Gen Bus 301 UW Madison Exam 1

Common Law

governs all contracts outside the scope of the code

Real estate

service contracts

employment contracts

UCC

Drafted by the national conference of commissioners on uniform state laws

Sales of Goods (movable and tangible)

Contract

binding agreement that the courts will enforce

Promise

manifests or demonstrates the intention to act or to refrain from acting in a specified manner

breach

failure to properly perform

Requirements of a Contract

mutual assent

consideration

legality of object

capacity

mutual assent

parties to a contract must manifest by words or conduct that they have agreed to enter into a contact (offer&acceptance)

consideration

-intentionally exchange a legal benefit or incur a legal detriment as an inducement to the other party to make a return exchange

-inducement to enter into a contract consisting of an act or promise that has legal value

legality of object

purpose must not be criminal or tortious

capacity

parties must have contractual capacity

express contract

parties manifest assent in words

implied contract

formed by conduct

bilateral contract

each party is both a promisor (person making a promsie) and a promisee (promise is made to)

unilateral contract

only one party makes a promise

valid contract

meets all requirements of a binding contract

void contract

agreement that does not meet all of the requirements; merely a promise

voidable contract

defective, butt doesn't wholly lack in legal effect

unenforceable contract

for the breach of which the law provides no remedy

executed contract

fully carried out by the parties

executory contract

applies to contracts that are still partially or entirely performed by one or more parties

promissory estoppel

there is a promise which promisor should reasonably expect to induce action or forbearance on part of the promisee and which does indicate such action or forbearance, and where injustice can be avoided only by the enforcement of promise

quasi contracts

legal fictions invented by common law courts to permit recovery by contractual remedy in cases where there is no contract but where circumstances are such that justice warrants a recovery as though a promise has been made

- rules against unjust enrichment

* one party confers a benefit on another

* party keeps the benefit

* unjust circumstances

* court will order compensation to prevent injustice

restitution

obligation imposed by law to avoid injustice

offer

definite undertaking or proposal made by one person to another indicating a willingness to enter into a contract

offeror

person making the offer

offeree

person to whom the offer is made

essentials of an offer

1. Communication

offeree must know about the offer

2. Intent

desire to cause consequences

3. Definiteness

open terms

good faith

honesty and observance of reasonable commercial standards of fair dealing

commercial reasonableness

standard determined with reference to the business judgement of reasonable persons familiar with the practices customary in the type of transaction involved

output contract

agreement of a buyer to purchase a seller's entire output for a stated period

requirment contracts

agreement of a seller to supply a buyer with all requirement for certain goods

firm offers

written promise to not revoke an offer for a stated period of time

statutory irrevocability

offer made irrevocable by statute

Termination of offer

lapse of time

revocation

rejection

counteroffer

death/incompetency of offeror or offeree

destruction of subject matter

illegality

intellectual property

economically significant type of intangible personal property that includes trade secrets, trade symbols, copyrights, and patents

trade secrets

commercially valuable information that is guarded from disclosure and is not general knowledge

state law: no registration

misappropriation

wrongful use of a trade secret

knowingly acquired through improper means

disclosed or used without consent

trade symbols

trademarks, service marks, certification marks, etc

prohibits a person from using a false designation of origin in connection with any goods or services in interstate commerce

trademark

a distinctive name, symbol, word, picture, or combination of these that a company uses to identify products or services

service mark

used to identify and distinguish services of one person from others

certification mark

used on or in connection with goods or services to certify their region or other origin

collective mark

distinctive mark used to indicate either the producer or provided belongs to a trade union

registration of trademark

Lanham Act; must be distinctive enough to identify clearly the origin

secondary meaning: substantial number of purchases associate designation with the product

infrignement

when a person without authorization uses an identical or substantially indistinguishable mark that is likely to cause confusion

dilution

lessening of the capacity of a famous mark to identify and distinguish goods or services (cadillac pizza)

copyrights

literary, musical, dramatic works

registration: filed with the register of copyrights in DC

- not required because protection begins as soon as the work is fixed

compulsory licenses

permit certain limited uses of copyrighted material upon the payment of royalties

fair use

criticism, comment, teaching, or research

first sale doctrine

limits copyright owners exclusive right of distribution by allowing the owner of a particular copy of a work to sell

infrigement

when someone exercises the rights exclusively reserved for the copyright owner

patents

government grants an inventory a monopolistic right to make, use or sell an invention to the absolute exclusion of others for the period of the patent

patent exhaustion doctrine

when a patent owner sells one of its products, the patent owner can no longer control that item through a patent control

utility patents

any new and useful process, machine (91-92%)

plant patent

protects right to reproduce a new and distinctive variety of asexually producing plant (<.4%)

design patent

protects new design for article of manufacture (8-9%)

Direct infringer

anyone without permission who makes, uses, or sells patented invention

indirect infringer

actively encourages another to make a patented invention without permission

contributory infringer

knowingly sells a part or component of a patented invention

soldano

negligence, duty

you are not required to interfere, but if someone acts, you must not get in the way

palsgraf

negligence, duty/proximate cause

does not require that you know exactly where and when the damage will be

kinsman

negligence, duty/proximate cause

know that there will be damage, just a question of when and where

nowogroski

court didn't award damages for 1 employees solicitation of clients through the use of memorized client information

an employee who hasn't signed an agreement can freely use knowledge

Uniform trade secret act

doesn't distinguish between written and memorized information to prove misappropriation

walmart vs samara brothers

unregistered trade dress is not protected unless there is secondary meaning, samara brothers can't collect

"we hold that a products design is distinctive, and therefore protectable only upon showing secondary meaning"

steinberg

when you see a catalog or ad, these are not offers, rather they are inviting you to make an offer. he submitted his qualifying application and $15. chicago med school took money and didn't accept him.

Facts + Law =

outcome

mediation

voluntary effort to settle the dispute, non binding

arbitration

non judicial mechanism to settle dispute, binding

necessary characteristics of law

certainty/predictability

flexibility/elasticity

knowability

reasonableness

burden of proof

evidentiary burden imposed on the party who wants the answer to a question to be yes

ordinary burden of proof

lowest

reasonably certainty: you are persuaded based upon a rational consideration of the evidence

middle burden of proof

burden is to convince that the answer is yes

must be more convincing than the ordinary burden

presumption of innocence

defendants are not required to prove their innocence

reasonable hypothesis

if you can reconcile the evidence upon any reasonable hypothesis consistent with the defendant's innocence, you should do so and return a verdict of not guilty

tort

civil. a violation of a duty imposed on each of us by a civil law

4 elements of tort/civil law

legal duty

breach of duty

injury

damages

duty at common law

not be negligent

statutory duty

imposed by federal, state, and local laws

criminal law

a violation of duty imposed on each of us by criminal statue (by the state)

contract (civil) law

a violation of a duty undertaken by our agreements (voluntarily - freedom of contract)

breach of contract

if your claim arises as a result of an enforceable agreement which a party fails to perform and this breach causes you a loss

negligence

conduct which causes an unreasonable risk of harm to others

-failure to exercise ordinary care

ordinary care

what a reasonable person would do under the same circumstances

strict liability

nature of activity determines liability

absolute liability

liability of the defendant regardless of the level of care exercised by the defendant

trespassers

property owner is liable to trespasser only for intentional acts

licensees

anyone on the proerty to serve his own purposes but with consent

-property owner is responsible to the licensee to warn of hidden dangers of which the owner knows

invitees

anyone on the property as a right because it is a public place or business

- property owner is responsible to the invitee to exercise reasonable care in providing a safe place

proximate (legal) cause

public policy limitation on your liaiblity for the consequences of your negligent acts despite the existence of causation

several liability

plaintiff's recovery against a defednant is limited to the percent of fault assigned to that defendant

joint liability

each defendant can be held liabile for all losses suffered by the plaintiff

tort reform

a modification of joint and several - a defendant can only be held liable for the full amount owed to the plaintiff if the defendant's liability exceeds a certain percentage

minority rule

any contributory negligence of plaintiff as a complete bar to plaintiff's recovery

majority rule

comparative negligence of the plaintiff

assumption of risk

did the plaintiff voluntarily and knowingly assume the risk associated with the potential of negligent conduct on the part of the defendance

res ipsa loquitur

"the thing speaks for itself"; the doctrine that suggests negligence can be presumed if an event happens that would not ordinarily happen unless someone was negligent

Uniform trade secrets act

UTSA

gives owners an economic advantage in the business

trade secret is not generally known

trade secret is not readily ascertainable by others

owner uses reasonable efforts to protect the secret

inherently distinctive mark

fanciful (strong)

arbitrary (strong)

suggestive/descriptive

UCC Firm Offer

from a merchant

in writing/signed

held open for specific time, not more than 90 days

cannot be revoked during time

requires no consideration

UCC prompt shipment

buyer sends offer for goods shipped promptly

*seller accepts by

- prompt promise to ship

- accept by shipping goods

-ship nonconforming goods as accomodation with buyer notice