MCS 3040 Midterm 2

tort

an action that harms another person's body or property

crimes

wrongs that affect society as a whole and are punishable by the state

breach of contract

the nonperformance of a contractual duty

vicarious liability

liability of an employer for injuries caused by employees while carrying out their employment duties

assault and battery

assault includes a threat or attempt to injure, and battery includes the unlawful touching of another person without consent

trespass to land

an unauthorized, intentional intrusion upon or direct breach of the boundaries of another's land

continuing trespassing

a permanent incursion on the property of another

trespass to chattels

direct intentional interference causing damage to the goods of another

conversion

intentional appropriation of the goods of another person for the appropriators own purposes

detinue

wrongful detention of someone else's goods

false imprisonment

holding someone against their will

malicious prosecution

a tort action based on criminal or quasi-criminal prosecution motivated by ill will toward the accused and lacking reasonable evidential grounds for proceeding

private nuisance

use of one's property in an unreasonable manner that harms a neighbor's use or enjoyment of his property

public nuisance

unreasonable interference with public property or creating conditions that negatively affect a community or a considerable number of people

innuendo

an implied message about someone or something, usually negative or derogatory

injurious falsehood

defamation with respect to another's product or business; also known as product defamation or trade slander

inducing breach of contract

encouraging someone to break her contract with another

unlawful interference with economic relations

a tort consisting of unlawful competitive practices, such as inducing breach of contract

unlawful means tort

an intentional tort that allows a plaintiff to sue a defendant for economic loss, resulting from the defendant's unlawful act against a third party; also known as "intentional interference with economic relations"

deceit

the fraudulent and intentional misleading of another person causing injury

passing-off

the tort of misleading the public about the identity of a business or product

negligence

an unintentional wrong in which a person did not act in a reasonable and careful manner and a person or the person's property was harmed

duty of care

an obligation to take steps to avoid foreseeable harm; an essential element for establishing liability in the tort of negligence

misfeasance

wrongful conduct

nonfeasance

failing to act

reasonable person test

A standard for the degree of care exercised in a situation that is measured by what a reasonably cautious person would or would not do under similar circumstances.

but for test

One of the standards used to determine whether the defendant's negligence caused the plaintiff's injury; "but for" the fact that the defendant was negligent, the plaintiff would not have been injured.

thin skull rule

the principle that a defendant is liable for all damages caused by negligence despite any pre-existing condition that makes the plaintiff more prone to injury

crumbling skull rule

a tort law principle

that the defendant is not liable for losses

that were inevitable; used in conjunction

with the thin skull rule

contributory negligence

a failure to take reasonable care

invitee

A person coming onto a property for a business purpose

licensee

a person on property for her own purposes, but with the owner's permission

strict liability

liability without fault

Vicarious Liability

when one person is liable for the torts of another

circumstantial evidence

evidence based on suggestion rather than personal knowledge or observation

negligent statement

misleading, made without adequate care, can lead plaintiff to harm

prima facie

based on the first impression; accepted as correct until proved otherwise

fiduciary duty

The duty to act in the best interests of another

breach of trust

the breaking of a promise or obligation

brokers

Intermediaries that bring buyers and sellers together temporarily

adjuster

one who acts for the insurance in a regular claim

co-insurance clause

requirements that the insured bear some risk

fidelity bond

insurance policy that pays the employer money in the case of employees' theft

surety bond

A guarantee that protects a business when another person or business fails to fulfill the terms of a contract between them

Contra Proferentem

a rule of contract interpretation that prefers the interpretation of a clause that is least favourable to the party that drafted the clause

subrogation

The process by which an insurer can, after it has paid a loss under the policy, recover the amount paid from any party (other than the insured) who caused the loss or is otherwise legally liable for the loss.

forfeiture rule

a rule that provides that a criminal should not be permitted to profit from a crime

freedom of contract

parties are not generally restricted to the terms of the contract

consensus

an element of a valid contract, both parties must objectively know and understand / accept terms of agreement

subject to clauses

a term making a contract conditional on future events

quasi contract

A fictional contract imposed on the parties by a court in the interests of fairness and justice; usually imposed to avoid the unjust enrichment of one party at the expense of another.

revocation

the taking back of an offer by the offeror

option agreement

An agreement where, in exchange for payment, an offeror is obligated to keep an offer open for a specified time.

standard form contract

a contract with fixed terms prepared by a business

past consideration

an act done before the contract is made is not consideration

Quantum Meruit

as much as deserved; an action brought for the value of the services rendered the defendant when there was no express contract as to the purchase price

Promissory Estoppel

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

Equitable Estoppel

a legal principle that precludes a person from claiming a right or benefit that might otherwise have existed because that person made a false representation to a person who relied on it to his or her detriment

necessaries

things needed to maintain life and lifestyle

executory contract

A contract that has not yet been fully performed.

repudiation

rejection of a proposal or idea

public policy

the principles, often unwritten, on which social laws are based

misrepresentation

stating an untrue fact

non-disclosure

a failure to reveal facts; if a duty to disclose exists, silence may constitute misrepresentation

utmost good faith

Acting in fairness and equity with a sincere belief that the act is not unlawful or harmful to others.

innocent misrepresentation

party to a contract does not know that a statement he or she made is untrue

rescission

A remedy whereby a contract is canceled and the parties are returned to the positions they occupied before the contract was made.

negligent misrepresentation

misrepresentation made without due care in ascertaining its truthfulness; renders agreement voidable

fraudulent misrepresentation

Any misrepresentation, either by misstatement or by omission of a material fact

duress

compulsion by threat

undue influence

occurs when one party to a contract is in a position of trust and wrongfully dominates the other party

unjust enrichment

one benefiting unfairly at another's expense

shared mistake

the same mistake made by both parties to a contract

Rectification

the act of correcting or adjusting something

unilateral mistake

A mistake that occurs when one party to a contract is mistaken as to a material fact.

non est factum

"it is not my act"—grounds for a court to declare a contract void because a party is unaware of the nature of the contract

privity of contract

relationship between a promisor and the promisee

assignment

Transfer of rights under a contract to a third party

chose in action

the thing or benefit that is transferred in an assignment; intangible personal property, such as a claim or the right to sue

vicarious performance

Performance of contractual obligations through others

statutory assignment

an assignment of rights that an assignee may enforce if certain conditions are met by the assignment

involuntary assignment

assignment of rights that takes place involuntarily, as in the cases of death and bankruptcy

negotiable instrument

an unconditional written promise to pay a specified sum of money upon demand of the holder

performance

completion of a contract

tender of performance

An offer or attempt to perform what is required under a contract.

conditions

major terms of a contract

warranties

minor terms of a contract

exemption clauses

clauses that release a party from liability

fundamental breach

a breach of the contract that goes to the root of the agreement

anticipatory breach

notification, before the scheduled time of performance, of refusal to perform contractual terms as agreed

discharge by agreement

people can end a contract by mutual agreement

bilateral discharge

agreement by both sides to terminate the contract or to disregard a term of the contract

Accord and Satisfaction

an agreement made and executed in satisfaction of the rights one has from a previous contract

condition precedent

a condition that must be fulfilled before a party's performance can be required

condition subsequent

a future event that terminates the obligations of the parties when it occurs

mitigate

to make milder or softer, to moderate in force or intensity

acceleration clause

a statement in a credit contract that requires you to repay the entire loan immediately if you miss a payment

Liquated Damages

An amount, stipulated in the contract, that the parties to a contract believe to be a reasonable estimation of the damages that will occur in the event of a breach.

injunction

an equitable remedy, the court has the decision on whether to grant it or not based on each case

Interlocutory injunction

a court order issued before a trial to stop an ongoing injury