Lepak Legal Studies Final

What are examples of ownership rights?

-use

-possession

-exclusion

-disposal/transfer

-encumber

-profit

-destruction

What does encumber mean?

granting someone else rights to your stuff like a lease or mortgage

What is intellectual property?

ownership of ideas (inventions, art, recipes, formulas)

How can you protect your intellectual property?

-patens

-copyright

-trademark

-trade secrets

What is a patent?

property rights granted by the government to exclude all others from making, using, selling or importing anything that uses or incorporates the patented invention (usually described as a new, useful and non-obvious method or process, described in enough detail that it can be reduced to practice).

What are notable things considering patents?

-ask is it novel? or is it described in enough detail?

-control over an idea for 20 years

-this could inventions or medicines

What is a copyright?

the right to control reproduction and distribution of original works of authorship fixed in tangible forms of expression. Every original work is automatically copyrighted under US law upon creation, whether or not registered (although there can be significant benefits to registration).

What are notable things considering copyrights?

-lasts for the creators lifespan + 70 years

-this includes songs, artwork, and books

What is a trademark?

brand and product names, graphic logos, slogans, taglines, and other indicators of origin of the goods or services in question. In the Internet era, trademarks and domain names are closely interrelated, and both can be or become extremely valuable.

(From in class reading) What are trade secrets?

everything else that would be considered confidential or proprietary. Trade secrets in the US are governed by state law, which can vary, but in general, can include anything from clever ways of solving technical or business problems to formulas, algorithms, internal pricing or financial data, or just about any other valuable business information, provided that it's treated as confidential by the company.

What are stock purchase agreements?

founders require them to assign all IP rights they may have already created or acquired (for example, code written or domain names purchased by the individual) to the corporation in exchange for their shares of founders' stock.

(From in class reading) What are IP Assignment Agreements?

with founders, employees and consultants clarify ownership of all IP created going forward (the work-for-hire concept described above) and cover many other bases related to preservation of IP rights going forward. These often go by a long-winded title such as "Confidential Information and Invention Assignment Agreement."

What is private law?

Law that involves suits between private individuals or groups.

What is public law?

Law that involves suits between private individuals or groups AND THEIR GOVERNMENT

What is civil law?

The body of laws that govern the rights and responsibilities either between persons or between persons and their government.

What is criminal law?

A classification of law involving the rights and responsibilities an individual has with respect to the public as a whole.

What are primary sources of law?

-Constitution (state and country) = Supreme Law

-Statutory Law

-Case Law/Common Law

-Regulations

-Executive Order

-Treaties

What is Case Law/Common Law?

The collection of legal interpretations made by judges. They are considered to be law unless otherwise revoked by a statutory law.

What is statutory law?

The assortment of rules and regulations put forth by legislatures.

What kind of law does stare decis apply?

Case Law

What is stare decis?

-sets a precedent

-means 'standing on prior decisions'

What is administrative law?

The collection of rules and decisions made by administrative agencies to fill in particular details missing from constitutions and statutes.

What are secondary sources of law?

-law reviews/bar journals

-treatises

-articles/blogs

What is natural law?

A school of jurisprudence that recognizes the existence of higher law, or law that is morally superior to human laws.

What is precedent?

A tool used by judges to make rulings on cases on the basis of key similarities to previous cases.

What is judicial review?

The power of a court to review legislative and executive actions, such as a law or an official act of a government employee or agent, to determine whether they are constitutional.

What case established judicial review?

Marbury v. Madison

What is the flow of authority within courts?

1. Begins in District Court (Trial Court/Fact Finder)

2. Moves to Appeals/Circuit Court

3. Last resort is the Supreme Court

What is mandatory/binding authority?

If the supreme court says so no other court can rule differently

What is persuasive authority?

courts can take equal/lower court rulings into account but not required

What is the employment at-will doctrine?

The doctrine which provides that either the employer or the employee can terminate the employment relationship at any time.

Concerning at-will employment, when can an implied contract arise?

1. the employment handbook contain the steps for progressive discipline leading to discharge

2. the handbook makes no mention of the words employment at will

3. the employee relies on that handbook

What is the Civil Rights Acts of 1964 CRA Title VII?

Protects employees against discrimination based on race, color religion, national origin, and sex; also prohibits harassment based on the same protected categories

What is the pregnancy discrimination Act of 1987 (PDA)?

Amended Title VII of the CRA to expand the definition of sex discrimination to include discrimination based on pregnancy

What is the Age Discrimination in Employment Act of 1967 (ADEA)?

Prohibits employers from refusing to hire, discharging, or discriminating in terms and conditions of employment on the basis of an employee's or applicant's being age 40 or older

What is the American's with Disabilities Act (ADA)?

Prohibits discrimination against employees and job applicants with disabilities

What is the Equal Pay Act of 1963 (EPA)?

Prohibits an employer from paying workers of one gender less than the wages paid to employees of another gender for work that requires equal, effort, and responsibility

What is a bilateral agreement?

a promise in exchange for a promise

What is a unilateral agreement?

-a promise for an act

-requires a performance by the offeree to form a contract

What is a formal contract?

contracts created in a specific manner

What are the four types of formal contracts?

1. contracts under seal

2. recognizances

3. letters of credit

4. negotiable instruments

What is an informal contract?

simple contracts that require no formalities in making them; payment can be demanded by the payee at any time

What is an express contract?

A contract in which all the terms are clearly set forth in either written or spoken words.

What is an implied contract?

arises from the conduct of the parties rather than their words

What is an executed contract?

a contract whose terms have been fully performed

What is an executory contract?

a contract in which not all duties have been performed

What is a valid contract?

a contract that has all the legal elements of a contract and can thus be enforced

What is a void contract?

not a contract because either its object is illegal or it has a serious defect

What is an unenforceable contract?

a valid contract that can't be enforced because some law prohibits it

What is a voidable contract?

a contract in which one or both parties has the ability to either withdraw from or enforce the contract

What is the plain-meaning rule?

A rule of interpretation which states that words in a contract should be given their ordinary meaning.

What is condition precedent?

no need to perform UNTIL (creates obligation)

What is condition subsequent?

must perform UNTIL (ends obligation)

What ways can you be discharged from a contract?

-condition being met or unmet

-performance

-material breach

-mutual agreement

-operation of law

How can you be discharged by performance?

-complete performance

-substantial performance

What is complete performance?

Contract performance that occurs when all aspects of the parties' duties under the contract are carried out perfectly.

What is substantial performance?

Contract performance that occurs when:

1. nearly all the terms of the agreement have been met

2. there has been an honest effort to complete all the terms

3. there has been no willful departure from the terms of the agreement.

How can you be discharged from a contract for material breach?

A substantial breach of a significant term or terms of a contract that excuses the nonbreaching party from further performance under the contract and gives the nonbreaching party the right to recover damages.

How can you be discharged from a contract for mutual agreement?

-mutual recession

-substituted contract

-accord and satisfaction

-novation

What is mutual recession?

parties mutually agree to discharge each other from the contract

What is substituted contract?

parties mutually agree to discharge each other from the contract by substituting a new agreement

What is accord and satisfaction?

parties agree that one party will perform his or her duty differently from the performance specified in the original agreement; after the new duty is performed, the party's duty under the original contract becomes discharged

What is novation?

original parties and a third party all agree that the third party will replace one of the original parties and the original party will be discharged

How can a contract be discharged by law?

-alteration of the contract

-bankruptcy

-tolling of the statute of limitations

-impossibility of performance

-commercial impracticability

How can a contract be discharged by alteration of the contract?

if one person changed the contract without the other party knowing, the innocent party can be discharged

How can a contract be discharged by tolling of statute of limitations?

The tolling the statute of limitations does not technically discharge a party's obligations under a contract. However, once the statute of limitations has tolled, neither party can any longer sue the other party for breach, so, for all practical purposes, the parties are no longer bound to perform

How can a contract be discharged through impossibility of performance?

objective impossibility - In a contract, a situation in which it is in fact not possible to lawfully carry out one's contractual obligations.

subjective impossibility - In a contract, a situation in which it would be very difficult for a party to carry out his or her contractual obligations.

How can a contract be discharged through commercial impracticability?

arises when because of an unforeseeable event, one party would incur unreasonable expense, injury, or loss if that party were forced to carry out the terms of the agreement.

What must the party claiming discharge by impracticability prove?

1. that an event occurred whose nonoccurrence was a basic assumption of the contract

2. that there is commercial impracticability of continued performance

3. that the party claiming discharge did not expressly or implied agree to performance in spite of impracticability that would otherwise justify nonperformance

What are the elements of a contract?

agreement, consideration, capacity, legality

What are the 3 components of an offer?

-serious intent to be bound

-communication to offeree

-reasonably definite terms

How can an offer be terminated?

-revocation

-rejection

-counteroffer

-death or incapacity

-illegality

-lapse of time

What is necessary for a valid acceptance of an offer?

-Manifestation of intent to be bound (performance or implied)

-Acceptance of definite and certain terms (Mirror image rule)

-Communication to offeror (mailbox rule)

-Legality - can not enter into a contract with an illegal purpose

-Capacity - ability to enter into a contract

What are defenses to enforcement of a contract?

-Mistake - must be mutual or bilateral

-Undue influence - dementia contract

-Duress - gun to head to sign contract - fear of imminent harm

-Statute of Frauds

-Impracticability

-misrepresentation

What is statute of frauds?

a statute that lists the types of contracts that must be in writing to be enforceable

What types of contracts must be in writing? What acronym helps with this?

MYLEGS

-marriage

-a contract >1 year

-land

-executor

-goods > $500

-surety

What is surety?

The party that guarantees fulfillment of the obligor's promise.

What is consideration?

The bargained-for exchange; what each party gets in exchange for his or her promise under a contract.

What are the types of consideration?

-benefit to promisee

-detriment to promisor

-promise to do something

-promise to refrain from doing something

What are the exceptions to consideration?

-promissory estoppel

-contract under seal

What is promisory estoppel?

The legal enforcement of an otherwise unenforceable contract due to a party's detrimental reliance on the contract.

What circumstances must be met for promissory estoppel?

1. one party makes a promise and either knows or should know that the other party will reasonably rely on it

2. the other party does reasonably rely on promise

3. the only way to avoid injustice is to enforce the promise

What is another word for promissory estoppel?

Detrimental reliance

What is adequacy of consideration?

as long as each party is giving something up, it's not the court's concern if the contract is unfair or unbalanced

What is an illusory promise?

A situation in which a party appears to commit to something but really has not committed to anything. It is not a promise and thus not consideration.

What constitutes legally sufficient value?

-a thing

-new obligation

-forbearance

What is capacity?

The legal ability to enter into a binding contract.

What can make someone not have capacity?

-minors

-intoxication

-incompetence

What is the legal principle related to minors entering contracts?

As a general rule, any contract entered into by a minor is voidable by the minor until the minor reaches the age of majority or a reasonable time thereafter

What are the components that define an implied contract discussed in class?

1. provide a product/service

2. not a volunteer (expect payment)

3. other party had opportunity to reject product/service

What qualifies someone as incapacitated due to incompetence?

-if adjudicated incompetence -> voided

-if not adjudicated -> voidable

-if they have delusions but can understand they are entering a contract and have obligations -> valid

What are the exceptions to intoxication being deemed incapacitated?

1. If the intoxication just causes the person to exercise poor judgement, the contract is not voidable unless the other party unfairly capitalized on the impaired judgement

2. When the intoxicated person becomes sober, the contract can be ratified or disaffirmed; however, the courts will fairly liberally interpret behavior that seems like ratifying the contract once the intoxicated person becomes sober

When is intoxication a reason to deem someone incapacitated and the contract voidable?

if the other person had reason to know the intoxication rendered the person unable to understand the nature and consequences of the transaction or unable to act in a reasonable manner in relation to the transaction

What were the factors of intoxication relating to capacity discussed in class?

-voidable until sober

-means you don't know what's going on due to substance

-void if habitual drunkard

What is a habitual drunkard?

Someone who drinks so much alcohol every day they are in a constant state of drunkenness

What is caveat emptor?

'buyer beware'

ex: when buying home, youre in charge of inspecting a home and finding any defects

What factors are important in misrepresentation as a defense to enforcement?

-if it's innocent -> recission

-negligent - damages and/or recission

-fraudulent -> recission, damages, punitive damages, criminal charges

What constitutes fraudulent misrepresentation?

-knowledge of falsity

-material misstatement of fact

-intent to deceive

-reasonably relied on

What is a unilateral mistake?

A mistake that is the result of an error by one party about a material fact, that is, a fact that is important in the context of the particular contract.

What is a mutual mistake?

The result of an error by both parties about a material fact, i.e., one that is important in the context of a particular contract.