Business Law Final

427 terms by crogers2314

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For a mark to be protected under federal law

It must be registered with the Patent and Trademark Office

For how long does a copyright last

The author's life plus 70 years

One way of a trade sercret is to obtain a paten on it

False

A person who falls asleep while driving would not be liable for any resulting injury since it would be an unavoidable accident

False

The duty of a possessor of land to persons who come on the land usually depends on whether those persons are

Invitees, trespassers, or licensees

Disparagement differs from dafamation in that defamation pertains to personal reputation, whereas disparagement pertains to business interests.

True

Two absolute defenses to the tort of defamation are

Truth and privilege

Invasion of privacy consists of

intrusion, public disclosure of private facts, and appropriation

Cal sprayed pesticide on his crops in a very careful manner on a windless day. Nevertheless, some of the pesticide spray fell on his neighbor's side of the fence and contaminated the cornmeal for the chickens. The chickens died and the neighbor sues. What is the likely result?

Cal is liable because spraying pesticides is an abnormally dangerous activity.

Electronic surveillance for the purpose of acquiring trade secrets is permissible under the law of unfair competition.

False

Intellectual property consists of

Trade secrets, trade symbols, and patents

A duty to act is imposed on those whose innocent conduct has injured another and left him helpless and in danager of further harm.

True

Mark is out sailing in his boat one evening when he hears a young girl crying for help in the middle of the lake.

Mark must help the girl if he begins to resue her and increases her danager.

An artist would like to protect one of her original oil paintings from being sold as original prints. She may protect her painting by applying for a

Copyright

Jonah, a businessman, has no connection with Harvard University, but he has a new line of computer software that he would like to market to university students and faculty under the name of "Havard Software".

It is unlikely that Jonah will be able to register the name "Harvard Software," because it falsely suggests a connection to an institution.

Sam goes to the movies one Friday evening. The movie is boring and Sam falls asleep. At 2 a.m., the security guard locks the building. Sam awakens the next morning when the cleaning crew opens the door. Sam can sue for false imprisonment.

False

The tort of __________ is a false communication, which injures a person's reputation and good name by disgracing him and diminishing the respect in which he is held.

Defamation

Stan doesn't like having neighborhood teenagers walk across his yard at night. He rigs an animal trap on the path the teenagers usually use to cross his land. One night, Tim and his friends are walking across the yard when Tim gets caught in the trap. He is taken to the hospital for his injuries.In this case:

Stan is not free to inflict intentional injury on a trespasser.

A reasonable person, as used in the law of torts, is

A fictitious individual who is always careful, prudent, and never negligent.

Bartow signed a contract to coach baseball for Washington High for a period of three years. After two years he is offered and accepts an assistant coaching position at State University. Contract law will not allow Washington High to ask for:

Specific performance of his contract.

Unless one of the parties contractually assumes the risk, the __________ discharges a contract if supervening circumstances make fulfillment of the purpose which both parties had in mind impossible.

Frustration of purpose doctrine

Scott, a minor, sells his digital camera to Megan, who then sells it to Sherry. Under these circumstances:

If Sherry is a good faith purchaser for value and she buys the camera before Scott elects to rescind, no rescission is permitted.

In the Zelnick v. Adams case, the Supreme Court of Virginia found:

The case must be remanded for further proceedings, including the taking of evidence on the issue of the factual determination of necessity under all of the circumstances.

In which situations would a minor be unable to disaffirm a contract which he had made?

Where the minor wishes to perform part of a contract and disaffirm another part of the same contract.

On March 1, Tammy, a student, received a telephone call from Watterson, Inc. offering her a job for one year beginning on June 15, after completion of the school year. According to the personnel manager, she will have to move to California and be ready to start work at 8:00 a.m. on June 15. Should Tammy ask for a letter confirming the telephone conversation if she accepts the offer immediately?

Yes, because the job offer is for longer than one year from March 1.

In which of the following cases will an oral contract for the sale of goods of $750 be enforceable without a writing?

A party admits in an answer to a complaint in a lawsuit that the contract was made, Delivery and acceptance of the goods has been made, and The goods are to be specially manufactured for the buyer and the seller has made a substantial beginning of their manufacture.

Implied-in-fact conditions must fully and literally occur, and they are understood by the parties to be part of the agreement.

True

Miller made a contract to sell his condominium to Jefferson for $80,000. Two days later Miller changes his mind after discovering that he could have sold the property to another buyer for an additional $20,000. Jefferson sues and asks the court to have the property conveyed to him at the price of $80,000. Jefferson is seeking:

Specific performance.

UCC Revised Article 8, which all states have adopted

provides that the statute of frauds does not apply to contracts for the sale of securities.

UCC Article 9 requires

That contracts creating certain types of security interests be in writing.

The Code greatly alters the common law doctrine of material breach by adopting what is known as the:

Perfect tender rule.

Steve purchases a four-wheel drive truck from Belk Auto Sales. Steve is only 17 years of age. He wrecks the vehicle and attempts to disaffirm the contract and have Belk repay him all that he has paid. In the majority of jurisdictions, what would happen?

Steve may simply return the vehicle and get his money.

_________ are the most frequently granted remedy for breach of contract.

Monetary damages

The contracts of a person who is adjudicated insane and placed in care of a guardian are

Void

_________ contracts immediately discharge the original contracts.

Substituted contracts

Nancy, who lives in Birdville, wants to open a McHenry Roast Chicken franchise. Mark, a representative of McHenry, told Nancy, "If you will buy a lot and build a building in River City, we will give you a franchise." Nancy bought the lot and built the building as instructed only to discover that McHenry had awarded the franchise to a large corporation. McHenry claims no liability to Nancy since there was no consideration. Which statement best describes the situation?

McHenry is liable to Nancy based on the concept of promissory estoppel.

Adam wants to buy a six-passenger car. The salesman tells him that the two-seat sports car Adam sees on the car lot would be just perfect for six people. Adam test drives the car and then buys it. In this case:

Adam was not justified in relying upon the salesman's representation that the car would seat six people.

A __________ is an obligation imposed by law to avoid injustice.

bilateral contract, quasi contract, contract implied in law.

Nathan's father promises to give him a car for his twenty-first birthday. Nathan can legally enforce this promise because it created a moral obligation.

False

Sandy's private secretary promises not to disclose the contents of a letter she typed if Sandy will give her the next day off with pay. If the secretary takes the day off, Sandy does not have to pay her for the day.

True

An ad in a newspaper or a circular describing goods and stating prices would generally be considered:

an invitation to buyers to make an offer to buy goods.

The law does not provide a remedy for the breach of an unenforceable agreement.

True

In addition to the four basic requirements of a contract, which of the following must also occur in order to have a valid contract?

There must be an absence of invalidating conduct, such as duress.

To be effective, an offer must:

be sufficiently definite and certain, manifest an intent to enter into a contract, and be communicated to the offeree.

Samuel Tate enters into a contract with Bill Smith under the terms of which Smith is to pay Tate $7,000 and Tate is to build a garage, repair a boat, and build a doghouse. If the doghouse has not yet been built, which term describes the type of contract in existence?

Executory contract.

Nell gives Al $50 in return for Al's promise to defame Sara. Nell hopes to ruin Sara's chances at a promotion. Nell finds out that Al did not hold up his end of the agreement. Which of the following statements is true?

Legally, Nell can neither get the money back nor force Al to do as he promised.

Steven makes a material misrepresentation of fact regarding his motorcycle to Thelma who agrees to buy the motorcycle based upon the misrepresentation. This contract is:

voidable.

An intentional misrepresentation of a material fact made with knowledge of the falsity and intention to deceive and which a party justifiably relies upon to his detriment is known as:

fraud in the inducement

Al owns a farm that he believes is worth $150,000. Betty knows that there is oil under the farm and offers Al $160,000 for it. Al accepts and sells the farm to Betty. Al later realizes that the land was worth more than $160,000. Al can have the contract avoided based upon fraud.

False

When does acceptance of an offer to enter into a unilateral contract generally occur?

Upon full performance by the offeree.

Battery

Intentional infliction of harmful or offensive bodily contact.

Assault

Intentional infliction of apprehension of immediate bodily harm or offensive contact.

False Imprisonment

Intentional confining of a person against his or her will.

Infliction of Emotional Distress

Extreme and outrageous conduct intentionally or recklessly causing severe emotional distress.

Defamation

False communication that injuries person's reputation.

Libel

Written or electronically transmitted defamation.

Slander

Spoken defamation

Appropriation

Unauthorized use of a person's indentity

Intrusion

Unreasonable and highly offensive interference with the seclusion of another.

Public Disclosure of Private Facts

Highly offensive publicity of private information.

False Light

Highly offensive and false publicity about another.

Misuse of Legal Procedure

Torts of malicious prosecution, wrongful civil proceeding, and abuse of process that protect an individual from unjustifiable litigation.

Real Property

Land and anything attached to it.

Trespass to Real Property

Wrongfully entering on land of another

Nuisance

A nontrespassory interference with another's use and enjoyment of land.

Personal Property

Any property other than land.

Trespass to Personal Property

An intentional taking or use of another's personal property

Conversion

Intentional exercise of control over another's personal property.

Interference with Contractual Relations

Intentionally causing one of the parties to a contract not to perform.

Disparagement

Publication of false statements about another's property or products.

Fraudulent Misrepresentation

A false statement, made with knowledge of its falsity, intended to induce another to act.

Definition of Negligence

Conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm.

Reasonable Person Standard

Degree of care that a resonable person would exercise under all the circumstances.

Children

Must conform to conduct of a reasonable person of the same age, intelligence, and experience under all the circumstances.

Physical disability

A disabled person's conduct must conform to that of a reasonable person under the same disability.

Mental Disability

A mentally disabled person is held to the reasonable person standard of a reasonable person who is not mentally deficient.

Superior Skill or Knowledge

If person has skills or knowledge beyond those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the person has acted with reasonable care.

Emergencies

The reasonable person standard applies, but an unexpected emergency is considered part of the circumstances.

Violation of Statute

If the statue applies, the violation is negligence per se in most states.

Duty to Act

A person is under a duty to all others at all times to exerise reasonable care for the safety of the others' person and property; however, except in special circumstances, no one is required to aid another in peril.

Duty to Trespassers

Not to injure intentionally.

Duty of Licensees

To warn of known dangerous conditions licenses are unlikely to discover for themselves.

Duty of Invitees

To exercise reasonable care to protect invitees aganist dangerouse conditions possessor should know of but invitees are unlikely to discover.

Res Ispsa Loquitur

Permits the jury to infer both negligent conduct and causation.

Factual Cause

The defendant's conduct is a factual cause of the harm when the harm would not ahve occured absent the conduct.

Scope of Liabilities (Proximate Cause)

Liability is limited to those harms that result from the risks that made the defendant's conduct tortious.

Forseeability

Excludes liability for harms that were sufficiently unforseeable at the time of the defendant's tortious conduct that they were not among the risks that made the defendant negligent.

Superseding Cause

An intervening act that relieves the defendant of liability.

Burden of Proof

Plaintiff must prove that defendant's negligent conduct caused harm to a legally protected interest.

Harm to Legally Protected Interest

Courts determine which interests are protected from negligent interference.

Contributory Negligence

Failure of a plantiff to exercise reasonable care for his own protection, which in a few states prevents the plantiff from recovering anything.

Comparative Negligence

Damages are divided between the parties in proportion to their degree of negligence; applies in almost all states.

Assumption of Risk

Plaintiff's express consent to encounter a known danager; some states still apply implied assumption of the risk.

Definition of Strict Liability

Liability for nonintentional and nonnegligent conduct.

Abnormally Dangerous Activity

Strict liability is imposed for any activity that (1) creates a forseeable and highly significant risk of harm and (2) is not one of common usage.

Keeping of Animals

Strict liability is imposed for wild animals and usually for trespassing domestic animals.

Contributory Negligence

Is not a defense to strict liability.

Comparative Negligence

Somes states apply that this doctrine to some strict liability cases.

Assumption of Risk

Express assumption of risk is a defense to an action based upon strict liability; some states apply implied assumption of risk to strict liability cases.

Definition of trade secret

Commercially valuable, secret information.

Protection

Owner of a trade secret may obtain damages or injunctive relief when the secret is misappropriated (wrongly used) by an employee or a competitor.

Criminal Penalties

Federal law imposed penalties for the theft of trade secrets.

Types of trade symbols

Trademarks, service marks, certification marks, collection marks.

Trademarks

Distinctive symbol, word, or design that is used to identify a provider's service.

Certification Mark

Distinctive symbol, word, or design that is used with goods or services to certify specific characteristics.

Collection Marks

Distinctive symbol used to indicate membership in an organization.

Registration of trade symbols

To be registered and thus protected by the Lanham Act, a mark must be distinctive and not immoral, deceptive, or scandalous.

Infrigement of trade symbols

Occurs when a person withour authorization uses a infringement:injunctive relief, profits, damages, destruction of infringing articles, costs, and, in exceptional cases, attorneys' fees.

Remedies for trade symbols

Damages and injunctions are available if infringement occurs.

Trade names

Any name used to identify a business, vocation, or occupation

Protection for trade names

May not be registered under the Lanham Act, but infringement is prohibited.

Remidies for trade names

Damages and injunctions are available if infringement occurs.

Definition of Copyright

Exclusive right, usually for the author's life plus seventy years, to original works of authorship.

Copyright procedure

Registration is not required but provides additional remedies for infringement.

Rights of copyrights

copyright protection provides for the exclusive rights to (1) reproduce the copyrighted work, (2) prepare derivative works based on the work, (3) distribute copies of work, and (4) perform or display the work publicly.

Copyright ownership

The aurthur of the copyrighted work is usually the owner of the copyright, which may be transfereed in whole or in part.

Copyright infringement

Occurs when someone exerises the copyright owner's rights without authorization.

Copyright remedies

If infringement occurs after registration, the following remedies are avilable: (1) injunction, (2) impoundment and possible destruction of infringement articles, (3) actual damages plus profits or statutory damages, (4) costs, and (5) criminal penalties.

Patents

The exclusive right to an invention for twenty years from the date of application for utility and plant patents; fourteen years from grant for design patents.

Patentability

To be patentable, the invention must be (1) noval, (2) useful, and (3) not obvious

Patent procedure

Patents are issed upon application to and after examination by the U.S. Patent and Trademark office.

Patent infringement

Occurs when anyone without permission makes, uses or sells a patented invention.

Patent remedies

For infringement of a patent are (1) injunctive relief; (2) damages; (3) treble damages, when appropriate; (4) attorney's fees; and (5) costs.

Ethics

Study of what is right and good in a business

Business Ethics

Study of what is right and good in a business setting.

Ethical Fundamentalism

Individuals look to a central authority or set of rules to guide them in ethical decision making.

Ethical Relativism

Asserts that actions must be judged by what individuals subjectively feel is right or wrong for themselves.

Situational Ethics

One must judge a person's actions by first putting oneself in the actor's situation.

Utilitarianism

Moral actions are those that produce the greatest net pleasure compared with net pain.

Act Utilitarianism

Assesses each seperate act according to weather it maximize pleasure over pain.

Rule Utilitarianism

Supports rules that on balance produce the geratest for society.

Cost-Benefit Analysis

Quantifies the benefits and costs of alternatives.

Deontology

Holds that actions must be judged by their motives and means as well as their results.

Social Ethics Theories

Focus on a person's obligations to toher members in society and on the individual's rights and obligations within society.

Social Egalitarians

Believe that society should provide all its members with equal amounts of goods and services regardless of their relative contributions

Distributive Justice

Stresses equality of opportunity rather than results.

Libertarians

Stress Market outcomes as the basis for distributing society's rewards.

Intuitionism

a rational person possesses inherent power to assess the correctness of actions

Good Person

Individuals should seek out and emulate good role models

Choosing an Ethical System

Kolberg's stages of moral development is a widely accepted model

Corporations as Moral Agents

Because a corporation is a statutorily created entity, it is not clear weather it should be held morally responsible.

Regulation of Business

Governmental regulation has been necessary because all the conditions for perfect competition havenot been satisifed and free competition cannot by itself achieve other societal objectives.

Corporate Governance

Vast amounts of wealth and power have become comcentrated in a small number of corporations, which in turn are controlled by a small group of corporate officers.

Arguments against Social Responsibility

Profitabiltiy, unfairness, accountability, expertise

Profitability

Because corporations are artificaial entitiles established for profit-making acitivities, their only social obligation should be to return as much money as possible to shareholders.

Unfairness

Whenever corporations engage in social activities, such as supporting the arts or education, they divert funds rightfully belonging to shareholders and/or employees to unrelated third parties.

Accountability

A corporation is subject to less public accountability than public bodies are.

Expertise

Although a corporation may have a high level of expertise in selling its goods and services, there is absolutely no guarantee that any promotion of social activities will be carried on with the same degree of competence.

Agruments in Favor of Social Responsibility

The social contract, less goernment regulation, long run profits.

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