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bizLaw _1.2_1

bizLaw _1.2_1 - Term Definition Exculpatory clause a...

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Term: Exculpatory clause Definition: 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. Term: Fraudulent misrepresentation Definition: 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 occur2. there must be an intent to deceive, called scienter3.the innocent party must justifiably rely on the misrep.
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Term: Discharge Performance Definition: 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. Term: Liquidated damages v Penalties Definition: Liquidated:are enforceablePenalty: 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. Term: Mirror Image Rule Definition: 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.
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Term: Adequacy of Consideration Definition: 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 Term: unilateral mistakes of Fact Definition: 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.
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Term: Trade Dress Definition: The image and overall appearance of
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