Tuesday, January 3, 2017

Sam promises his uncle, Bob, that he will lose 10 pounds and exercise every day during the spring semester in exchange

Consideration is optional in every contract. 
FALSE
In a bilateral contract, the consideration for a promise is a completed act. 
FALSE
An exception to the rule requiring consideration is promissory estoppel. 
TRUE
An illusory promise is not a consideration. 
TRUE
As a general rule, past consideration qualifies as consideration. 
FALSE
In some cases, if past consideration was given with expectation of future payment, the court may enforce the promise. 
TRUE
A promise to do something that you are already obligated to do is generally a valid consideration. 
FALSE
The UCC permits requirement, but not output, contracts for the sale of goods. 
FALSE
Partial payment of a debt may or may not be valid consideration, depending on whether the debt is liquidated or unliquidated. 
TRUE
A liquidated debt may be the subject of an accord and satisfaction. 
FALSE
Which of the following is what a person will receive in return for performing a contract obligation? 
A. Consideration
B. Acknowledgement
C. Approval
D. Accord
E. Accession
Sam promises his uncle, Bob, that he will lose 10 pounds and exercise every day during the spring semester in exchange for having his tuition paid for the fall semester. The uncle agrees; but after Sam has lost 10 pounds and exercised all semester, Bob refuses to pay saying that no contract existed. Which of the following is true? 
A. Consideration was present, there was an enforceable contract, and Bob has wrongfully refused to pay.
B. There was no consideration present, and Bob has no obligation to pay.
C. There was no consideration present, but Bob must pay under principles of promissory estoppels.
D. There was consideration present, but Bob is not required to pay because the contract was illusory.
E. There was consideration present, but Bob is not required to pay because Bob did not receive a benefit personally.

Whether a contract is bilateral or unilateral depends upon what response the offeror expects from the offeree.

The term "consideration" in relation to contracts involves parties acting in an ethical manner. 
FALSE
Consideration is the bargained-for exchange or what each party gets in exchange for his or her promise under the contract.

The Restatement of the Law Second, Contracts is not actually the law itself. 
TRUE
The Restatement (Second) is not actually the law itself, although judges frequently cite it because it is an authoritative statement of what the law is.

Whether a contract is bilateral or unilateral depends upon what response the offeror expects from the offeree. 
TRUE
If the offeror wants a promise from the offeree to form a binding contract, the contract is a bilateral contract, commonly defined as a promise in exchange for a promise. In a unilateral contract, the offeror wants the offeree to do something, not to promise to do something.

Today, courts hold that once an offeree begins performance on a unilateral contract, the offeror must hold the offer open for a reasonable time to allow the offeree to complete the performance. 
TRUE
Today, the courts hold that once an offeree begins performance, the offeror must hold the offer open for a reasonable time to allow the offeree to complete it.

Quasi-contracts are actual contracts. 
FALSE
Quasi-contracts are sometimes called implied-in-law contracts, but they are not actually contracts.

If a quasi-contract is imposed, the amount of damages for a breach is based upon the fair market value of any service provided to the defendant. 
TRUE
When the court imposes a quasi-contract, the defendant is required to pay the fair market value of the benefit bestowed.

In order to recover under quasi-contract, there is no requirement that enrichment be unjust. 
FALSE
There are limits to the quasi contract doctrine; specifically, the enrichment must be unjust.

If a contract is valid, then it is enforceable. 
FALSE
Sometimes a contract may be valid yet unenforceable when a law prohibits the courts from enforcing it.

Any contract that is not a formal contract is an informal contract, also called a simple contract. 
TRUE
Any contract that is not a formal contract is an informal contract, also called a simple contract. Informal contracts may in fact be quite complex, but they are called "simple" because no formalities are required in making them.

In the employer/employee context, the purpose of a covenant not to compete is to restrict what an employee may do after leaving a company. 
TRUE
Covenants not to compete restrict what an employee may do after leaving a company.

What was the result in the Opening Case in which the plaintiff attempted to buy a jet from Pepsi for Pepsi points and some additional funds?

Courts interpret contracts using an objective standard. 
TRUE
An "instructed authorization" occurs if the means by which an acceptance can be communicated to the offeror is expressly stated in the offer. 
FALSE
If an acceptance is received after a rejection is received, the acceptance is still valid. 
FALSE
Under the Mailbox Rule, a valid contract has been formed if a rejection is dispatched, but before it is received, the acceptance is communicated to the offeror. 
TRUE
Only the offeree to whom an offer is directed can accept the offer. 
TRUE
Once an offer is made, an offeror has no right to terminate it before receiving a reply. 
FALSE
An offer by a retailer to purchase seasonal goods from a wholesaler would not lapse sooner than an offer to purchase goods that could easily be sold all year long. 
FALSE
There are a limited number of circumstances under which silence can be an acceptance. 
TRUE
If the subject matter of an offer is destroyed, the offer terminates after 10 days or notice of the death to the offeree, whichever comes first. 
FALSE
If an offeree makes a mistake and sends an acceptance to the wrong address, there is an acceptance upon dispatch. 
FALSE
What was the result in the Opening Case in which the plaintiff attempted to buy a jet from Pepsi for Pepsi points and some additional funds? 
A. The plaintiff prevailed, and Pepsi had to sell the jet as offered because Pepsi failed to specifically reserve details of the offer to a separate writing.
B. The plaintiff prevailed, and Pepsi had to sell the jet as offered because Pepsi's advertisement was considered an offer which the plaintiff validly accepted.
C. The plaintiff prevailed, and Pepsi had to provide the jet as offered because Pepsi did not revoke the offer soon enough.
D. The plaintiff did not prevail because the jet was unobtainable as a military aircraft.
E. The plaintiff did not prevail because Pepsi reserved the details of the offer to a separate writing, and Pepsi had the authority to reject the plaintiff's offer to purchase.
Which of the following is the first element of a contract? 
A. An agreement
B. An intent
C. An offer
D. An acceptance
E. A writing

The laws of intellectual property protect property that is primarily the result of mental creativity rather than physical effort.

The laws of intellectual property protect property that is primarily the result of mental creativity rather than physical effort. 
TRUE
Intellectual property consists of the fruits of someone's mind. The laws of intellectual property protect property that is primarily the result of mental creativity rather than physical effort.

Network Solutions, Inc. is funded by the National Science Foundation and is responsible for registering domain names on the Internet. 
TRUE
Network Solutions, Inc. (NSI), which is funded by the National Science Foundation, is responsible for registering domain names on the Internet.

As discussed in the case in the text, Toys "R" Us, Inc. v. Canarsie Kiddie Shop, Inc., evidence of actual confusion is a prerequisite for the plaintiff to recover in a trademark infringement action. 
FALSE
Evidence of actual confusion is a strong indication that there is a likelihood of confusion. It is not, however, a prerequisite for the plaintiff to recover.

A person who applies for a domain name on the Internet will be granted the domain name so long as no one else holds that name. 
TRUE
Network Solutions, Inc. (NSI), which is funded by the National Science Foundation, is responsible for registering domain names. Anyone seeking to register a domain name must now state in the application that the name will not infringe on anyone else's intellectual property rights and that the registrant intends to use it on a regular basis on the Internet.

Trade dress is entitled to the same protection as a trademark. 
TRUE
Trade dress is entitled to the same protection as a trademark.

Copyrights protect the expression of creative ideas. 
TRUE
Copyrights protect the expression of creative ideas.

Copyrights protect ideas themselves. 
FALSE
Copyrights do not protect ideas themselves but only the fixed form of expressing them, such as books, periodicals, musical compositions, plays, motion pictures, sound recordings, lectures, works of art, and computer programs.

A service mark is a mark licensed by a group that has established certain criteria for use of the mark such as "U.L. Tested" or "Good Housekeeping Seal of Approval." 
FALSE
A certification mark is a mark licensed by a group that has established certain criteria for use of the mark such as "U.L. Tested" or "Good Housekeeping Seal of Approval."

A teacher cannot be held liable for copyright infringement under the Fair Use Doctrine so long as copies are only used for educational purposes. 
FALSE
In determining whether the fair-use doctrine provides a valid defense to a claim of copyright infringement, Section 107 of the Copyright Act requires that the court weigh the following four factors: (1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. (2) The nature of the copyrighted work. (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) The effect of the use on the potential market for or value of the copyrighted work.

Tying arrangements are illegal. 
TRUE
The only restrictions on the patent holder are that he or she may not use the patent for an illegal purpose such as a tying arrangement or cross-licensing. A tying arrangement occurs when the holder issues a license to use the patented object only if the licensee agrees to buy some non-patented product from the holder.

An invention might be considered a trade secret. 
TRUE
A trade secret is a process, product, method of operation, or compilation of information that gives a businessperson an advantage over his or her competitors. Inventions and designs might be considered trade secrets.

Which of the following consists of the fruits of one's mind? 
A. Theoretical property
B. Cognitive property
C. Intellectual property
D. Protected property
E. Tradable property
Intellectual property consists of the fruits of someone's mind.

Over the last few years, plaintiffs have been successful in bringing fraud suits against accountants under the Racketeer Influenced and Corrupt Organizations Act.

Accountants may not be sued for malpractice because that action is only available in the medical community. 
FALSE
Actions brought against attorneys, lawyers, real estate brokers, doctors, architects, and other professionals are referred to as malpractice actions.

An accountant who commits fraud is liable to those parties he or she reasonably should have foreseen would be injured though a justifiable reliance upon the fraudulent information. 
TRUE
An accountant who commits fraud is liable to those parties he or she reasonably should have foreseen would be injured through a justifiable reliance on the fraudulent information.

Over the last few years, plaintiffs have been successful in bringing fraud suits against accountants under the Racketeer Influenced and Corrupt Organizations Act. 
TRUE
Over the last few years, plaintiffs have been successful in bringing fraud suits against accountants under the Racketeer Influenced and Corrupt Organizations (RICO) Act.

Whether third parties have a claim against an accountant on the basis of their reliance upon negligently prepared financial statements is the same in all states because it is governed by federal law. 
FALSE
Third-party liability, as decided by the states, falls into three general groupings: (1) privity or near-privity (the Ultramares rule), (2) foreseen users and classes of users (the Restatement rule), and (3) reasonably foreseeable users.

The reasonably foreseeable users test holds an accountant liable to any third-party who was or should have been foreseen as a possible user of the accountant's work product and did, in fact, use and rely upon that work product for a proper business purpose. 
TRUE
Very few states have adopted the general negligence standard of accountant third-party liability called the reasonably foreseeable users test. This test holds an accountant liable to any third-party who was or should have been foreseen as a possible user of the accountant's work product and who did in fact use and rely on that work product for a proper business purpose.

After an audit, the accountant is the legal owner of working papers. 
TRUE
After an audit, the accountant is the legal owner of working papers.

When a federal law is at issue, state protection of an accountant-client privilege does not apply. 
TRUE
A number of states have adopted statutes granting some form of accountant-client privilege, but when a federal law is at issue, state protection does not apply.

A plaintiff may only recover under Section 11 of the Securities Act of 1933 if the plaintiff can establish that the plaintiff purchased securities in an initial public offering. 
FALSE
Under Section 11 of the Securities Act of 1933, accountants are civilly liable for misstatements and omissions of material facts made in registration statements the SEC requires. Originally liable only to those who purchased securities in an initial public offering (IPO), accountants are now liable to subsequent purchasers as well. The purchaser may recover damages without knowing about or relying on the flawed information or even being a party to the contractual agreement.

In the Case Opener "WorldCom," the court ruled that the chairman of WorldCom's board of directors could have no personal liability for misrepresentations of the company's condition in filings with the Securities and Exchange Commission. 
FALSE
The chairman of WorldCom's board of directors faced charges of liability under Sections 11 and 15 of the Securities Act and Sections 10(b) and 20(a) of the Securities Exchange Act. The judge denied the chairman's motion on all counts, claiming that the chairman did not meet his burden of proof for any of the affirmative defenses.

Regarding liability for negligence to third parties, under the Restatement test, an accountant is liable to known third-party users of the accountant's work product and also to those in the limited class whose reliance on the work the accountant specifically foresaw. 
TRUE
Under the Restatement test, an accountant is liable to known third-party users of the accountant's work product. The test extends liability to those people, or the class of people, the accountant foresaw or should have foreseen as being the recipients of and relying on his or her work.

Monday, January 2, 2017

In German product liability cases, consumers do not have a right to recover damages for pain and suffering or for emotional distress

A product may be found defective if a manufacturer fails to provide adequate warnings about potential dangers associated with the product. 
TRUE
A product may be defective if a manufacturer fails to provide adequate warnings about potential dangers associated with the product.

No duty to warn exists for dangers arising from either unforeseeable misuses of the product or from obvious dangers. 
TRUE
No duty to warn exists for dangers arising either from unforeseeable misuses of a product or from obvious dangers. A producer of razor blades, for example, need not give a warning that a razor blade may cut someone.

Arbitration committees are the preferred forum for settling product liability suits in Japan. 
TRUE
Arbitration committees are the preferred forum for settling a product liability dispute in Japan.

In German product liability cases, consumers do not have a right to recover damages for pain and suffering or for emotional distress. 
TRUE
In German product liability cases, consumers do not have a right to recover damages for pain and suffering or for emotional distress.

The lack of a feasible way to make a safer product always precludes product liability. 
FALSE
The state of scientific knowledge at the time of production, and the lack of a feasible way to make a safer product, does not always preclude liability. The court may find that the defendant's conduct was still unreasonable because even in its technologically safest form, the risks posed by the defect in the design so outweighed the benefits of the product that the reasonable person would not have produced a product of that design.

The statute of limitations is the same thing as the statute of repose. 
FALSE
Statutes of limitations limit the time within which all types of civil actions may be brought. Statutes of repose provide an additional statutory defense by barring actions arising more than a specified number of years after the product was purchased.

In order to proceed in a products liability action, a plaintiff must establish to a certainty that the product was not damaged after its purchase. 
FALSE
According to the court in Welge v. Planters Lifesaves Co., "The plaintiff in a product liability suit is not required to exclude every possibility, however fantastic or remote, that the defect which led to the accident was caused by someone other than one of the defendants."

A bystander can never invoke the doctrine of strict-liability in a lawsuit. 
FALSE
According to the court in James A. Peterson, Adm'r of the Estate of Maradean Peterson et al. v. Lou Backrodt Chevrolet Co., quoting, Elmore v. American Motors Corp., "If anything, bystanders should be entitled to greater protection than the consumer or user where injury to bystanders from the defect is reasonably foreseeable."

The state-of-the-art defense is not available in all states in strict liability cases. 
TRUE
One defense that may not be available in all states is the state-of-the-art defense. Courts have rejected the use of this defense in most strict-liability cases, reasoning that the issue in such cases is not what the producers knew at the time the products were produced but whether the product was defective and whether the defect caused it to be unreasonably dangerous.

Under the market share theory, a plaintiff may be able to recover in a products liability action even if the plaintiff cannot trace the harmful product to a particular manufacturer. 
TRUE
In Sindell v.Abbott Laboratories, which created the market share liability theory, the judge apportioned liability among the defendant-manufacturers on the basis of the share of the market they had held at the time that the drug had been produced.

Upon which type of law is product liability law primarily based? 
A. Contract law.
B. Tort law.
C. Administrative law.
D. Legislative law.
E. Executive law.
Product liability law is based primarily on tort law. There are three commonly used theories of recovery in product liability cases: negligence, strict product liability, and breach of warranty.

To use the assumption of the risk defense successfully, a defendant must prove that the plaintiff voluntarily and unreasonably encountered the risk of the actual harm the defendant caused.

In some situations, the law specifies the duty of care one individual owes to another. 
TRUE
The plaintiff must first establish that the defendant owes a duty to the plaintiff. In some particular situations, the law specifies the duty of care one individual owes to another.

The courts generally hold that landowners have a duty to protect individuals on their property. 
TRUE
The courts generally hold that landowners have a duty of care to protect individuals on their property.

When negligence per se applies, the plaintiff is required to show that a reasonable person would exercise a certain duty of care toward the plaintiff. 
FALSE
Res ipsa loquitur literally means "the thing speaks for itself." The plaintiff uses this doctrine to allow the judge or jury to infer that more likely than not, the defendant's negligence was the cause of the plaintiff's harm, even though there is no direct evidence of the defendant's lack of due care.

A plaintiff in a negligence suit may choose whether the plaintiff wishes pure comparative negligence or modified comparative negligence to be applied by the court. 
FALSE
Choice is not involved. Most states have replaced the contributory negligence defense with either pure or modified comparative negligence.

According to the pure comparative negligence defense, a defendant must be more than 50% at fault before the plaintiff can recover. 
FALSE
According to a pure comparative negligence defense, the court determines the percentage of fault of the defendant. The defendant is then liable for that percentage of the plaintiff's damages. In modified comparative negligence, the defendant must be more than 50 percent at fault before the plaintiff can recover.

Assumption of the risk is a doctrine which makes it easier for a plaintiff to prevail in a lawsuit. 
FALSE
Another defense available to defendants facing negligence claims is called assumption of the risk. To use this defense successfully, a defendant must prove that the plaintiff voluntarily and unreasonably encountered the risk of the actual harm the defendant caused.

More than half the states remain contributory negligence states. 
FALSE
Twenty-eight states have adopted modified comparative negligence, thirteen have adopted pure comparative negligence, and nine have adopted contributory negligence.

To use the assumption of the risk defense successfully, a defendant must prove that the plaintiff voluntarily and unreasonably encountered the risk of the actual harm the defendant caused. 
TRUE
Another defense available to defendants facing negligence claims is called assumption of the risk. To use this defense successfully, a defendant must prove that the plaintiff voluntarily and unreasonably encountered the risk of the actual harm the defendant caused.

Implied assumption of the risk occurs when the plaintiff expressly agrees, usually in a written contract, to assume the risk posed by the defendant's behavior. 
FALSE
Express assumption of the risk occurs when the plaintiff expressly agrees (usually in a written contract) to assume the risk posed by the defendant's behavior. In contrast, implied assumption of the risk means that the plaintiff implicitly assumed a known risk.

Good Samaritan statutes impose liability upon people for refusing to stop at accident scenes. 
FALSE
Laws in some states hold that people in peril who receive voluntary aid from others cannot hold those offering aid liable for negligence. These laws, commonly called Good Samaritan statutes, attempt to encourage selfless and courageous behavior by removing the threat of liability.

Strict liability is liability without fault. 
TRUE
Strict liability is liability without fault.