Ch. 8-19 Study Guide for Exam 3
Ch. 8-19 Study Guide for Exam 3 BLAW210
Popular in Law and the Legal Environment of Business
verified elite notetaker
Popular in Business Law
This 5 page Study Guide was uploaded by Lexi Sterling on Sunday October 11, 2015. The Study Guide belongs to BLAW210 at a university taught by Jerome F. Eline II in Fall. Since its upload, it has received 171 views.
Reviews for Ch. 8-19 Study Guide for Exam 3
Report this Material
What is Karma?
Karma is the currency of StudySoup.
You can buy or earn more Karma at anytime and redeem it for class notes, study guides, flashcards, and more!
Date Created: 10/11/15
EXAM 3 CHAPTER 8 D Trade secrets Information or a process that gives a person or business an advantage over competitors who do not have access to the information or process Can include Customer lists pricing information marketing techniques plans R amp D production methods Protection extends to both ideas and to their expression CHAPTER 14 D Mutual mistake of fact Only a mistake of fact makes a contract voidable Also the mistake must involve some material fact a fact that a reasonable person would consider important when determining his or her course of action El Mutual mistake of value If a mistake concerns the future market value or quality of the object of the contract the mistake is one of value and the contract normally is enforceable The reason for this is that value is variable El Unilaterial mistake A unilateral mistake is made by only one of the parties In general a unilateral mistake does not give the mistaken party any right to relief from the contract unless 1 the other party to the contract knew or should have known of the mistake or 2 the mistake was purely mathematical and made inadvertently and not through gross negligence Normally the contract is enforceable Usury Maximum rate of interest that can be legally charged for different types of transactions including ordinary loans Are illegal and may be void in their entirety D Non Compete Contracts covenants Business and Employment Geographic restriction must be reasonable and reasonable for a period of time Geographical time and purpose to the company El Misrepresentation elements 1 Misrepresentation of a material fact must occur 2 Intent to deceive 3 lnnocent must Justi ably rely on the misrepresentation 4 To collect damages a party must have been Harmed as a result of the misrepresentation El Fraudulent Misrepresentation An innocent party induced to enter into a contract by a misrepresentation of material fact may avoid the contract because she did not genuinely assent In order to do so she must establish that the other party 1 knowingly or with reckless disregard for the truth and 2 with the intent to deceive the innocent party 3 misstated or omitted a material fact on which a a reasonable person would rely in deciding whether and on what terms to enter into the contract and bthe innocent party did rely to her detriment D Negligent misrepresentation Sometimes a party will make a misrepresentation through carelessness believing the statement is true If the party did not exercise reasonable care in uncovering or disclosing the facts or use the skill and competence that her or his business or profession requires the misrepresentation may constitute negligent misrepresentation D Misrepresentation by Silence Generally neither party to a contract has a duty to come forward and volunteer facts unless the other party asks However common and statutory law create a duty to speak in certain situations eg where one is aware of a serious defect or serious risk of injury D Undue in uence Undue in uence arises from relationships in which one party can greatly in uence another party thus overcoming that party s free will A contract entered into under excessive or undue in uence lacks voluntary consent and is therefore voidable D Duress Agreement to the terms of a contract is not voluntary if one of the parties is forced into the agreement The use of threats to force a party to enter into a contract is referred to as duress D Adhesion contract adhesion contracts are written exclusively by one party and presented to the other party on a takeitorleaveit basis To avoid enforcement of a contract based on adhesion the adhering party must show that 1 2 the parties had substantially unequal bargaining positions and enforcement against the adhering party would be manifestly unfair or oppressive DScienter A defendant acts with the intent to deceive if he 1 2 3 4 knows a statement to be false makes a statement he reasonably believes to false makes a statement recklessly without regard to its truthfulness or falsity or implies that he bases the statement on information or expertise on which it is not in fact based CHAPTER 15 D Ambiguity A writing is unambiguous if its terms are not susceptible to more than one reasonable legal interpretation El Evidentiary Corollary A court shall not admit evidence of the parties prior dealings to contradict or vary the terms of a fully integrated unambiguous written contract D Mistake of Fact the parties entered into a contract with different understandings of one or more material facts relating to the contract s performance Can be Mutual and Unilateral Mathematical errors Effects future value No meeting of the minds D Mistake of Value Affects the future market value or quality of the object of the contract D Puffery An exaggerated phrase Crosses the line when the person should have known by their position that their statement was false or if they did not know what they were saying D Negligent Misrepresentation A material misrepresentation made without knowledge of or reckless disregard for its false hood and without intent to deceive D Misrepresentation by Silence Neither party to a contract has a duty to come forward and volunteer facts unless the other party asks D Know 152 pg 302 facts and 182 In this case Grano did misrepresent a material fact Which is a fact that affects decision making that would in uence a reasonable person under the circumstances in making and investment decision by not stating that a road project will divert traf c from the hotel Due to the failure to disclose the facts about the road project Tanner argues that there was intent to deceive To be justi ably Page 2 relied on the facts Tanner only relied on the books but he would have had to rely on the facts of the road project as well if he had known about it Yet Tanner had a duty to see and a duty to investigate all issues pertaining to the Hotel and he did not investigate the road project and since he only investigated the books and accepted the deal there is no misrepresentation as the fact that he relied on were investigated Thus no injury to Tanner occurred CHAPTER 16 D D Statute of Frauds Every state has a statute that stipulates what types of contracts must be in writing We refer to such a statute as the Statute of frauds Parol Evidence Rule An integrated unambiguous written agreement supersedes and discharges all prior oral and written agreements and all contemporaneous oral agreements between the parties regarding the same subject matter Integration The extent to which a writing represents the nal and exclusive agreement of the parties A term in a writing is integrated if the writing represents the parties nal agreement on that term A fully integrated writing constitutes the parties nal agreement on aH terms relating to the transaction CHAPTER 18 D Discharge The termination of a party s obligations arising under a contract Occurs when both parties have fully performed their obligations Condition Contingency in that an event or act that will trigger performance if the event or act occurs within a contract or can trigger a discharge Material Breach A party s failure without legal excuse to substantially perform a contractual obligation Minor Breach A non material breach the duty to perform can sometimes be suspended until the breach has been remedied But the duty to perform is not entirely excused Know 181 pg 346 Therefore the Coplans s are substantially performed and the contract remains in force and the Coplans s must still perform its duties to the contract The Coplans s will also be entitled to monetary damages due to the variance in the form the use of Crane to Kohler items and thus the breach is minor not major as the Coplan s argue judgment for Faithful Tender is an unconditional offer to perform by a person who is ready willing and able to do so Complete Performance When a party performs exactly as agreed there is no question as to whether the contract has been performed When a party s performance is perfect it is said to be complete Substantial Performance A party who in good faith performs substantially all of the terms of a contract can enforce the contract against the other party under the doctrine of substantial performance The basic requirements for performance to qualify as substantial performance are as follows 1 The party must have performed in good faith Intentional failure to comply with the contract terms is a breach of the contract 2 The performance must not vary greatly from the performance promised in the contract An omission variance or defect in performance is considered minor if it can easily be remedied by compensation monetary damages 3 The performance must create substantially the same bene ts as those promised in the contract Anticipatory Repudiation Before either party to a contract has a duty to perform one of the parties may refuse to carry out his or her contractual obligations This is called anticipatory repudiation of the contract Page 3 D Impossibilitylmpracticability a DeathIncapacity When one of the parties to a personal contract dies or becomes incapacitated prior to performance b Destruction of Subject Matter When the speci c subject matter of the contract is destroyed c Commercially lmpracticable When a change in law renders performance illegal El Statues of limitations statutes of limitations restrict the period during which a party can sue on a particular cause of action After the applicable limitations period has passed a suit can no longer be brought CHAPTER 19 Compensatory Damages Damages that compensate the nonbreaching party for the injuries or losses actualy sustained as a result of the breach Consequential Damages Damages resulting from a breach that were reasonably foreseeable to the breaching party when it breached Liquidated Damage Provisions requiring the breaching party to pay a sum of certain money if they fail to perform as required Punitive Damages Damages designed to punish a wrongdoer and to deter similar conduct in the future Nominal Damages Damages awarded to the nonbreaching party when only a technical injury occurred resulting in no actual damages The value of the performance as promised The value of the performance actually rendered The value of any loss avoided or mitigated by the nonbreaching party Compensatory damages Market Valuequot Damages In cases involving contracts for the sale of goods or in most states land compensatory damages generally equal the difference between the contract price of the goods or land and the fair market price at the time the goods or title to the land was to be delivered Mitigation of Damages In most situations the nonbreaching party has a duty to take whatever action is reasonable to minimize the damages caused by the breach Penalty Courts generally M not enforce a liquidated damages clause that requires the breaching party to pay a penalty Rescission Canceling a contract and returning the parties to their precontract position Restitution Returning goods property or money or in the case of goods or property their value in money previously transferred in order to restore the nonbreaching party to his precontract position Unjust Enrichment As a general principle equity requires that when one party confers something of value or other bene t the other party must pay a reasonable value A court will not intentionally act in a manner that would intentionally enrich one party beyond reason Quasicontractual recovery 1 he conferred a bene t on the other party 2 reasonably expecting to be paid or otherwise compensated for the bene t conferred 3 he did not voluntarily confer a bene t for which he did not intend to be paid and 4 allowing the bene tted party to retain the bene t without paying for it would unjustly enrich the bene tted party WAIVER OF BREACH Where the nonbreaching party knowingly accepts incomplete or defective performance from the breaching party the nonbreaching party has waived her right to complete and proper performance A contract may include provisions stating that damages are unrecoverable for certain types of breaches or damages will be limited to a maximum amount or that any breach will result in damages in a pre determined amount LimitationofLiability Clause A provision expressly limiting the damages recoverable for certain types of breaches Page 4 Page 5
Are you sure you want to buy this material for
You're already Subscribed!
Looks like you've already subscribed to StudySoup, you won't need to purchase another subscription to get this material. To access this material simply click 'View Full Document'