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Chapter 18-‐ Remedies
-‐Wont get putative damages unless unless you prove the tort of fraud
...
-‐*Direct: Flow directly from the contract
...
The damages are only available if they are a foreseeable consequence
of the breach
...
-‐*Incidental damage-‐ are the relatively minor costs that the injured party
suffers when responding to the breach
...
Seller cant get consequential
...
The seller can resell the item to someone else better than
the buyer can get the item
...
Reliance Interest: puts the injured party in the position he would have been in had
the parties never entered into a contract
...
-‐Cant measure damages by speculation
-‐Reliance for valid contracts
...
-‐Recall the farmer example
...
Restoring to the original position= restitution
-‐The law doesn’t have sympathy for the party that did wrong having to pay
...
Specific performance typically deals with= land, building, certain house/ cars
...
-‐Can’t order someone to finish a task before they leave
...
Ex: restraining order
...
Keeps everyone in limbo until
after the trail
...
Reformation-‐ Court will partially rewrite a contract so its more fair for both sides
...
-‐Mitigate-‐ damages
...
Court will
generally enforce this amount
...
Chapter 22-‐ Warranties and products liability
Product liability-‐ refers to a good that has causes an injury
...
Contract assurance that goods
will meet certain standards
...
-‐Sale of good so therefore UCC
-‐Breach of warranty-‐ you can get damages
...
Strict liability-‐ which allows lawsuits over defective products whether the
defendant acted reasonably or not
...
Express Warranties-‐ one that a seller creates with his words or actions
...
Oral is harder to prove
...
-‐The item you tested has to have equal value to the item that you purchase
...
-‐Ex: Rite Aid-‐ relied on the existence of inserts
...
Merchantability-‐ means that the goods are fit for the ordinary purpose for
which they are used
...
They were fit for what they
were used for, not merchantable because they didn’t work properly
...
Implied warranty of fitness for a particular purpose: Where the seller at the
time of contracting knows about a particular purpose for which the buyer wants the
goods, and knows that the buyer is relying on the sellers skill or judgment, there is
an implied warranty that the goods shall be fit for the purpose
...
-‐**The buyer must depend on the sellers skill or judgment to purchase the
product
...
-‐Exclusion or modification
...
Disclaimers and Defenses: A statement that a particular warranty does not
apply
...
-‐Express warranties-‐ Oral and Written= Overrides oral contracts
...
Consequential damages –delay of work
...
Ex: You delay someone from work and because of that they are losing money
...
Privity: You have a right related to the contract
...
Buying a car= Buy from dealership not the company
...
Can sue up the chain
...
Ex: the jail and the gown makers
...
Ex: Buying a car from dealership and then can sue up the chain
...
Distinguish business and
consumer
...
Charity
...
Consumer-‐ more states will permit a suit against the manufacturer, even
without privity
...
Negligence:
Negligent design
Negligent manufacture
Failure to warn
Functional approach-‐ restatements of the Law
...
-‐ Defective condition unreasonably dangerous to the user
...
-‐ Depending upon type of defect
...
-‐
Unreasonably dangerous: certain things have to be dangerous to work
...
-‐ Defective condition: can sue up the chain
...
-‐ Quality control irrelevant: if personal injury had occurred
...
-‐ What happens if you drink the bottle even if you know it’s broken?
o Assumption of the risk and can’t sue
...
Reasonable alternative design (RAD)
2
...
Costs
b
...
Use: Handling/ performance
...
Maintenance
e
...
f
...
instructions= tells you how to avoid the
danger
...
-‐Limits and Defenses
Proximate cause
Design and warnings-‐ Comparative fault
Statutes
-‐Limitations-‐ Wait to long to file your lawsuit
...
-‐Repose-‐ No matter what after this time period you can’t file
...
Longer but set in stone time period
...
Principal (employer, client, corporation) & Agent (employees)
Three requirements to create an agency relationship
1
...
Control-‐ Be subject to the principal control
...
Fiduciary-‐ special relationship that has your best business at heart and
you have the agents best interest at heart
...
-‐Don’t have to pay an agent
What are the duties of agents to principals:
-‐Duty of Loyalty-‐ An agent has a fiduciary duty to act loyally for the
principal’s benefit in all matters connected with the agency relationship
...
(Can even continue even after the agency relationship ends)
-‐Competition with the principal-‐ Agents are not allowed to
compete with their principal in any matter within the scope of the agency
business
...
-‐Conflict of interest between principal and agent-‐ Need consent
from both parties
...
Duty of care-‐ An agent has a duty to act with reasonable care
...
They commit gross negligence, but not ordinary negligence
...
Remedies= Damages, Disgorgement, and rescission
...
-‐Terminating agency relationship
-‐Term expires or principal discharges agent
...
-‐Principal or agent no longer able to perform
...
-‐Can’t terminate an agreement to avoid doing paying damages
...
-‐Principal ratifies the acts of the agent
...
Apparent authority-‐ liable for the acts of an agent who is not, acting
with authority if the principals conduct causes a third party reasonably to
believe that the agent is authorized
...
Unidentified principal-‐ third party can recover from either the agent or the
principal
...
Unauthorized agent-‐ If the agent has no authority, the principal is not liable
to the third part, and the agent is
...
Employee V
...
Danica Patrick EX: -‐ Get in car accident going to Starbucks on her way to
work
...
Was she authorized to do the act-‐ Was she authorized to drive? –Yes
(scope of what she typically does) For the company to not pay for the
accident she has to have done something away from the scope of what
she was going
...
(Detour v
...
Detour-‐ Quick stop
b
...
General Rule: employer not responsible for intentional torts of employee
...
Exceptions
B
...
Agent liability for torts: agents are always liable for their own torts
...
NLRA-‐ union activity ( Collective bargaining from employee and
employers)
b
...
(applies to men and
women)
c
...
d
...
Common Law-‐
a
...
b
...
(Prevents people from being
shady)
-‐Contracts of good faith and dealing in an at will employment
relationship
...
-‐Slander-‐> Can prove defamation damages
-‐1/2 of the state however, recognizes privilege for employers who give
references about former employees
...
Safty and privacy in the workplace
-‐Workplace safety (OSHA)
-‐employee privacy
-‐Defult: reasonable expectations of privacy: people share info online
-‐ Reality:
Can fire if you are= smoking, imbibling etc
Smoking= loss in productivity and health care goes up
...
Can be tested for drugs, lie detector tests, electronic monitoring of the
workplace, social media, immigration
...
-‐Title VII-‐ Civil right Act of 1964-‐ its illegal for employers to
discriminate on the basis of race, color, religion, sex, or national origin
...
**3-‐part test courts use
1
...
2
...
3
...
Disparate impact-‐ false reason why you are doing something
...
(Hiding behind the test)
Defenses-‐
Merit-‐ qualified
Seniority
Bon Fide occupational qualification-‐ An employer is permitted to est
discriminatory job requirements if they are essential to the position in question
...
1
...
Hostile work environment-‐ Must be pervasive that they interfere with the
ability to work
...
EEOC-‐ must file within 180days for the wrongdoings
...
Age has to be the deciding factor
...
Can’t automatically disqualify someone for a
job, if they can perform the task with a reasonable accommodation