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by: Bethel Graham


Bethel Graham
GPA 3.98


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This 15 page Class Notes was uploaded by Bethel Graham on Thursday October 15, 2015. The Class Notes belongs to BUS 305 at North Carolina State University taught by Staff in Fall. Since its upload, it has received 13 views. For similar materials see /class/223672/bus-305-north-carolina-state-university in Business Management at North Carolina State University.

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Date Created: 10/15/15
Concepts that Should Be Known For Second BUS 305 Exam Be able to de ne a contract What are the five elements of a contract A B What is the difference between the common law of contracts and the 0 U P1 7391 Q P 1 H What is the difference between an agreement and a contract Uniform Commercial Code Be able to distinguish among valid void voidable and unenforceable contracts What is the difference between a bilateral and unilateral contract 1 What is the only way to accept a unilateral offer What is the difference between an executory promise and an executed promise Give several examples of express and implied contracts 1 Which kind of contract express or implied are never in writing 2 Are oral contracts enforceable What are the four elements of a quasicontract Under what circumstances is it likely that a plaintiff would sue under the theory of quasi contract What are the three elements of an offer 1 What is the difference between objective intent and subjective intent 2 Why do the terms in an offer have to be certain and definite 3 What is the mirror image rule What is the consequence of an acceptance that does not comport with the mirror image rule 4 What are the three elements of an acceptance 5 What is the meaning of the authorized means of acceptance Be able to discuss the ways an offer can be terminated by 1 By actions of the parties 2 By lapse of time 3 By operation of law What is the legal detriment theory of consideration Who has to incur a legal detriment in order for there to be consideration in a contract the promisor or the promisee W t Z 2 0 1 Why are the following not consideration A Fast consideration B Preexisting duty C Illusory Promises 2 What is the effect of lack of consideration 3 What promises are enforceable even without consideration What are the three categories of people who are most likely to lack capacity to contract 1 What is the effect of contracting with a person who lacks capacity to contract 2 Can a minor ratify a contract 3 What is the exception associated with necessaries 4 What is a disaffirmance of a contract What are the two ways that a contract can be declared void because of illegality 1 What are some common statutes that businesses sometimes contravene in their contracts 2 What are some examples of contracts that will not be enforced because they are against public policy 3 What are some examples of contracts that are unconscionable What are the four taints on an agreement that can make a contract voidable at the option of the victim 1 Under what circumstances could a unilateral mistake of a material fact by one party give rise to the defense of mistake 2 Know the elements of fraud duress and undue in uence 3 What is the difference between a contract tainted by duress and a settlement contract which is valid What are the six kinds of contracts that must be in writing in order to be enforced 1 Be able to recognize what a surety contract is 2 Be able to provide some exceptions such as when oral real estate contracts are enforceable If a contract is in writing what at a minimum must be in the contract P Q 7 F H lt 1 What is the parol evidence rule What is the effect of the parol evidence rule 3 What kind of clause do sellers typically employ to avoid the introduction of extrinsic evidence N Be able to de ne what a material breach is 1 What is the legal impact when a party to a contract delegates duties to perform 2 Under what circumstances is it a breach of contract for a party to a contract to delegate performance What is an assignment of a contract 1 After an assignment takes place can the obligor use defenses he or she had against the assignor against the assignee The answer is yes but you should be able to explain why that is true 2 Who has the burden of notifying the obligor of the assignment the assignor or assignee 3 When are assignment prohibited by law What is the difference between an intended beneficiary of a contract and an incidental beneficiary What additional rights do intended beneficiaries have relative to incidental beneficiaries What rights does a party to a contract have if the other party announces in advance of performance that he will not be performing as promised What is the theory behind a rescission of a contract 1 How does a rescission of a contract differ from a novation 2 How does a novation differ from an accord and satisfaction What event discharge a promisor s obligation to perform 1 By operation of law 2 Due to impossibility 3 The occurrence or nonoccurance of a condition What is the theory behind compensatory damages in a breach of contract suit 1 Under what circumstances can a party recover for damages due to reliance on promises made by the other party in a contract 2 What is the difference between recoveries based on reliance damages versus restitution 3 What are consequential damages Who has the burden of notice if there are damages that are attributable to a breach of contract but the damages are unforeseeable 4 Why do parties agree to liquidated damages clauses When are liquidated damages clauses often not enforced 5 What does it mean that the non breaching party has a duty to mitigate damages Provide one example of how a party to a contract would have a duty to mitigate damages 6 Under what circumstances is it appropriate for a court to issue an injunction before a trial for breach of contract actually occurs 7 When is it appropriate for a court to declare that specific performance is the appropriate remedy What were the driving forces behind the enactment of the UCC A What does it mean that the UCC is a gapfiller B When does Article 2 ofthe UCC apply C What is the meaning of good faith in connection with merchants D How does the UCC define a sale 1 Can a thief pass title to a good to a bonafide purchaser for value 2 What is meant by a transfer of title under the UCC 3 What is the difference between a shipment contract and a destination contract 4 What is meant by the term risk ofloss 5 When does risk of loss pass when possession of goods is held by a third party E How does the common law of contracts differ from the UCC in its treatment of the importance of intent F What is the difference between an output and requirements contract G What limitation does the UCC place on the ability of merchants to revoke a written offer H How does the UCC alter the mirror image rule that is part of the common law of contracts 1 Under what circumstances can an offeree add additional terms to a contract in the acceptance 2 What happens if a term in the acceptance differs from a term in the offer and both sides insist that the offer and acceptance cannot be altered 4 What happens under the UCC when terms in the offer and acceptance differ but the parties proceed as though there is a contract Under the UCC what is an open term I How does the UCC differ with the common law with respect to writing requirements 1 2 In ordinary English what is a specially manufactured good What is a written confirmation of a prior oral agreement J What is a warranty What liability is placed on a seller by warranties l 2 9 What is the difference between an express warranty and an implied warranty What is the difference between a warranty disclaimer and a limitation of liability What requirements does the UCC impose to make a warranty disclaimer effective What is the difference between an express warranty and salesmanship In order to create an express warranty what does the UCC require Define the implied warranty of merchantability What is the implied warranty of fitness for a particular use Under the UCC how can a seller indicate that the good he or she selling is being sold without a warranty What is the meaning of the term caveat emptor K What does a buyer need to show when claiming a breach of warranty 1 2 3 4 5 When are limitations of liability not allowed under the UCC Who is liable under the UCC for a breach of warranty What is the perfect tender rule under the UCC What rights to sellers have to cure nonconforming goods What is a commercial impractibility L How are market damages calculated under the UCC l 2 3 4 What are incidental damages What is cover Under what circumstances can a party to a contract under the UCC entitled to collect consequential damages What is meant by repudiation of a contract What rights are given to the aggrieved party when a contract is repudiated III Be able to organize Ecommerce contract issues A Parity between paper and electronic records 1 What are the combined effects of UETA and ESIGN 2 Note that there are signi cant exceptions to UETA and E SIGN 3 What do the following acronyms stand for UETA ESIGN UCITA and UCC B What are shrinkwrap clickwrap and boxtops agreements 1 What is EDI What is the role of intent when two computers interact and create a contract 2 Explain how UCC Section 2207 interacts with Internet technology to create contracts whose terms are only revealed to buyers after they have made the decision to purchase a How does the same process operate with shrinkwrap agreements that are typical of software purchases b How does the same process operate with boxtop agreements 3 Be able to name the five requirements that a seller must satisfy in order to enforce additional terms that are found in clickwrap agreements C Explain the legal issue involved with attribution 1 Why is it legitimate for a seller to collect a lot of information about buyers 2 Who bears the burden of proof of proving that buyer placed an order 3 If both parties agree to use a reasonable attribution procedure who bears the burden of proof to prove that a buyer placed an order 4 If a customer makes an electronic error in placing an order what must the customer do to avoid having to pay for the mistake D What is the purpose of signatures in contracts 1 What is the difference between a signature and authentication 2 How does cryptography operate to prevent sensitive information from being intercepted and deciphered 3 How does cryptography function to substitute for signatures or authentication 4 Under ESIGN for an electronic document to be enforceable what additional requirements are necessary 5 Under ESIGN for a digital signature to be enforceable what additional requirement is necessary What is the definition of a tort FUUOUJCD guru F 3 1 H What are the three elements of all torts What are the three types of torts in terms of intent What remedies are allowed for plaintiffs in tort claims What is the difference between compensatory and punitive damages What are the elements of l Assaults 2 Batteries 3 False imprisonment What are the main defenses to assaults batteries and false imprisonment Under what circumstances are companies liable for assaults batteries and false imprisonment 1 What special legislation insulates companies from liability for false imprisonment cases involving accusations of shoplifting What are the elements of intentional in iction of emotional distress 1 What are the main circumstances in which defendants are likely to be sued for intentional in iction of emotional distress 2 What is the difference between the torts of intentional in iction of emotional distress and invading someone s privacy a What does reasonable expectation of privacy mean b Why does public figures have diminished expectations of privacy What are the elements of commercial use of someone s name or likeness without permission What are three elements necessary to show defamation for someone who is not a public gure 1 What is the difference between libel and slander What are the main defenses to a claim of defamation 3 What is a privilege What is a qualified privilege What rms can make use of qualified privileges N K What are the elements of common law deceit L What are the elements of conversion 1 What are the damages associated with conversion 2 What is the difference between conversion and trespass to personal property 3 What is the difference between trespass to real property and trespass to personal property 4 What are some defenses to trespass to real property M What is required to sue someone for being negligent 1 How is the concept of a reasonable person used in tort law to evaluate liability for negligence 2 What is required in order to show proximate cause 3 What duties do landowners have to a Trespassers b Licensees and business invitees N How does the courts and juries determine whether a professional has committed malpractice 1 What does it mean that someone is negligent per se 2 How is the doctrine of res ipsa loquitur used to shift the burden of proof to the defendant 0 What are the main defenses to a claim based on negligence 1 What is the difference between comparative negligence and contributory negligence 2 What is a supervening cause Why does the occurrence of supervening event relieve a defendant of some or all liability for a negligent act 3 Why have most state legislatures enacted Good Samaritan statutes P What is the difference between a tort based on negligence and on based on strict liability 5 b c d Under Section 402A of the Restatements of Torts Second and Third who is liable for a defective product sellers or manufacturers Can plaintiffs in product liability cases recover from both retailers and manufacturers What is a product defect What are the three kinds of defects Does misuse of a product by a consumer automatically absolve a seller of liability What are the factors that the courts use to determine if the design of a product are defective What are the factors that the courts use to determine if a warning on a product is reasonable What are the defenses available to sellers in product liability cases What are the two elements necessary to demonstrate that a consumer assumed the risk of using a product in an unreasonable manner What is the defense based on tampering What it the government contractor defense What is the state of the art defense What is the difference between publisher and distributor liability for defamation A How did the Communications Decency Act of 1996 change the liability of ISPs for republishing defamatory material 1 2 Why is it necessary for the CDA to preempt state law in order to effective How does the CDA apply to employers investment advisors and online reporters such as the Drudge Report B What constitutional protections does the Fourth Amendment provide against governmental searches and seizures 0 What protections does the Electronic Privacy Protection Act provide from governmental monitoring 1 U private What protections does the ECPA provide against disclosures by ISPs to governmental authorities It is reasonable to expect that disclosures made to ISPs will remain E What are the five Fair Information Practices VI 7391 H HP 1 Is it mandatory that websites adhere to the ve FIPs 2 What protections does the Privacy Act of 1974 provide to citizens 3 Are state privacy laws pertaining to the Internet uniform 4 Is it illegal to collect information about consumers through the attachment of cookies to browsers 5 Is it illegal to make use of spyware What is identity theft What are the penalties for violating the Identity Theft and Assumption Deterrence Act of 1998 What actions are made illegal by the Children s Online Privacy Protection Act What are the main provisions of the GrammLeach Bliley Act What are the main provisions of the regulations of the Health Insurance Portability and Accountability Act 1 What are some of the exceptions of HIPAA regulations Why have data transmissions between EU nations and the US been threatened 1 What solution has been worked out be the Department of Commerce Be able to de ne real property At common law what rights did a landowner have with respect to airspace and subsurface rights A B E What is a xture Is a xture part of real property What are the factors the courts look at in de ning whether property is personal or real property in the form of a xture What is required in order to transfer real property What are the three main types of deeds 1 What is the difference between general warranty deed and a special warranty deed 2 What is the grantor claiming he or she owns when he or she gives the buyer a quitclaim deed 3 Be able to identify common liens and encumbrances on real estate How do the recording acts provide protection for purchasers 1 Be able to determine who has priority under variations of recording acts such as notice race and race notice statutes 2 Why have states enacted statutes that require landlords to make sure that leased premises are habitable 7391 Q F 1 Personal propertyiwhat are the main differences between the transfer of real property and personal property 1 2 3 What is the difference between tangible and intangible personal property What is a bailment of personal property Who bears the liability if bailed property is dangerous Suppose you find some valuable property that is not yours Describe the different consequences depending on whether the property is deemed lost mislaid or abandoned How could you classify intellectual property Be able to describe the process of obtaining a patent in the US l 2 4 E Fquot a b What happens if you do not agree with the decision of the Patent and Trademark Office Under what circumstances will your patent application be disclosed even though you were not issued a patent What is the difference in novelty between Section 102a of the Patent Act and Section 102b Know the 4 disqualifying conditions under Section 102a of the Patent Act What is the one year rule under Section 102b of the Patent Act i What is the difference between a commercial sale and an experimental sale under Section 102b of the Patent Act What does Section 102g require in order for the patentee to maintain priority What is meant by reasonable diligence between conception and reduction to practice What is meant by the term prior art J How do the courts interpret nonobviousness under Section 103 l 2 3 What is the purpose of Section 103 What factors do the courts use in determining whether an invention is obvious or not What is the purpose of Section 102 K What are four kinds of subject matter that can be patented 1 Why can t someone patent an idea What are some other examples of nonpatentable subject matter L What is meant by the term patent infringement 1 What are some common defenses used by defendants in patent infringement suits 2 Is independent creation a defense in patent infringement cases 3 What is the first inventor s defense 4 What is the difference between a literal infringement and one that occurs due to application of the doctrine of equivalents M What are four bases for awarding damages to successful plaintiffs in patent infringement suits 1 What is the role of intent in the amount of damages awarded in patent infringement suits 2 What is the statute of limitations in patent infringement cases N Be able to define a trade secret according to the Uniform Trade Secrets Act 1 Describe how the subject matter of the UTSA is greater than that for patents 2 What are the elements of a misappropriation of trade secrets 3 How are most trade secrets misappropriated 4 What are proper and improper means of obtaining trade secrets 5 What does the Economic Espionage Act of 1996 protect against 0 Be able to describe generally the interaction between misappropriation of trade secrets and employment contracts What duties do employees owe employers What is the common law shop rights doctrine What is a nondisclosure agreement What is a covenant not to compete agreement When are they enforceable and not enforceable bP N VII Why are injunctions very often used against former employees What are the damages associated with misappropriation of trade secrets What does the Computer Fraud and Abuse Act of 1996 prohibit Be able to de ne what a copyright is What are the media in which CR can be perceived A What are the main features of the Beme Convention Elk59 Even after the Beme Convention what are the main bene ts of registering a CR at the Copyright Office How long do copyrights last What are some things that cannot be copyrighted Can facts be CR ed What is the difference between an idea and the expression of an idea What is the level of creativity required to qualify for a copyright B What are the exclusive rights that a CR owner has What is a derivative work In order to demonstrate that a CR infringement has taken place what does the CR owner have to show How would you define substantial similarity for purposes of proving a CR infringement For software what is protected by CR law What is a literal CR infringement and what is an infringement of the nonliteral portions of a so ware program C What are the differences between actual damages in a CR infringement case and statutory damages 1 2 3 How are damages calculated in CR infringement suits based on actual damages In addition to the losses incurred by the CR owner what additional damages can be captured in a CR infringement suit When are criminal charges against infringers likely to occur D What is the first sale defense in a CR infringement suit 1 What special provisions are made in CR law to protect licensees of computer software E What is the fair use exception What are the factors that the courts use to evaluate whether a defendant qualifies for the fair use exception F What are the three types of CR infringements 1 If a manufacturer or software creator can show that there is a noninfringing use for their product does that insulate them from a CR infringement suit for being a contributory infringer 2 What is the difference between a contributory infringer and a vicarious infringer G What is made illegal by the No Electronic Theft Act of 1997 H How are ISPs treated for purposes of CR law Are they treated as though they were a bookstore or a publisher 1 What protections from CR infringement suits did the DMCA provide to ISPs 2 Are ISPs liable for transmitting emails that contain material that infringes a CR 3 If CR owner contacts an ISP and claims that one of its subscribers is posting infringing materials does the ISP have to eliminate access for the allegedly infringing material I What is the basic function of trademarks 1 What is the difference between a trademark trade dress and trade names 2 Which ones can be registered 3 What is the difference between a trade mark and a service mark 4 What is the difference between a certi cation mark and a collective mark J What are some of the benefits of federal registration of a trademark Why do some firms register their marks under state law How long does the initial registration of trademarks last What does it mean that a TM has become incontestable What is a generic trademark Why can t a business register a generic mark What is genericide bP N 5 How does the PTO decide that a mark is confusingly similar to a mark that is already registered 6 What is the difference between a strong mark and a weak mark 7 What is a suggestive mark K What constitutes a TM infringement 1 What are the consequences if a TM owner notices a trademark that infringes and does not sue for a TM infringement 2 What remedies does TM law provide to TM owners for those who infringe 3 Under what circumstances can a TM owner recover triple damages for a TM infringement 4 What is a counterfeit mark L What is the difference between TM infringement and TM dilution 1 What does the federal AntiDilution Act prohibit 2 What is a famous mark What rights do famous mark owners have under the federal AntiDilution Act 3 What is the Anticybersquatting Consumer Protection Act of 1999 What does it prohibit What is cybersquatting


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