BUS Law 2 Correction

Strict Liability

Strict Liability

liability without fault, you do not need to prove fault of the wrongdoer it is what it is.

Animals

falls under strict liability for injuries caused by wild or domesticated animals are one free bite. Pitbulls do not fall under one free bite.

Ultra hazardous / Abnormally Dangerous Materials

falls under strict liability like dynamite, fireworks, chemicals, admittance of toxic chemicals in air/water that causes harm to others

Rylands v Fletcher Case

issue falls under strict liability with dangerous materials (Owner of abandoned mine used dynamite to destroy the mine, sunk neighbor’s land)

Product Liability

• A defective product being placed in the stream of commerce causing damages - user/consumer/bystander can bring forth lawsuit against seller/manufacturer/retailer

• Can be design, manufacturing, warning, or label defect

Professional

one who deals in goods of a kind

Wilson Sporting Goods v. Hickcox

• I - Product liability - design defect

• R - A defective product has been placed in the stream of commerce causing damages to the user, consumer, they can bring forth a lawsuit against the manufacturer/seller/retailer

• A - the good was represented as something it was not and there was a clear design defect 

• C - ruled in favor of Hickcox - there was a defect in the product

Fraud

intentional misrepresentation of fact known to be false by wrongdoer for purposes of action/inaction and in fact induces action/inaction desired

Revell vs Guido

Septic water tanks on a potential property were old, but homeowners were told by real estate agent that they were new, so they bought the property. Customers were defrauded.

I - fraud: whether defendant is liable for cause of action for fraud

R - the intentional misrepresentation of fact known to be false by the wrongdoer for the purpose of inducing inaction/action and actually does induce said action/inaction

A - Guido denied any environmental knowledge but was aware the system needed to be replaced and lied about the level it was replaced to.

C - found fraud and awarded damages

Negligence

4 criteria must be met to sue duty, breach, causation, damages

Duty

one must act as a reasonable, prudent person under similar instances; we all owe a duty to another

Professionals

falls under duty and are within the community

Specialist

falls under duty and are within the nation

Landlord / Tenant

falls under duty and warn and make safe known dangerous instrumentalities

Doctor / Patient

falls under duty and must act as a fiduciary and hold confidence

Parent / child

falls under duty and must provide basic necessities (religion is an excuse)

Breach

a failure to act when there is a duty to act

Causation Foreseeability

foreseeable cause resulted in plaintiff’s injury

Causation Unforeseeability

unforeseeable cause resulted in plaintiff’s injury

Damages

plaintiff must establish they have been injured such that it has caused them monetary, compensatory, medical, etc.

Assumption of Risk

fall under defense to negligence where one voluntarily undertakes/assumes risk involved

Taylor v Baseball club

I- assumption of risk 

R- where on votionally undertakes the risk involved

A- avid sports fan knew the potential dangerousness of where her seats were located there is a risk of a fly ball or loose bat

C- Found in favor of BB club 

Comparative Negligence

falls under defense to negligence where comparing negligence of both parties and apportioning the damages 

Contributory Negligence

falls under defense to negligence where plaintiff contributes to their own negligence in the jurisdiction of the crime

Palsgraf v Long Island

• Facts: an individual was being assisted onto a train when they were late. Individual had a package of dynamite that dropped and exploded. Mrs. Palsgraf was injured by a falling clock tower on platform and she brought it to court. Court ruled it as an unforeseeable event. Ruled in favor of Long Island RR - no valid cause of action for negligence (no causation). Long Island RR couldn’t have known dynamite was in the unmarked, covered box when they pulled man running late onto train

I - valid cause of action for negligence on behalf of Long Island RR?

R - injury must be a foreseeable result of breach of duty 

A - package was not marked and employees could not foresee what would occur

C - ruled in favor of Long Island RR as a foreseeable event (not enough evidence for negligence; no causation)

Defamation

false defamatory statement of/concerning plaintiff communicated to a 3rd party

Slander

falls under defamation but not permanent

Libel

falls under defamation it is permanent statements (video/audio recordings, letters, billboards, social media, professor/student in class making statements that are recorded) 

Blake v Giustibelli

Divorcing couple gets backs together and doesn’t want to pay divorce lawyer, the couple posts libel, cruel statements online, lawyer wins lots of damage claims

Issue goes to defamation: successful

Issue - defamation? Libel

Rule - false defamatory statement of and concerning plaintiff communicated to a 3rd party

Analysis - lawyer was defamed by client and stating falsified documents, excessive bill

Court Conclusion - affirmed court and found in favor of lawyer that client was making false statements

McKee v Laurion

Dr. insults patient (surprised he’s not dead, disrobes patient in front of family), son of the patient insults Dr online, Dr sues for defamation but not successful because the statements the son posted online there were true

Issue goes to defamation: not successful

Issue - Defamation (Libel)

Rule - false defamatory statement of and concerning plaintiff communicated to a 3rd party

Analysis - statements made were true, doctor even affirmed

Conclusion - dismissed; no defamatory statements

Defenses to defamation

there are 3 which are consent, truth, privilege

Privacy Torts

• False Light

• Intrusion into seclusion or solitude

• Commerical appropriation

• Public Disclosure of private facts

Contracts

a valid one must have all (offer, acceptance, consideration)

Offer

the outward manifestation of present contractual intent (PKI) to be bound by certain and definite terms communicated to the offeree

Offeror

master of offer, one who present offer

Offeree

person to whom the offer is made

Outward manifestation

Expressed desire/means of outwardly communicating wanting to make an offer

Contractual intent (PKI)

Genuine desire for contract (no alc, sarcasm)

Certain and Definite Terms

• Q uantity term

• T ime for performance

• I nterested parties

• P rice term

• S ubject matter

Ways to Destroy and Offer

• Mnemonic: Red Rover Does Lapse During School

• R - Revocation 

  • only the offeror

  • Ex: trying to sell house, offeree needs to decide before Friday at noon, you can revoke anytime before then

• R - Rejection

  • only the offeree

• then look for counteroffers - alternating and changing the terms of the offer

• Ex: offeree can say no they don’t want house offer, or they can counteroffer to buy it at a cheaper price

• D - Destruction of subject matter

  • Ex: trying to sell horse, horse dies before acceptance

• L - Lapse of time

• D - Death of a party

• S - InSanity

Ways to keep and offer open

option contract, firm offer rule fall under this

Option Contract

an option contract keeps an offer open for a stated period of time and is supported by consideration

Firm Offer Rule

an offer is made by a merchant to keep an offer open not to exceed 3 months or 90 days and no consideration is required

(only applies to UCC (goods))

Lucy v. Zehmer

• buyer interested in buying a farm for 10 years; was familiar with seller. Met at a diner and agreed upon $50k. Started drinking and made a contract that night. At time of purchase, owner refused to release contract stating that they were intoxicated at time of negotiation

  • I - present contractual intent

  • R - outward manifestation of present contractual intent bound by certain and definite terms communicated to the offeree

  • A - even if it was thought to be a joke, Zehmer’s actions and words made the offer out to be serious

  • C - ruled in favor of Lucy - valid contract

Acceptance

Unqualified unequivocal assent to the terms of an offer

Mirror Image Rule

falls under acceptance but there must not be any variances or changes to the terms of the offer

Grumbling acceptance

falls under acceptance but look for words like “i wished, had hoped/desired for a better deal…but okay” all are deemed valid word of an acceptance

Mailbox rule

falls under acceptance

Acceptance is valid upon dispatch

Rejection is valid upon receipt 

Consideration

Bargained for exchange of a legal detriment

Past Consideration

• (no consideration)

• Look to past-tense verbiage

• Already doing something, nothing has changed

• Giving up something NEW

Pre-existing duty rule

no consideration - they already had a duty to do what they did

Promissory estoppel

When the promisor makes a promise to the promisee and the promisee detrimentally relies on the promise made, an undue hardship would result

Implied Contracts

past recurring contracts, implicit by very nature

Expressed Contracts

verbal or written

Unilateral Contracts

promise in exchange for an act

Bilateral Contracts

promise in exchange for a promise (majority contracts)

Quasi Contracts

fictitious contract created by the court to prevent an unjust enrichment

Executed contracts

fully performed on both sides

Executory Contracts

only been performed on one side

Capacity

falls under defense to contracts with minors/intoxication/mental state of mind

Mistake

falls under defense of contracts

Unilateral

falls under defense to contracts
made by one party

• Party can argue defense if the nonmistaken party either knew or should have known of the mistake 

• Scriveners error - made when one is writing something down incorrectly

Bilateral

falls under defense of contracts

made by both parties

Mistaken according to underlying terms of contract; no meeting of the minds

Fraud

intentional misrepresentation of fact

Undue Influence

contract is entered into but with a vulnerable party (defendant)

Duress

through violence or threat to entice another to do something they would not otherwise do

Unconscionable contracts

heavily favored towards a party

Statues of Fraud

• 5 contracts must be in writing (text, email, paper, online) in order for them to be deemed valid 

• Any verbal contracts under these topics isn’t valid

MR DOG

• Marriage

• Realty

  • Realty: affixed to the ground

  • Verbal handshake deal for house is not see through, needs to be in writing

• answering Debt of another

• Contracts (K) that (by their very terms) can't be completed in One year

• Goods > $500

Raffels v Wichellhaus

• Shipper of goods from Bombay, India to California. 3 vessels that ship out throughout the month (1st, 15th, 30th). Customer + shipper engage in a contract (K) on 2/11 with the assumption it will go out on the 15th but that's impossible. Both are mutually mistaken (no meeting of minds)

• MUTUAL BILATERAL MISTAKE

Rebuttal

What takes out of the statute of frauds and/or otherwise invalidates the Statute of frauds as a defense

S (applied to ALL) -  signed writing *

P- (realty) - part performance (partially or fully perform)

M (debt) - main purpose doctrine (must benefit the answering party - person being sued)

F (1 yr contracts)- full performance, contract was fully performed

R (goods) - paid in half or full

Conditions

where you understand and know by whose parties the performance is due

Impossibility

impossible for the party to perform

Commercial impracticability

would be commercially impractical for party to do something other than what they had already done

Waiver

relinquishment of a known right that you are entitled to

Modification

an alteration to the contract post-contracting

Novation

a third party (someone outside the contracting party) steps in the shoes of one of the original contracting parties, thereby alleviating the party from liability (accountability) and all three consent

Need all to be valid
Modification

Waiver

Assignment 

Delegation

Rescission

Mutually Resending a contract between both parties

Frustration of Purpose

Underlying terms of the contract have been frustrated

Krell v Henry

• Issue: frustration of purpose

• R: what they agreed to didn’t/couldn’t happen, the underlying terms of the K was frustrated

• A: both parties knew of the intended purpose of the K, however, “act of God”/couldn’t happen bc of illness

• C: court found K could be voided/discharged/canceled/. Found a valid excuse

Jacob and Youngs v Kent

J and Y construction work and did most of the full build

There was an agreement in the body it said that when it comes to the plumbing you must use redding piping 

There was an architect involved in assisting the homeowner and was on premises a lot 

J and Y couldnt get the redding piping when it was time 

It was said they put the same piping if not better 

They were almost fully paid besides 5 k 

Construction company sues owner for breach of contract 

Argued they didn't used the right piping 

J and Y argued they used a good quality and they substantially performed and need to be paid 

Risk of Loss

shipping terms (FOB, FAS, CIF)

FOB

free on board common carrier -> the second the seller puts it on the ship, it belongs to the  buyer (if something happens during shipping, seller has no liability)

FAS

free alongside common carrier -> once the goods are alongside the carrier, it is the buyer’s liability

CIF

• cost of insurance and freight

  Whoever takes out I & F costs bears the risk of loss

Sale on approval

buyer approves the good 

Uniform Commercial Code

highlights the sale of goods, realty, etc. article 2 of UCC states certain rules that provide the court to be more lenient toward contracts. Applicable only toward goods

Intended

falls under 3rd party beneficiaries intended to benefit another; vesting rights

Incidental

falls under 3rd party beneficiaries no vesting rights (NO Stake In the Claim)

Assignments

you can transfer/assign a right that you’re entitled to

Hamer v Sideway

Goes to assignments (consideration too) -> valid assignment and good consideration

Facts: Nephew fulfilled contract to earn 5,000 dollars from uncle but told uncle to keep it until later. Uncle dies and nephew assigns friend the $5k. Estate never gives the friend $5k so friend sues the $5k

Delegation

delegating a duty you owe to another; cannot be personal in nature

Implied warranty of merchantability

have to have a merchant (a professional that deals in goods of a kind)

the good is not what it’s expected to be

Of fitness for a particular purpose

falls under warranty relying on the merchant to provide the good expected

Expressed Warranty

stated expressly verbally or in writing