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61 Cards in this Set
- Front
- Back
A CIVIL WRONG THAT IS AN INTERFERENCE WITH SOMEONE'S PERSON OR PROPERTY SUCH THAT INJURY RESULTS...
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TORT
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INTENTIONAL TORTS
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MORE THAN AN ACCIDENTAL WRONG.
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TORT OF NEGLIGENCE
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-ACCIDENTAL HARMS THAT RESULT FROM THE FAILURE TO THINK THROUGH THE CONSEQUENCES.
-STILL HAVE LIABILITY BUT THERE ARE DEFENSES. |
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STRICT TORT LIABILITY
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-ABSOLUTE STANDARD OF LIABILITY.
-USED IN PRODUCT LIABILITY CASES. |
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TYPES OF PROPERTY TORTS
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-TRESPASS
-DISPARAGEMENT -PALMING OFF -NEGLIGENCE |
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TYPES OF PERSONAL TORTS
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-FALSE IMPRISONMENT
-DEFAMATION -BATTERY -ASSAULT -EMOTIONAL DISTRESS -NEGLIGENCE |
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UNTRUE STATEMENT BY ONE PARTY THAT IS PUBLISHED TO A THIRD PARTY...
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DEFAMATION
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SLANDER
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ORAL OR SPOKEN DEFAMATION
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TORT OF CONTRACT INTERFERENCE
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-TORTFEASOR KNEW OF EMPLOYEE'S CONTRACT.
-TORTFEASOR INTENDED TO INTERFERE WITH OR BREACH CONTRACT BETWEEN EMPLOYER-PLAINTIFF AND EMPLOYEE. -EMPLOYER-PLAINTIFF IS INJURED BY BREACH OF CONTRACT. |
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INTENTIONAL INFLICTION OF E.D.(EMOTIONAL DISTRESS)
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-LIABILITY FOR CONDUCT THAT EXCEEDS ALL BOUNDS OF DECENCY.
-DIFFICULT FOR PLAINTIFF TO ESTABLISH EMOTIONAL DISTRESS. -HAS BEEN USED BY DEBTORS AGAINST COLLECTORS. |
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INVASION OF PRIVACY
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-PUBLIC DISCLOSURE OF PRIVATE FACTS.
-APPROPRIATION OF ANOTHER'S NAME FOR COMMERCIAL ADVANTAGE. |
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NEGLIGENCE ELEMENT ONE
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DUTY:
-ALL PERSONS ARE EXPECTED TO BEHAVE AS ORDINARY AND REASONABLY PRUDENT PERSONS DO. -STANDARD OF THE LAW IS NOT ALWAYS USED. -EX.) THE SPEED LIMIT OF 45 IS NOT APPROPRIATE IN ICE AND SNOW. |
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NEGLIGENCE ELEMENT TWO
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BREACH OF DUTY:
-FAILURE TO COMPLY WITH ESTABLISHED STANDARD OF CONDUCT. |
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NEGLIGENCE ELEMENT THREE
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CAUSATION:
-BREACH OF DUTY CAUSED THE PLAINTIFF'S INJURIES. -"BUT/FOR" CAUSATION TEST. -RESTRICTED BY THE ZONE OF DANGER RULE = DUTY. |
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NEGLIGENCE ELEMENT FOUR
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PROXIMATE CAUSE (FORESEEABILITY):
-SOME COURTS HOLD THE CUT-OFF LINE MUST BE DRAWN BETWEEN THE "BUT/FOR" CAUSATION AND EVENTS CONTRIBUTING TO PLAINTIFF'S INJURIES. -THERE IS A LEGAL LIMIT TO WHAT IS FORESEEABLE. |
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NEGLIGENCE ELEMENT FIVE
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DAMAGES:
-MEDICAL BILLS -LOST WAGES -PAIN AND SUFFERING -LOSS OF CONSORTIUM (AS BETWEEN SPOUSES). |
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THREE TYPES OF DEFENSE TO NEGLIGENCE
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-CONTRIBUTORY NEGLIGENCE
-COMPARATIVE NEGLIGENCE -ASSUMPTION OF RISK |
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CONTRIBUTORY NEGLIGENCE
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(LEAST COMMON)
-PLAINTIFF IS ALSO NEGLIGENT. -OPERATES AS A COMPLETE BAR TO RECOVERY. |
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COMPARATIVE NEGLIGENCE
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-COMPARE ACTS OF PLAINTIFF AND DEFENDANT AND ASSESS BLAME FOR ACCIDENT.
-REDUCES PLAINTIFF'S RECOVERY BY AMOUNT OF FAULT. |
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ASSUMPTION OF RISK
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PLAINTIFF KNEW OF INHERENT RISK AND WENT FORWARD ANYWAY.
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CONTRACT
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A PROMISE (OR SET OF PROMISES) FOR BREACH OF WHICH THE LAW GIVES A REMEDY.
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TWO SOURCES OF CONTRACT LAW
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-COMMON LAW
-UNIFORM COMMERCIAL CODE |
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COMMON LAW
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-BASED ON ENGLISH COMMON LAW.
-SUMMARIZED IN RESTATEMENT OF CONTRACTS. -APPLIES TO CONTRACTS WITH SUBJECT MATTERS OF LAND OR SERVICES. -EX.) MORTGAGE, LEASE OR MEDICAL SERVICES. |
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UNIFORM COMMERCIAL CODE
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-MORE FORGIVING THAN COMMON LAW.
-COMMON LAW IS NOT UNIFORM FROM STATE TO STATE. |
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BILATERAL CONTRACT
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FIRST PARTY (OFFEROR) MAKES A PROMISE IN EXCHANGE FOR THE SECOND PARTY'S (OFFEREE'S) PROMISE.
-EX.) YOU PROMISE TO PAY BACK MONEY WITH INTEREST AND THE BANK PROMISES TO LOAN YOU THE MONEY. |
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UNILATERAL CONTRACT
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FIRST PARTY (OFFEROR) MAKES A PROMISE IN EXCHANGE FOR OFFEREE'S PERFORMANCE.
-EX.) DRIVE MY CAR ACROSS THE COUNTRY AND I'LL PAY YOU $500 PLUS EXPENSES. |
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EXPRESS CONTRACTS
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WRITTEN OR ORAL AGREEMENTS.
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IMPLIED-IN-FACT CONTRACTS
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NON-SPOKEN, NON-WRITTEN UNDERSTANDINGS.
-EX.) WHEN YOU GO INTO THE DOCTOR'S OFFICE, YOU HAVE AN IMPLIED CONTRACT TO PAY HER FOR HER SERVICES EVEN THOUGH YOU MAY NOT SIT DOWN AND ORGANIZE THE DETAILS. |
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QUASI CONTRACTS
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-IMPLIED IN LAW
-FICTIONAL CONTRACT CREATED BY A COURT. ELEMENTS: -ONE PARTY CONFERS A BENEFIT ON ANOTHER. -BOTH ARE AWARE OF THE BENEFIT. -RETENTION OF THE BENEFIT WITHOUT COMPENSATION WOULD BE UNFAIR AND UNJUST. |
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VOID CONTRACTS
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-A CONTRACT TO DO SOMETHING ILLEGAL OR AGAINST PUBLIC POLICY - NEITHER SIDE CAN ENFORCE.
-VOID CONTRACTS ARE ILLEGAL AND DO NOT EXIST AT LAW. -EX.) CONTRACT TO BUY DRUGS |
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VOIDABLE CONTRACTS
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CONTRACTS IN WHICH ONE PARTY HAS THE RIGHT TO END THE CONTRACT.
-EX.) CONTRACTS OF MINORS ARE VOIDABLE. |
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THE FIRST PART OF THE CONTRACT...
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OFFER
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PERSON WHO MAKES OFFER...
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OFFEROR
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PERSON WHO RECEIVES OFFER...
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OFFEREE
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UNDER COMMON LAW OFFER MUST CONTAIN ESSENTIAL TERMS OF THE CONTRACT SUCH AS:
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-PARTIES
-SUBJECT MATTER OF THE CONTRACT -PRICE AND PAYMENT TERMS -DELIVERY TERMS -PERFORMANCE TIMES |
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REVOCATION
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OFFER CAN BE REVOKED ANY TIME PRIOR TO ACCEPTANCE.
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OFFER TERMINATION
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-TERMINATION OF AN OFFER BY REJECTION.
-OFFEREE INDICATES "NO" |
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TERMINATION BY COUNTEROFFER
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-NON-MERCHANTS ADDITION OF TERMS IN ACCEPTANCE DOES NOT EQUAL A COUNTEROFFER. ACCEPTANCE RESULTS BUT ADDITIONAL TERMS ARE NOT PART OF CONTRACT.
-ACCEPTANCE WITH ADDITIONAL TERMS = CONTRACT. |
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ACCEPTANCE
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-OFFEREE'S POSITIVE RESPONSE
-MUST BE COMMUNICATED TO OFFEROR -USING PROPER MEANS OF ACCEPTANCE -ONLY OFFEREE HAS POWER TO ACCEPT |
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CONSIDERATION
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-DISTINGUISHES GIFTS FROM CONTRACTS.
-THE BARGAINED-FOR EXCHANGE. -WHAT EACH PARTY IS WILLING TO GIVE UP FOR THE OTHER PARTIES PROMISE. -COURTS ARE NOT CONCERNED WITH THE ADEQUACY OF CONSIDERATION, ONLY THE LEGAL SUFFICIENCY OF CONSIDERATION. -CHARITABLE SUBSCRIPTIONS ARE ENFORCEABLE EVEN THOUGH DETRIMENT IS ONE-SIDED. -RELIANCE PROVIDES ELEMENT OF DETRIMENT FOR CONTRACTS NOT YET BEGUN. |
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STATUTE OF FRAUDS
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WRITING IS REQUIRED, CONTROLS WHAT MUST BE WRITTEN
-TYPES OF CONTRACTS: REAL PROPERTY CONTRACTS THAT CANNOT BE PERFORMED IN ONE YEAR. CONTRACTS TO PAY THE DEBT OF ANOTHER. UCC-CONTRACTS FOR SALE OF GOODS FOR $500 OR MORE. |
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DEFENSES: CAPACITY
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-BOTH PARTIES TO A VALID CONTRACT MUST HAVE CAPACITY, WHICH INCLUDES AGE 18 AND MENTAL CAPACITY.
-CONTRACTS ARE VOIDABLE IF PARTY IS A MINOR. -EXCEPTIONS: STUDENT LOANS, MILITARY SERVICE |
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DEFENSES: MENTAL CAPACITY
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-PERSON UNDERSTANDS CONTRACTS ARE ENFORCEABLE AND SIGNIFICANCE OF LEGAL DOCUMENTS.
-UNDERSTANDS CONTRACTS INVOLVE COSTS AND LITIGATION. -IF DECLARED LEGALLY INCOMPETENT, CONTRACTS ARE VOID. |
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MISREPRESENTATION
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ELEMENTS: MISSTATEMENT OF A MATERIAL FACT, RELIANCE, DAMAGES.
-REMEDY CAN BE RESCISSION, CONTRACT IS SET ASIDE. -MUST HAVE BEEN MATERIAL. -CANNOT BE SALES PUFFING (OPINION). |
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FRAUD
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THE FAILURE TO DISCLOSE MATERIAL INFORMATION CAN BE FRAUD OR MISREPRESENTATION. FRAUD INVOLVES INTENT.
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ELEMENTS OF FRAUD
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-KNOWING AND INTENTIONAL USE OF FALSE INFORMATION.
-KNOWING AND INTENTIONAL FAILURE TO DISCLOSE. -MANY STATES HAVE STATUTES EXEMPTING THE DISCLOSURE OF A MURDER OR AIDS VICTIMS AS PREVIOUS OWNERS OR RESIDENTS. |
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DURESS
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-PHYSICAL FORCE OR THREATS.
-PARTY IS DEPRIVED OF A MEANINGFUL CHOICE. -HAS RIGHT OF RESCISSION. -VOIDABLE. |
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UNDUE INFLUENCE
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-VOIDABLE
-MUST HAVE CONFIDENTIAL RELATIONSHIP: ATTORNEYS/CLIENTS , ELDERLY PARENTS. |
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CONTRACTS IN VIOLATION OF PUBLIC POLICY
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-EXCULPATORY CLAUSES: FULL LIABILITY ELIMINATION IS GENERALLY INVALID.
-COVENANTS NOT TO COMPETE MUST BE REASONABLE IN TIME AND GEOGRAPHIC SCOPE. |
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WHEN PERFORMANCE IS DUE
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CONDITIONS PRECEDENT
CONDITIONS CONCURRENT CONDITIONS SUBSEQUENT |
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CONTRACT PERFORMANCE
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-COMPLETE PERFORMANCE IS REQUIRED.
-SUBSTANTIAL PERFORMANCE ALLOWED IN CONTRACT CASES. -SUBSTANTIAL PERFORMANCE= NONMATERIAL BREACH |
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WHEN PERFORMANCE IS EXCUSED
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-IMPOSSIBILITY
-COMMERCIAL IMPRACTICABILITY |
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PERFORMANCE IMPOSSIBILITY
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CONTRACT CANNOT BE PERFORMED.
-EX.) CANNOT BUILD HOUSE IF THE LAND IS WASHED AWAY. |
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PERFORMANCE COMMERCIAL IMPRACTICABILITY
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-BASIC ASSUMPTIONS PARTIES MADE ARE NO LONGER TRUE.
-CAN PROTECT THEMSELVES BY PUTTING FORCE MAJEURE CLAUSE; COVERS PROBLEMS SUCH AS WARS, EMBARGOES, AND DEPRESSIONS. |
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COMPENSATORY DAMAGES
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PUT PARTY IN SAME POSITION THEY WOULD HAVE BEEN IN WITHOUT THE BREACH.
-EX.) SALES-BUYER HAS TO BUY CAR FOR $7000 AS OPPOSED TO ORIGINAL $6000 - GETS $1000 IN DAMAGES. |
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CONSEQUENTIAL DAMAGES
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-DAMAGES EXPERIENCED IN RELATION TO THIRD PARTIES.
-LATE FEES OR LOSS OF INCOME FOR DELAYS. |
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LIQUIDATED DAMAGES
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PARTIES AGREE ON DAMAGE AMOUNT IN ADVANCE.
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THIRD PARTY RIGHTS
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-ASSIGNMENTS: ORIGINAL PARTY TO CONTRACT ASSIGNS HIS/HER BENEFITS UNDER THE CONTRACT TO ANOTHER.
-ASSIGNEE HAS SAME RIGHTS AS ORIGINAL PARTY. EX.) CREDIT COMPANY SELLS CREDIT CONTRACT FOR PRESENT VALUE TO ANOTHER WHO UNDERTAKES ITS COLLECTION. DELEGATION: TRANSFER OF OBLIGATIONS UNDER CONTRACT. THIRD PARTY BENEFICIARY: -ORIGINALLY NAMED IN THE CONTRACT TO BENEFIT FROM THE CONTRACT. -INSURANCE BENEFICIARIES ARE THIRD PARTY BENEFICIARIES. |
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CONDITIONS PRECEDENT
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REFERS TO AN EVENT OR STATE OF AFFAIRS THAT IS REQUIRED BEFORE SOMETHING ELSE WILL OCCUR.
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CONDITIONS CONCURRENT
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MUTUALLY DEPENDENT STIPULATIONS IN A CONTRACT WHICH MUST BE PERFORMED OR COMPLIED WITH BY ALL CONTRACTING PARTIES.
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CONDITIONS SUBSEQUENT
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STIPULATION IN A CONTRACT THAT PROVIDES FOR DIVESTMENT OF A RIGHT, OR DEFEAT OF AN INTEREST, IF A PARTICULAR EVENT OCCURS OR DOES NOT OCCUR.
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