Contracts and Tort

In: Other Topics

Submitted By mmelobic
Words 1253
Pages 6
LAW 5072 FINAL EXAM STUDY GUIDE

CONTRACTS

Definition:
A contract is a promise(s) for the breach of which the law gives a remedy, or the performance of which the law recognizes as a duty.

Offer:
Showing a willingness to enter into a bargain in such a way that another person would interpret that they could accept and it would conclude the negotiations. It can be words, actions, advertisements (NOT negotiations, estimates or price quotes.)

Acceptance:
Once an offer has been made, the other party can accept the offer in any reasonable way, including starting performance. The party who accepts can back out up until performance begins. Factors: Were terms finalized? Did performance begin?

Consideration:
A contract must include a promise and a return promise. It cannot only go in one direction: both parties have to get something valuable (a good or service). A promise of a gift is NOT enforceable because one party gets nothing. The exchange doesn’t have to be equal: one person may value something more than someone else.

Enforcement:

Breach: Failure to perform

Substantial Performance: Doing exactly what is in the contract is not always possible, but the parties have to reasonably live up to the terms. If one party does not materially perform, the other party no longer has to perform.

If one party breaches:
Damages ‐ The party who is harmed can request money from the other party equal to the loss from the breach. The court said that you can recover damages for the difference between what you expected to get in the contract and what you actually got.
OR Specific performance ‐ If it is still possible to perform the contract, the court can require the party to perform.

Defenses (things that can make contracts void):
Unconscionability: If one party tricked another party into agreeing to an unfair contract (e.g.: trick poor or…...

Similar Documents

Torts

...Recognizing and Minimizing Tort and Regulatory Risk In this essay I will explain how regulatory risks may be identified and managed through preventive, detective, and corrective measures for such torts as negligence, product liability and defamation. For most businesses such torts are better handled before they happen. Companies make sure many issues are addressed in the company policy and regulations manuals when new employees are hired as well as in training sessions for topics such as sexual harassment and safety. For a Company such as Firestone Tires and Rubber for example, one type of negligence could be Negligent Hiring. If an employee in a supervisory position verbally abuses another or in an extreme case, assaults another employee with a tire iron used in the performance of his duties, the victim could claim negligent hiring on the part of the company where they both were employed. This could be the case if the aggressive supervisor has had a history of this type of behavior at a previous place of employment. This begs us to ask the question: Has the company made enough effort to fulfill its obligation of providing a safe working environment for its employees? As it was touched on before there are measures that can be taken before something like this happens. For one, the hiring manager could have followed up on references to possibly find out if the candidate for employment has had a history of violence in the workplace, or......

Words: 992 - Pages: 4

Tort

...Tort of Negligence A tort can be defined as civil wrong which is not a breach of contract i.e. committed against an individual, it is apparent from this definition that there is a distinction between contract and tort. A tortious liability is not undertaken voluntarily by the courts leaving the defendant or/party no option but to accept. A tort doesn’t arise as a result of a bargain but as a consequence of committing a tort. Contractual liability is usually strict but that arising out of a tort is always ALMOST based on fault. The tort of negligence by far is the most important tort as its widely defined and can be committed in the multitude of ways, compared to other torts that apply in more limited circumstances. In order to establish a tort of negligence the plaintiff must establish three things on a balance of probabilities: - *The defendant owed a duty of care *Defendant breached the duty of care *There was damage or injury *No defenses An important distinction that we need to make is for vicarious liability where the employer is vicariously liable for the negligence of the employee, if the employer was negligent during the course of his employment. Duty of Care – the court will ask two questions to determine liability i.e. proximity and foreseeability, the landmark case that supports this was Donoghue v Stevenson [1932]. The case surrounded where the claimant had a decomposed snail in her ginger beer, which caused her to suffer gastroenteritis, and site of......

Words: 629 - Pages: 3

Torts

...A. Torts 1. Compensatory and Punitive Damages Tort law involves civil liability between private parties. A plaintiff who wins a tort suit usually recovers the actual damages or compensatory damages that she suffered because of the tort. Depending on the facts of the case, these damages may be for direct and immediate harms, such as physical injuries, medical expenses, and lost pay and benefits, or for harms as intangible as loss of privacy, injury to reputation, and emotional distress. In cases where the defendant’s behavior is particularly bad, injured victims may also be able to recover punitive damages. Punitive damages are not intended to compensate tort victims for their losses. Instead, they are designed to punish flagrant wrongdoers and to deter them and others from engaging in similar conduct in the future. Theoretically, therefore, punitive damages are reserved for the worst kinds of wrongdoing. Punitive damages have always been controversial, but they have grown more so in recent years due to the size of some punitive damage awards and the perception that juries are awarding them in situations where they are not justified. 2. Negligence Defenses The common law traditionally recognized two defenses to negligence: contributory negligence and assumption of risk. In many states, however, one or both of these traditional defenses has been superseded by new defenses called comparative negligence and comparative fault. Contributory negligence is the......

Words: 3405 - Pages: 14

Tort

... Based on the evidence presented, the jury made the right decision; however, the amount of the punitive damages awarded was high when considering New Mexico statutes and court rules. McDonald’s has a history of burn complaints from coffee and even though McDonald’s was aware of the problem; McDonald’s refused to either warn its customers or lower the temperature of the coffee. This proved that McDonald’s knew about this situation and makes it easy to prove negligence for failure to warn (Kubasek, Brennan, and Browne in Hartigan, ed., 2004, p. 172). Gerlin stated that Morgan “suggested penalizing McDonald’s the equivalent of one to two days of companywide coffee sales” (1994). This is contradictory to the statement found in chapter 8, Contracts and UCC Sales, section13-861, punitive damages that states “the amount awarded, if any, must be reasonably related to the injury and to the damages given as compensation and not disproportionate to the circumstances” (New Mexico Compilation Commission, n.d.). The jury had awarded the punitive damages based on the McDonald’s sales and not on the damages brought to the plaintiff; therefore the judge was correct in reducing the damages awarded. What ethical norms were fundamental to the jury’s determination? The ethical norm of justice was fundamental to the jury’s decision. Liebeck had expected to get a consumable drink for her purchase and instead got third degree burns. In addition, McDonald’s admitted to knowing about previous......

Words: 1528 - Pages: 7

Business Contract and Torts

...in journals with reading committees have dealt directly with logistics issues for SMEs. (Gélinas and Bigras, 2004) In context of development of working relationships among businesses, particularly SME subcontractors, (though not necessarily among businesses of a single supply chain or a supply chain network) Wynarczyk and Watson (2005) have observed that the development of embedded relationships between firms is clearly facilitated when the interacting employees believe that they share a common economic situation, ethnic identity and/or value system. By engendering mutual trust, resource sharing and innovation, such embedded ties have the potential to create a viable and less costly alternative to formal governance systems based upon contracts. Many researchers (see for example, Bagnasco and Sabel, 1995; Freel, 2000; Collinson, 2000) have addressed the possibility that firms that adopt an explicit strategy of relying upon such partnership arrangements are able to innovate, remain competitive and improve their business performance relative to other firms. This work however is broader in nature and has no focus on businesses partnering for a particular product or businesses that are essentially in a buyer-supplier relationship. They have also not addressed peculiarities of a Supply Chain, and have not addressed the impact of such relationships on quality performance of the interacting firms. Pegels (1991) stresses the importance of integrating the functional areas for......

Words: 4164 - Pages: 17

Tort

...Grade: A University of London LLB, 2nd year Tort Law Question Amber Valley Primary School was closed 6 months ago by Amber Borough Council (ABC), the local education authority, which owns all the land and buildings. The school has been standing empty while ABC attempts to find a buyer for the site. Although ABC placed fencing around the site, local residents reported that youths had broken into the site on a number of occasions. Last week a group of youths from a nearby young offenders institution, operated by Chigley Services Ltd (CS) under contract to the Home Office, broke into the disused school and set fire to it. The youths had been clearing rubbish from a neighbouring stream and were supposed to have been under the supervision of Justin and Jason, both of whom are CS employees. However, Justin and Jason had gone for a cigarette break and left the youths unsupervised at the time the break-in occurred. The fire caused damage to neighbouring property including a baker's shop owned by Mark. It is likely to be many weeks before the business can reopen and Mark stands to lose many thousands of pounds in lost profits. It later transpired that the fire would not have had time to spread to neighbouring property had the Fire Brigade acted more swiftly. The Amber Valley Fire engine was unavailable at the time and another engine had to be dispatched from Leicester. The crew got lost on the way because they put the wrong address in the sat-nav (satellite......

Words: 4446 - Pages: 18

Law, Tort Law, Criminal Law, Contracts, and Civil Procedure

...Running head: Law, Tort Law, Criminal Law, Contracts, and Civil Procedure | | | Law, Tort Law, Criminal Law, Contracts, and Civil Procedure In defining the term law, tort law, criminal law, contract and the sources from which law derives, I will use a case that took place in 1929 “Donoghue v Stevenson” to demonstrate the these laws which will show a successful negligence suit, as well as defenses a defendant presenting evidence to refute a plaintiffs evidence. J.G. Holland said it best! In the words of J. G. Holland “Laws are the very bulwarks of liberty; they define every man’s rights, and defend the individual liberties of all men”. Laws are derived from the United States Constitution; Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary. Established Constitutional and administrative law govern the affairs of the state. Constitutional law concerns both the relationships between the executive, legislature and judiciary and the human rights or civil liberties of individuals against the state. Most jurisdictions, like the United States and France, have a single codified constitution with a bill of rights. A few, like the United Kingdom, have no such document. A "constitution" is simply those laws which constitute the body politic, from statute, case law and convention. Law is defined as a system of......

Words: 1720 - Pages: 7

Tort and Contract Law

...Tort and contract law are similar in that both involve a breach of duties, and in modern law these duties have blurred and it may not be clear whether an action "sounds in tort or contract". With contract violations, the breach has to do with the duties that have been named in the contract. Tort violations however also involve some sort of breach of duty which can be viewed as the causes of action which are not defined in other areas such as contract or fiduciary law,as in the case of “Donoghue v Stevenson (1932)”. The tort of negligence is the most common type of tort and can be divided into four component parts that the plaintiff must prove to establish negligence. These componentsare: • The plaintiff was owed a duty of care through a special relationship (e.g. doctor-patient) or some other principle • There was a dereliction or breach of that duty • The tortfeasordirectly caused the injury [but for the defendant's actions, the plaintiff would not have suffered an injury]. • The plaintiff suffered damage as a result of that breach • The damage was not too remote; there was proximate cause to show the breach caused the damage Tort laws govern situations where one person has harmed or injured another person. They also cover violations where the party intentionally harmed the other person, such as in a battery claim and also address incidents where the party may be held liable even if they did not act intentionally, such as in negligence claims or strict liability......

Words: 636 - Pages: 3

Law of Contract Evidence and Tort

...Name Course Instructor Institution Date of Submission Was a valid contract formed between Pierre's and Maynard? Explain A valid contract was formed between Maynard and Pierre. A valid contract consists of an offer, acceptance, consideration, and an intention to create a legal relationship. All these elements were fulfilled in the contract between Pierre and Maynard. Pierre made the offer when he offered to sell the car for $4000, which Maynard accepted by signing the sale agreement. A legal relationship was formed at the end of the signing of the sale agreement. If a valid contract was formed, does Maynard have any arguments to have his money refunded? Maynard has various arguments to have his money refunded. Under the common law rules of the law of contract, a contract is voidable if at its making there were vitiating factors such as fraud, misrepresentation, mistake, duress, and intoxication among others. Vitiating factors may render a voidable contract void at the will of the injured party. In this case, Pierre fraudulently misrepresented that the car was “the best in town”, "one of a kind" and "the engine and brakes are in tip-top shape." Pierre made all these representations fraudulently to induce Maynard to enter into a contract with him. Due to Pierre’s fraudulent misrepresentations, Maynard bought the car that turned out to be faulty, and that caused him an accident. It also turned out that Pierre had overstated the price fraudulently. The effect of a......

Words: 724 - Pages: 3

Tort and Cyber Tort

...TORTS AND CYBER TORTS CHAPTER 12 Section 1: The Basis of Tort Law * A Tort law is designed to compensate those who have suffered a loss or injury due to another person’s wrongful act. It is meant to obtain compensation (monetary damages) or other remedies for the harm suffered. * The purpose of Tort Law: Tort law tries to protect certain things that society recognizes as an interest worth protecting such as property, intangible interests (personal privacy, family relations, reputation, and dignity) * Types of Damages available in Tort Actions: 1. Compensatory Damages – meant to compensate a plaintiff for actual losses such as special damages (compensation by quantifiable monetary losses) or general damages (compensation by nonmonetary aspects of harm suffered, such as pain and suffering). 2. Punitive Damages – Meant to punish the wrongdoers who have committed a reprehensible or egregious act so as to deter others from similar wrongdoing. This can include gross negligence and intentional tort actions Section 2: INTENTIONAL TORTS AGAINST PERSONS * In tort law, intent means only that the actor intended the consequences of his or her act or knew with substantial certainty that specific consequences would result from the act * Assault and Battery: Assault is any intentional and unexcused threat of immediate harmful or offensive contact, including words or acts that create in another person a reasonable apprehension of harmful contact. * False...

Words: 749 - Pages: 3

Contract and Tort Law

...Clayton Act - mergers, price discrimination - and Federal Trade Commission Act) 7 History, III: Enforcement in the US 1897: first Supreme Court decisions against trusts 1911: Standard Oil broken into 34 firms Per se prohibition of price agreements (initially, little distinction btw. horizontal and vertical agreements) 1933: Appalachian Coals v. US, an exception 1950-60s: (too) active enforcement 1970s: efficiency criteria begin to play a role 1980s: (Reagan): laissez-faire... 8 History, IV: Germany End XIX Century: cartels (enforceable contracts) as a means to avoid cut-throat competition 1923: Cartel law as reaction to hyperinflation 1930: Great Depression: compulsory cartel participation in sensitive sectors Nazi regime: cartels to prepare the war apparatus After ’45: Programme to break economic concentration (stopped with Cold War) 1957: Competition Law (ratio: protection of freedom of contract); Bundeskartellamt 9 History, V: European Communities Paris Treaty: (ECSC): no trade barriers, no discrimination • Rationale: equal access to resources; principles of free markets • Predecessor of current EU Competition Law: – Art. 65: prohibits agreements that distort trade – Art 66: prohibits abuse of dominant position – Art. 66: concentrations 10 History, VI: European Comm. (cont.) Treaty of Rome (now Amsterdam): articles 81, 82 (and 83-89). Merger Regulation. Which objectives of Competition Law in the EU? • Competition as an......

Words: 1108 - Pages: 5

Is the Move Away from Contract and Towards Tort in Product Liability Cases Desirable?

...Is the move away from contract and towards tort in product liability cases desirable? Introduction The approach taken with product liability cases has shifted over time. The Sale of Goods Act (1893) was an act put in place to state the terms and conditions of the contracts for the buying and selling particular goods. This act was later reformed in 1979, which fundamentally followed the same rules; the buying and selling of good were regulated by contractual agreements between the buyer and the seller. However as time progressed the sale of goods and product liability is moving from contracts and more towards tort liability. Contracts are legal promises between the buyer and seller in which the buyer promises to pay for a product that the seller must promise adheres to the standard expected from the product. A breach of contract includes that the buyer does not pay the right amount, or the more likely breach that the product has a design or manufacture defect that causes injury to the buyer. Tort liability instead simply makes the manufacturer responsible for any ‘injuries’ that the product causes the consumer. The idea behind this was because the seller is simply the agent of the manufacturer who has no part in the production process of the good sold. In this essay we will explain why product liability is starting to shift from contracts to tort. We will also discuss how tort law has developed over time focusing on the negligence rule and strict liability. Product......

Words: 1856 - Pages: 8

Contract and Torts

...Q: 2 What interest groups favor of Tort Reform and why? Proponents or advocates of Tort Reform support maximizing tort liability because of the ripple effects excessive damages and legal fees have on industries and, by extension, taxpayers. Prices for services and products and products are impacted because of these ripple effects and more often than not make them costlier for consumption. Proponents of tort reform like doctors, hospital and insurance groups argue for reform while the powerful plaintiff bar and certain consumer rights groups argue against it. Arguments for tort reform generally involve medical malpractice torts along with product liability. Cases involving medical malpractice or product liability usually result in heavy penalties for the party rendering services or product. There are direct and indirect costs involved with these penalties. Tort liability has resulted in price increase for many products, for example, stepladders now cost 30% more due to this factor (Huber 1988; Discussion 1989, p. 2237).This may indirectly result in useful products/services not even making to the market. Insurance companies covering tort liability for medical mal practice or product liability have an economic interest in having a cap on the amount of penalties being awarded. It is in their economic interest in maximizing tort liability. Since insurance companies do not know the level of risk they need to insure for such services or products, they......

Words: 535 - Pages: 3

Torts

...Enterprise Risk Management Everyday someone commits a tort. A tort is act of wrong doing. Torts can be committed by people and by businesses. Torts are any of the following: assault, battery, false imprisonment, invasion of privacy, intentional misrepresentation, defamation of character, negligence, and strict liability. Sometimes torts are intentional and sometimes torts are not intentional. For example, an intentional tort is a fight at a baseball game where there are rival teams playing and a fan from one team punches a fan from the other team in the face all because they do not like the same team. An example of unintentional tort would be a toy manufacturer in China, the company did not realize that the toys were associated with lead paint, which caused bodily harm for some children who bought the product across the United States. Whether intentional or not, there are laws in place that provide a remedy to the party injured by a tort that has been committed. In the products liability case of Non Linear Pro, there were several torts committed. Since the case has to do with a product, strict liability comes into play. When a retailer sells a defective product, they become liable. A retailer, distributor, or manufacturer can be brought into a suit when a defective product is sold. Non Linear Pro also misrepresented the product, which is fraud. It was advised that the product should work in a day and a half, however, after two weeks the product still was not working. The......

Words: 411 - Pages: 2

Tort

...Torts Shapo (2003) stated "A tort is a civil wrong in the sense that it is committed against an individual (which includes legal entities such as companies) rather than the state. The gist of tort law is that a person has certain interests which are protected by law. These interests can be protected by a court awarding a sum of money, known as damages, for infringe- ment of a protected interest. Alternatively, by the issuing of an injunction, which is a court order, to the defendant to refrain from doing something" (p.1). This paper will give two scenarios of two different torts. The first tort will be Breach of Fiduciary Duty. The paper will also show how Breach of Fiduciary Duty can be avoided and how the situation could have been avoided. The second tort will be Injurious Falsehood. This paper will also show how Injurious Falsehood can be avoided and how the situation could have been avoided. Breach of Fiduciary Duty Corporation A files for bankruptcy. The directors of the corporation recommend what seems to be a good restructuring plan. The plan relies on maintaining the current business contracts for the success of the corporation. The reconstruction was formulated under false pretenses. After authorization of the plan, the directors of the corporation proceed to reroute the business contracts that would have permitted Corporation A to effectively reorganize to Corporation B. Corporation B is completely owned by the directors of Corporation A. Because of......

Words: 679 - Pages: 3