331 Exam 2 Terms

Bilateral Contract

Mutual promises by each party to do some future act; exchange of promises

Unilateral Contracts

when one party makes a promise in exchange for another person performing an action; exchange of promise for an act - involves subsequent contingent action

offer

proposal to make a contract. it is a promise conditional on a return promise or forbearance given by the offerce.

terms of the offer must be __**definite and unambigiuous**__

conditions for legally effective offer

definite/unambigious proposal

made with the intent to contract

communicated to the offeree

Offer termination

revocation by offeror (made before acceptance)

lapse of time

subsequent illegality

destruction of the subject matter

death

rejection

counteroffer

option contract

an offeror is bound to hold an offer open for a period of time. consideration is necessary in return for the promiser to hold the offer open

acceptance

agreement of the offeree to be bound by the terms of the offer

Conditions for Acceptance

unconditional consent

open offer by the offeree only

communicated to the offeror

act of manifestation of intention to contract

act of manifestation of intention to contract

silence or inaction

promise

act or forbearance of an act

consideration

That which is bargained for and given in exchange for another’s promise, usually consisting of the performance of an act or promise to do an act, or to refrain from doing an act or to give up a right.

“Is it enough that something is promised, done, forbone or suffered by the party to which the promise is made”

for one dollar and other good and valuable considerations the paties herby agreee

Meeting of the minds

each party fully understands their commitment

Duress

coercion, loss of free will, resulting in a consent to be bound by a contract

restitution

equitable remedy, restoring of property or a right to a person who has been unjustly deprived of it

Infliction of emotional distress

every person has a right to not be subjected to severe emotional distress caused by someone elses conduct.

tortfeasor’s conduct intentionally and recklessly subjects someone to emotional distress

Invasion of privacy

**intrusion** upon solitude

**public disclosure** of private facts

painting plaintiff in **false light**

**appropriation** of likeness for defendant’s advantage

negligence

unintentional failure to live up to the community’s idea of reasonable care, not based on moral fault

Common Law Negligence Claim

1. Did D owe a duty to P?
2. Did P breach that duty?
3. Was there an injury to P?
4. legal causation between breach and injury?

Negligence Per Se Claim

where the action causing the plaintiff’s injury involved violation of a statute concerned with public safety.

Only jury issues are then proximate cause and damagnes

Proximate Cause

something that produces a result, without which the result could not have occurred. Any original event that, in natural unbroken sequence, produces a particular foreseeable result, without which the result would not have occurred.

malpractice

professional negligence

medical malpractice

allegation that a physician has breached a contract or been professional negligent in diagnosing or treating a patient

Causation in Fact/ But for test

causal connection does exist between the defendant act and plaintiffs damage

foreseeability

an individual is responsible in negligence only for the consequences that are reasonable foreseeable. defendant is not liable for causing injuries so remotely linked to alleged negligent conduct

contributory negligence

a defense when injured person proximately contributed to their injuries by their own negligence. Based on the idea that the plaintiff is held ot the same standard of care as defendant.

Assumption of Risk

defense for negligence when plaintiff had knowledge of the risk and made under free choice to expose themself to it

comparative negligence

a negligent plaintiff may be able to recover a portion of the cost of an injury; comparing the negligence of the plaintiff with that of the defendant; divides the damages between the parties by reducing the plaintiff’s damages in proportion to the extent of that person’s contributory fault. 

standard of care

ordinary care such as a resonably prudent person would exercise under the circumstances

invitee

either a public invitee or a business visitor (business invitee). A public invitee is a member of the public who enters land for the purpose for which the land is held open to the public (ex.person enters bank for meeting). A business visitor enters land for a purpose directly or indirectly connected with business dealings with the possessor of the land (ex. plumber).

tresspasser

one who enters and remains on the land of another without the possessor’s express or implied consent

Duty of Care to Trespassers

possessors of land are not liable to trespassers for physical harm caused by the owners’ failure either to exercise reasonable care to make their land safe for the trespasser’s reception or to carry on the owners’ activities so as not to endanger them. The only duty that is owed to a trespasser by an occupier of land is to refrain from willful or wanton misconduct.

Possible expectation if child whose presence is foreseeable or adult who habitually intrudes on a limited area 

Licensee

One who enters or remains on land by virtue of the possessor’s implied or express consent (ex. Social guests, police)

Tort

wrongful act, not involving a breach of an agreement, for which a __**civil**__ action may be maintained

civil wrongs

the failure to exercise reasonable care

intentional interference with one’s person, reputation, or property

liability without fault

intentional torts

willful misconduct or intentional wrongdoing

contributory negligence

failure of an injured party to act prudently, considered to be a contributory factor in the injury suffered, and sometimes reducing the amount recovered from the defendant

assault

reasonable fear of an intentional, imminent, unconsented, harmful or offensive touching by another person

battery

an unpermitted, unprivileged, intentional contact with another’s person; includes contact that is actually harmful, as well as conduct that is merely offensive

ejectment

when a trespasser secures full possession of the land and the owner brings an action to regain possession as well as damages for unlawful retention

replevin

an action used to recover possession of personal property wrongfully taken

compensatory damages

Damages awarded to compensate the plaintiff for actual monetary losses resulting from the defendant’s conduct

objective is to put plaintiff in the same financial position as existed before the tort

rule of mitigation or avoidable-harm doctrine

prevents recovery for damages that could have been foreseen and avoided by reasonable effort without risk, expense, or humiliation

an injured person must make a reasonable effort to avoid or minimize damages

general damages

natural and necessary result of the wrongful act or omission and can be expected to accompany the injury

ex. battery: mental anguish, loss of enjoyment of life, etc

benefit rule

defendant’s misconduct causes damages but also operates to confer some benefit on the plaintiff, then the plaintiff’s damage claim may be dismissed by the amount of benefit they received

special damages

awarded for injuries that arise from special circumstances of the wrong

medical or hospital bills

liquidated damages

when parties agree in advance about compensation to be paid for loss in event of a breach, a liquidated damage is this amount

* Damages in case of breach are uncertain or difficult to compute
* Parties have agreed in advance to liquidate on the damages
* The amount agreed on is reasonable and not disproportionate to the probable loss

nominal damages

awarded when there is a breach of an agreement or an invasion of a right but no evidence of specific harm. Usually 1 dollar, no compensation to be had

to prove the plaintiff is “right”

ex. someone trespasses but does no damage

punitive damages

awarded to plaintiff beyond the compensatory amount; additional damages for a civil wrong and not a substitute for criminal punishment

Goal is a punishment to tortfesor

injunction

type of equitable remedy in the form of a judicial order that directs defendant to act or refrain from act in a certain way

mandatory

prohibitory

permanent injunction

issued after a full opportunity to present evidence

preliminary injunction

granted as an emergency measure before a full hearing, done with notice to defendant

temporary restraining order

granted without notice to defendant, trial judge has only heard plaintiff’s side because of potential for abuse of the plaintiff.

equitable remedy

something like declaratory judgment, or an injunction

equitable doctrine of laches

used in some circumstances to deny a plaintiff equitable remedy if the delay is unreasonable and has unfairly prejudiced the defendant

Detrimental Reliance

when a party relies on a bid or proposal by another to their own detriment

* defendant’s mistake cannot be so __**obvious**__
* a legal principle is used to force one party to perfor its obligations on the grounds that __**nonperformance**__ would leave the other party in a prejudicial position

Common Law negligence damages

Damages are appropriate if a __r____**easonably prudent person**__ would have foreseen or could have foreseen that their actions would likely injure another person

burden of evidence in a civil trial

on preponderance of the evidence

Reasons a contract may be null and void

illegality

someone was not in a good mental state (intoxiated)

duress

fundamental errors - mistake in salary or something