Env Law Ch 4-5

Uniform Commercial Code (UCC)

A model statute, which has been adopted in full or in part by most or all states, that governs certain types of contracts.

Unconscionability

A defense to performance of a contract based on procedural and/or substantive unfairness. An unconscionable contract is one that “no man in his senses … would make … and … no fair and honest man would accept …” Hume v. United States, 132 U.S. 406, p. 410 (1889).

Mistake

A defense to performance of a contract based upon ignorance of an important fact not caused by neglect of a legal duty.

Fraud

The use of deception to acquire money or property; in the context of contracts law, fraud is a defense to performance of a contract.

Misrepresentation

An assertion not in accord with the facts; occurs when a defendant makes a material statement that is false or that is made with a reckless disregard for the truth, where the statement is relied upon by another party to that party’s detriment.

Rescission

Cancellation of a contract and placement of party in position he was in prior to the formation of the contract cancelled.

Specific performance

Remedy whereby a defendant is ordered to perform the contract according to its terms.

Third Party

One who is not party to a transaction, but might be affected by it.

Incidental Beneficiary

A third party who does not acquire the right to enforce a contract because the contract was not designed or intended to benefit the third party, even though benefit to that third party may be a by-product of the contract.

Third-Party Complaint

A complaint filed by a defendant against another person other than the plaintiff.

Elements required for a valid contract to be formed

[Offer, acceptance], (assent) consideration, must be made by parties with the capacity to contract, and contract must be made for a legal purpose

Defenses to contract

Unconscionability, duress, mistake, fraud, misrepresentation, and fraud

Methods for contract interpretation

Courts rely on express language, may rely on dictionary definitions, and sometimes employ rules and legal maxims as an aid. Common rules include generally construing ambiguous language against the contract drafter and no words are considered purposeless/meaningless if a common meaning can be understood.

To gain rescission for misrepresentation the plaintiff must prove that

there was an untrue assertion presented as fact, which was material, and the plaintiff actually relied on the assertion, and the plaintiff’s reliance was reasonable.

Remedies

Monetary damages (compensatory damages), restitution, indirect/consequential damages, liquidated damages, and specific performance.

Defenses to CERCLA

Proof that, at the time the owner acquired the property, the owner “did not know and had no reason to know” that any hazardous substance had been released onto the property.

Requirements of all appropriate inquiries as a necessary element of a defense to CERCLA liability

The inquiry of the environmental professional must
include:
interviews with past and present owners, operators and
occupants;
reviews of historical sources of information;
reviews of federal, state, tribal and local government
records;
visual inspections of the facility and adjoining propert\;
commonly known or reasonably ascertainable
information; and
degree of obviousness of the presence or likely presence
of contamination at the property and the ability to detect
the contamination.

Warranty

A contractual promise that an assertion or statement is true.

Express Warranty

A warranty explicitly set out in words in the contract.

Implied-in-Fact Warranty

A warranty not stated in words within a contract but implied by the intent and conduct of the parties

Implied-in-Law Warranty

A warranty imposed by law; not expressly or implicitly intended by the parties.

Implied Warranty of Habitability

Warranty implied in law that a living structure will be habitable and fit for occupation.

Implied Warrant of Merchantability

An implied warranty that goods conform to the ordinary standard for usage (that they are “merchantable”).

Implied Warranty of Fitness

An implied warranty that goods are suitable for a particular purpose.

Disclaimer

Contract provision whereby one party denies responsibility for certain events or occurrences.

Lessors

A person who leases a property to another; commonly referred to as a landlord.

Right of Termination

Express contractual provision giving a party the right to cancel the contract upon the occurrence of some specified event.

Product Liability

Name for a group of theories used in cases where plaintiffs seek to recover for personal injury or property damage resulting from a defective product.

Strict Liability

Product liability theory that holds the manufacturer, distributor, or seller of a defective product liable for physical harm or property damage suffered by the purchaser even though the manufacturer, distributor, or seller exercised all reasonable care in the preparation and sale of the product.

Tort

A civil wrong or injury

Intentional Torts

Tort resulting when a person acts with a desire to cause harm or with knowledge that such harm is substantially certain to follow as a result of those actions.

Negligence

Failure to maintain the standard of care in a legal duty to another (usually the duty to act with reasonable care), which results in a breach of the duty that actually and proximately causes actual injury.

Strict Liability

Liability resulting from activities that cause harm to others, even if no intent or negligence exists.

Intent

Knowledge that harm is substantially certain to follow a particular action.

Elements of Negligence

duty of care

breach of the duty of care

actual causation,

proximate causation, and

actual injury

Trespass

Intentional, voluntary intrusion on or invasion of the tangible property of another without permission or privilege.

Punitive Damages

A monetary award designed to deter from similar actions in the future.

Recklessness

Conduct demonstrating a conscious disregard for a known risk of probable harm to others.

Injunction

A court order requiring the defendant to do or refrain from doing something.

Nuisance

Substantial or unreasonable interference with the plaintiff’s use and enjoyment of its property.

Public Nuisance

A wrong that affects a large portion of the public by interfering with their common rights.

Private Nuisance

Substantial interference with the right of another to the use and enjoyment of its property.

Coming to the nuisance

A defense for nuisance

Trespass to Land

Intentional, voluntary intrusion on or invasion of the land owned by another without permission or privilege.

Consent

Defense to trespass

Defenses to fraud and misrepresentation are...

fact specific

Reasonably Prudent Person Standard

An objective standard of conduct against which actions are measured to determine negligence.

Negligence Per Se

Negligence arising from a defendant’s breach of a legal duty imposed by statute, ordinance, or administrative rule or regulation, which results in injury occurring to a person whom that statute was intended to protect.

Defenses to Negligence

Assumption of the risk, the doctrine of contributory negligence, and comparative fault/comparative negligence

Defenses to strict liability

Assumption of the risk

This is owed to persons in the foreseeable zone of danger.

Duty of care

A monetary award designed to deter a defendant from similar future actions is

Punitive damages

This type of injury must exist for a negligence claim to succeed

Actual

The court ordered Xavier to stop dumping industrial waste into the city sewer system. This order is called

An injunction

A plaintiff in a tort case may

Bring more than one tort at a time

Boomer v. Atlantic Cement Co. is important because instead of issuing an injunction against a nuisance producing defendant it awarded

Permanent damages

The following is a possible remedy in a tort case

Punitive damages

The following are different classifications of tort except
A. Juvenile
B. Strict Liability
C. Negligence
D. Intentional
E. All of these are classifications of torts

Juvenile

To prove negligence a plaintiff must prove

Duty of care

This agreement is one where one party promises to reimburse another party, or hold that person harmless, for loss or for damage

Indemnification Agreement

The process of evaluating a property's environmental conditions and assessing potential liability for any contamination is known as

All available inquiries (AAI)

Persons who own commercial land that is environmentally contaminated but did not themselves contaminate the land:
A. May be a potentially responsible party under CERCLA
B. May be liable for cleanup of the land
C-D. ...
E. All of the above

All of the above

This is a statement in a contract that one party will not be liable for damages to the other for breach of contract under certain circumstances

Disclaimer

Ulysses provided environmental consultations to clients who wished to know whether environmental contamination exist on properties that they were interested in purchasing. Ulysses owes a:

Duty of care to his clients and to any foreseeable party that relies upon his work

One of the strongest incentives for conducting an environmental audit prior to purchasing real property is the availability of certain defenses to liability under this statute

CERCLA

Serena and Lucy formed a contract that was intended to benefit Catherine. Unfortunately, Serena breached the contract, so Catherine received no benefit. Catherine can sue to enforce the performance of the contract because Catherine is

An intended beneficiary

Damages may be recovered for a product that is sold by a merchant but that is not fit for common, ordinary usage under this warranty

Implied warranty of merchantability

When a contract's terms are ambiguous a judge may

Construe the terms against the drafter of the contract

For contract formation to be valid, a bargained for exchange must have occurred. A bargained for exchange is known as

Consideration

Modern law expresses __ as evidenced by the many warranty obligations implied in law.

Caveat venditor

Georgia advertised "ocean front" property for sale. Sebastian agreed to buy the land. Unfortunately after the transaction was complete, Sebastian learned that the property was not within sight of the ocean. If Georgia lied to sell the property, she committed

Fraud

Engaging in ultra hazardous or abnormally dangerous activity can result in this type of liability

Strict

A limit on the time by which an action must be brought is set forth in the

Statute of limitations

Injuries from the lead-based paint in a. residential rental unit

May result in landlord liability

The following are theories of product liability except:
A. Breach of warranty
B. Strict liability
C. Failure to warn
D. Negligence
E. Misuse

Misuse

Under CERCLA, both the landlord and the tenant

May be liable for the cleanup costs associated with disposal of hazardous substances on the property