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97 Cards in this Set
- Front
- Back
What is a tort
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private (civil) wrong or injury against a person or property for which the law provides redress to victum
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Who bings a civil law suit against the person or entity that commiteed the tort
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plaintiff
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Who committs the tort is known as
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defendant
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What is conduct that result in commission of a tort called, what is person called committing such conduct
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tortious conduct--tort-feasor
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Are there federal law torts?
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NO only creature of STATE law
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What are the 4 elements needed to Tort and Liability
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1.Legal Duty (regonized by law 2. Breach of that duty be defendant 3. The breach of duty by the defendand must have caused the injury
4. There must be injury or damage to aperson or property |
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The breach of duty by the defendant must have CAUSED the injury, what 2 things must you have to have CAUSE
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1. Actual Cause, and
2. Legal Cause (proximate cause) |
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What is actual cuase (question of fact)
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the "but for" test--in the absence of defendant would injury still have occur---if NO---have
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What is legal cuase or proximate cause (question of logic)
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Was the harm resonable foresseable consequence of the tortious conduct---must be YES
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What type of evidence do you need to be sucessful in a tort action
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preponderance of the evidence
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Is sucessful in a tort, the plain tiffy may be awarded damages: what are the 3 types
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Compensatory, Nominal, and Punitive Damages
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What are compensatory damgages
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designed to makes the victims whole--compensation for pain and suffering, emotinoal distress, and medical cost, lost wages
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What are Nominal damges
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aer awarded as a moral victory
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What are punitive damagmes
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designed to punish the defended for enagaing in extremely harmful conduct intentional harm, and deter others
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Did the Supreme Court hold that punitive damages must bear a resonalbe relationship to compensataroy damgages
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YES
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What are 3 prinicpal catergories of Torts
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Intentional Torts, Negligent torts, and liability torts
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What is intential torts do the intent always be HARM?
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NO, defendant can takes a PURPOSEFUL action that defendant knew or reasonably have known would cause harm
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Examples of Intentional Torts
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Assault, Battery Conversion, Defamation, Privacy Tort, and Trespass
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What is assault and equal to in criminal
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intentionally place another reasonalby in fear of IMMMEDIATE, offensive contact--meancing
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What is battery, and is it broadly interpreted
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intentional, unwanted, and offensive bodily contact
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What is Defamation
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intentional publication to a 3rd party of a faslse statemnt harmful to plaintiff's repuations
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What must defamation due to one's reputaion
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HARMFUL----examples are ridicule, hatred, and contempt
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What are Pricacy Torts
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Public disclsoure of private facts, portraying a person in a false lifht, approptriation of name or likeness for commerical gain
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What is conversion and differance between theft
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failure to return,loss or destruction of personal property (borrowered
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What are 3 intentional torts against economic interests
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Disparagement of Good or Services, Tortious Interference with contract, and unfair competition
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What is Disparagement of Goods
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false statement of a material face or publication or damage to reputation of business
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What intentional tort does damage to reputation of business fall under
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Disapagement of Goods
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What is tortious interference with contract
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knowingly and successfully taking action ot entice a 3rd party to breach a vaild contract
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What is unfair competition
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driving a competitor out of business by selling below cost, b/c you have more economic staying power
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What does a EACH PERSON OWE you under negligent torts
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a duty to protect others from reasonably foresseable adverse consequence of your acts or omission
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A person is SAID To be negligent
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when they breach that duty by doing what would not be done by a reasonalbe and prudent person in the same or simlar circumastances
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When negligence cannot be shown by direct evidence,it may be doufn under what 2 other theroies
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res ipsa loquitur, and negligence per se
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What is Res ispa loquitur
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"thing skepas for itself",
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3 Condition for Res ispa loquitur
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1. event ordinally does not occur in the absence of negligence
2. NO other responsible cause 3. negligence is within scope of duty |
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What is Negligence per se
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is when statue is enacted to prevent a certain type of harm, and a defendent violates that statue
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Is a pharmacist charged with a strandard of professional care within the area of his licensed expertise
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YES
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Does Negligence per se have to invoke the resonable prudent person standard, what proof do you need
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NO-b/c a statute was enacted to prevent a particular harm--just need proof of violation
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What are defenses to Negligent torts
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Assumption of Risk, Contributory negligence, and comparative negligence
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What is contributory negligence
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plaintiff contibuted to injury--an ABSOLUTE BAR to recovery
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Type of comparative negligence
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Pure compartaive negligence, and modifed comparative neglicence
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What is pure comparative negligence
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your % at fault is % you pay for proven damages
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What is Modifed compataive negligence
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% at fault is % you pay ONLY IF GREATER THAN 50 at fault--otherwise you get NOTHING
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Does each state ONLY HAVE ONE--EITHER PURE or MODIFEED, what does Colorado have
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YES one one--Colorado has MODIFIED comaprative
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What are strict liability torts
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where Liability is imposed without regard to fault b/c of participation in ULTRAhazordous activites
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What are some examples of strict liability torts
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basting in popultaed area, keeping wild animals, making firework
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Does Strict liabliity also apply to Worker's comp and why
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YES, prevents employer from being sued
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What are statues of limitation, and are they a matter of indivdual state law
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YES---a tort action is barred if not brought within a fixed period of time after the injuryed person knew or should have known
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What is Black Letter Rules No. 7
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upon discovery of a mistake, the pharamcst must see that is is promply rectifed
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Should pharamcists avoid the ostrich syndrome
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YES
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May a mistake rise to neglience
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NO---we are allowed to make mistakes, as long as NO INJURY (ground for lawsuit)
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What is product liability law
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is the body of legal rules governing civil suite for losses resulting from defective goods
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As social policy has evolved the foucs of liablity has shift from the (caeat emptor) to
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the caveat vendor--the seller
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What is product liablity action
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any action brought against a manufacturer or seller of a product regardless of the substantive legal theory or theories which action is brought on injury, death or property damage
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A product liability suit can be based on
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negligence, strict liability tort, or breach of warranty
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What must plaintiff estabilsh for negligence
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that the manufactor or seller owed a dtuy of care to the paitent, they breached that duty, that breach actually AND legally caused the ingjuty, adn they suffered a real and compensble injury
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What are types of negligence based product liability actions
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improper manufacture, negligent inspection, failure to warn, negligent design, and negligence per se
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Do many suit allege mutiple negligent acts or omission
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YES
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What is improper manufacture
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improper materials, improperly producing the product or packaging
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When can pharmacist be liable for improper manufacture
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the pharmacist who compounds a drug
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What is negligent inspection for manufactor
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duty to inspect products for risks that create a foreseeable risk of harm
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What is nefligent inspection for a seller
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duty to inspect when they know or should resonably know fo a defect (obvious for seller)
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What is negligent for failure to warn
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that without a warning, the product would be dangerous in its ordinary USE or in any forseeable use
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Is there a duty to warn of dangers arising form reasonably unforeseeable misuese or obvious danges
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NO--but don't rely on it
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Must warning reach and be understandable by those resonably expect to the prouct--examples
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YES--for children or illerate--use picture warnings may be required
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In cases where cosmetics and OTC drugs causes a toxic or allergic reation, mayn courts require the plaintiff to prove
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1. product contained an ingredient to which an appreciable # would have an adverse reaction, 2. defendent knew or should have known 3. the plaintiff was in teh group of people with reactions
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What is unique about failure to warn with prescription drugs
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manufacturer almost never has any communication with the user
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Who only must maufactors provide info about warnings of any possible adverse reactions
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physicans
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What is learn intermediary doctrine
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manufactors are generally shielded from liability under failure to warn theory
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What is Negligent design
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the sale of an ENTIRE LINE OF defectively designed products
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What must a plantiff prove for negligent design
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1. product is inherenty dangerous 2. contains insufficient safety measures, 3 or materials that do not satisfy trade standards
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What is negligence per se concened with product liabilty
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liable if breach rules of FDA
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Is product misuse a defense to a negligent actions
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YES
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What are 2 other defense to negligence for manufactors
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state of the art defense and complicane with safety regulations
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What is state of the art defense
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we did the best anyone knew how to do at the time
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May a court find that a manufactor is liable b/c the irsk inherent in the design so outwieght the beniefits of the product that a resonalbe and prudent person would not have produce a product of that design
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YES
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What is compliance with safety
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cannot bring a tort agaisnt compliance with safety--b/c regulated by federal law
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What is strict liability for DEFECTIVE product in Tort
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defective condition and unreasonably dangerous to user, consumer or family
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When is seller liable (even if not negligent) for physical harm caused by defect EVEN if they exercised all POSSIBLE CARE
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YES--ONLY dealing with defective and unreasonably dangeous ---
if seller is engaged in the business of sellings the product AND the product reaches the consumer without substaintial change |
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Stirct liability focuese on the defective unreasonable dangerous nature of the product as determined by
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the consumer expections test OR the feasilbe alternative test
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What is the consume expectations test AND STRICT LIABILTY
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did the prouct meet sthat standards test, did the proct perform as would be expected by a resonable consumer
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What is feasbile alternative test or risk-utilit test
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balance utility (usefulness ) against danger
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Does the feasible alternatives risk utilty test, require manufactors to makes completely safe products
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NO-creating such a product is impossible, manufacotrs are change with making product reasonably safe
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Are manufacotrs are change with making product reasonably safe regardless whther plantiff aware of the product dangerougness
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YES
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What is breach of waranty
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a contractual promise about the nature of the produt sold
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Under the Uniform Commerical Code warranties may be
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express or implied
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What are express warranties
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created by affirmative acts of the sellers, such as prmoise, description, sample
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Is use of warrant or guarantee necessary
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NOT necesaaty
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There needs to be No specific intention by the seller to make a warranty if
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made on the basis of the bargin---(the deal)
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A general clause disclaiming "all warranties, express or implied" cannot reduce the seller's obligation to
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description--can't blue coat and give a magenta regardless of disclaimers
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What are 2 types of implied warranty
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implied warranty of mechantability
and fitness for a particle purpsose |
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What is implied warranty of mechtability
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goods are fit for ordinary purposes
adeqately contained package and labeled, adn conform to statement of fact on the container |
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What is a mechant
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only applies if mechant who is someone who has skills or knowledge of a product
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What is implied warranty of fitness for a particular purpse
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buyer's reliance on the seller's skill or judgemnt--liabilty can apply
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Can both express and implied warranties be exculed
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YES
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How can goth express and implied warranties be excluded
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must be written and conspicous
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To disclaim warranty of mechantabilty must use the word
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merchantability
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What happens when you use words "as it, wehre is or "withal all faults"
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disclaims all warranties
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