331 Exam 2 Terms

Mutual promises by each party to do some future act; exchange of promises

when one party makes a promise in exchange for another person performing an action; exchange of promise for an act - involves subsequent contingent action

proposal to make a contract. it is a promise conditional on a return promise or forbearance given by the offerce.

terms of the offer must be definite and unambigiuous

definite/unambigious proposal

made with the intent to contract

communicated to the offeree

revocation by offeror (made before acceptance)

lapse of time

subsequent illegality

destruction of the subject matter

death

rejection

counteroffer

an offeror is bound to hold an offer open for a period of time. consideration is necessary in return for the promiser to hold the offer open

agreement of the offeree to be bound by the terms of the offer

unconditional consent

open offer by the offeree only

communicated to the offeror

act of manifestation of intention to contract

silence or inaction

promise

act or forbearance of an act

That which is bargained for and given in exchange for another’s promise, usually consisting of the performance of an act or promise to do an act, or to refrain from doing an act or to give up a right.

“Is it enough that something is promised, done, forbone or suffered by the party to which the promise is made”

for one dollar and other good and valuable considerations the paties herby agreee

each party fully understands their commitment

coercion, loss of free will, resulting in a consent to be bound by a contract

equitable remedy, restoring of property or a right to a person who has been unjustly deprived of it

every person has a right to not be subjected to severe emotional distress caused by someone elses conduct.

tortfeasor’s conduct intentionally and recklessly subjects someone to emotional distress

intrusion upon solitude

public disclosure of private facts

painting plaintiff in false light

appropriation of likeness for defendant’s advantage

unintentional failure to live up to the community’s idea of reasonable care, not based on moral fault

1. Did D owe a duty to P?

2. Did P breach that duty?

3. Was there an injury to P?

4. legal causation between breach and injury?

where the action causing the plaintiff’s injury involved violation of a statute concerned with public safety.

Only jury issues are then proximate cause and damagnes

something that produces a result, without which the result could not have occurred. Any original event that, in natural unbroken sequence, produces a particular foreseeable result, without which the result would not have occurred.

professional negligence

allegation that a physician has breached a contract or been professional negligent in diagnosing or treating a patient

causal connection does exist between the defendant act and plaintiffs damage

an individual is responsible in negligence only for the consequences that are reasonable foreseeable. defendant is not liable for causing injuries so remotely linked to alleged negligent conduct

a defense when injured person proximately contributed to their injuries by their own negligence. Based on the idea that the plaintiff is held ot the same standard of care as defendant.

defense for negligence when plaintiff had knowledge of the risk and made under free choice to expose themself to it

a negligent plaintiff may be able to recover a portion of the cost of an injury; comparing the negligence of the plaintiff with that of the defendant; divides the damages between the parties by reducing the plaintiff’s damages in proportion to the extent of that person’s contributory fault.

ordinary care such as a resonably prudent person would exercise under the circumstances

either a public invitee or a business visitor (business invitee). A public invitee is a member of the public who enters land for the purpose for which the land is held open to the public (ex.person enters bank for meeting). A business visitor enters land for a purpose directly or indirectly connected with business dealings with the possessor of the land (ex. plumber).

one who enters and remains on the land of another without the possessor’s express or implied consent

possessors of land are not liable to trespassers for physical harm caused by the owners’ failure either to exercise reasonable care to make their land safe for the trespasser’s reception or to carry on the owners’ activities so as not to endanger them. The only duty that is owed to a trespasser by an occupier of land is to refrain from willful or wanton misconduct.

Possible expectation if child whose presence is foreseeable or adult who habitually intrudes on a limited area

One who enters or remains on land by virtue of the possessor’s implied or express consent (ex. Social guests, police)

wrongful act, not involving a breach of an agreement, for which a civil action may be maintained

the failure to exercise reasonable care

intentional interference with one’s person, reputation, or property

liability without fault

willful misconduct or intentional wrongdoing

failure of an injured party to act prudently, considered to be a contributory factor in the injury suffered, and sometimes reducing the amount recovered from the defendant

reasonable fear of an intentional, imminent, unconsented, harmful or offensive touching by another person

an unpermitted, unprivileged, intentional contact with another’s person; includes contact that is actually harmful, as well as conduct that is merely offensive

when a trespasser secures full possession of the land and the owner brings an action to regain possession as well as damages for unlawful retention

an action used to recover possession of personal property wrongfully taken

Damages awarded to compensate the plaintiff for actual monetary losses resulting from the defendant’s conduct

objective is to put plaintiff in the same financial position as existed before the tort

prevents recovery for damages that could have been foreseen and avoided by reasonable effort without risk, expense, or humiliation

an injured person must make a reasonable effort to avoid or minimize damages

natural and necessary result of the wrongful act or omission and can be expected to accompany the injury

ex. battery: mental anguish, loss of enjoyment of life, etc

defendant’s misconduct causes damages but also operates to confer some benefit on the plaintiff, then the plaintiff’s damage claim may be dismissed by the amount of benefit they received

awarded for injuries that arise from special circumstances of the wrong

medical or hospital bills

when parties agree in advance about compensation to be paid for loss in event of a breach, a liquidated damage is this amount

• Damages in case of breach are uncertain or difficult to compute

• Parties have agreed in advance to liquidate on the damages

• The amount agreed on is reasonable and not disproportionate to the probable loss

awarded when there is a breach of an agreement or an invasion of a right but no evidence of specific harm. Usually 1 dollar, no compensation to be had

to prove the plaintiff is “right”

ex. someone trespasses but does no damage

awarded to plaintiff beyond the compensatory amount; additional damages for a civil wrong and not a substitute for criminal punishment

Goal is a punishment to tortfesor

type of equitable remedy in the form of a judicial order that directs defendant to act or refrain from act in a certain way

mandatory

prohibitory

issued after a full opportunity to present evidence

granted as an emergency measure before a full hearing, done with notice to defendant

granted without notice to defendant, trial judge has only heard plaintiff’s side because of potential for abuse of the plaintiff.

something like declaratory judgment, or an injunction

used in some circumstances to deny a plaintiff equitable remedy if the delay is unreasonable and has unfairly prejudiced the defendant

when a party relies on a bid or proposal by another to their own detriment

• defendant’s mistake cannot be so obvious

• a legal principle is used to force one party to perfor its obligations on the grounds that nonperformance would leave the other party in a prejudicial position

Damages are appropriate if a r__easonably prudent person__ would have foreseen or could have foreseen that their actions would likely injure another person

on preponderance of the evidence

illegality

someone was not in a good mental state (intoxiated)

duress

fundamental errors - mistake in salary or something