Common Law Terms and Contracts: A Comprehensive Guide, Quizzes of Business and Labour Law

Download Common Law Terms and Contracts: A Comprehensive Guide and more Quizzes Business and Labour Law in PDF only on Docsity! TERM 1 3 Elements of a Contract DEFINITION 1 A legal OFFER legal ACCEPTANCE Consideration Ways to attack or undermine a contract TERM 2 Offerer DEFINITION 2 Person in a contract who is the person, entity, partnership or coperation that is making an offer to part with something it owns (money, property, expertise, personnel, etc) in exchange for something that the offer has control or ownership over TERM 3 Oferee DEFINITION 3 Target of the offer. Can be completed in any type of medium from money to goods and services TERM 4 Bilateral Contract DEFINITION 4 Exchange of a promise for a promise TERM 5 Unilateral Contract DEFINITION 5 Exchange of a promise for an act - e.g. rewards for lost petsThe promise is made by a person to anyone who performs the contract, with no reciprocal promise TERM 6 Executory Contract DEFINITION 6 Terms are still waiting to be completed. Ongoing until all terms of the contract are completed, in which case it becomes an executed contract TERM 7 Express Contract DEFINITION 7 Written or oral promise between parties that is enforceable.Reminder - few contracts are required by law to be in writing, but most are not. TERM 8 Common Law DEFINITION 8 Rules that required every written contract to:1) contain some evidence of the terms2)identify the parties3) have a signature of at least one - if not both- of the parties TERM 9 Contracts Required to be put in Writing DEFINITION 9 Contracts for: The sale of land taking more than one year to perform the sale of goods with value in excess of $500 TERM 10 Implied Contract DEFINITION 10 UnwrittenMay be understood to exist by way of a party's conduct or actions - if something has been happening consistently for 10 months, and in the 11th month the company delivers again, it is implied you still want to continue the service TERM 21 Terminating an offer 2 DEFINITION 21 Lapse of time - a reasonable period of time has passedDeath of a partyPartnerships - if EITHER partner dies, the offer is terminatedCorporations - continues after the death of its agents TERM 22 Counter Offer DEFINITION 22 Rejects/Kills the original offerUnder the UCC, the counter offer becomes part of the original offer and there is a k - an offerer can still reject an unreasonable counter offer, such as the oferee requiring them to provide additional goods for no additional price TERM 23 Three elements of acceptance of an offer DEFINITION 23 Objective intentIntent must be communicatedIntention to accept the offer must be a reflection of what was offered - offeree has not added unreasonable provisionsEffective when the k is sent (placed in mail/mailbox, for email return email is required TERM 24 Consideration DEFINITION 24 The offeree is giving something up that does not need to be monetarycould be a job, recipe, or anything else the offeree has a legal right toIf the other party did something or refrained from doing something (detriment), then there is consideration. TERM 25 Pre-Existing Duty Rule DEFINITION 25 Under COMMON LAW: if there is a k signed for one promise, then afterward the promise is changed verbally, the new k is unenforceable in court.Under UCC RULE: The parties may change the consideration after the k is executed, and there does not need to be new support to make it enforceable TERM 26 Promissory Estoppel DEFINITION 26 Stopping a defendant from saying that they were not given something by the plaintiffThere is...1.A Promise that the promisee relied upon2.The promisee suffered economic harm because the k was not executed3.An injustice will occur to the promissee if the court does not stop the promissor from disavowing the promise TERM 27 Liquidated/Unliquidated Debt DEFINITION 27 Liquidated debt is for a sum certain - no one disagrees as to the amount or terms at issueUnliquidated debt - there is some issue as to the amountCOMMON LAW - the creditor could agree to take less than the liquidated amount, but then turn around and enforce the original amount because there was no new considerationWith unliquidated debt, the court will enforce the new agreement TERM 28 Genuine Assent DEFINITION 28 Meeting of mindsBoth parties understood what the contract required and freely and knowingly entered into the contractNo genuine assent if there is: Fraud, Duress, Undue influence, or Mistake TERM 29 Genuine Assent and Fraud DEFINITION 29 4 Elements Misrepresentation of a material fact Intent to deceive the other party Believes the misrepresentation Is injured because of the misrepresentation If the misrepresentation is material, the contract is void. If the misrepresentation is not material, the contract may be voidable, but not automatically void TERM 30 Genuine Assent and Duress DEFINITION 30 A threat where one party feels they must agree to a contract or otherwise be harmed in some mannerCould be physical or harm to a reputation TERM 31 Genuine Assent and Undue Influence DEFINITION 31 A party is coerced, pressured or cajoled into signing a contractCould be against someone who is elderly or has alzheimer's disease TERM 32 Genuine Assent and Mistake DEFINITION 32 One or both parties mis-understands a material requirement of a contractUnilateral - only one party misunderstands Can result in a voidable contract by the party who misunderstoodMutual - contract is voidable by both parties TERM 33 Genuine Assent and Drafting DEFINITION 33 The drafter has the burden of misrepresenting a portion of the contract. Could have worded it incorrectly TERM 34 Competent Parties DEFINITION 34 A party must be competent to enter into a contract at the time the contract was entered intoCompetency refers to mental capacity to understand what is being contracted for - and to make an agreementSomeone who has been declared insane by a court is not competent. Void contractNot competent, but may need testimony. Voidable contract: Alzheimer's, depression, very low IQ, inebriated, minors, TERM 35 Contracts that Must Be Written DEFINITION 35 Land - sale or other disposition of land or real estate -need certainty as to control and/or ownershipPay someone else's debt - out of the ordinary (parents paying children's debt).Ks lasting more than a year -time passes, memories become fogged. Precise nature of the duties may become unclearSale of goods over $500, unless there is an admission that: -it is common practice, there was a use of the goods, or admission of an oral contract. TERM 46 Modern Law on Contract Breaches DEFINITION 46 Substantial completion - most all terms of the contract were completed90%+ has been completed, and only non-material elements are yet to be performed, the contract is considered completed. TERM 47 Substantial Completion Standard DEFINITION 47 Requires fulfillment of three elements Completion of nearly all of the terms An honest effort to complete all of the terms No purposeful departure from the terms of the contract TERM 48 Minor Breach DEFINITION 48 A deminimus (very minor) failure in performanceDoes not undermine the original objectives of the contractCan result in the non performing party being required to undertake an alternate task to discharge the contract (equitable remedy)Disgorgement of funds TERM 49 Disgorgement DEFINITION 49 Return or pay back fundsNon-breaching party can recover the cost paid for the portions of the contract which were not completed.Only made to pay an amount under the contract that equates to actual cost TERM 50 UCC and Substantial Performance DEFINITION 50 Substantial performance completion is not applicable under the UCC (goods)Under UCC, the seller must always, if possible, deliver at least conforming goods (goods which are very similar to the goods contracted for) TERM 51 Perfect Tender Rule DEFINITION 51 Under a contract in UCC, goods that are delivered must be at least very similar to the goods promise in the contract TERM 52 Not Covered under UCC... DEFINITION 52 GIFTS Voluntary transfer, no consideration. Security interests and Leases e.g. Car Loan/Lease - an interest in either real or personal property which secures the payment of an obligation Must have been a sale to be under UCC - full ownership rights transferred Bailments - transfer of posession of personal property for certain period of time TERM 53 Mitigation of Damages DEFINITION 53 Lessen or keep the damages as low as possible TERM 54 Revocation of Acceptance DEFINITION 54 A buyer accepts goods and later discovers they are nonconformingMust be substantially nonconformingRequires greater nonconformance than mere lack of perfect tender, because the seller was mis-lead into believing the goods were acceptable TERM 55 Curing of a Defect DEFINITION 55 Buyer is required to inform seller of the defect before any action is taken so they have a reasonable amount of time to attempt to cure the defect TERM 56 Buyer's Remedy and Right to Cover DEFINITION 56 The buyer may purchase substitute goods in the marketplace in place of the nonconforming goodsNot required of the buyer - just an optionBuyer could both cover and sue for damages TERM 57 Buyer's Basic Remedy DEFINITION 57 Right to sue for monetary damages when Seller fails to deliver conforming goods OR Buyer justifiably rejects or revokes acceptance Amount of damages will usually be market price of the goods, difference between contract price and actual purchase price, plus damages. TERM 58 Insufficient Writing in Contracts $500+ DEFINITION 58 CONTRACT IS ENFORCEABLE WHEN: If the goods are to be specially made for the buyer and they are not suitable for sale to others, AND if the seller has made either a substantial beginning in their manufacture or commitments for their purchase before a notice of repudiation is received from the buyer, the contract is enforceable Goods are actually received and accepted or payment has been made by buyer Party admits in testimony that a contract for sale of goods existed TERM 59 7 Methods of Discharging a Contract DEFINITION 59 Complete performance of the terms Substantial performance of the terms Mutual agreement of the parties Conditions precedent of subsequent Impossibility of performance Commercial impracticality Illegality TERM 60 Discharge by Mutual Agreement DEFINITION 60 Parties substitute a new contract for the old - "Accord and Satisfaction"Parties are at liberty to rescind a contract they entered intoRequires all contracting parties agreeThere can then be no breach of contract TERM 71 Compensatory Damages DEFINITION 71 Medical BillsLost wagesPainSufferingEmotional scarring of parent/child TERM 72 Torts and Legal Fees DEFINITION 72 CAN be compensated in a SEPARATE prayer for relief TERM 73 Nominal Damages DEFINITION 73 Cannot calculate value of damagesCourt determines how to redress the wrong TERM 74 Punitive Damages DEFINITION 74 Damages intended to keep the tortfeasor, and others who might do similar acts, from committing the same wrong againRatio of punitive to compensatory damages should be limited 10 to 1^not a rule when nominal damages are at issue TERM 75 Burden of Proof with Torts DEFINITION 75 less than in criminal matters. not beyond a reasonable doubt, but instead a preponderance of the evidence TERM 76 Assault and Battery DEFINITION 76 Threat and beyond is assault3 elements to assault: Intent Fear in that moment Ofoffensive/unwelcome contact Bodily contact is battery - not battery if it was accidental/self defense4 elements to battery: Intent Unwarranted contact that is offensive Bodily contact TERM 77 Defamation DEFINITION 77 4 elements Intentional publication (anything stated in writing) to a third party of a false statement that is harmful Third party is the uninvolved party who reads the statement Libel - written defamation Slander - spoken defamation STATEMENT MUST BE FALSE TO BE DEFAMATION TERM 78 Priveleges DEFINITION 78 Defense to defamationImmunity from being sued for statements that are madeAbsolute privilege: express creature of law created to encourage unfettered debate. STATE LEGISLATURE, JUDGES, WITNESSESConditional privilege: weaker, more limited privilege. PEOPLE that are PUBLIC FIGURES and often in the spotlight^^Testimony can be heard free of fear of retribution TERM 79 Malice DEFINITION 79 Knowledge that something is false when it is spokenOr reckless disregard of the truth - saying something without having any idea about the matter TERM 80 Contributory Negligence DEFINITION 80 The plaintiff was in some part responsible for their own injuriesCase is automatically dismissed TERM 81 Assumption of Risk DEFINITION 81 the plaintiff knew, or should have known, that their behavior was likely to result in their injury TERM 82 Comparative Negligence DEFINITION 82 Used in MIchiganThe dfendant shows that the plaintiff was at fault and the trier of face determines the percent of faultDamages award is reduced by the percent of responsibility on the plaintiff TERM 83 Appropriation DEFINITION 83 Using your picture without your consent for advertising TERM 84 One party vs Two Party States DEFINITION 84 One party - only one person in a phone convo needs to give permission to tapeTwo party - all parties need to give permission - Michigan TERM 85 False Imprisonment DEFINITION 85 The intentional restraint or confinement by force or threat of force of a person against that person's will, without justificationFear must be immediate