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Complete list of Terms and Definitions for bizLaw

Terms Definitions
Exculpatory clause a provision that releases a contractual party from liability in the even of monetary or physical injury, no matter who is at fault. Courts enforce such clauses when they do not contravene public policy, are not ambiguous, and do not claim to protect parties from liability for intentional misconduct. 
Fraudulent misrepresentation   misrepresentation that is consciously false and is intended to mislead another. Fraud affects the genuineness of the innocent party's consent to the contract; thus, the contract was not voluntary in the sense of involving "mutual assent" The innocent party can either rescind the contract and be restored or enforce contract and seek damages for an injury. 1. A misrep of material fact must occur 2. there must be an intent to deceive, called scienter 3.the innocent party must justifiably rely on the misrep.
Discharge   Performance the termination of an obligation. in contract law, discharge occurs when the parties have fully performed their contractual obligations or when events, conduct of the parties, or operation of law releases the parties from performance.   In contract Law, the fulfillment of one's duties arising under a contract with another; the normal way of discharging one's contractual obligations   **duty to perform under contract may be conditioned on the occurrence or nonoccurence of a certain event, or the duty may be absolute.
Liquidated damages v Penalties Liquidated:are enforceable Penalty: not enforceable; an amnt stipulated to be paid in the amnt of a default or breach of contract. when the amn't is not a reasonable measure of damages, the court will not enforce it but will limit recovery to actual damages. Excessive amn't meant to penalize breaching party.  
Mirror Image Rule A common law rule that requires that the terms of the offeree's acceptance adhere exactly to the terms of the offeror's offer for a valid contract to be formed.
Adequacy of Consideration How much consideration is given, fairness of the bargin-fairness would appear to be an issue when the items exchanged are of unequal value. May indicate fraud, duress, or due influence involved. May also express a parties incompetence 
unilateral mistakes of Fact occurs when only one of the contracting parties makes a mistake as to some material fact, does not afford the mistaken party any right to relief from the contract.  EX: DeVinck intend to sell his motor home for 32,500. When he learns Benson is interested he sends him a fax and mistakenly keys in the price of 23,500. Benson immediately sends a fax back accepting..DeVinck is bound in contract to sell for 23,500. **Two exceptions: 1.if the other party to the contract knows or should have known that a mistake of fact was made, the original price, the contract may not be enforceable. 2.when the mistake of fact was due to a mathematical mistake in + - / or x, and was w/o extreme negligence. 
Trade Dress The image and overall appearance of a product--for example: the distinctive decor, menu, layout, and style of service of a particular restaurant. Ex: the G shaped design of a Gucci watch. **trade dress is subject to the same protection as tm
Discharge by Operation of Law Alteration of the Contract-the law operates to allow an innocent party to be discharged when the other party has materially altered a written contract w/o consent. Statutes of Limitations-restricts the period during which a party can sue on a particular cause of action Bankruptcy- Impossibility/Impracticability of Performance-a party to a contract is relieved of his duty to perform when performance becomes objectively impossible or totally impractical.
Anticipatory Repudiation of a Contract an assertion or action by a party indicating that he or she will not perform an obligation that the part is contractually obligated to perform at a future time; when it occurs, it is treated as a material breach of contract. Occurs when a sharp fluctuation in market prices creates a situation in which performance of the contract would be extremely unfavorable to one of the parties
Patent Infringement If a firm makes, uses, or sells another's patented design, product, or process w/o the patent owner's permission, the tort of patent infring occurs..may arise even though the patent owner has not put the patented product into commerce..may also occur even though not all features or parts of a product are identical to those used in the patented invention. **Does not occur when a patented product is made and sold in a diff't country
Covenant not to compete (restrictive covenant) a contractual promise of one party to refrain from conducting business similar to that of another party for a certain period of time and within a specific geographic area. Courts commonly enforce such covenants if they are reasonable in terms of time and geographic area and are part of, or supplemental to, a contract for the sale of a business. **After termination at one co, cannot go to a competitor to work until a reasonable amn't of time has passed.
Conditions of performance in most contracts, promises of performance are not expressly conditioned or qualified. Instead the are absolute promises. They must be performed or the parties promising the acts will be in breach of contract.  Condition:a qualification, provision, or clause in a contractual agreement, the occurrence or nonoccurrence or which creates, suspends, or terminates the obligations of the contracting parties. EX: Afonso offers to buy JoAnne's painting only if an independent appraisal indicates that it is worth $10k. JoAnne accepts the offer and their contract is conditioned on the outcome.
The "Fair Use" Exception an exception to liability to copyright infringement.. a person or organization can reproduce copyrighted material w/o paying royalties  1)purpose and character to the use, including whether such use s a commercial nature or is for nonprofit education purposes 2)nature of copyrighted work 3)amount and substantiality of the portion used in relation to the copyrighted work as a whole 4)the effect of the use upon the potential market for or value of the copyrighted work. **Legit if does not affect market for sale, not in competition
Remedies of the Seller/Lessor 1.The Right to Withhold Delivery: when buyer is in breach from wrongfully reject/revoke acceptance of contract goods, failed to make proper and timely payment, or repudiated a part of the contract 2.The right to resell or dispose of the goods: when buyer breaches when seller still in possession of good 3.The Right to Recover the Purchase Price or the Lease Payments Due: an npaid seller or essor can ring an action to recover the purchase price or payments dueunder the lease contract, plus incidental damages, if the seller unable to resell or dispose of the goods. 4. The Right to Recover Damages: the amnt of damages equals the diff bt the contract price or lease payments and the market price or lease payments 5.Mitigate
innocent misrepresentation if a person makes a statement that he or she believes to be true but that actually misrepresents material fact, innocent misrep has occurred, not fraud. The aggrieved party can rescind the contract but not receive damages.  EX: Paris tells Roberta that a tract of land contains 250 acres. Paris is mistaken-the tract is 215 acres but Paris does not know this. 
Copyright Originality. The exclusive right of an author or originator of a literary or artistic production to publish, print, or sell that production for a statutory period of time. A copyright has the same monopolistic nature as a patent or tm, but it differs in that it applies to works of art, literature, and other works of authorship (inclu computer programs)
Consideration Common law rule that a contract req consideration applies to sale/lease contracts. He, UCC does not require a contract modification to be supported by new consideration. The UCC states that an agreement modifying a contract for the sale or lease of goods "needs no consideration to be binding"
Trade Secrets info or a process that gives a biz an advantage over competitors that do not know the info/process. includes customer lists, plans, research and development, pricing info, marketing tech, production methods, and anything that makes co unique. Extends to both ideas and expressions. 
Acceptance a voluntary act by the offeree that shows assent, or agreement, to the terms of an offer, words/conduct. The offeree must accept unequivocally..The mirror image rule! Communication necessary in bilateral contract because a promise for a promise req the offeree to admit. H/e in a unilateral, promise for an act is evident with the completion of the act.
Undue Influence one party can greatly influ another party, thus overcoming that party's free will which then lacks voluntary assent. The party being taken advantage of does not  exercise free will in entering into a contract.  EX: Minor or elderly under influ of guardian, attorney-client, physician-patient
Licensing In the context of intellectual property law, an agreement permitting the use of a tm, copyright, patent, or trade secret from certain limited purposes. Licensor of a tm has duty to maintain some form of control over the nature of n quality of goods/services sold under the mark. Have it in writing n have specific terms listed out
implied-in-fact contract a contract formed in a whole or in part from the conduct of the parties; words not stated. Req'd: 1.the plaintiff furnished some service/property 2.the plaintiff expected to be paid for that service/property and the defendant knew or should have known that payment was expected(by using the obj theory of contracts) 3.the defendant had a chance to reject the services or property and did not EX: You talk w an accountant ab getting your taxes done.the next day after a consultation you drop of reqd items to secretary w/o expressing you accept the payment and fees reqd.  **Routine forms contract..you work at mall and always get the same thing to eat. Guy is flooded one day and you grab the usuAL and knods to cashier/owner. 
Anticipatory Repudiation before the time of the contract performance, one party clearly communicates to the other the intention not to perform, material breach, can sue or wait for the other party to perform. "might be able to do it later" vs "i cant do it"
Assignments the act of transferring to another all or part of one's rights arising under contract.
Remedies of the Buyer/ Lessee 1. The right of Cover: a buyers purchase on the open market of goods to substitute for those promised but never delivered by the seller. Under UCC, if the cost of cover exceeds the cost of the contract goods, the buyer can recover the diff plus incidental and consequential damages. buyer must act in good faith wo unreasonable delay 2.Right to obtain specific performance: when goods are unique or when the remedy at law is inadequate.  3.Right to recover damages 4.The Right to reject the goods 5.revocation of Acceptance 6.Mitigate
Executed Contract A contract that has been completely performed by both parties
Implied Warranty of Fitness for a Particular Purpose A warranty that goods/services are sold for a particular purpose. Those warranted arises when any seller knows the particular purpose for which a buyer will use the goods and knows that the buyer is relying on the skill and judgement of the seller to select suitable goods.   
Mitigation of Damages a rule requiring a plaintiff to do whatever is reasonable to minimize the damages caused by the defendant. EX: Landlords use reasonable means to find a new tenant if a tenant abandons the premises and fails to pay rent  
Performance "Good Faith" requirement~ Honesty in Fact. "Every contract or duty w/in the Act imposes an obligation of good faith in its performance or enforcement" Merchants are held to a higher standard & higher duty bc public relies on them. Merchants, honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade. 
Material Breach of Contract breach of contract is the failure, without legal excuse of a promisor to perform the obligations of a contract. The breach is material when performance is not at least substantial. 
Contractual Capacity   the legal ability to enter into a contractual relationship MINOR: voidable
Delegations the transfer of contractual duty to a third party. The party delegating the duty(the delegator) to the third party(the delegatee) is still obligated to perform on the contract should the delegatee fail to perform. 
Copyright infringement whenever the form or expression of an idea is copied. Does not have to be exactly the same as the original, nor does it have to reproduce the original in it entirety.  Liable for damages or criminal penalties. Actual damages- based on the harm caused to the copyright holder. Statutory damages- not to exceed $150k are provided for under Copyright Act. Criminal proceeding- fines and/or imprisionment
Statute of Frauds Sale contracts for goods priced at $500 or more and lease contracts requiring total payments of $1000 or more must be in writing to be enforceable.  Exceptions: Specially Manufactured goods, Admissions(gas), Partial performance(chairs)
Tender Performance can also be accomplished by tender> An unconditional offer to perform an obligation by a person who is ready, willing, and able to do so. There are two basis types of performance.. complete performance and substantial performance
Contracts Contrary to public policy certain contracts are not enforceable bc of the negative impact they would have on society, such act that are considered immoral such as selling a child/prohibit marriage. EX:Forest gives man $10k not to marry his daughter, however man can marry woman and keep money bc the contract is void.
Exceptions to statute of frauds an oral contract may be enforced under the doctrine of promissory estoppel, based on detrimental reliance
4 Types of Impossibility of Performance   1.Objective Impossibility of Perf- -when one of the parties to a personal contract dies or becomes incapacitated prior to performance. EX: Ballet, fred dies -when the specific matter of the contract is destroyed EX: a truck veer off the road and destroys a tractor Victor was supposed to have ready for pick up for customer to buy. -when a change in law renders performance illegal 2.Temporary Impossibility-an occurance or event that makes performance temporarily impossible, operates to suspend performance until the impossibility ceased to exist. Ex: hurricane katrina damages house $60k when it is to be sold for $241K. Owner must make repairs and go forth w contract 3. Commercial impracticability- a court may excuse the parties from performing a contract when the performance becomes much more difficult or costly due to an event that the parties did not foresee or anticipate at the time the contract was made. 4.Frustration of purpose-supervening circumstances make it impossible to attain the purpose both parties had in mind when making the contract. objective performance no longer exists.
Privity of Contract A third party, one who is not a direct party to a particular contract, normally does not have rights under that contract.Exceptions: 1.Assignments 2.Delegations 3.Third party beneficiary
Contract Provisions Limiting Remedies Exculpatory Clause- provision stating that no damages can be recovered   Limitation of Liability- provisions that affect the availability of certain remedies. Excludes fraud, intentional injury, illegal acts or violations of law
Liquidated Damages Provisions an amn't stipulated in a contract to be paid in the event of a default or breach of contract. the amn't must be a reasonable estimate of the damages that would result from a breach in order for the court to enforce it as liquidated damages. EX: a provision req a construction contractor to pay $300 for every day he or she is late in completing the construction
Procedural unconscionability involves inconspicuous print, unintelligible language, or the lack of an opportunity to read the contract or to ask questions about its meaning. disparity in bargaining power, weaker party consent is not voluntary. Adhesion contract A "standard-form" contract such as that between a large retailer and a consumer, in which the dominant dictates the terms. No opportunity to negotiate the terms
Promissory Estoppel a doctrine that applies when a promisor make a clear and definite promise on which the promisee justifiably relies; such a promise is binding if justice will be better served by the enforcement of the promise. {Estop=to bar, impede, or preclude someone from doing something}
Agreements that lack consideration -preexisting duty: a promise to do what one already has a legal duty to do. an officer cannot collect a reward for providing info leading to the capture of criminal. EX: a contractor states another 75k must be added to contract or no finish job. The land owner pays bcuz doesn't see anyone else will finish it. Bache is obligated under preexisting contract to complete the building. Past Consideration:promises made in return for actions or events that have already taken place are unenforceable. These promises lack consideration in that the element of bargained for exchange is missing. Past consideration is no consideration. EX:Iverson gives hs buddy the nickname of "The Answer"
Unilateral Contract A contract that results when an offer can be accepted only by the offeree's performance. "Promise for an act." The contract is formed when the contract is performed. Do the act-->get paid. EX: Reese offers to Celia, "if you drive my car from NY to LA, I'll get you $1000." Only on Celia's completion of the act, does she fully accept Reese's offer to pay $1000. EX: contests, lotteries, &other competitions offering prizes. ***offers are normally revocable (capable of being taken back or cancelled) upon until accepted.
Express Contract a contract which the terms of agreement are stated in words, oral, or written; words exchanged EX: a signed lease for an apt or house; if a classmate accepts your offer to sell your textbooks from last semester for $300, an express oral contract has been made.
Trademarks A distinctive mark, motto, device, or emblem; the owner has the exclusive rights to use. To protect manufacturers from losing business to rival companies that used confusingly similar trademarks..competing or not competing but "related" goods/services Ex. Coke Dilution:protects "distinctive" or "famous" tM from certain unauthorized uses even when noncompeting or unlikely to confuse. Use of similar mark provided that it reduces the value of famous mark. Ex: "Sambucks" Not ex: "Victor's Little Secret"  Infringement: the owner must show that the defendant's use of the mark created a likelihood of confusion about the origin of the defendant's goods/services. Remedy for infringement is an injunction, can recover actual damages. A court can also order the destruction of any goods bearing unauthorized tm.
Cure Exception to Perfect tender rule; the right of a party who tenders nonconforming performance to correct that performance win the contract period. *Gives sellers opportunity to make it right, and restricts buyers right to reject goods. 
The statute of Frauds a state statute under which types of contracts must be in writing to be enforceable.  1. contracts involving interests in land 2.contracts that cannot by their terms be performed w/in one yr from the day after the sate of formation 3. collateral, or secondary contracts such as promises to answer for the debt or duty of another and promises by the administrator or executor of an estate to pay a debt of the estate personality-out of his/her own pocket 4.promises made in consideration or marriage (prenuptial agreements) 5.contracts for the sale of goods priced at $500 or more.
substantive unconscionability characterizes those contracts, or portions of contracts, that are oppressive or overly harsh. Courts focus on provisions that deprive one party of the benefits of the agreement or leave that party w/o a remedy for nonperformance by the other. EX: credit card agreement, insurance companies, cell phone companies
Bilateral Contract a type of contract that arises when a promise is given in exchange for a return promise. "A promise for a promise."   **Not legally enforced. No performance, such as payment of funds or delivery of goods, takes place EX: Javier offer's to buy Ann's camera for $200 and states he will give her the $ on fri when he gets paid. Ann accepts his offer. EX: Professor promises to meet Williams for golf lessons for $50 tomorrow morning
Contract an agreement that can be enforced in court; formed by two or more competent parties who agree, for consideration, to perform or to refrain from performing some legal act now or in the future
Bilateral (Mutual) Mistakes of Fact   occurs when both parties are mistaken as to some material fact- that is a fact important t the subject matter of the contract. The contract can be rescinded/canceled (rescission). EX:Keeley buys a painting from Umberto's art gallery, which whom both believe is a landscape by VanGogh. Keeley later discovers that the painting is a very clever fake. Bc neithe Umberto nor Keeley was aware of this material fact when they made their deal, Keeley can rescind the contract and recover the purchase price of the painting. 
Additional Terms if the acceptance inclu terms addit to or diff from those contained in the offer n one or both of the parties is a nonmerchant the contract form according to the terms of original offer submitted. In contracts bt merchants the additional terms w automatically become part of the contract unless 1.the orig offer expressly limited acceptance to its terms 2.the new or changed terms materially alter the contract 3.the offeror objects to the new or changed terms w/n a reasonable period of time.
Exclusions to Copyrights ideas! anything that is not an original expression, facts widely known to the public, page numbers, math calculations **However, Compilations of Facts-ARE copyrightable. assembling of preexisting materials of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. Ex..yellow pages, but not white pages
Requirements of an offer: to do or refrain from doing some specific act in the future   1.must have serious intention to be bound 2.terms must be reasonably certain or definite so that parties/court can ascertain the terms of contract 3.must be communicated -INTENTION:serious, objective EX.ferguson farm -EXPRESSION OF OPINION:is not an offer. it does not evidence an intention to enter into a binding agreement. Dr states his opinion that boys had in couple days does not make a offer he can heal it. -Statements of Future intent:a statement of an intention to do something in the future is not an offer. thinking, not promising. -Preliminary Negotiations:a request or invitation to neg is not an offer..it only expresses a willingness to discuss the possibility of entering into a contract -Advertisements: mail-order catalogues, price lists, and circulars- are treated not as offers to contract but as invitations to negotiate. EX: an ad offering a reward for the return of a lost dog) **The 2nd req for an effective offer involves the definiteness of its terms. ***3rd req for an effective offer is communication of the offer to the offeree, resulting in the offeree's knowledge of the offer. EX: Ed advertises a reward for the return of his lost dog. Ho, not knowing reward find the dog and returns it to Ed. Ho cannot recover the reward bc she did not know it had been offered.  
voluntary consent knowledge of, and genuine assent to, the terms of a contract. If a contract is formed as a result of a mistake, misrepresentation, undue influence, or duress, voluntary consent is lacking and the contract will be voidable.
Recovery based on Quasi Contract a fictional contract imposed on parties by a court in the interests of fairness n justice; usu imposed to avoid the unjust enrichment of one party at the expense of another 1.the party conferred a benefit on the other party 2.the party conferred the benefit with the reasonable expectation of being paid 3.the party did not act as a volunteer in conferring the benefit 4.The party receiving the benefit would be unjustly enriched by retaining the benefit without paying for it
Executory Contract A contract that has not yet been fully performed.
AGREEMENT~    A meeting of two or more minds in regard to the terms of a contract, usually broken down into two events: an offer and an acceptance.
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.
Certification Mark A mark used by one or more persons, other than the owner, to certify the region, materials, mode of manufacture, quality, or other characteristic of specific goods or services. Ex: Good housekeeping Seal of Approval" and UL Tested"
Implied Warranty of Merchantability a warranty that goods being sold or leased for which they are sold or leased, are properly packaged and labeled, and are of fair quality. The warranty automatically arises in every sales or lease of goods made by a merchant who deals in goods of the kind sold or leased; imposes liability for the safe performance of he product.  "Reasonably fit for the ordinary purposes for which goods are used." EX: snow skis, implied that it was made/bought for purpose of snow skiing.
Collective Mark A mark used by members of a cooperative, association, union, or other organization to certify the region, materials, mode of manufacture, quality, or other characteristic of specific goods or services. Ex: appears at the ends of the credits of movies to indicate the various associations and organizations that participated in making the movie.
Contract Enforceability   1.Enforceable contract: a valid contract that can be enforced bc there are no legal defenses aga it 2.Voidable contract: A valid contract but one that can be legally avoided at the option of one or both parties. The party having the option can elect either to avoid any duty to perform or to ratify the contract. If avoided, both parties are released from it, if ratified, both must fully perform their respective legal obligations.  Minor can participate. EX: minor buys car w/ college$. Dad returns car for $. EX: contracts entered into under duress or undue influences are voidable 3.Unenforceable contract: a valid contract rendered unenforceable by some statute or law.  EX: some writings must be in writing, if not, they will not be enforceable.
E-Contract   Click on Agreement A contract that is formed electronically.   an agreement that arises when a buyer, engaging in a transaction on a computer, indicates his assent to be bound by the terms of an offer by clicking on a button that says "I agree" If you are educating..can read..have eye sight.. you're gonna be presumed to have read it. If you click, you're binded and stuck.
Mailbox Rule a rule providing that an acceptance of an offer becomes effective on dispatch (on being placed in an official mailbox), if mail is expressly or impliedly an authorized means of communication of acceptance of the offer. an acceptance becomes valid upon dispatch
Communication of Acceptance The UCC is stringent, if an offeror is not notified w/n reasonable time that the offeree has impliedly accepted the contract by beginning performance, the the offeror can treat the offer as having lapsed before acceptance. [under common law, bc a unilateral offer invites acceptance by  a performance, the offeree need not notify the offeror of performance unless the offeror would not otherwise know ab it]
the four requirements that must be et for a valid contract to exist...   1.Agreement:an offer and an acceptance  2.Consideration:something of value received or promised to convince a person to make a deal 3.Contractual Capacity:the law must recognize both parties as possessing characteristics that qualify them as competent parties. 4.Legality:the contracts purpose must be to accomplish some goal that is legal and not against public policy. 
Consideration the value given in return for a promise. The consideration must be something of legally sufficient value and there must be a bargain-for-exchange Legal value:a promise to do something the one has no prior legal duties. 2. the performance of an action that one is otherwise not obligated to untertake; 3. the refraining from an action that one has legal right to undertake Bargin for Exchange:the promise given by promisor must induce the promisee to offer a return promise, a performance, or a forbearance, and the promisee's promise must induce the promiser to make the promise.  **A gift doesn't make req for a consideration. EX: someone is offered $for graduation top 10% of class.
Equitable Remedies Restitution-a person is restored to his orig position prior to loss or injury, or placed in the position he would have been in had the breach not occurred.  Specific Performance-req exactly the performance that was specified in contract; usu granted only when money damages would b an inadequate remedy and the sub matter of the contract is unique EX: sale of land EX: contracts for personal service-one party works personally for another party.
Damages for Breach of Contract 1. Compensatory(to cover direct losses and costs) 2. Consequential(to cover indirect and foreseeable losses) 3. Punitive(to punish and deter wrongdoing) 4. Nominal(to recognize wrongdoing when no monetary loss is shown)
The objective theory of contracts a theory under which the intent to form a contract will be judged outward, objective facts (what the party said when entering into the contract, how the party acted or appeared, and the circumstances surrounding the transaction) as interpreted by a reasonable person, rather than by the party's own secret, subjective intentions.
unconscionable contracts/clauses  a term used to describe a contract or clause that is void on the basis of public policy bc one party, as a result of disproportionate bargaining power, is forced to accept terms that are unfairly burdensome and that unfairly benefit the dominant party. on either procedural or substantive grounds
Trade Name A term that is used to indicate part or all of a business's name and that is directly related to the business's reputation and goodwill. Trade names are protected under the common law(and under tm law if the name is the same as that of the firm's tm'ed product) Ex: Coca-Cola ***unless also used as a tm or service mark, a trade name cannot be reg w the fed gov't.
Termination by operation of Law 1.Lapse of time 2.Destruction of the specific subject matter 3.Death or incompetence of the offeror or the offeree 4.Supervening illegality of the proposed contract
Acceptance The UCC permits acceptance of an offer to buy goods "either by a prompt promise to ship or by the prompt or current shipment of conforming or nonconforming goods." Conforming good accord w the contracts terms. Nonconforming do not. The shipment of nonconforming goods constitutes both and acceptance which creates a contract and a breach of that contract.  EX: If you buy A and receive B, shipment and receive of B constitutes an acceptance/breach. He, if you are notified before hand that B is only an accommodation bc they dont have A and you accept, sits as a counteroffer and not breach.
substantial performance Good faith performs substantially all of the terms of a contract; the performance must not vary greatly from the performance promised in the contract, and it must create substantially the same benefits as those promised in the contract. EX: construction company hired to build a house, the contract specifies the BrandX plasterboards be used. The buyers are on holiday in peru and unreachable to co who cannot find Brand X. The builder decides to install BrandY which are just as durable. Court decides that Co has substantially completely contract.
to determine if a particular provision is for liquidated damages or penalty, 2 questions to be answered... 1.When the contract was entered into, was it apparent that damages would be difficult to estimate in the event of a breach? 2.Was the amn't set as damages a reasonable estimate and not excessive?   *if both yes, enforced. if one no, not enforced.
Duress consent to the terms of a contract is not voluntary is one of the parties is forced into an agreement, through fear created by threats. Threatening to exercise a legal right such as to sue someone does not constitute duress.  EX: Car accident, Olin say if you don't pay me $3000 im going to sue you for $35000. Joan pay then later stops payment. Court orders duress is not an argument that can relieve her.
Service Mark A mark used in the sale or the advertising of services to distinguish the services of one person or company from those of others. Titles, character names, and other distinctive features of radio and television programs may be registered as service marks. 
Promissory Estoppel   justifiable reliance on a promise. 1. Must be a clear and definite promise 2.Promisee must justifiably rely on the promise 3.the reliance normally must be of a substantial and definite character. 4.justice will be better served by enforcement of the promise **if these req are met, a promise may be enforced even though it is not supported by consideration. The promisor estopped from asserting lack of consideration as a defense. EX: Uncle says he pay $300/wk so u not have to work. You quit your job but your uncle refuses to pay you.
Third party beneficiaries One for whose benefit a promise is made in a contract but who is not a party to the contract. As an intended beneficiary a third party for whose benefit a contract is formed; can sue the promisor if such a contract is breached. Incidental beneficiary a third party who incidentally benefits from the contract but whose benefit was not the reason the contract was formed; an incidental beneficiary has no rights in a contract and cannot sue to have the contract enforced; the benefit is unintentional, cannot sue to enforce contract EX: Mike Tyson was disqualified for biting ear off. Spectators tried to sue for short match..courts ruled the got what they paid for, "the right to view whatever event transpired"
Termination of the offer 1.Revocation:the withdrawal of an offer by an offeror; it can be revoked at any time prior to acceptance w/o liability--but expressed reputation or performance of acts are inconsistent  **Termination by action of the offeree** >>2.Rejection:the offer may be rejected by the offeree, typ accomplished by words or conduct evidencing an intent not to accept 3.Counteroffer:an offeree's response to an offer in which the offeree rejects the original offer and at the same time makes a new offer.
Implied Warranty a warranty that the law derives by inferences from the nature of the transaction or the relative situations or circumstances of the parties. Merchants impliedly warrant that the goods they sell are merchantable and fit for a particular purpose.
Formal Contract A contract that by law requires a specific form for it validity.  EX: negotiable instruments:checks, drafts, promissory notes, and certificates of deposits. Under UCC, special forms and language are required to create them.  EX: Letter of credit used in international sales contracts
firm offer a firm offer arises when a merchant gives assurances in a signed writing that the offer will remain open. A firm offer is irrevocable w/o the necessity of consideration for a stated period of time. EX: Under contract law, 25k had to be paid w/ the consideration to buy film to hold spot for a certain time period. H/e under the UCC Osaka, a used car dealer writes a letter to Saucedo on Jan 1 stating"I have a 05Suzuki on the lot that i'll sell you for 8500 any time bt now and jan31. This writing creates a firm offer and Osaka will be liable for breach if he sells to someone else during that time period
Irrevocable Offer An option contract is created when an offeror promises to hold an offer open for a specific period of time in return for a payment (consideration) given by the offeree. Limit offeror's ability to revoke offer for a specified amn't of time. EX: New Line want to buy the script you wrote. Pays $25k to hold for 6mos. If contract never made, you can sell to someone else and keep money. When the offeree justifiably relies on an offer to her or his detriment, the court may hold that this detrimental reliance make the offer irrevocable. EX: Angela rents commercial property from Jake, the rental property market is more favorable for tenants than for landlords. Angela may look to rent else where after lease is up but jake promises when this time comes he will reduce her rent. Angela relies on his promise.
Express Warranty A seller's oral or written promise or affirmation of fact, ancillary to an underlying sales or lease agreement, as to the quality, description, or performance of the goods being sold or leased. EX: "these drill bits will penetrate stainless steel- and wo dulling" Promise of fact about goods. Opinion of quality and value of good is PUFFERY..not a warranty.
Void Contract NO CONTRACT. None of the parties have any legal obligations if void. EX:if one of the parties was previously determined by the court to be legally insane(thus lacking legal capacity) or bc the purpose of the contract was illegal. Illegal/unlawful. knocked out from C & L.
Patents A gov't grant that gives an inventor the exclusive right or privilege to make, use, or sell his invention for limited time..the applicant must demonstrate that the invention, discovery, process, or design is novel and useful. 20yrs- then product enters public domain where others can make, sell, or use the invention. Almost anything is patentable except..1) the law of nature. 2) natural phenomenon. 3) abstract ideas
The sale of goods Sales Contract- a contract for the goods under which the ownership of goods is transferred from a seller to a buyer for a price. "The passing of a title from the seller to the buyer for a price"   -Goods must be moveable and tangible
Discharge by Agreement mutual rescission-an agreement bt the parties to mutually cancel contract.the parties must make another agreement that also satisfies legal req of a contract; An offer, acceptance, &consideration  Novation-when both of the parties to a contract agree to substitute a third party for one of the orig parties 1.a previous valid obligation 2.an agreement by all the parties to a new contract 3.the extinguishing of the old obligation (discharge of the prior party) 4.A new contract that is valid Substitutional agreement-the two orig parties to the contract form a difft agreement to substitute for the orig one.(Arises over disputes over obligations) Accord and Satisfaction accord-is a contract to perform some act to satisfy an existing contractual duty. The agreement to accept the auto in lieu of $8k in case is the accord. satisfaction-the performance of the accord agreement
informal contracts a contract that does not require a specific form or formality to be valid; usually based on their substance rather than their form.
Perfect Tender Rule A seller or lessor is req to deliver goods that conform perfectly to the requirements of the contract in every detail.   **Compare to Mirror Image Rule.
Implied Warranty Arising from Course of Dealing or Trade Usage
Generic Terms will not be protected under tm law even if the term has acquired a secondary meaning EX: bicycle, computer, aspirin, raisin bran, corn flakes, "You have Mail"
Distinctiveness of Mark A tm must be sufficiently distinctive to enable consumers to identify the manufacturer of the goods easily n to distinguish bt those goods and competitors. Strong Marks:fanciful, arbitrary, or suggestive tm strongest bc they taken from outside the context of the particular product n thus provide the best means of distinguishing 1product from another.  Fanciful tm EX: "xerox" or "kodak." Arbitrary EX: "Dutch Boy" (can of paint). Suggestive EX: "Dairy Queen.  Secondary Meaning: when customers begin to associate a specific term or phrase. "London Fog" (jackets) **Even a color can qualify for trademark protection. Once secondary meaning is attached to a term or name, tm considered distinctive and so is protected. EX: "SExy Little Things"(V.S.)
Legality For a contract to be valid and enforceable, it must be formed for a legal purpose. A contract to do something that is prohibited by federal or state statutory law, to commit a tort, or to commit an act this is contrary to public policy is illegal and unenforceable. 
Warranty of Title arises almost automatically in most sales contracts; protects buyers who are unaware of any encumbrances(claims, charges, or liabilities--liens) aga goods at the time the contract is made. Protects aga goods that are sub to a creditor's security interest. Can be disclaimed or modified only by specific language.
Mistakes Mistakes of fact v mistakes of value/quality. Only a mistake of fact may allow a contract to be avoided. EX: An old violin was sold for $250. Buyer took to an antique shop where it was valued at $25k. The seller is out of luck bc the contract remains enforceable.  EX2: Same seller sells a violin for $15k but in actuality, it is only worth $250..mutual mistakes of facts, court supports recission of contract.(Bi)
Warrenty an assurance by one party of the existence of a fact on which the other party rely. Must be written and writing must be conspicuous. 
Performance to the Satisfaction of Another when the sub matter of the contract is personal, a contract performance to the satisfaction of one of the parties is conditioned and performance must actually satisfy that party. Ex.portraits, works of art, and tailoring. Most other contract need to be performed only to the satisfaction of a reasonable person unless they expressly state otherwise.
Obligations of the Buyer/Lessee 1.Payment: buyer must make payment at time and place the buyer or lessee receives the goods. The credit period begins the day of shipment 2.Acceptance: