Module 5 Reading
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This 12 page Class Notes was uploaded by Claire C on Tuesday September 29, 2015. The Class Notes belongs to 310 at University of Wisconsin - Madison taught by Dr. LaPlante in Fall 2015. Since its upload, it has received 8 views.
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Date Created: 09/29/15
Module 5 Reading 1 Contract 0 Voluntary promise between two or more parties for which the law will provide a remedy for nonperformance 0 Purpose is to secure some good or performance we would not otherwise be entitled to 0 Law of Contracts means of ensuring that when agreements are made to receive or render goods and services there will be a way to obtain redress if the promise is not kept o Breach when one party does not perform as promised in a contract 0 Valid Contract a contract that complies with all the essentials of a contract and is binding and enforceable on all parties 0 Bundle or rights surrounding an agreement 0 Requirements of a valid contract 1 Must have legal subject matter 2 capacity of the parties to enter into contracts 3 the exchange of consideration or something of agreed value between them 4 mutual assent between the parties ie true agreement between the parties as to the contract s terms 0 Legality the state of being in accordance with the law 0 Capacity the ability to understand both the nature and consequences of one s actions 0 Consideration something of value given by both parties to a contract that induces them to enter into the agreement to exchange mutual performances 0 Mutual Assent an agreement by both parties to enter into the contract Sources of Contract Law 0 Restatement of Contractscommon law a compilation of the general principles of contract common law 0 Can be adopted in whole in part or be modified 0 Contracts involving land services or intangibles 0 Uniform Commercial Code UCC deals with buying and selling goods Exoress and Implied Fact How Contracts are Created by Parties 0 Express Contract a contract in which all elements of a contract are specifically stated either orally or in writing 0 Implied in Fact a contract agreed upon by nonverbal conduct ie actions rather than by explicit words 0 Ex signaling to bartender for another glass Remedies Module 5 Reading 0 Legal Remedies Equitable Remedies Money Damages and occasionally punitive damages 0 Goal in remedies for breach put nonbreaching party in the position it would have been in had there been no breach Requirements for a Valid Contract 1 Mutual Assent Offeror the person who extends an offer to enter into a contract 0 Offeree the person to whom the offer is extended to enter into the contract 0 Requirements of an Offer a Definiteness of terms i Anything parties wish to have in contract must be included in offer b Intent i Is the offeror being true with hisher offer c Communication 0 Acceptance Must be unequivocal amp mirror image of offer Counteroffer terminates offer Offeree or offeree s agent must accept Direct offeree communicates to offeror his acceptance Indirect offeree doing some act consistent with acceptance Ex sending a check Mailbox RuleDeposited Acceptance Rule contract is effective as soon as the acceptance is delivered in mail 00000 2 Consideration Gov t only becomes involved when there is fraud 0 Fraud does not mean the monetary or market value but rather the legal sufficiency of the consideration 0 To qualify as a consideration the party giving must suffer a legal detriment amp the receiving party receives a legal benefit 0 Legal Detriment one party of a contract doing something they are not required to do 0 Legal Benefit one party of a contract gaining something to which he or she would not otherwise be entitled in the absence of an agreement 3 Capacity 0 Addresses whether parties entering into contract have the required minimal age or mental ability three groups are protected 0 Infants I Generally under 18 Infants are the only ones who can void contracts Module 5 Reading Disaffirm to revoke or deny a contract Ratify to confirm or honor a contract 0 lntoxicants Mental impairments due to drugs alcohol or other mindaltering substance 0 lncompetents Mental impairment Contract is void if incompetent can show he or she was incapable of understanding the nature and extent of hisher actions lf contract was ratified during lucid moment it will be fully enforceable 4 Legality 0 Law of Contracts defined pg 1 singles out certain contracts those for illegally high interest rates on noncorporate loans usury gambling and unlicensed professionals 0 Statute of Frauds certain types of contracts must be in writing in order to be enforced in court 0 Ex Contracts lncapable of Being Performed within a Year from Time They Are Made 0 Contracts for an Interest in Land Leases gt year sales of real estate mortgages etc o Goods of 500 or More UCC rule 0 The Writing Requirement says that there must simply be something in writing signed by the party who is being sued for breach evidencing the materials of the agreement 2 Intellectual Property 0 A property right that can be protected under law It is characterized as non physical property that is the product of original thought 1 Copyright the exclusive rights to reproduce publish sell or distribute the matter and form of an artistic effort 0 Does not protect an idea itself but protects the manifestation of the idea 0 Copyright Reform Act 1976The Act grants to copyright holders the exclusive right to use and authorize use of their work with certain excep ons The list of protected products is not exclusive Module 5 Reading Works in public domain works whose copyright expired or was never requested They are not eligible for copyrighted protection Requirements For Coovridht a Work fixed in either a copy or phonorecord anything that can be heard or seen b Doesn t extend to anything NOT tangible o CODvridht Ownership Registration and Infringement Ownership is in the author WorkforHire Doctrine employer automatically owns copyright in employees works that are prepared within the scope of employment a task directed by the employer 3 Elements Required for Product to be Protected a Symbol or word copyright b Year of first publication c Name of the owner of the copyright lnfringe to encroach upon in a way that violates law or the right of another 0 FairUs octrine permits limited use of a copyrighted material without acquiring permission from the rights holder 0 Criticism comment news reporting teaching scholarship and research parody amp satire 2 Patents protect inventors and their inventions right granted by law to an inventor to make use and sell an invention for a limited period of time 20 years from the date the patent application is filed The Patent Act of 1952 provide laws regulating patents amp established the US Patent amp trademark Office USPTO agency to administer the laws relating to the granting of patents Grants patents to protect inventions and register trademarks Strongest protection of any type of intellectual property Inventor can EXCLUDE others from making using etc the invention for 20 year period that cannot be renewed Effective only in US Utility Patent a patent that protects the way an invention is used and works Most common type of patent Design Patent a patent that offers protection for the way a product looks Requirements for Patent Protection amp Infringement a Novelty b Utility Module 5 Reading c Nonobviousness 3 Trademark a distinctive mark or feature that is particularly characteristic of or identified with an entity product or brand protects goods and services 0 O Trademark Act Lanham Act allows owners of trademarks to register them with the Patent and Trademark Office Ex Names such as McDonald s Pillsbury Symbols such as ATampT V 8 Green Bay Packers Devices such as CocaCola bottle Has no limited term protected as long as product is used in commerce Protection is not absolute Trademark Registration and Infringement o Trademarks aren t required to be registered 0 Benefits of registration Can provide notice to public of your claim to the mark Presumption of ownership of the mark Federal enforcement of mark Basis for obtaining trademark protection in foreign countries Ability to bring an infringement action for importing infringing goods 0 TM Symbol can be used any time you claim a right to trademark 0 Symbol Can be used after USPTO registers a mark not while application is pending 0 Trade Secrets any type of business information that is proprietary in nature and gives the business a competitive advantage 0 May be any formula pattern device or compilation of information used in one s business that gives one an opportunity to obtain an advantage over competitors who do not know or have it 0 Uniform Trade Secrets Act USTA purpose was to make uniform the trade secret laws nationally narrow the scope of protection strike balance bw need to protect business info and the need to allow employee mobility and avoid conflict with the patent laws 0 Three Requirements of Trade Secret Protection a Limited availability of the secret to those outside the circle of those who need to know b Economic value c Reasonable effort to keep the secret Module 5 Reading 0 Differences of Trade Law from other Tvpes of Intellectual Probertv a No application to or registration by a gov t office b May continue indefinitely c Doesn t prevent others from acquiring the trade secret d Protection exists against discovery or use by improper means theft bribery espionage e Don t require novelty or nonobviousness to be protected 0 Misappromiation of Trade Secrets 0 Misappropriation the unauthorized use of the author s name likeliness or identity without permission resulting in harm to that entity Secret acquired by improper means Secret disclosed after it was acquired improperly Secret disclosed after acquired properly 0 Reverse Engineering the process of taking apart an object to see how it works in order to duplicate the object THIS IS LEGAL 3 Employment 0 Title VII of The Civil Rights Act The act itself prohibits discrimination in any way in employment Title VII applies to employers with 15 or more employees labor organizations and other organizations that hire amp fire Protects employees on basis of race color gender including pregnancy amp sexual harassment religion or national origin Does NOT prohibit discrimination on basis of sexual orientation Excludes religious organizations Native Americans working on or near reservations and communists Emplovment Opportunity Commission EEOC federal agency that enforces Title VII 0 Discrimination Theories Under Title VII Disparate Treatment a discriminatory employment practice where an employee is treated differently than other employees who were in a similar situation 0 Normally based on race gender religion etc Disparate Impact a discriminatory employment practice that has a greater impact on one group over another 0 Ex Requirement of applicants to be at least 5 2 amp weigh at least 120 lbs Women are lighter than men so would have a harder time meeting this requirement Module 5 Reading 0 Policy that is neutral on its face but results in discrimination against a group Gender 0 Protects men amp women equally although women benefit from the law more than men bc they are discriminated against more Sexual Harassment o Quid Pro Quo Sexual Harassment occurs when a more senior manager or employee demands sexual favors in exchange for some workplace benefit Often a more indirect threat of not receiving workplace benefits 0 Hostile Environment Sexual Harassment occurs when a supervisor or other employee makes sexually suggestive comments gestures advances pictures texts touch or humor that unreasonably interferes with work performance Not always clearcut Employers often responsible for employees who perpetuate sexual harassment Pregnancy 0 Pregnant employees can t be made to leave work early amp can t have job duties taken away Equal Pay 0 Equal Pav Act 1963 prohibits discrimination in pay on basis of gender Affinity Sexual Orientation 0 Title VII does not include discrimination based on sexual orientation 0 State amp municipal gov t have laws providing protection for this now Age Discrimination in Employment Act of 1967 ADEA o Employeesgt40 cannot be discriminated against 0 Bona Fide Occupational Qualification BFOQ employment qualifications that owners are allowed to consider while making decisions about hiring and retaining employees If there is connection between age amp performance BFOO may be allowed Legalized discrimination Used where authenticity is necessary or safety may be at stake 0 Law doesn t mean that workers are guaranteed a job regardless of age or level of performance The Americans with Disabilities Act of 1990 ADA o Addresses 3 Types of Barriers a Intentional discrimination due to social basis b Neutral standards with a disparate impact upon those who are disabled Module 5 Reading c Barriers to job performance that can be addressed by accommodation 0 Covers mental amp physical disability but does not provide a definitive list of what is amp is not a disability 0 Employers must take proactive approach must not discriminate and must make the workplace accessible to disabled workers 0 Doesn t guarantee a job to any disabled person 0 Defenses to Emplovment Discrimination Cases BFOQ discussed above 0 Business Necessity a legitimate business purpose that justifies an employment practice as valid and necessary for the business amp the employee s job Leditimate Nondiscriminatorv Reason Employer can defend against accusations by offering nondiscriminatory reason for different treatment of employee 0 Ex termination of a member of a protected class on basis of tardiness 4 Liability 0 Tort civil wrongs violations of law that are civil rather than criminal in nature a Intentional Tort tortfeasor intended to do the act that resulted in harm to victim b Negligence tortfeasor didn t intend to do the act failure to use reasonable care resulting in damage or injury to another Injury is required c Strict Liability legal doctrine that makes a person or company responsible for the actions or products which causes damages regardless of any negligence or fault on their part a Tortfeasor engaged in activity that a statute classifies as one so dangerous that the tortfeasor must be responsible for all harm that anses o Tortfeasor individual who commits a wrongful act that injures another amp for which the law provides a legal right to seek relief Tortfeasor defendant 0 Respondeat Superior commonlaw doctrine which states that an employer is responsible for the actions of employees performed within the course of their employment 0 Vicarious Liability liability imposed upon someone who did not actually commit the tort Module 5 Reading 0 Deep Pockets Theory employers often held liable for the actions of a negligent employee Since employers usually have more money than the employee to pay for negligence they would be in a better position to pay the victims 0 Intentional Torts Plaintiff must show the act was committed amp was intentional Does not require a showing of injury Intent required to be shown is the intent to do the ACT that results in the harm not intent to harm Examples assault battery false imprisonment invasion of privacy etc 0 Considering criminal acts respondeat superior does NOT hold employer liable Defamation intentionally making untrue statements about an individual that has the effect of lessening the individual s reputation in the community 0 Intentional Torts Against Business 1 Disparagement o lnjurious falsehood intentionally making false statements about the quality or ownership of someone s goods 0 Can be thought of as defamation against a BUSINESS rather than an INDIVIDUAL Interference with Contractual Relations 0 When someone intentionally interferes with an existing or a prospective contract the individual has with another Palming Off 0 Misrepresenting someone else s goods or services as one s own in business Theft of Trade Secrets 0 Often used after employee leaves a business amp takes info to use for hisher own purposes financial gain or economic advantage Infringement of Trademarks Trade Names Patents and Copyrights 0 Can result in compensatory damages andor punitive damages Defenses to Intentional Tort o No intent to do the act which resulted in harm accident 0 Victim gave consent to activity 0 Tort was committed in defense 0 Neglidence Requirements 1 Duty a legal obligation that entails mandatory conduct or performance 0 Negligence per se if the duty is imposed by a statute and the statute is violated 0 Law does not impose a general duty on each of us toward others don t have to save drowning child if there are no relations to the child example Module 5 Reading 2 Breach of Duty occurs when one person or company has a duty of care owed towards another person or company but fails to live up to that standard 0 Doing something that should not be done bc it presents unreasonable risk of harm speeding on highway in rainy conditions 0 Failing to do an act that would be expected to be done in order to prevent unreasonable risk of harm lifeguard failing to provide assistance to drowning swimmer 3 Actual and Proximate Cause 0 Actual refers to a cause or action without which the event could not have occurred Tortfeasor s actions resulting in harm to injured party 0 Proximate determining whether or not an event is sufficiently related to an injury to be held as the cause of that injury 0 allows legal responsibility only for foreseeable consequences to our actions 4 Damages 0 There must be injury caused by the breach of duty o If there is no damage there is no cause of action for negligence o Defenses to Nedlidence 1 Assumption of the Risk defendant demonstrates that the plaintiff voluntarily and knowingly assumed the risks associated with the activity at issue 2 Contributory and Comparative Negligence both defendant amp plaintiff were somewhat at fault Jury allocates fault defendant will not be held liable if plaintiff s negligence outweighs that of the defendant 0 Contributorv used when plaintiff performed a negligent act him or herself 0 Ex drunk passerby stumbles over improperly assembled scaffolding Construction company is relieved of all responsibility 0 Comparative does not relieve defendant of all charges rather gives proportionate share of negligence to both parties 0 In both cases tortfeasor does not deny harmful action but alleges he is not entirely responsible o Strict Liability a legal doctrine that makes a company or person responsible for their actions or products which causes damage regardless of any negligence or fault on that part 0 Activity deemed by statute to be so dangerous that tortfeasors must take all responsibility Module 5 Reading 0 Relies on the dangerous nature of activity rather than the intent or actions of the tortfeasor Virtually no defenses against this besides voluntary assumption of the risk 0 Product Liability the area of law in which manufacturers suppliers distributors retailers and others who make products available to the public are held responsible for the injury those products causes 0 Liability can be so severe that businesses go bankrupt 0 Possibility of harm is enormous bc the products are offered to public at large Neglidence and Strict Liability Reminder negligence is lack of reasonable care 0 Design Defect a problem with the products design that makes the product inherently dangerous or useless even if it is manufactured perfectly with the best quality materials 0 Standard of liability used is more reasonable 0 Manufacturing Defect a defect in a product resulting in a departure from its design specifications during production 0 Manufacturers amp distributors normally held liable in this case 0 Strict Liability is used 0 Failure to Warn or Adequater Warn 0 Standard of liability used is more reasonable 0 Failure to Adequater Package 0 Restatment of Torts allows recovery for harm to persons arising from defect in goods Applies different standards of liability Warranties 0 Express Warranties warranties that are absolute promises o Implied Warranties a guarantee that the item sold is merchantable and fit for the purpose intended An implied warranty is in addition to an express warranty provided at the time of sale to protect consumers who might otherwise pay for products that are not as represented by the merchant 5 Regulation Module 5 Reading 0 Agencies are created by gov t to conduct business on its behalf Created by way of enabling statutes 0 Administrative Procedures Act APA a federal statute that governs the way in which administrative agencies of the government may propose and establish regulations 0 General law governing how federal agencies conduct business 0 Administrative Agencies often created due to some sort of agitation by public 0 Ex Equal Employment Opportunity Commission Environmental Protection Agency Homeland Security 0 Does not stand alone amp has no authority other than that which Congress delegates to it 0 Powers delegated to agency depend on what it is created to do QuasiLegislative Authority when an agency is granted by Congress the authority to issue regulations 0 Carry same weight as a law 0 Due Process of Law a fundamental constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one s rights 0 Since administrative agencies are acting on behalf of government they must apply this to citizens as well 0 Federal Register the official daily publication for rules proposed rules and notices of federal agencies and organizations as well as executive orders and other presidential documents 0 Notice and Opportunity to be Heard QuasiJudicial Authority 0 Administrative Law Judge a judge who both presides and issues judgment over the claims and disputes involving administrative laws and agencies 0 Many businesses address issue of regulatory complexity by belonging to trade organizations 0 Monitors relevant agencies amp notify members when issues arise 0 Organizes itself and its members to respond to pending agency actions Judicial Review 0 Judicial review of agency dispute decisions is provided for agencies Administrative Regulations and Business 0 Business owner must have means of having hisher business interests heard amp represented bc agencies may propose rules that would virtually wipe out an individual s business 0 Administrative agency determines the final regulation they are not elected officials thus not accountable to public 0 This is where APA comes in Protects public
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