L201 Exam 2

Tort

a civil wrong that is not a breach of contract

Tortfeasor

The person who commits the tort

Intentional Torts

Tortfeasor’s desire to cause certain consequences

Reckless Torts

Tortfeasor’s conscious indifference to a known and substantial risk of harm created by their behavior

Negligent Torts

Failure to use reasonable care, with harm to another party occurring as a result

Strict Liability Torts

Liability without fault

Preponderance of Evidence

More likely than not

Plaintiff must prove their case by

Preponderance of evidence

Plaintiff who wins a tort case usually recovers

Compensatory damages

Direct damages

lost wages

Indirect damages

Emotional distress

Particularly bad behavior may result in an award of

Punitive Damages

Categories of intentional torts

Personal and private property rights

Battery

Intentional and harmful touching of another without the person’s consent

Transferred Intent

Ex: Punched the wrong person

Harmful Contact

Produces bodily injury

Assault

Causes reasonable apprehension of imminent battery in another person’s mind

Infliction of emotional distress

Wrongdoer’s conduct must be outrageous and intentional. reasonable person test

False Imprisonment

Intentional confinement of another for an appreciable time without their consent. Confine.ment must be complete

Defamation

unprivileged publication of false and defamatory statements concerning another person

Libel

Written defamation. Damages are presumed.

Slander

Oral defamation. Not actionable without proof of special damages.

Slander per se

Plaintiff has committed a crime involving moral turpitude, has a loathsome disease, is professionally incompetent or guilty of professional misconduct

Defamation defenses

truth, humor, satire, opinions, direct messages, privilege

Absolute privilege

includes participants in judicial proceedings or legislative proceedings, certain executive officials in the course of their duties

Conditional privilege

protects statements made to protect or further legitimate interests of another and statements made to promote common interest

Fair comment

privilege that allows media to publish opinions about public figures without fear or libel suit

Actual malice

statement was made knowing it was false and with reckless disregard for the truth

Invasion of privacy

intrusion on solitude or seclusion, public disclosure of private facts, false light publicity, commercial appropriation of name or likeness

Misuse of Legal Proceedings

protect people against harm that can result from wrongfully instituted legal proceedings

Malicious prosecution

Wrongful institution of criminal proceedings

Wrongful use of civil proceedings

wrongfully instituted civil suits

Abuse of process

liability on those who initiate legal proceedings for a purpose other than the one for which the proceedings were designed

Deceit

Fraud, available to victims of knowing or intentional misrepresentations.

Interference with property rights

trespass to land, private nuisance, and conversion

Trespass to land

any unauthorized or unprivileged intentional intrusion upon another’s real property

Private Nuisance

Some interference with plaintiff’s use and enjoyment of land

Examples of Private Nuisance

odors, noise, smoke, light, and vibration

Conversion

Defendants intentional exercise of dominion or control over plaintiff’s personal property without plaintiff’s consent

Examples of conversion

acquisition, removal, transfer to another, withholding possession, destruction or alteration

Negligence

was there duty owed and breached

Negligence Per Se

Negligent because it violates a statute

What is necessary to prevail on a negligence claim

Actual and Proximate cause

Actual Cause (Injury)

The ‘but for’ test

Proximate Cause (Injury)

Foreseeability - ‘Natural and Probable Consequences’ test

Negligence Defenses

Contributory Negligence, Assumption of Risk

Contributory Negligence

Plaintiff’s failure to exercise reasonable care for their own safety

Comparative Negligence

Court determines relative negligence of parties and awards damages in proportion to each party’s degree of negligence.

Assumption of Risk

Plaintiff’s voluntary consent to danger

Exculpatory Clause

Plaintiff expressly assumes risk of injury by contract term that attempts to relieve defendant of a duty of care

Contract

Legally enforceable promise or set of promises

Is Contract Law Ancient or Modern

Ancient

What type of law is Contract law?

Private law

Do contracts have to be in writing to be enforceable?

No, oral contracts are enforceable. Unless otherwise stated in law

Basic Elements of a Contract

Voluntary promises, offer and acceptance, legal consideration, parties must have capacity, and must be made for a lawful purpose.

Bilateral Contracts

Two parties make promises to each other

Unilateral Contracts

One party makes a promise

Valid Contract

Binding and enforceable agreement

Voidable contract

agreement otherwise binding, but due to circumstances surrounding execution (mistake or lack of capacity) may be rejected

Void Contract

Agreement without legal effect because terms or subject are prohibited by law

Express Contract

Agreement of parties manifested by specific words

Implied Contract

Agreement not shown by words, but by act and conduct of parties

UCC stands for

Uniform Commercial Code

UCC

Statutory law consisting of 9 articles in every state

Article 2

Applies to contracts for the sale of goods. Goods are tangible, movable personal property

Words commonly found in UCC

Reasonable, commercially reasonable, and seasonably

Definition of Merchant under the UCC

An agent or a company that regularly deals in the kind of goods being sold, or pretends to have some special knowledge about the goods

Non-contract Obligations

Quasi-Contract theory, Promissory Estoppel

Quasi-Contracts

equitable contracts created by courts (contracts implied by law)

Unjust Enrichment

One party enjoys a benefit they should not be, Party A does not get paid for providing a benefit to Party B

Promissory Estoppel

Equitable remedy created by courts to protect reliance. Enacted when one party relies on upon another party’s good faith promise to their detriment.

Offer

Promise conditional on an act, return promise, or forbearance,

Requirements for an Offer

parties to a contract must have intent to enter binding agreements, terms must be definite, and the offer must be communicated to the offeree by the offeror.

Objective theory of contracts

Would a reasonable person judge the offeror’s words and acts in the context to signify intent to contract?

Present intent

intent to meet contract obligations upon acceptance

Definiteness of Terms

Offer cannot be vague about major points or leave out important aspects

Communication of Terms

Unless an offer is communicated, there can be no acceptance, and no agreement

Advertisements

Are generally not considered contracts but rather an offer to negotiate

Advertisements for Lost property

Are considered Unilateral contracts; to receive reward, party must preform requested act

Advertisements for bids

Bids are considered an invitation to offer

Actual or reasonable notice

Modern trend is offerees are only bound by terms with actual or reasonable notice. Ex: fine print

Termination of Offers

an offer may be terminated by revocation if offer is revoked and communicated to offeree before the offer is accepted

Terms of Offer

Offeror has the power to determine terms and conditions under which they are bound by contract. including terms in the offer regarding its effective life

Lapse of Time

Offers that fail to provide a specific time for acceptance are valid for a reasonable amount of time depending on circumstances and communication medium

Exceptions to revocation

Offers for unilateral contracts, promissory estoppel, firm offers for sale of goods only, option

Option

a separate contract in which an offeror agrees not to revoke the offer for a stated time in exchange for some valuable consideration

Rejection

An offeree expressly rejects offer or impliedly rejects the offer by making a counteroffer

Examples of Rejection

Rejection, lapse of time, death or disability of either party, destruction of subject matter, or intervening illegality

Acceptance

manifestation of assent to the terms made by the offeree in the manner invited or required by the offer

Requirements for acceptance

must be by clear expression by offeree of intent to be bound by terms of offer and communicated to offeror

Factors courts analyze when deciding acceptance

whether 1) offeree intended to enter the contract 2) offeree accepted on the terms proposed by offeror and 3) offeree communicated acceptance to offeror

Browsewrap

a website agreement that automatically assumes users have accepted agreement if they use the website

Mirror Image

When you say “yes” to an offer you are accepting the contract as is with no modifcations

Mailbox Rule

Acceptance is effective upon dispatch

Silence as acceptance

the general rule is that silence is not an acceptance

Consideration

Legally recognized value bargained for and given in exchange for an act or promise

Exchanges that fail to meet consideration requirements

Illusory promises, preexisting duties, and past consideration

Illusory Promise

If a promisee’s promise really does not bind them to do or refrain from doing a thing, their promise does not count as consideration

Exclusive dealing contracts

imposes rights and duties on both distributor and manufacturer to use their best efforts to sell and supply the goods

Preexisting Duties

Agreeing to preform a preexisting duty is not consideration. Includes public duties (obeying the law) and preexisting contractural duties