Busa Final

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Tort Liability

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If persons or property are injured by defective product

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Types of defects (breach):

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Manufacturing: one particular unit is defective.

Design: entire line of a product is defective

inadequate: packaging, instructions, warnings on product

DIM

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Privity of contract

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is no longer required to recover for injuries

Today: liability extends to "ALL FORESEEABLE USERS" and sometimes "BYSTANDERS"

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Violation of a statute

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regarding the manufacturing of the product is NEGLIGENCE PER SE

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Strict liability for defective products

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manufacturers can be held liable for defective products regarldess of any breach of duty or unreasonable act by the defendant.

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elements for strict liability

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1) the def is engaged regulary in selling that type of product

2) the product is unreasonably dangerous to a user due to the defect

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Privity of contract

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no required. liability extends to all "forseeable users" and sometimes even to "bystanders"

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Key:Unreasonably dangerous

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1) the product is dangerous beyond the expectations of an ordinary consumer, OR

2) a less dangerous alternative was economically feasible, but the def, did not use it

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Basis for strict liability (3)

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Manufacturing
Design
Warning defects

WMD

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Design defect

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if misuse by a consumer is reasonably foreseeable, the defendant can still be liable even though the plantiff misused the product

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Market share liability

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if the plaintiff does not know who distributed a product due to time (many years) they will sue all the defendants who produced that product

Can apply for negligence or strict liability

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Lessors ( ppl that lease you things)

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can be liable for defective products under negligence theory (not strict liability)

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strict liability (under GA law)

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only against manufacturers, not retailers ( use negligence)

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Punitive damages

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are allowed, but only once against a single manufacturer for a product no matter the # of claims regarding that product

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statute of repose

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you can only sue for product liability if the injury occurred witin 10 years from the date of first purchase

Does not apply to:
Failures to warn
Reckless disregard for the public safety
Defects that result in diseases or birth defects

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Defenses to product liability

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Defeat any element
Assumption of risk
Misuse or abnormal use
Supervening event
Generally known dangers
statute of limitations
modified comparative neg.
correction of defect

SCAMS MGD

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defeat any element

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the plaintiff is unable to prove or the defendant defeats any elements of negligence or strict liab

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assumption of risk

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the plaintiff knew of the risk and voluntarily acted

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misuse or abnormal use

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only if not "reasonably foreseeable" to defendant

Defense of manufacture

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supervening event

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the plaintiff buyer/user alters or modifies the product

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generally known dangers

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ppl know some prodcts are inherently dangerous due to the nature of thier function and/or use and warnings are therefore not required

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statute of limitations

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GA- 2 years from date of injury

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modified comparative negligence

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the plaintiff was also partly at fault and their award will be reduced by the % the jury finds they were also at fault

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correction of defect

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the plaintiff does not heed a recall notice

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Objects in food

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this is a form of product liability whether the food is from a restaurant or a grocery store

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consumer expectation test

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the test the jury will be instructed to apply in these cases. What would a reasonable consumer expect to find in this type of food product

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Intellectual property

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products in indiv. minds

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Federal langham act

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gives trademarks statutory protection

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trademark registered with?

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The US patent and trademark office

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Trademark term

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Re-registered bet/ 5th and 6th year after the initial registration, it is renewable every 10 years thereafter

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trademark must be

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A. distinctive, OR
B. Acquire a secondary meaning

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Trademark generic terms

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are not protected

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1995 trademark dilution act

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protects not only identical marks, but also unauthorized use of "similar" marks

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What is covered under 1995 trademark dilution act

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Trademarks

Trade dress: the image and overall appearance of aproduct or place

Service marks: r used 2 distinguish the service of 1 company from another in a given field

Certification Marks: denote quality, area, religion, or mode of manufacture

Collective Marks: symbols of collectives or organizations

TTCCS

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Trademark infringment

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lawsuit for unauthorized use

Plaintiff shows:
1)mark used in unauthorized manner
2) use is likely to cause confuse/deceive customer

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remedies

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lost profits, damages of product, injuntion, punitive damages

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Intellectual Property

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Trademark
Patent
Copyright
Trade Secrets

TTPC

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patent

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grant from the fed govt tht tives an inventor the exclusive right to make, use, and sell their invention

purpose is to create incentive 4 ppl to invent

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Procedure to patent

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A) the invention must be novel, useful, and non-obvious

B) Subject Matter: machines, processes, compositions of matter, designs, asexual plants, man-made living material

C) Application: to the Us patent and trademark office

D) Term: 20 years from date of applications.

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Public use doctrine

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a patent can not be obtained if the public has used the idea opr incention for 1 year or more prior to the application

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Patent infringement

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Lawsuit for unauthorized use

Remedies: reasonable royalty rate, Damages: lost profits, destruction of non-authorized goods, punitive damages

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copy right

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protects the works of authors and other creative ppl.

Purpose: to encourage creativity

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copyright act of 1967

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establishes the procedures and protections

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copyright procedure

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1) what is covered
2) registration
3) Term

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Procedure: What is covered

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Must be ORIGINAL WORK and in TANGIBLE FORM

Examples:
Literary works
Musical works
Dramatic works
Videos
Sculpture
Sound recordings

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Procedure: Registration

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published and unpublished works are registered with the US copyright office

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Procedure: Term(automatic)

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1) individual author: life plus 70 years
2) many authors: 70 years after the death of the last one
3) corporation/business: the shorter of 100 years from when created or 95 years from the first publication

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Note (copyright)

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A mark is not needed on work to be protected today protection is automatic from time of creation

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copyright infringment

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lawsuit for unauthorized use

The use of a sbstantial and material part of the work (not use of the entire piece of work is necessary)

Remedies: Damages, lost profits, destruction of unauthorized work, punitive damages

FINES: $200-innocent use; $100,000-purposeful use

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If a user is going to use a copyrighted work:

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the user must pay royalties 2 the owner after getting their permission

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Fair use doctrine

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permits the limited use of the work without the creator's permissions

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Fair use doctrine:No Recovery

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If the defendatn can show "fair use". this is determined by courts looking at the follownig factors on a case by case basis.
1) The purpose and character of the use (commericial vs. non-commercial)
2)the nature of the copyright work,
3) the amt and substantiality of the portion used in relation 2 the work as a whole, AND
4)the effect of the use upon the potential market for or value of the copyrighted work (THE MOST IMPORTANT FACTOR)

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Examples of "FAIR USE"

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Criticism, Commentary, News reporting, teaching, scholarship, research

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Trade Secrets

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protects things that are not able to be nor wanted to be patented or copyrighted

INCLUDES:
formulas
designs
patterns
customer lists
Ideas & expressions of ideas

DIFPC

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Tort: Misappropriation of trade secrets

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The plaintiff must show it was taken by "unlawful" means (theft, bribary, sabotage)

The owner must take "reasonable" security measures

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non-disclosure agreements

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contracts signed by employees, vendors, franchises that prohibits them from using/selling/taking trade secrets

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1996-federal economic espionage act

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the theft of a trade secret is a federal crime. PENALTIES:
A) individual: 10 years and/or $500,000 fine
B) Corporations: $5,000,000 fine.
AND seizure of property acquired and any property used to obtain the trade secret

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intellectual property in cyberspace

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Computer software
Copyright
Trademark and Domain names

TCC

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Computer software in cyberspace

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It can be patented OR
It can be copyrighted

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Copyright in cyberspace

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1997- no electronic theft act

1998- Digital millineum copyright act

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1997-No electronic theft act

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Provides criminal penalities for the unauthorized use of copyrighted material even if it is not for financial gain and/or only for "personal use" (Alters the "Fair Use" doctrine)

Penalties: up to 5 years in prison and up 2 $250K in fines

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1998-Digital millinuem copyright act

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Provides for civil and criminal penalties for those who circumvent software and other technological antipiracy protection

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Trademark and Domain Names

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Trademark Infringment
1995-Trademark dilution act

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trademark infringment

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the lawsuit for the unauthorized use of anothers domain name OR for the use of anothers trademakred term in ones own domain name

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1995-Trademark dilution act

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owners of trademarks can use this to stop others from using their trademark as domain names

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Contract

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a legal agreement between 2 or more parties

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Elements of a contract

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Agreement
Consideration
Capacity
Legality

All 4 have to be present

LACC

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Agreement

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includes offer and acceptance

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consideration

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promises must be supported by legally sufficent and bargained for consideration

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capacity

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parties are legally competent to enter into a contract (AGE)

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legality

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a contracts goal or purpose can not be illegal or against public policy

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Defenses to the enforcement of a contract

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Genuiness of assent
Form

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Genuiness of assent

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consent of both parties must be genuine

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Form

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a contract must be in whatever form the law requires for that type of contract

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Types of contracts

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Bilateral: an exchange of promises between parties

Unilateral: the exchange of a promise for performace itself, the contract is accepted by 1 party starting to act/perform (reward)

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express

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the terms of the contract are fully and explicitly stated in words (oral or written)

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implied-in-fact

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the terms of the contract are implied from the past conduct of the parties or the industry

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executed

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contract finished

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executory

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something left 2 be done

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valid

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all the required elements for a legally enforceable contract

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void

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void from the inception (the minute the contract is signed, its bad)

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voidable

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can later be voided by a party

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unenforeable

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cannnot be enfored due to legal contraints

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option

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one part pays the other to keep an offer open for a specifed period of time

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requirement

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a promise 2 buy or supply all the goods/services/materials the other party may require

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aleatory

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a contract where performace is triggered by the occurrence of some uncertain event in the future (insurance contract)

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unclear terms

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courts will use the following rules to define unclear terms in a contract:
A)hand written or typed terms prevail over pre-printed terms
B)When the language has more than 1 meaning, the words are interpreted against the part who drew up the contract

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agreement

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the 1st element of a contract.
It includes an offer and acceptance

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offer

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a promise to do or refrain from doing something in the future. it creates a right of acceptance in the other party

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Intent

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test-would a reasonable person believe this was a valid offer, or just an invitation to negotiate

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not offers

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there is no right of acceptance is one hearing them:
1) expression of opinion
2) future intention
3) invitation to negotiate
4) price quotation request
5) ad to the public : is not an offer unless it is phrased as a promise and includes a specific quantity

EFIPA

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Termination of offer

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A) by actions of the parties
B)Rejection by offeree
C) By operation of law

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Termination by actions of the parties

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Revocation by the offeror: before the party accepts

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Termination by rejection by offeree

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by words or conduct
must be communicated by offeree

Counter-offer

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termination by operation of law

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A)lapse of time: time limit 2 accept offer expires
B)destruction of the subject matter
C)death or incompetence of either party
D)supervening illegality of contract purpose or subject matter

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Acceptance

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any new terms in acceptance=counter offer, but an acceptance with a request is binding

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silence acceptance

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normaily not acceptance, unless:
offeror says it will be

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communication of acceptance: Mailbox Rule

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Offer acceptance is valid as soon as it is in the mail.

If offeree sends rejection then acceptance, whatever is recieved first controls

Offeror: can specify time/mode of acceptance that will be valid

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acceptance reward

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it is only acceptance if person who does act knew of the reward. it can not be claimed if it is part of that persons regular duties

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computer: Fax

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acceptance valid when received
ICON: calid when "Clicked"

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unsolicited goods in mail

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can return or keep without obligation

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Consideration

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2nd requirement 4 contract.

something of value given in return for a promise.
ELEMENTS:
A) there must be a bargained for exchange between parties (A gift is not consideration)
B) what is bargained for must have legal value

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Sufficiency: consideration can be:

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A) a promise
B) an act
C) a forbearance (refraining from acting)

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contracts that lack consideration

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A)gift or gratuitous undertaking
B)pre-existing duty
C)past consideration

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Nominal Consideration

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low consideration in a contract

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accord and satisfaction

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a debtors offer and a creditors acceptance of a lesser amt than purportedly owed: enforceable

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liquidated damages

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accord and satisfaction will not be enfored for these contracts as there is no consideration present

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promises enforceable without consideration

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A) promissory estoppel
B) contract bidding
C) Charitable Pledges

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Promissory estoppel

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a doctrine used by courts 2 avoid unfairness. if someone recieves a detriment, a court may enforce a promise even without consideration

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Contract bidding

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subs can not back out of bids with general contractors

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Charitable pledges

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No consideration present, they are not enforced unless:
1) promisor bargained for and received a promise that the gift will be used in a specific way
2) the charity acts or changes their position in reliance on the promise

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capacity

Back 112

essential element of a contract

The parties must have the "legal ability" to enter into a contract

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Minors

Back 113

are able to enter into any contract an adult would, but the minor can void the contract if they wish

Exceptions:
Partial- they must disaffirm all or nothing
Necessities- food, clothing, shelter, med care
Education- tuition, books
Buss/Prof.- contracts entered into by the minor relating to a bus/prof. they operate
Emancipation- the court as declaired them an adult (emancipated)

NEEPB

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If contract voided my minor

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minor gets back consideration paid, other party gets back the goods.

If damaged: the minor is liable to make the other party whole

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ratification

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the minor accepts the contract and it will be binding if through words or acts after they turn 18 that they indicate an intent to be bound by the contract

EXPRESS: in words (written or oral)
IMPLIED: by action (continues to make payments)

Parents are NOT liable

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intoxicated persons

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if they were fked up when they signed contract, then they can void when sober

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mentally ill or insane

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contact is VOID if declaired insane by court

If the party lacked mental capacity to understand the contract then it is voidable by person

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aliens

Back 118

bound to contracts they enter into

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genuineness of assent

Back 119

a defense to the enforcement of a contract.
A contract is unenforceable if the parties did not truly assent to the terms

MISTAKES
FRAUD
UNDUE INFLUENCE
DURESS

DUMF

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Mistakes

Back 120

judgment of quality: VOIDED
Facts/terms: NO CONTRACT

Unilateral mistake: no relief unless other party knew or it was a math error
Mutual mistake: contract can be rescinded by either party

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Fraud

Back 121

lie to get someone to sign a contract

Silence is not fraud unless:
1) latent defect: 1 not reasonably found by a buyer, or
2) it is a fiduciary relationship

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Undue Influence

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a) lak of free will: by party taken advantage of
b) confidential relat.

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Duress

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forcing a party to enter into a contract through threatening or illegal acts

Threatening to excercise a legal act is no Duress

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Defenses to the enforcement of a contract

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Legality
Statue of Frauds
The Parol Evidence Rule

LST

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Legality

Back 125

The contract is not legal if against the law.

Illegal: act required in or subject matter of the contract is illegal

Convenant not 2 Compete: allowed if reasonable as to time and place

Unconscionable: Hidden, small print clauses

ICU

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Stature of frauds

Back 126

certain contracts have 2 be in writing to be enfored

The contract is not void, but is a defense to their enforcement

ex: land sales

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Parol evidence rule

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what is said when making contract can never be used 2 alter contract in court

Integration Clause: in a contract, that states written contract is the entire and complete agreement between the parties

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performance and discharge

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1) Conditions
2) Discharge by performance
3) Discharge by operation of law

COP

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conditions

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future event which triggers performance or terminates a contract according to its terms

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condition precedent

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condition that must occur before performace is required

Ex: insurance contract

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Condition subsequent

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Operates to terminate an obligation to perform

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concurrent condition

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when each sides duty to ferform is conditioned upon the other performing simultaneously (cash on delivery)

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Discharge by performance

Back 133

when the contract is suppost to be over

MATTSC
Tender of performance
Complete performance
Substantial performance
Material breach of contract
Anticipatory repudiation
Time for performance

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Tender of performance

Back 134

can act as a discharge even if the other side refuses to allow it. it is a breach of the other side

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complete perofrmance

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all contract erms are perofrmed exactly as specified

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substantial performance

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performance does not vary greatly from contract, the other side must then perform,but may be able to collect damages for others lesser performance

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material breach of contract

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non-performance of contract duty; non-breaching party is excused from performing

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anticipatory repudiation

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before either side has a duty to perform, one side states they will not perform

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time for performace

Back 139

If performance done on a reasonable time your fine BUT, if contract says "time is of the essence" and you are 1min late you broke contract

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discharge by operation of law

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a) alteration of contract: by one party, relieves other party from performing
b) statue of limitations: for a sale of goods, one must sue for breach within 4 years
c) backruptcy: bars enforement of most debtor contracts

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breach of contract

Back 141

the failure of a party to perform a contact duty or obligation

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Damages

Back 142

compensatory: to make parties whole

Incidental damages: extra expenses caused directly from breach

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Damages

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Compensatory
Consequential
Punitive
Nominal

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Consequential

Back 144

forseeable losses caused by circumstances beyond the contract (profits)

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punitive damages

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not for breach of contract

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nominal damages

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Allowed for breach of contract

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Mitigation of damages

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injured party has a duty to use reasonable efforts to lessen or minimize damages

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liquidated damages

Back 148

an enforceable clause in a contract that specifies what the amt of damages will be in the even of breach

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specific performance

Back 149

courts can require a party 2 perform according to the contract.
WHEN: damages are inadwquate or goods are unique
NOT: for the sale of normal goods or personal service contracts (band playing)

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Provisions limiting remedies

Back 150

Exculpatory clauses
Limitations of liability
Contracts for sale of goods

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exculpatory clauses

Back 151

unenforceable if it excludes liability for fraud or intentional injury. (riding a horse)

enforceable if it excludes liability for negligence and both parties are "equals"

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limitations of liability

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a clause that states the only remedies for breach are replacement, repair, or refund: enforceable

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contracts for sale of goods

Back 153

remedies can be limited