition

    • MAY:
    • -use the property per terms of the agreement
    • -use is limited to necessity if agreement does not address use
  6. If the bailment benefits only the bailor...
    the bailee is liable only for gross neglect (a little neglect is okay)

    • EXAMPLE: storing canoes in the bailor's garage
    • -gross neglect if garage door is left open with canoes exposed
  7. If the bailment benefits only the bailee...
    the bailee is liable even for slight negligence

    EXAMPLE: borrowing car
  8. If the bailment benefits the bailor and the bailee...
    the bailee is liable only after lack of reasonable care

    EXAMPLE: storing boat at a warehouse company
  9. Real Property
    • -Land
    • -Things permanently attached to land (structures and fixtures)
  10. Land
    • -surface
    • -air space (above land)
    • -subsurface (below surface)
  11. Fixtures
    removing would result in knowing it had been there before

    EXAMPLE: not drapes (personal property), but curtain rod (real property)
  12. Trade Fixtures
    • -tenant must install in order for business to run
    • -tenant is allowed to take when lease expires or building is sold
  13. Grantor
    gives or sells land
  14. Grantee
    receiving land by purchase or gift
  15. Possessory Interests in Land
    • -freehold estate
    • -leasehold estate
  16. Freehold Estates
    • -fee simple absolute
    • -fee simple defeasible
    • -life estate
    • -concurrent
  17. Fee simple absolute
    -most rights of any form of land

    • RIGHTS:
    • -possess
    • -use
    • -occupy
    • -convey (sell or give)
    • -lease
    • -improve it
    • -bequeath (can control who gets land after owner dies)
  18. Fee simple defeasible
    • -grantor attaches condition to grant
    • -grantor can take land back if terms are not met by grantee

    EXAMPLE: Griffith Park in LA --> no fees
  19. Life estate
    -cannot bequeath land to someone else (otherwise same rights as fee simple absolute)
  20. Reversion
    grantor getting land back
  21. Remandermen
    person who gets land after grantor dies
  22. Concurrent estates in real property
    • -joint tenancy
    • -tenants in common
    • -tenancy by the entirety
  23. Joint Tenancy
    • -freedom to sell one's interest
    • -creditors can attach debtor's interest
    • -**owners may not bequeath their interest (distinguishing factor)
    • -**owners must have equal interests (distinguishing factor)
  24. Tenants In Common
    • -freedom to sell one's interest
    • -creditors can attach debtor's interest
    • -**owners may bequeath their interest
    • -**owners may have unequal interests
  25. Tenancy By The Entirety
    • -permission required to sell one's interest
    • -creditors of only one debtor cannot attach any interest
    • -owner may not bequeath his interest
    • -co-owners must be married
    • -divorce converts ownership to tenancy in common
  26. Leasehold Estates
    • -tenancy for years
    • -periodic tenancy
    • -tenancy at will
    • -tenancy at sufferance
  27. Tenancy For Years
    any fixed period of time (does not have to be years)
  28. Periodic Tenancy
    automatically renewable; must give notice otherwise lease is automatically renewed

    -landlord/tenant must give specified notice to terminate lease (30ish days)
  29. Tenancy at Will
    • either party can terminate whenever they want
    • -30 day notice or agreed upon notice
  30. Tenancy at Sufferance
    tenant stays on property after lease has expired
  31. Non-possessory interests in land
    • -profits
    • -licenses
    • -easements
  32. Easements
    right to use another person's land
  33. Dominant Tenement
    land that needs to use other land; benefits use of another
  34. Servient Tenement
    land that's being used (by dominant tenement)
  35. Appurtenant
    benefits adjacent land
  36. In Gross
    adjacency not required; usually benefits many land owners

    EXAMPLE: power lines
  37. Positive Easements
    allows use of land
  38. Negative Easements
    prevents use of land

    EXAMPLE: cannot build higher than 3 stories (protects views, solar panels)
  39. Sub-lease:
    • -taking over lease for certain period of time within lease
    • -not taking over entire premisses
  40. Assignment
    taking over until end of lease
  41. Creation of Easements
    • -express grant
    • -express reservation
    • -prescription
  42. Statute of Frauds
    requires express easements to be in writing
  43. Easement by Express Grant
    buyer reserves right to use Y's 8ft to walk to the beach even though buying X
  44. Easement by Express Reservation
    seller sells Y and reserves right to still use 8ft to walk to beach
  45. Easement by Prescription
    • Must meet these requirements:
    • 1.) use the land of another
    • 2.) use the land openly and notoriously (owners know you're doing it)
    • 3.) use the land continuously (on regular basis)
    • 4.) use the land exclusively (if everyone is doing it, no one will get easement)
    • 5.) use the land in an adverse and hostile manner (against interest of owner)
    • 6.) 15 consecutive years in MI
  46. Adverse Posession
    -same requirements as prescriptive easements in MI

    • Difference between easement and adverse possession:
    • -easement is use of another's land
    • -adverse possession is occupancy of another's land
  47. Condemnation
    • -constitutional power of eminent domain
    • -fair compensation for the owner
    • -public purpose for the land (road, park, public building)
  48. David Lucas v. S. Carolina
    • Issue:
    • Whether a law that prohibits land development which is otherwise legal, is a taking

    • Rule:
    • When a regulation prohibits an economically productive land use that was previously legal, it is a taking for which the owner must be compensated

    ***Think Dottie Dumplings
  49. Nuisance law as a restriction on land use
    • -public nuisance (affects multiple people)
    • -private nuisance (dog barking)
  50. Remedies to Nuisance Law
    -legal remedy (money damages)

    -equitable remedy (eliminate the cause, or stop the conduct)
  51. Zoning
    governmental restriction that...

    • -isolates businesses from homes
    • -restricts construction to specific types
    • -regulates population density
    • -dictates land layout
  52. Statutes
    governmental restriction controlling appearance of property
  53. Trademark
    a distinctive identifier used by a manufacturer or seller to identify its products and distinguish them from the products of its competitors

    -purpose is to guarantee a product is genuine; must be distinguishable

    EXAMPLE: Coke symbol
  54. Things that can be trademarked
    -word (original and unique)



    -slogan ("just do it")

    -symbol (Nike swish)

    -shape (Yoplait cone shaped)

    -sound (MGM lion roar)
  55. Things that cannot be trademarked
    -functional shape

    -functional color (John Deere couldn't TM green; beer bottle color)

    -generic terms
  56. Trade Dress
    the non-functional features, characteristics, decorations or image of goods or services that promote their sale and distinguish them from their competitors

    • -color of packaging
    • -configuration of the goods
    • -theme of a restaurant
    • -decor of a business
    • -style or type of service
    • -menu
  57. Trade Secret
    any secret formula, pattern, process, program, device, method, technique, or compilation of information a business uses that gives it an advantage over its competitors who do not know the secret

    -reverse engineering legal
  58. Patents
    a monopoly the government grants to inventors allowing them to exclusively make, use, and sell their inventions
  59. How inventions qualify
    -novel (not described in print, not previously patented, not in use or being sold)


  60. Creations that can be patented
    • Utility Patents- 20 years:
    • -processes
    • -machines
    • -chemical compounds
    • -certain business methods
    • -improvements of anything listed above

    Plants produced by asexual reproduction- 17 years

    Ornamental designs for an existing product- 14 years
  61. What cannot be patented
    -naturally occurring things

    -abstract ideas (thoughts, theory of relativity)

    -scientific or mathematical concepts (pi)

    -computer programs
  62. Copyright
    the exclusive right to reproduce, publish, and sell a fixed form of a creative work of art

    • -70 years after publisher's death
    • -125 years after a corporation's creation

    Talked about Steamboat Willy
  63. Creations that cannot be copyrighted
    • -titles
    • -type fonts
    • -ideas
    • -facts
    • -words or short phrases ("you can't handle the truth")
    • -familiar symbols or designs
  64. What copyright needs
    • -(c)
    • -author
    • -year of creation
    • -registered with the federal government
  65. Instantly copyrighted requirements
    -fixed form (paper, tape, CD, canvas, clay, computer program)


  66. Exception to copyright protection
    • -fair use is not copyright infringement
    • -research
    • -criticism and comment
    • -parody
    • -teaching
    • -personal multiple uses (buying CD and putting it on iPod)
    • -convenience taping (DVRs)
  67. Uses that are not fair use
    • -playing a recording in a store
    • -broadcasting recorded music
    • -presenting a play
    • -performing a song live
    • -selling course packs
  68. Elements of a Contract
    • 1.) offer
    • 2.) acceptance
    • 3.) consideration
    • 4.) genuine assent
    • 5.) competent parties
    • 6.) legal object

    without these a contract can't be enforced
  69. Offer
    proposal of bargain to another party
  70. Elements of an Offer
    • -intent
    • words are clear and not ambiguous


    • -definite
    • subject matter, quantity, price

    -must be communicated to the offeree
  71. Terminating an Offer
    • -terms of the offer
    • -lapse of time (30ish days)
    • -insanity or death of offeror
    • -destruction of subject matter
    • -offeree rejects the offer
    • -offeree makes a counter offer
    • -offeror revokes the offer
    • -supervening illegality
  72. Acceptance of an Offer
    • -must be intent to accept
    • -acceptance must not change material terms of the offer
    • -only the offeree may accept the offer
    • -acceptance must be communicated to the offeror
  73. Consideration
    legal value, bargained for and given in exchange for an act or a promise

    *anything of value promised to another when making a contract
  74. Promissory Estoppel
    a substitue for consideration

    • -a promise reasonably expected to induce promise's substantial action
    • -promisee's justifiable reliance on the promise to his detriment
    • -a resulting economic detriment that can only be avoided by enforcing the promise

    • EXAMPLE:
    • A landlord informs a tenant that rent has been reduced, for example, because there was construction or a lapse in utility services. If the tenant relies on this notice in choosing to remain in the premises, the landlord could be estopped from collecting the full rent.
  75. Accord
    the new agreement that replaces the old agreement
  76. Satisfaction
    the performance of the new agreement
  77. Quasi Contract
    -court-enforced liability against a party who knowingly accepts a benefit not contracted for

    -party is liable for reasonable value of benefit
  78. Genuine Assesnt
    making a contract voidable if one of these factors are present:

    • -fraud
    • -duress
    • -undue influence
    • -mistake
  79. Fraud
    • 1.) misrepresentation or omission of material fact
    • 2.) intent to deceive the other party
    • 3.) other party relies on misrepresentation
    • 4.) reliance causes injury
  80. Jody Berry
  81. Stambovsky v. Ackley and Ellis
    ghost house and suing for recession
  82. Caviot Intor
    "let the buyer beware"

    -applies to findings on inspection
  83. Duress
    • 1.) a party threatens another, to force him to enter a contract
    • 2.) there is no reasonable alternative to entering the contract
  84. Undue Influence
    • 1.) a fiduciary relationship (relationship of trust) between the parties
    • 2.) the dominant party takes advantage of a weakness to persuade the servient party to enter a contract
  85. Meeting of the Minds
    • both parties are talking about the same terms of a contract
    • -ambiguous terms must be avoided
  86. Rescind
    deletes terms of a contract
  87. Unilateral Mistakes
    only mistaken by one party

    -rescission is not allowed unless the non-mistaken party knew of the mistake
  88. Bilateral Mistakes
    both parties make the same mistake

    • -rescission is allowed
    • -mistakes about value is the only exception

    • EXAMPLE of exception:
    • famous painting sold at garage sale
  89. Competent Parties require...



    -minors cannot disaffirm contracts for necessaries
  90. Void Contract
    never a contract to begin with

    EXAMPLE: gambling contract
  91. Ratified
    official and legally binding
  92. Contracts that violate statutes or case law
    • -blue laws (cannot sell alcohol on Sunday)
    • -licensing statutes (professions that must be licensed to practice i.e. plumber)
    • -laws against usury (charging more than allowed rates)
    • -laws restricting gambling
  93. Contracts that violate public policy
    • -business-to-business non-compete pacts
    • -employment non-compete agreements
    • -price-fixing agreements
  94. 3rd party beneficiary contracts
    a contract formed with the intent to benefit someone who is not a party to the contract
  95. Creditor-Beneficiary Contract
    the promisee enters the contract intending to satisfy a legal duty he owes to a third party

    • EXAMPLE:
    • Andrew owes some debt to Charlie, and Andrew agrees to provide some consideration to Bethany in exchange for Bethany's promise to pay Charlie some part of the amount owed
  96. Donee-Beneficiary Contract
    the promisee's primary intent is to make a gift of the contract's performance to a third party

    • EXAMPLE:
    • Life Insurance Contract
    • -promissor is the insurance company
    • -promisee is the party purchasing the life insurance
    • -beneficiary is the party receiving the money of the life insurance after the promisee dies
  97. Incidental Beneficiary
    party who stands to benefit from the execution of the contract, although that was not the intent of either contracting party

    • EXAMPLE:
    • Mike Tyson fight fans are not compensated for not seeing a fight
  98. Remedies
    appropriate legal form of relief by which a remediable right might be enforced against a wrongdoer who has failed to meet the requirements of the law
  99. Legal Remedies
    • -compensatory damages
    • -liquidated damages

    breaching party pays innocent party an amount to make the innocent party whole
  100. Compensatory damages
    -measured by the difference between the market price and contract price

    -purpose is to place the innocent party in the position he would have been if the contract had been performed
  101. Mitigation
    -innocent party must attempt to find substitute performance

    -innocent party will not recover damages if he does not mitigate

    • EXAMPLE:
    • -student moves out of apartment early from lease
    • -->apartment must try to find new tenant to compensate for losses
  102. Recovering lost profits
    -defendant must reasonably foresee that plaintiff has no other source for the goods

    -plaintiff's damages must not be speculative

    -plaintiff must prove mitigation (try to compensate for his own losses)
  103. Liquidated Damages
    -special clause in the contract

    • -an advance agreement on damages
    • EXAMPLE: uncle wrote fee for late construction
  104. Equitable remedies
    -rescission (neither party has to continue)

    -specific performance (compels breacher to carry out promise)
  105. Specific performance
    -unique subject matter

    EXAMPLE: rare baseball-->no replacement so must pay
  106. Mailbox Rule
    -Day 1: A makes an offer to B.

    -Day 2: A decides to revoke the offer and puts a letter in the mail to B revoking the offer.

    -Day 3: B puts a letter accepting the offer in the mail.

    -Day 4: B receives A's revocation letter.

    ---The letter of revocation can be effective only when received, that is Day 4. However, a contract was formed on Day 3 when the letter of acceptance was posted. It is too late for A to revoke the offer.
  107. Statute of Frauds
    contracts that must be in writing to be enforceable

    • including:
    • -conveyance of an interest in land
    • -promise to pay another's debt (cosigner)
    • -performance exceeding one year
    • -sale of goods priced at $500 or more (price not value)
  108. Parol (speech or words) evidence rule
    statements made before or at the time a contract is signed can't be used to change the terms of a contract that is a complete and final statement of the agreement
  109. Parol evidence rule exceptions
    • -evidence to show the contract is invalid
    • -an explanation of ambiguous words (each party was thinking a different meaning of a word)
    • -a completion of the omitted terms
    • -corrections of errors
  110. Discharging a contract
    • -complete performance (executed contract)
    • -condition precedent
    • -condition subsequent
    • -impossibility of performance
    • -commercial impracticability
    • -waiver
  111. Condition precedent
    -a future event that creates a duty to perform

    -precedes creation of a duty to perform a contract (before duty exists)

    • EXAMPLE:
    • "I will buy the house if I qualify for a loan."
  112. Condition subsequent
    -a contract term that discharges an absolute duty (already has a duty to perform)

    • EXAMPLE:
    • "The insurance company's duty to pay is discharged if the insured fails to make a claim within 15 days"
  113. Impossibility of performance
    an unplanned event prevents performance:

    -death of party performing personal services (singing lessons)

    -supervening illegality (law passed making something in contract illegal)

    -destruction of the subject matter (can't be because promissor destroys it)
  114. Commercial impracticability
    • -an event makes performance impracticable
    • -the promisor did not cause the event
    • -the parties assumed the event would not happen

    • EXAMPLE:
    • Syrovy Trust v. Alpine Resources
    • -harvest lumber claimed commercial impracticability due to weather/hunting
    • -->events were foreseeable therefore Alpine still owes
  115. Waiver
    one or more parties to a contract surrenders the right to receive performance from the other party or parties to the contract