Business Law Test 2
|Defamation||untrue statement made by one party to another about a third party. consits of either slander or libel|
|Slander||Oral or spoken defamation|
|Libel||writen or in some cases broadcast defamation|
|Intentional Tort|| Torts that involve deliberate actions. |
ex. hitting another person
|Tort of Negligence||careless conduct, or actions done without thinking through the consequences.|
|Opinion||Current defamation is whether statements made in a columnist's opion or analysis constitute defamation. Courts are struggling with the right level of protection for viewpoints because the objection is to the conclusions drawn, not any inaccuracies in facts|
|Product Disparagement|| defamation of a product.|
ex. consumer reports evaluation of a product that is not truthful about its qualities or abilities.
|Malice as required for deformation||defamation cases that involve public figures require proof of malice. malice requirement in public figure cases provides the balance between personal rights and first amendment protections for the media. malice exists when the information was published or broadcast knowing that it was false or with reckless disregard for whether it was true or false.|
|Public figure under malice|| those voluntarily in the public eye.|
ex. elected officials, recording artists, actors, sports figures, and media magnets.
|Congressional Absolute Privilege||Members of congress have absolute privilege when they are speaking on the floor of the senate or house because of a strong public policy interest in free and open debate. Same with witnesses testifying about the matters at hand.|
|Qualified Privilege||A defense to defamation available to the media that permits retraction and no liability so long as the information is not printed or given with malice or with reckless disregard for whether it is true.|
|Shopkeepers Privilege||This privilege allows a shopkeeper to detain a suspected shoplifter for a reasonable period of time while the matter or incident is investigated.|
|Intentional Infliction of emotional distress||Intentional tort in which the defendant engages in outrageous conduct that is psychologically damaging to the plaintiff|
|False Imprisonment||the detention of a person for any period of time against his or her will.|
|Invasion of Privacy|| 1. Intrusion into the plaintiff's private affairs|
2. Public disclosure of private facts
3. Appropriation of another's name, likeness, or image for commercial advantage.
|Health Insurance Portability and Accountability Act (HIPAA)|| controls how medical information is collected, used, and conveyed.|
ex. doctors must be careful that computer screens of their office personnel are not visible by other patients.
|Public Disclosure of Private Facts||statement is not defamation but it may well be the tort of invasion of privacy.|
|Palsgraph Case||Lady at train who sued station because of explosion from a mistakenly dropped package that contained fireworks which caused weight to fall on her|
|Assumption of Risk||defense that requires the defendant to prove that the plaintiff knew there was a risk of injury in the conduct her or she undertook but decided to go forward with it anyway.|
|Contract for the International Sale of Goods (CISG)||type of international UCC for those countries that adopt it. 4 parts. application, formation, sale of goods, and final provisions. several distinguishable differences from UCC|
1. CISG follows the common law mirror image rule not the battle of the forms
2. requires the presence of a price for an offer to be definite.
|Void Contract|| an agreement to do something that is illegal or against public policy, or one that lacks legal elements.|
ex. contract to sell weapons to a country under a weapons ban
|Voidable contract|| contract that can be unenforceable at the election of one of the parties. give one party the option disaffirming the contract.|
ex. a minor who signs a contract can choose to be bound by the agreement or can choose to disaffirm the contract.
|Unenforceable contract|| contract that cannot be honored judicially because of some procedural problem.|
ex. contract that should be in writing or have a record to comply with the statute of frauds but does not is unenforceable
|Elements of Valid Contract||offer, acceptance, consideration, contract form,|
|Merchants firm offer||the offer must be made by a merchant, put in some form of record, and signed by the merchant. if requirements are met, the merchant must hold the offer open for a definite time period, no longer than three months.|
|Nonmerchant acceptance with additional terms||The addition of terms in the counteroffer does not result in rejection. There will still be a contract if there is a clear intent to contract, but the additional terms will not be a part of the contract.|
|Merchant to Merchant acceptance with additional terms||The addition of terms in the counteroffer will still result in an enforceable contract, but if the terms are added depends on the situation. If the additional terms are material, they will not be added. Terms that can be added but are not material are payment terms. If the terms are additional in a limited offer, they will not be added. Parties can eliminate additional terms by objecting to any added terms within a reasonable time.|
|Offer||First part of a contract. involving offeror and offeree|
|Acceptance||offeree's positive response to the offereor's proposed contract, and only persons to whom the offer is made have the power of acceptance. the acceptance must be communicated to the offerer using the proper method of communication controlled by offeror or left to offeree.|
|Consideration||something of value exchanged by the parties that distinguishes gifts from contracts.|
|UCC statute of frauds contracts||under the UCC, a separate statute of frauds applies to contracts covering the sale of goods. Contracts for the sale of goods costing $5000 or more must be evidenced by a record to be enforceable.|
|Statute of frauds contracts|| Generic term referring to statutes requiring certain contracts to be in writing.....list of contracts needed to be in writing.|
1. contracts for the sale of real property
2.contracts that cannot be performed within one year
3.contracts to pay the debt of another
|Exceptions to statute of frauds||created for situations in which the parties have partially or fully performed their unwritten contract. if the parties perform the oral contract, courts will enforce the contract for what has already been done.|
|Mirror image rule||states that an offer must be accepted exactly without modifications. followed by CISG not UCC|
|Force majeure||provisions in international contracts allow parties to agree what will happen in the event of sudden changes in government or in the global political climate rather than rely on a court to determine after the fact what rights, if any, the parties had.|
|Legal Age|| 18 in most states. Persons under the legal age are considered Minors/Infants.|
Age of Capacity means that the parties to the contract are at least of legal age. If under legal age, their contracts are voidable.
|Recission||the contract is set aside if there has been misrepresentation in the formation of a contract.|
|Misrepresentation||occurs when one party to a contract is not given full or accurate information by the other party about the contract subject matter.|
|Fraud||knowing and intentional disclosure of false information or the knowing failure to disclose relevant information. has the same elements of proof as misrepresentation, with the added element of scienter.|
|Confidential Relationship||trust, confidence, reliance in a relationship. must be established for undue influece to exist.|
|Duress|| occurs when a party is physically forced into a contract or deprived of a meaningful choice when deciding whether to enter into a contract. if duress has occurred, contract is voidable.|
ex. requiring employees to sell company stock in order to keep there job.
|Illegal Contracts||1. Violation of Criminal Statutes- agreements to commit criminal wrongs|
2. Violation of Licensing Statutes- contracts for a legal act to be done by one not authorezed to perform such services.
3. Violation of Usury Laws- credit or loan contracts that charge intreest in excess of the state's limits for interest or finance charges.
4.Violation of Public Policy- violate certain standards of fairness or encourage conduct that violates public policy. or grossly unfair to one party.
|Undue Influence||occurs when one party uses a close personal relationship with another party to gain contractual benefits. before undue influence can be established, a confidential relationship must exist.|
|Violate Public Policy Contracts||violates certain standards of fairness or encourage conduct that violates public policy. or grossly unfair to one party.|
|License renewal fee vs. license competency fee||Competency: In a contract, where a party (professional/technician) is not authorized or licensed to perform such services. The contract is void.|
Renewal: In a contract, where a party (professional/technician) was previously licensed in the past, but forgot to pay the annual renewal fee. Contract is still valid because the issue is not one of competency screening but of financial oversight.
|Unconscionability||Term used to describe contracts that are grossly unfair to one side in the contract; a defense to an otherwise valid contract; standards are set on a case-by-case basis.|
|Condition Precedent||events that give rise to performance. performance is due according to times provided in the contract.|
|Compensatory damages||Damages to put a non-breaching party in the same position it would have been in had the breach not occurred.|
|Incidental damages||Damages suffered by the non-breaching party to a contract as a result of the breach.|
|Consequential damages|| damages that result because of the breach and generally involve lost buiness, lost profit, or late penalties.|
ex. must pay 2k each day late, but company needed steel from the steel company that delivered late, so steel company must pay.
|Liquidated damages||damages agreed upon in advance, liquidated damages clausesa re enforceable as long as they are not excessive and compensatory damages have not been paid in addition.|
|Punitive damages||Damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. Although the purpose of punitive damages is not to compensate the plaintiff, the plaintiff will in fact receive all or some portion of the punitive damage award..|
|Foreseeability||To see beforehand. Regarding to Torts of Negligence, if a party can foresee injury or damages resulting from their actions.|
|Executory Contract||A contract which has not yet been performed or executed.|
|Tort of interference with a contract||Conduct by one party that results in another's breaching their contract with a third person.|
|Employer privilege statutes||...|