gblexam2

legally protected rights and interests in anything of value that is subject to ownership; how we measure wealth

Real and Personal

can be tangible (land) or intangible (reputation of a company)

temporary transfer in possession and control of personal property

"borrowing with a contract"

EXAMPLE: FedEx man

• -shipping goods
• -lending or renting objects
• -giving clothing to the dry cleaners
• -giving your car and keys to a parking attendant

owner transferring possession

person receiving the property

• MUST:
• -care for the property
• -return the property in the agreed upon condition

• MAY:
• -use the property per terms of the agreement
• -use is limited to necessity if agreement does not address use

the bailee is liable only for gross neglect (a little neglect is okay)

• EXAMPLE: storing canoes in the bailor's garage
• -gross neglect if garage door is left open with canoes exposed

the bailee is liable even for slight negligence

EXAMPLE: borrowing car

the bailee is liable only after lack of reasonable care

EXAMPLE: storing boat at a warehouse company

• -Land
• -Things permanently attached to land (structures and fixtures)

• -surface
• -air space (above land)
• -subsurface (below surface)

removing would result in knowing it had been there before

EXAMPLE: not drapes (personal property), but curtain rod (real property)

• -tenant must install in order for business to run
• -tenant is allowed to take when lease expires or building is sold

gives or sells land

receiving land by purchase or gift

• -freehold estate
• -leasehold estate

• -fee simple absolute
• -fee simple defeasible
• -life estate
• -concurrent

-most rights of any form of land

• RIGHTS:
• -possess
• -use
• -occupy
• -convey (sell or give)
• -lease
• -improve it
• -bequeath (can control who gets land after owner dies)

• -grantor attaches condition to grant
• -grantor can take land back if terms are not met by grantee

EXAMPLE: Griffith Park in LA --> no fees

-cannot bequeath land to someone else (otherwise same rights as fee simple absolute)

grantor getting land back

person who gets land after grantor dies

• -joint tenancy
• -tenants in common
• -tenancy by the entirety

• -freedom to sell one's interest
• -creditors can attach debtor's interest
• -**owners may not bequeath their interest (distinguishing factor)
• -**owners must have equal interests (distinguishing factor)

• -freedom to sell one's interest
• -creditors can attach debtor's interest
• -**owners may bequeath their interest
• -**owners may have unequal interests

• -permission required to sell one's interest
• -creditors of only one debtor cannot attach any interest
• -owner may not bequeath his interest
• -co-owners must be married
• -divorce converts ownership to tenancy in common

• -tenancy for years
• -periodic tenancy
• -tenancy at will
• -tenancy at sufferance

any fixed period of time (does not have to be years)

automatically renewable; must give notice otherwise lease is automatically renewed

-landlord/tenant must give specified notice to terminate lease (30ish days)

• either party can terminate whenever they want
• -30 day notice or agreed upon notice

tenant stays on property after lease has expired

• -profits
• -licenses
• -easements

right to use another person's land

land that needs to use other land; benefits use of another

land that's being used (by dominant tenement)

benefits adjacent land

adjacency not required; usually benefits many land owners

EXAMPLE: power lines

allows use of land

prevents use of land

EXAMPLE: cannot build higher than 3 stories (protects views, solar panels)

• -taking over lease for certain period of time within lease
• -not taking over entire premisses

taking over until end of lease

• -express grant
• -express reservation
• -prescription

requires express easements to be in writing

buyer reserves right to use Y's 8ft to walk to the beach even though buying X

seller sells Y and reserves right to still use 8ft to walk to beach

• Must meet these requirements:
• 1.) use the land of another
• 2.) use the land openly and notoriously (owners know you're doing it)
• 3.) use the land continuously (on regular basis)
• 4.) use the land exclusively (if everyone is doing it, no one will get easement)
• 5.) use the land in an adverse and hostile manner (against interest of owner)
• 6.) 15 consecutive years in MI

-same requirements as prescriptive easements in MI

• Difference between easement and adverse possession:
• -easement is use of another's land
• -adverse possession is occupancy of another's land

• -constitutional power of eminent domain
• -fair compensation for the owner
• -public purpose for the land (road, park, public building)

• Issue:
• Whether a law that prohibits land development which is otherwise legal, is a taking

• Rule:
• When a regulation prohibits an economically productive land use that was previously legal, it is a taking for which the owner must be compensated

***Think Dottie Dumplings

• -public nuisance (affects multiple people)
• -private nuisance (dog barking)

-legal remedy (money damages)

-equitable remedy (eliminate the cause, or stop the conduct)

governmental restriction that...

• -isolates businesses from homes
• -restricts construction to specific types
• -regulates population density
• -dictates land layout

governmental restriction controlling appearance of property

a distinctive identifier used by a manufacturer or seller to identify its products and distinguish them from the products of its competitors

-purpose is to guarantee a product is genuine; must be distinguishable

EXAMPLE: Coke symbol

-word (original and unique)

-picture

-mascot

-slogan ("just do it")

-symbol (Nike swish)

-shape (Yoplait cone shaped)

-sound (MGM lion roar)

-functional shape

-functional color (John Deere couldn't TM green; beer bottle color)

-generic terms

the non-functional features, characteristics, decorations or image of goods or services that promote their sale and distinguish them from their competitors

• EXAMPLES:
• -color of packaging
• -configuration of the goods
• -theme of a restaurant
• -decor of a business
• -style or type of service
• -menu

any secret formula, pattern, process, program, device, method, technique, or compilation of information a business uses that gives it an advantage over its competitors who do not know the secret

-reverse engineering legal

a monopoly the government grants to inventors allowing them to exclusively make, use, and sell their inventions

-novel (not described in print, not previously patented, not in use or being sold)

-useful

-non-obvious

• Utility Patents- 20 years:
• -processes
• -machines
• -chemical compounds
• -certain business methods
• -improvements of anything listed above

Plants produced by asexual reproduction- 17 years


Ornamental designs for an existing product- 14 years

-naturally occurring things

-abstract ideas (thoughts, theory of relativity)

-scientific or mathematical concepts (pi)

-computer programs

the exclusive right to reproduce, publish, and sell a fixed form of a creative work of art

• -70 years after publisher's death
• -125 years after a corporation's creation

Talked about Steamboat Willy

• -titles
• -type fonts
• -ideas
• -facts
• -words or short phrases ("you can't handle the truth")
• -familiar symbols or designs

• -(c)
• -author
• -year of creation
• -registered with the federal government

-fixed form (paper, tape, CD, canvas, clay, computer program)

-original

-creative

• -fair use is not copyright infringement
• -research
• -criticism and comment
• -parody
• -teaching
• -personal multiple uses (buying CD and putting it on iPod)
• -convenience taping (DVRs)

• -playing a recording in a store
• -broadcasting recorded music
• -presenting a play
• -performing a song live
• -selling course packs

• 1.) offer
• 2.) acceptance
• 3.) consideration
• 4.) genuine assent
• 5.) competent parties
• 6.) legal object

without these a contract can't be enforced

proposal of bargain to another party

• -intent
• words are clear and not ambiguous

-conduct

• -definite
• subject matter, quantity, price

-must be communicated to the offeree

• -terms of the offer
• -lapse of time (30ish days)
• -insanity or death of offeror
• -destruction of subject matter
• -offeree rejects the offer
• -offeree makes a counter offer
• -offeror revokes the offer
• -supervening illegality

• -must be intent to accept
• -acceptance must not change material terms of the offer
• -only the offeree may accept the offer
• -acceptance must be communicated to the offeror

legal value, bargained for and given in exchange for an act or a promise

*anything of value promised to another when making a contract

a substitue for consideration

• -a promise reasonably expected to induce promise's substantial action
• -promisee's justifiable reliance on the promise to his detriment
• -a resulting economic detriment that can only be avoided by enforcing the promise

• EXAMPLE:
• A landlord informs a tenant that rent has been reduced, for example, because there was construction or a lapse in utility services. If the tenant relies on this notice in choosing to remain in the premises, the landlord could be estopped from collecting the full rent.

the new agreement that replaces the old agreement

the performance of the new agreement

-court-enforced liability against a party who knowingly accepts a benefit not contracted for

-party is liable for reasonable value of benefit

making a contract voidable if one of these factors are present:

• -fraud
• -duress
• -undue influence
• -mistake

• 1.) misrepresentation or omission of material fact
• 2.) intent to deceive the other party
• 3.) other party relies on misrepresentation
• 4.) reliance causes injury

Hooters

ghost house and suing for recession

"let the buyer beware"

-applies to findings on inspection

• 1.) a party threatens another, to force him to enter a contract
• 2.) there is no reasonable alternative to entering the contract

• 1.) a fiduciary relationship (relationship of trust) between the parties
• 2.) the dominant party takes advantage of a weakness to persuade the servient party to enter a contract

• both parties are talking about the same terms of a contract
• -ambiguous terms must be avoided

deletes terms of a contract

only mistaken by one party

-rescission is not allowed unless the non-mistaken party knew of the mistake

both parties make the same mistake

• -rescission is allowed
• -mistakes about value is the only exception

• EXAMPLE of exception:
• famous painting sold at garage sale

-sobriety

-sanity

-age

-minors cannot disaffirm contracts for necessaries

never a contract to begin with

EXAMPLE: gambling contract

official and legally binding

• -blue laws (cannot sell alcohol on Sunday)
• -licensing statutes (professions that must be licensed to practice i.e. plumber)
• -laws against usury (charging more than allowed rates)
• -laws restricting gambling

• -business-to-business non-compete pacts
• -employment non-compete agreements
• -price-fixing agreements

a contract formed with the intent to benefit someone who is not a party to the contract

the promisee enters the contract intending to satisfy a legal duty he owes to a third party

• EXAMPLE:
• Andrew owes some debt to Charlie, and Andrew agrees to provide some consideration to Bethany in exchange for Bethany's promise to pay Charlie some part of the amount owed

the promisee's primary intent is to make a gift of the contract's performance to a third party

• EXAMPLE:
• Life Insurance Contract
• -promissor is the insurance company
• -promisee is the party purchasing the life insurance
• -beneficiary is the party receiving the money of the life insurance after the promisee dies

party who stands to benefit from the execution of the contract, although that was not the intent of either contracting party

• EXAMPLE:
• Mike Tyson fight fans are not compensated for not seeing a fight

appropriate legal form of relief by which a remediable right might be enforced against a wrongdoer who has failed to meet the requirements of the law

• -compensatory damages
• -liquidated damages

breaching party pays innocent party an amount to make the innocent party whole

-measured by the difference between the market price and contract price

-purpose is to place the innocent party in the position he would have been if the contract had been performed

-innocent party must attempt to find substitute performance

-innocent party will not recover damages if he does not mitigate

• EXAMPLE:
• -student moves out of apartment early from lease
• -->apartment must try to find new tenant to compensate for losses

-defendant must reasonably foresee that plaintiff has no other source for the goods

-plaintiff's damages must not be speculative

-plaintiff must prove mitigation (try to compensate for his own losses)

-special clause in the contract

• -an advance agreement on damages
• EXAMPLE: uncle wrote fee for late construction

-rescission (neither party has to continue)

-specific performance (compels breacher to carry out promise)

-unique subject matter

EXAMPLE: rare baseball-->no replacement so must pay

-Day 1: A makes an offer to B.

-Day 2: A decides to revoke the offer and puts a letter in the mail to B revoking the offer.

-Day 3: B puts a letter accepting the offer in the mail.

-Day 4: B receives A's revocation letter.


---The letter of revocation can be effective only when received, that is Day 4. However, a contract was formed on Day 3 when the letter of acceptance was posted. It is too late for A to revoke the offer.

contracts that must be in writing to be enforceable

• including:
• -conveyance of an interest in land
• -promise to pay another's debt (cosigner)
• -performance exceeding one year
• -sale of goods priced at $500 or more (price not value)

statements made before or at the time a contract is signed can't be used to change the terms of a contract that is a complete and final statement of the agreement

• -evidence to show the contract is invalid
• -an explanation of ambiguous words (each party was thinking a different meaning of a word)
• -a completion of the omitted terms
• -corrections of errors

• -complete performance (executed contract)
• -condition precedent
• -condition subsequent
• -impossibility of performance
• -commercial impracticability
• -waiver

-a future event that creates a duty to perform

-precedes creation of a duty to perform a contract (before duty exists)

• EXAMPLE:
• "I will buy the house if I qualify for a loan."

-a contract term that discharges an absolute duty (already has a duty to perform)

• EXAMPLE:
• "The insurance company's duty to pay is discharged if the insured fails to make a claim within 15 days"

an unplanned event prevents performance:

-death of party performing personal services (singing lessons)

-supervening illegality (law passed making something in contract illegal)

-destruction of the subject matter (can't be because promissor destroys it)

• -an event makes performance impracticable
• -the promisor did not cause the event
• -the parties assumed the event would not happen

• EXAMPLE:
• Syrovy Trust v. Alpine Resources
• -harvest lumber claimed commercial impracticability due to weather/hunting
• -->events were foreseeable therefore Alpine still owes

one or more parties to a contract surrenders the right to receive performance from the other party or parties to the contract