Jurisdiction In Court Case Summary
Chapter 3 – Jurisdiction
State Court:
Subject Matter Jurisdiction
Personal Jurisdiction:
Defendant voluntarily subject themselves by:
Forum Selection Clause
No challenge of lawsuit
OR Defendant is a resident (can be sued at permanent place of residence/business)
OR Defendant is served with process while in the state (plaintiff files complaint, defendant receives summons = process once received, clock starts ticking)
OR Defendant did business, entered/breached a K or committed a tort in the state & the suit relates to that conduct
OR Defendant has “sufficient minimum contacts” with the state (ex. Students at UMiami who permanently live in another state, have “sufficient minimum contacts” with Florida, social visits do not count)
Federal Court: …show more content…
Subject Matter Jurisdiction
Exclusive Jur. – a federal question (US tax, federal crime, US bankruptcy)
Concurrent Jur. – can file in state/federal court, plaintiff chooses
Federal Question – any case that involves a question of federal law, anything involving a federal statute
Defendant can file motion to remove from state to federal
OR Diversity – plaintiff & defendant are from different places
Resident of one state sues resident of another state;
AND amount is > $75,000
If diversity is satisfied, you can file any case in federal court
Personal Jurisdiction
Chapter 2 – Business Ethics
Ethical Fundamentalism (absolute morality) – looks to an external source for rules of ethics ex. The Bible, etc. always follow these rules
Ethical Relativism (no morality, anything can be justified) – acting ethically if you believe you are doing the right thing, realizes that culture & times are different
Utilitarianism (outcome based) – whatever makes the greatest good for the greatest amount of people = greatest net benefit for society
Deontology (duty based) – Kant’s categorical imperative
Social Ethics Theories (fairness) – Rawls’ “veil of ignorance” society should be governed by this set of rules, made by people who are completely ignorant of their future, completely hypothetical
Duty of Care – higher degree of duty of care with those to whom we have a relationship
Chapter 9 – Contracts (k)
Express k – words, stating that we’re entering a k & what intentions are
Implied k – actions, accept by doing A based on pattern of conduct
Theories of Recovery
Quasi K
Prevents “unjust enrichment” of unfair
Elements:
Plaintiff provides benefit to defendant
AND Defendant knowingly accepted benefit
AND “unfair” not to pay, for defendant
“Reasonable value”/market value ex) painter & man make a k, painter paints wrong house and asks owner to pay, she refuses, he sues quasi k
Promissory Estoppel
Protects “reasonable reliance”
Elements
Promisor (defendant) made a promise
AND promisor should have expected promisee (plaintiff) would act in reliance
AND promisee acted in reasonable reliance
AND promisee suffered detriment (if promise is broken)
“Reliance damages”
U.C.C.
– contracts for sale of goods (tangible, personal property)
Common Law – contracts for Real Estate or services
Chapter 10 – Mutual Assent
Offer offeror intends to enter k, knows material terms (identify parties, subject matter, consideration, quantity), communication
Advertisements are not offers EXCEPT highly specific
Duration/termination of offer
After expiration can receive counter offer
Terms of offer, “reasonable time”
Revocation offeror can revoke at anytime prior to acceptance, effective when received
Except:
Option k – offeree pays offeror to keep offer open
Firm offer for sale of goods
Offer made by merchant
AND written/signed offer
AND states it will be held open
Irrevocable for time stated max 3 months (if says it will be held open for 6 months, irrevocable for 3)
Acceptance
Elements
Objective intent does offeree intend to enter k
On terms of offer
Common Law = Mirror Image Rule must mirror offer on every term, can add material additions, any change = counteroffer
UCC – “Battle of the Forms” preprinted forms will never match
Definite & timely expression of acceptance even if it adds/changes terms of offer, unless expression is expressly conditioned of offeror agreeing to added/changed terms
Unless both parties are merchants, terms of k are terms of the original offer additions/changes aren’t included
If both parties are merchants changed terms aren’t included, added terms are included unless:
Offeror objects within a reasonable time
OR original offer limited acceptance to its terms
Communication
Method
Offeror can state exactly how offeree is to respond, if respond any other way, it isn’t an official acceptance
OR “reasonable method”
When effective
Should say: effective when received, if not:
Mail Box Rule – if offeree sends a timely acceptance, properly dispatched via a stipulated method/reasonable method is effective upon dispatch
Silence is not a valid acceptance unless offeree imposes a duty to respond (if you don’t respond, you accept)
Chapter 11
Misrepresentation
Innocent – a misrep by someone who believes what they are saying is true
Can get $ back & cancel
Fraudulent – a misrep that is committed knowingly & with the intent to deceive
Can sue, get $ for damages, etc. & $ back, cancel k
Elements
Untrue assertion of fact (past/existing)
Affirmative statement
OR concealment
OR non-disclosure if (don’t have to tell anything)
Fiduciary relationships – committed to assume truth
OR to correct ½ truths
OR failure would cause death/serious injury
OR “hidden” defect which materially affects value
AND Fact is material
Would be important to any reasonable person
OR party making assertions knows fact will be important to other party
AND actual & reasonable reliance if it’s reasonable for you to believe
Chapter 12 – Consideration
Consideration – something legally sufficient which was bargained for and given in exchange for a promise
Legal sufficiency (promise has to be a benefit for promisor or detriment to promisee)
Promisee does or promises to do something they had no prior duty to do
OR promisee refrains from or promises not to do something they had the right to do
Illusory promises are not consideration
Illusory k says you can cancel at anytime, any reason, etc. unlimited right to cancel renders ks illusory any limitations on right to cancel saves promises from being illusory k duty that is somewhat uncertain/not absolute is not necessarily illusory output ks enforceable – one part agrees to sell all of their output/production of a particular product/service to the other party requirement ks enforceable – a party agrees to buy any of a particular product that they need/require form the other party parties must continue to produce/purchase a quantity not unreasonably disproportionate to any estimate or prior output/production not illusory anymore conditional ks are enforceable one/both of party’s duties are conditioned on something else happening duty of good faith – use best efforts to make it happen
Pre-existing obligations/duties
K modification
Common law (real estate/services) – must be supported by new consideration
Except: unforeseeable/extraordinary circumstances
UCC – no new consideration is required
Except: Bad faith
Post consideration is not consideration something that happens before k
Chapter 13 – Illegality
Agreements that violate public policy behind a statute
Agreements not to compete (non-competes) are enforceable if:
The agreement is designed to protect a legitimate property interest
Restrictions must be reasonable in time, area, & scope (depends on circumstances)
No undue hardship to public
Exculpatory agreement – relieves a party’s tort liability (we all have duties to each other to be careful)
Examples: doctor’s offices, joining gyms, valets, etc.
Cannot relieve liability for intentional or reckless conduct.
Torts:
Negligence – you were actually trying to do the right thing & it was a mistake
Recklessness – you weren’t careful or responsible
Intentional – you did it on purpose
Cannot relieve liability of a party performing an essential public service (ex. Doctors, hospitals, airlines)
Cannot relieve liability imposed by a statute (federal law that imposes a duty on a party)
Must have been voluntarily & knowingly entered into
Chapter 14 – Contractual Capacity
Party without capacity can cancel (right to disaffirm)
Minor Ks (under age of 18)
Right to disaffirm
Throughout minority and for a reasonable time after
Explicitly or implicitly
Ratification
Only after 18
Explicitly, implicitly, or waiting too long
Duties upon disaffirmance
Adult’s duty – must return minor to position they were prior to k
Minor’s duty
Traditional – minors return consideration in current condition – even if stolen/used
Except: pay for necessaries – essential for existence/welfare & not provided by parents
Modern – minors pay for use/depreciation
Misrep of age
Traditional – no effect, still under 18, irrelevant that kid lied
Modern – can’t cancel if kid lied, believable age, k is fair
Mental Incapacity
Declared incompetent by court, subsequent ks are void
Unable to understand nature & effect of the k = voidable k
Right to disaffirm
Ratification – once back on meds
Duties upon disaffirmance
Capacitated party – put incapacitated party in position before k
IP
If CP had reason to know = return consideration in current condition
If CP didn’t have reason to know = must pay for use/depreciation if cancelled
Intoxication
Unable to understand nature & effect of k
AND other party knew/had reason to know of incapacity
AND must return other party to position they were before k
Chapter 15
Statute of Frauds – in place to minimize fraud when there is no written evidence (verbal ks)
Only applies to executory ks
Covered ks (need writing req. to be enforceable)
Suretyship provision – covers collaterol ks 1 party agrees to pay a debt a 2nd party owes to a 3rd if the 2nd party fails to pay
Exception – main purpose rule = if the main purpose of the guarantors promise is to benefit themselves, it doesn’t have to be in writing
Ks to buy/sell real estate
Exceptions
Full performance by seller (then taken out of statute of frauds)
OR full/partial performance and action in clear reliance by the buyer
One year provision – covers agreements that can’t possibly be fully performed within one year of formation
If it’s at all possible that the k be fully performed within a year, it’s not covered & an enforceable k
Additional ways of satisfying SOF under UCC
Confirmatory memorandum between merchandise – within a reasonable time, 1 merchant send a “qualifying memo” to the other merchant, who does not object within 10 days of receipt
Parole Evidence Rule
PE - Prior or contemporaneous statements not contained in a written k
PER – PE is not admissible to add to, alter, or contradict the terms of a written k that qualifies as an “integration”
Integration = a written k that is intended as a full/final statement
Chapter 16 – Third Parties
Assignment = transfer of k right
All rights can be assigned unless:
Materially increases duties, risks, burdens of obligor
OR personal k – based on a personal relationship or unique characteristic, trait, etc. of obligee
OR under common law an explicit/specific prohibition in the k
OR prohibited by law/public policy (ex. Right to future wages)
Rights of Assignee “steps into shoes” of assignor, all rights, but no more
Assignor’s liability
Implied warranty – if an assignment is supported by consideration, it comes with an implicit warranty that underlying k w/ obligor is enforceable
Express warranty –in event that obligor can’t perform, assignor will pay assignee
Notifying obligor – if obligor performs before receiving notice, they have no liability to assignee
Successive assignments – occurs when assignore assigns the same right to more than 1 assignee in succession
Majority rule – 1st in time, 1st in right
Minority rule - 1st to give notice is entitled
Delegation = transfer of k duty
All duties can be delegated unless:
Personal ks
Prohibited by k
Effect of delegation
Delegator’s liability – remains liable until delegatee performs unless obligee gives a Novation (an explicit agreement to release delegator and substitute delegatee in their place)
Chapter 17
Discharge of k duties:
By performance or tender of performance (showing up ready, willing, & able, and offering to perform)
By agreement
Mutual recission – cancels k
Substituted k – k cancels & takes place of prior agreement
Novation – discharges duties of obligor and substitute the delegatee in their place
Debt settlement agreement – debtor agrees to pay creditor to release them from debt
By operation of law
Impossibility
Death/incapacity of promisor under a personal service k
Subsequent illegality
Destruction of subject matter of k (common law) – extraordinary
Commercial impracticability – unforeseeable/extraordinary, performance made extremely difficult/harsh
Statutes of limitation – set a limit on amount of time to sue
By other party’s material breach of k
Non-material breach doesn’t discharge k duties
“Substantial performance” under Common Law (did I get the essence of my deal? Can it be easily fixed? & can it be paid for by money? If yes, then it is fine not material breach) failure to perform on time unless delay is “unreasonable” time is of the essence explicitly or implicitly
Material breach does discharge k duties
Anticipatory repudiation – one party tells other party ahead of time that they aren’t going to perform
Substantial interference with or prevention of a party’s performance
Chapter 17 – K remedies
Monetary Damages (Legal Remedies) – pay the plaintiff a certain amount of money to pay for their economic loss
Compensatory Damages
Loss of value – difference between k price and market value of subject matter
AND Incidental damages – costs associated with obtaining substitute performance
AND consequential damages – caused by breach but arise from circumstances outside k – must be foreseeable, recovery can be limited by k
Reliance damages – cost/damages incurred in reliance on k
Limitations on award of monetary damages
Must be foreseeable
Must be proven with reasonable certainty
Duty to mitigate (lessen/minimize/avoid) – non-breachers duty
Liquidated damages – if k is breached, breacher will pay a specific amount of money (clause)
Chapter 21 – Title & Risk of Loss (only for sale of goods)
Passage of T and ROL when neither party in breach
Stipulation?
No stipulation
Shipment k – T & ROL pass to buyer when goods are delivered to the carrier (3rd party shipping company ex) UPS)
K says “shipment k” or “Free on Board Seller’s Location”
Destination/Delivery k –T & ROL pass when goods are delivered to buyer
K says: “Destination/delivery k” or “FOB Buyer’s Location”
Buyer picks up goods from seller
Title
When document of title is properly transferred (not actually when goods delivered)
OR when seller completes their responsibilities under k (segregating, identifying, & making available)
Risk of Loss
Merchant seller – ROL passes when goods picked are up
Non-merchant seller – ROL passes when seller “tenders” delivery (makes goods available for buyer to take)
Power of transfer title
Buyer gets no better title than what seller had
Except
Seller with voidable title can pass good title to a Good Faith Purchaser for value
Good faith didn’t know/had reason to know it was a voidable title
Purchaser can’t be a gift, has to be purchaser
For value purchased at/around market value
Chapter 22 – Products Liability
K Theories
Warranty of title
Express warranty – explicit guarantee about product
Affirmative statement of fact
Sample or model is shown
Implied warranty of merchantability
“Fit for ordinary purpose for which such goods are used”
Implied warranty of fitness for a particular purpose
Seller knew/had reason to know of Buyer’s particular purpose
AND seller knew/had reason to know Buyer was relying on seller to select appropriate goods
AND buyer does rely on seller
Disclaimer
Title – explicitly or implicitly
Express – difficult
Implied – explicitly (“As is”) and conspicuously (obvious to any reasonably purchaser) no fine print, etc.
Tort Theories (we all have duties to be careful)
Negligence/Recklessness
Strict Liability – when a product causes harm, sellers are liable no punitive damages
Defendant is a merchant
AND defendant sold product in a “defective” condition
AND defect renders product unreasonably dangerous
AND plaintiff was injured as a result of the defect
Defenses
Statutes of Limitations
Comparative Negligence – their own actions may result in their injury
Chapter 47 – International Law
Jurisdiction in US Courts
Over private defendants (individual/company)
Subject matter jurisdiction (file in right type of court)
Personal jurisdiction
Choice of forum clause
Arbitration – a 3rd party will resolve dispute
Choice of law clause – in event of dispute, this body of law will apply
Over foreign governments
Foreign sovereign immunities act – foreign governments shouldn’t be subject to US jurisdiction
Commercial/Private activities – only private business activities
Governmental/public activities – only actions by government, exception – act of terrorism
State Court:
Subject Matter Jurisdiction
Personal Jurisdiction:
Defendant voluntarily subject themselves by:
Forum Selection Clause
No challenge of lawsuit
OR Defendant is a resident (can be sued at permanent place of residence/business)
OR Defendant is served with process while in the state (plaintiff files complaint, defendant receives summons = process once received, clock starts ticking)
OR Defendant did business, entered/breached a K or committed a tort in the state & the suit relates to that conduct
OR Defendant has “sufficient minimum contacts” with the state (ex. Students at UMiami who permanently live in another state, have “sufficient minimum contacts” with Florida, social visits do not count)
Federal Court: …show more content…
Subject Matter Jurisdiction
Exclusive Jur. – a federal question (US tax, federal crime, US bankruptcy)
Concurrent Jur. – can file in state/federal court, plaintiff chooses
Federal Question – any case that involves a question of federal law, anything involving a federal statute
Defendant can file motion to remove from state to federal
OR Diversity – plaintiff & defendant are from different places
Resident of one state sues resident of another state;
AND amount is > $75,000
If diversity is satisfied, you can file any case in federal court
Personal Jurisdiction
Chapter 2 – Business Ethics
Ethical Fundamentalism (absolute morality) – looks to an external source for rules of ethics ex. The Bible, etc. always follow these rules
Ethical Relativism (no morality, anything can be justified) – acting ethically if you believe you are doing the right thing, realizes that culture & times are different
Utilitarianism (outcome based) – whatever makes the greatest good for the greatest amount of people = greatest net benefit for society
Deontology (duty based) – Kant’s categorical imperative
Social Ethics Theories (fairness) – Rawls’ “veil of ignorance” society should be governed by this set of rules, made by people who are completely ignorant of their future, completely hypothetical
Duty of Care – higher degree of duty of care with those to whom we have a relationship
Chapter 9 – Contracts (k)
Express k – words, stating that we’re entering a k & what intentions are
Implied k – actions, accept by doing A based on pattern of conduct
Theories of Recovery
Quasi K
Prevents “unjust enrichment” of unfair
Elements:
Plaintiff provides benefit to defendant
AND Defendant knowingly accepted benefit
AND “unfair” not to pay, for defendant
“Reasonable value”/market value ex) painter & man make a k, painter paints wrong house and asks owner to pay, she refuses, he sues quasi k
Promissory Estoppel
Protects “reasonable reliance”
Elements
Promisor (defendant) made a promise
AND promisor should have expected promisee (plaintiff) would act in reliance
AND promisee acted in reasonable reliance
AND promisee suffered detriment (if promise is broken)
“Reliance damages”
U.C.C.
– contracts for sale of goods (tangible, personal property)
Common Law – contracts for Real Estate or services
Chapter 10 – Mutual Assent
Offer offeror intends to enter k, knows material terms (identify parties, subject matter, consideration, quantity), communication
Advertisements are not offers EXCEPT highly specific
Duration/termination of offer
After expiration can receive counter offer
Terms of offer, “reasonable time”
Revocation offeror can revoke at anytime prior to acceptance, effective when received
Except:
Option k – offeree pays offeror to keep offer open
Firm offer for sale of goods
Offer made by merchant
AND written/signed offer
AND states it will be held open
Irrevocable for time stated max 3 months (if says it will be held open for 6 months, irrevocable for 3)
Acceptance
Elements
Objective intent does offeree intend to enter k
On terms of offer
Common Law = Mirror Image Rule must mirror offer on every term, can add material additions, any change = counteroffer
UCC – “Battle of the Forms” preprinted forms will never match
Definite & timely expression of acceptance even if it adds/changes terms of offer, unless expression is expressly conditioned of offeror agreeing to added/changed terms
Unless both parties are merchants, terms of k are terms of the original offer additions/changes aren’t included
If both parties are merchants changed terms aren’t included, added terms are included unless:
Offeror objects within a reasonable time
OR original offer limited acceptance to its terms
Communication
Method
Offeror can state exactly how offeree is to respond, if respond any other way, it isn’t an official acceptance
OR “reasonable method”
When effective
Should say: effective when received, if not:
Mail Box Rule – if offeree sends a timely acceptance, properly dispatched via a stipulated method/reasonable method is effective upon dispatch
Silence is not a valid acceptance unless offeree imposes a duty to respond (if you don’t respond, you accept)
Chapter 11
Misrepresentation
Innocent – a misrep by someone who believes what they are saying is true
Can get $ back & cancel
Fraudulent – a misrep that is committed knowingly & with the intent to deceive
Can sue, get $ for damages, etc. & $ back, cancel k
Elements
Untrue assertion of fact (past/existing)
Affirmative statement
OR concealment
OR non-disclosure if (don’t have to tell anything)
Fiduciary relationships – committed to assume truth
OR to correct ½ truths
OR failure would cause death/serious injury
OR “hidden” defect which materially affects value
AND Fact is material
Would be important to any reasonable person
OR party making assertions knows fact will be important to other party
AND actual & reasonable reliance if it’s reasonable for you to believe
Chapter 12 – Consideration
Consideration – something legally sufficient which was bargained for and given in exchange for a promise
Legal sufficiency (promise has to be a benefit for promisor or detriment to promisee)
Promisee does or promises to do something they had no prior duty to do
OR promisee refrains from or promises not to do something they had the right to do
Illusory promises are not consideration
Illusory k says you can cancel at anytime, any reason, etc. unlimited right to cancel renders ks illusory any limitations on right to cancel saves promises from being illusory k duty that is somewhat uncertain/not absolute is not necessarily illusory output ks enforceable – one part agrees to sell all of their output/production of a particular product/service to the other party requirement ks enforceable – a party agrees to buy any of a particular product that they need/require form the other party parties must continue to produce/purchase a quantity not unreasonably disproportionate to any estimate or prior output/production not illusory anymore conditional ks are enforceable one/both of party’s duties are conditioned on something else happening duty of good faith – use best efforts to make it happen
Pre-existing obligations/duties
K modification
Common law (real estate/services) – must be supported by new consideration
Except: unforeseeable/extraordinary circumstances
UCC – no new consideration is required
Except: Bad faith
Post consideration is not consideration something that happens before k
Chapter 13 – Illegality
Agreements that violate public policy behind a statute
Agreements not to compete (non-competes) are enforceable if:
The agreement is designed to protect a legitimate property interest
Restrictions must be reasonable in time, area, & scope (depends on circumstances)
No undue hardship to public
Exculpatory agreement – relieves a party’s tort liability (we all have duties to each other to be careful)
Examples: doctor’s offices, joining gyms, valets, etc.
Cannot relieve liability for intentional or reckless conduct.
Torts:
Negligence – you were actually trying to do the right thing & it was a mistake
Recklessness – you weren’t careful or responsible
Intentional – you did it on purpose
Cannot relieve liability of a party performing an essential public service (ex. Doctors, hospitals, airlines)
Cannot relieve liability imposed by a statute (federal law that imposes a duty on a party)
Must have been voluntarily & knowingly entered into
Chapter 14 – Contractual Capacity
Party without capacity can cancel (right to disaffirm)
Minor Ks (under age of 18)
Right to disaffirm
Throughout minority and for a reasonable time after
Explicitly or implicitly
Ratification
Only after 18
Explicitly, implicitly, or waiting too long
Duties upon disaffirmance
Adult’s duty – must return minor to position they were prior to k
Minor’s duty
Traditional – minors return consideration in current condition – even if stolen/used
Except: pay for necessaries – essential for existence/welfare & not provided by parents
Modern – minors pay for use/depreciation
Misrep of age
Traditional – no effect, still under 18, irrelevant that kid lied
Modern – can’t cancel if kid lied, believable age, k is fair
Mental Incapacity
Declared incompetent by court, subsequent ks are void
Unable to understand nature & effect of the k = voidable k
Right to disaffirm
Ratification – once back on meds
Duties upon disaffirmance
Capacitated party – put incapacitated party in position before k
IP
If CP had reason to know = return consideration in current condition
If CP didn’t have reason to know = must pay for use/depreciation if cancelled
Intoxication
Unable to understand nature & effect of k
AND other party knew/had reason to know of incapacity
AND must return other party to position they were before k
Chapter 15
Statute of Frauds – in place to minimize fraud when there is no written evidence (verbal ks)
Only applies to executory ks
Covered ks (need writing req. to be enforceable)
Suretyship provision – covers collaterol ks 1 party agrees to pay a debt a 2nd party owes to a 3rd if the 2nd party fails to pay
Exception – main purpose rule = if the main purpose of the guarantors promise is to benefit themselves, it doesn’t have to be in writing
Ks to buy/sell real estate
Exceptions
Full performance by seller (then taken out of statute of frauds)
OR full/partial performance and action in clear reliance by the buyer
One year provision – covers agreements that can’t possibly be fully performed within one year of formation
If it’s at all possible that the k be fully performed within a year, it’s not covered & an enforceable k
Additional ways of satisfying SOF under UCC
Confirmatory memorandum between merchandise – within a reasonable time, 1 merchant send a “qualifying memo” to the other merchant, who does not object within 10 days of receipt
Parole Evidence Rule
PE - Prior or contemporaneous statements not contained in a written k
PER – PE is not admissible to add to, alter, or contradict the terms of a written k that qualifies as an “integration”
Integration = a written k that is intended as a full/final statement
Chapter 16 – Third Parties
Assignment = transfer of k right
All rights can be assigned unless:
Materially increases duties, risks, burdens of obligor
OR personal k – based on a personal relationship or unique characteristic, trait, etc. of obligee
OR under common law an explicit/specific prohibition in the k
OR prohibited by law/public policy (ex. Right to future wages)
Rights of Assignee “steps into shoes” of assignor, all rights, but no more
Assignor’s liability
Implied warranty – if an assignment is supported by consideration, it comes with an implicit warranty that underlying k w/ obligor is enforceable
Express warranty –in event that obligor can’t perform, assignor will pay assignee
Notifying obligor – if obligor performs before receiving notice, they have no liability to assignee
Successive assignments – occurs when assignore assigns the same right to more than 1 assignee in succession
Majority rule – 1st in time, 1st in right
Minority rule - 1st to give notice is entitled
Delegation = transfer of k duty
All duties can be delegated unless:
Personal ks
Prohibited by k
Effect of delegation
Delegator’s liability – remains liable until delegatee performs unless obligee gives a Novation (an explicit agreement to release delegator and substitute delegatee in their place)
Chapter 17
Discharge of k duties:
By performance or tender of performance (showing up ready, willing, & able, and offering to perform)
By agreement
Mutual recission – cancels k
Substituted k – k cancels & takes place of prior agreement
Novation – discharges duties of obligor and substitute the delegatee in their place
Debt settlement agreement – debtor agrees to pay creditor to release them from debt
By operation of law
Impossibility
Death/incapacity of promisor under a personal service k
Subsequent illegality
Destruction of subject matter of k (common law) – extraordinary
Commercial impracticability – unforeseeable/extraordinary, performance made extremely difficult/harsh
Statutes of limitation – set a limit on amount of time to sue
By other party’s material breach of k
Non-material breach doesn’t discharge k duties
“Substantial performance” under Common Law (did I get the essence of my deal? Can it be easily fixed? & can it be paid for by money? If yes, then it is fine not material breach) failure to perform on time unless delay is “unreasonable” time is of the essence explicitly or implicitly
Material breach does discharge k duties
Anticipatory repudiation – one party tells other party ahead of time that they aren’t going to perform
Substantial interference with or prevention of a party’s performance
Chapter 17 – K remedies
Monetary Damages (Legal Remedies) – pay the plaintiff a certain amount of money to pay for their economic loss
Compensatory Damages
Loss of value – difference between k price and market value of subject matter
AND Incidental damages – costs associated with obtaining substitute performance
AND consequential damages – caused by breach but arise from circumstances outside k – must be foreseeable, recovery can be limited by k
Reliance damages – cost/damages incurred in reliance on k
Limitations on award of monetary damages
Must be foreseeable
Must be proven with reasonable certainty
Duty to mitigate (lessen/minimize/avoid) – non-breachers duty
Liquidated damages – if k is breached, breacher will pay a specific amount of money (clause)
Chapter 21 – Title & Risk of Loss (only for sale of goods)
Passage of T and ROL when neither party in breach
Stipulation?
No stipulation
Shipment k – T & ROL pass to buyer when goods are delivered to the carrier (3rd party shipping company ex) UPS)
K says “shipment k” or “Free on Board Seller’s Location”
Destination/Delivery k –T & ROL pass when goods are delivered to buyer
K says: “Destination/delivery k” or “FOB Buyer’s Location”
Buyer picks up goods from seller
Title
When document of title is properly transferred (not actually when goods delivered)
OR when seller completes their responsibilities under k (segregating, identifying, & making available)
Risk of Loss
Merchant seller – ROL passes when goods picked are up
Non-merchant seller – ROL passes when seller “tenders” delivery (makes goods available for buyer to take)
Power of transfer title
Buyer gets no better title than what seller had
Except
Seller with voidable title can pass good title to a Good Faith Purchaser for value
Good faith didn’t know/had reason to know it was a voidable title
Purchaser can’t be a gift, has to be purchaser
For value purchased at/around market value
Chapter 22 – Products Liability
K Theories
Warranty of title
Express warranty – explicit guarantee about product
Affirmative statement of fact
Sample or model is shown
Implied warranty of merchantability
“Fit for ordinary purpose for which such goods are used”
Implied warranty of fitness for a particular purpose
Seller knew/had reason to know of Buyer’s particular purpose
AND seller knew/had reason to know Buyer was relying on seller to select appropriate goods
AND buyer does rely on seller
Disclaimer
Title – explicitly or implicitly
Express – difficult
Implied – explicitly (“As is”) and conspicuously (obvious to any reasonably purchaser) no fine print, etc.
Tort Theories (we all have duties to be careful)
Negligence/Recklessness
Strict Liability – when a product causes harm, sellers are liable no punitive damages
Defendant is a merchant
AND defendant sold product in a “defective” condition
AND defect renders product unreasonably dangerous
AND plaintiff was injured as a result of the defect
Defenses
Statutes of Limitations
Comparative Negligence – their own actions may result in their injury
Chapter 47 – International Law
Jurisdiction in US Courts
Over private defendants (individual/company)
Subject matter jurisdiction (file in right type of court)
Personal jurisdiction
Choice of forum clause
Arbitration – a 3rd party will resolve dispute
Choice of law clause – in event of dispute, this body of law will apply
Over foreign governments
Foreign sovereign immunities act – foreign governments shouldn’t be subject to US jurisdiction
Commercial/Private activities – only private business activities
Governmental/public activities – only actions by government, exception – act of terrorism