What type of warranty would each of the following be:
1. A chef at a prominent restaurant telling one of her clients, “I guarantee this is the best beef stew you will find in this city!”
2. When a person orders Maine lobsters, he is assured the lobsters indeed came from Maine.
3. A person drinking a can of Fizzy Fuzz pop is assured no insect legs are in the pop.
1. Statement of opinion
2. Express warranty
3. Implied warranty of fitness for human consumption
Identify the type defect in each of the following:
1. Unpadded wooden instrument panels in cars.
2. Automobile airbags which can deploy too quickly and forcibly, thereby suffocating young children and small adults.
1. Crashworthiness doctrine.
2. Defect in design.
INCONSISTENT WARRANTIES
1. Express vs. Implied - Express displace implied except fitness for a particular purpose.
2. Technical vs. inconsistent models or general description - Technical or exact specifications enforced.
3. Sample vs. general language of description - Quality of sample is enforced.
DISCLAIMERS
Implied warranty of merchantability - must use words:
"AS IS"
"WITH ALL FAULTS"
Or include the word "MERCHANTABILITY"
Obvious faults are disclaimed if the product is seen by the buyer or the buyer refuses to see the product when asked to do so by the seller.
Disclaimers must be conspicuously displayed - noticeable to a reasonable person.
THIRD PARTY BENEFICIARIES
Alt. A - Natural person who is in the family, household or guest of the buyer.
Alt. B - Natural person who may reasonably be expected to use, consume, or be affected by the goods.
Alt. C - Any person who may reasonably be expected to use, consume or be affected by the goods.
In North Dakota the nonmanufacturing seller (retailor) can get out of a products liability action if the seller files an affidavit certifying the correct identity of the manufacturer unless the plaintiff can show:
1.the seller exercised some significant control over the design or manufacture of the product.
2. the seller had actual knowledge of the defect in the product.
3. the seller created the defect in the product which caused the injury.
Chapter 7
Name the offense for the following cases:
An electrician enters a home upon invitation and while there slips a $100 bill, which was on a dresser, into her pocket. Larceny
A bank teller who notices that a customer doesn’t endorse the back of his paycheck, signs the customer’s name, and deposits the check into her own account. Forgery
An intruder bursts into an open store, waves a loaded gun, and demands money. Robbery
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Constitutional Safeguards:
Fourth Amendment: Unreasonable search, Search warrants, Exclusionary rule
Fifth Amendment: Double jeopardy
Fifth Amendment: Self-incrimination, Prosecution immunity
Sixth Amendment: Public jury trial
Attorney-client privilege - Psychiatrists, psychologists, priests, ministers, rabbis, spouse, parents
Eighth Amendment: Against cruel and unusual punishment
CHAPTER 8 REVIEW
1. Know (understand what they stand for) the five Theories of Ethics:
Ethical Fundamentalism, Utilitarianism, Kantian Ethics, Rawls's social Justice Theory, Ethical Relativism.
2. Know (understand what they stand for) the four theories of Social Responsibility of Business:
Maximize Profits, Moral Minimum, Stakeholder Interest, Corporate Citizenship.
FIDUCIARY DUTY -
A DUTY TO ACT IN GOOD FAITH FOR THE BENEFIT OF ANOTHER IN UNDERTAKING. IT IS THE HIGHEST STANDARD OF DUTY IMPLIED BY LAW.
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CONSTITUENCY STATUTES: (MINN.)
A DIRECTOR MAY CONSIDER THE CUSTOMERS, SUPPLIERS, AND CREDITORS, THE ECONOMY OF THE STATE AND NATION, COMMUNITY AND SOCIETAL CONSIDERATIONS, AND THE LONG-TERM AND SHORT-TERM INTERESTS OF THE CORPORATION AND ITS SHAREHOLDERS, INCLUDING THE POSSIBILITY THAT THESE INTERESTS BAY BE BEST SERVED BY THE CONTINUED INDEPENDENCE OF THE CORPORATION.
FOREIGN CORRUPT PRACTICES ACT OF 1997 -
IT IS A CRIME FOR A U.S. COMPANY TO BRIBE A FOREIGN OFFICIAL, A FOREIGN POLITICAL PARTY FOREIGN POLITICAL OFFICE.
ETHICAL THEORIES
ETHICAL FUNDAMENTALISM - YOULOOK TO AN OUTSIDE SOURCE FOR ETHICAL RULES.
UTILITARIANISM - YOU MUST CHOOSE THE ACTION OR FOLLOW THE RULE THAT PROVIDES THE GREATEST GOOD TO SOCIETY.
KANTIAN ETHICS - MORAL DUTIES ARE BASED ON UNIVERSAL RULES. "DO UNTO OTHERS"
RAWLS'S DISTRIBUTIVE JUSTICE THEORY - SOCIAL CONTRACT, "VEIL OF IGNORANCE" & SPECIAL ASSISTANCE TO THE LEAST ADVANTAGED.
ETHICAL RELATIVISM -
YOU MUST DECIDE WHAT IS ETHICAL BASED ON YOUR OWN FEELINGS OF RIGHT AND WRONG.
MAXIMIZING PROFITS -
(MILTON FRIEDMAN) A CORPORATION OWES A DUTY TO MAXIMIZE PROFITS FOR SHAREHOLDERS.
MORAL MINIMUM - MAKE A PROFIT WHILE AVOIDING HARM TO OTHERS.
STAKEHOLDER INTERESTS - A COMPANY MUST CONSIDER THE EFFECTS ON PERSONS OTHER THAN ITS STOCKHOLDERS.
CORPORATE CITIZENSHIP - CORPORATIONS OWE A DUTY TO PROMOTE THE SAME SOCIAL GOALS AS DO INDIVIDUALS.
Chapter 9
North Dakota provides protection for:
1. Trade Secrets 47-25.1-01 to 47-25.1-08
2. Trade Names 47-25-01 to 47-25-07
3. Trademarks 47-22-01 to 47-22-13
In a newspaper advertisement, Dennis made the statement, “My competitor, Murphey, was under federal investigation for child labor law violations. Do you really want to send your business to a low-life like that?” Murphey, in reality, had been under no such investigation. Was Dennis committing anything wrong? Yes - libel.
Snelling sells watches on the street corner that bear the name Ro-flex with a stylistic crown above the name and in a style that resembles a much more expensive watch. Name the violation.
Palming off.
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Geraldine quits her job as a researcher for a pharmaceutical company where she developed a vaccine for the common cold. She obtains employment at another pharmaceutical and tells them of her vaccine. She proceeds to market the vaccine for the second company without permission from the first.
A manufacturer of portable toilets names one of its products “Here’s Johnny.” Johnny Carson feels this was inappropriate and was offended (not to mention upset because he was not receiving money for use of his “trademark” introduction). Upon what may he have grounds for litigation?
Misappropriation of trade secrets.
Misappropriation of the right to publicity.
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A successful plaintiff of trademark infringement can recover
Profits made by the infringer by the unauthorized use of the mark.
Damages caused to the plaintiff’s business and reputation.
An order requiring the defendant to destroy all goods containing the unauthorized mark.
An injunction preventing the defendant from such infringement in the future.
Chapter 11
The following contracts seem as though they are supported by consideration, but are not. Think of scenarios in which these situations could happen:
Illusory promises
Moral obligations
Past consideration
Preexisting duty
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A minor who makes a contract and does not disaffirm it before her 18th birthday.
Valid
A mentally ill person who has not been judicially declared insane but exhibits strange behavior.
Voidable
An intoxicated person who contracts to charge a client with a usurious loan rate.
Void
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Explain each of the following illegal contracts contrary to statutes:
Gambling statutes, usury laws, Sabbath laws, licensing statutes.
Explain each of the following illegal contracts contrary to public policy:
Contracts in restraint of trade, covenants not to compete, exculpatory clauses, and immoral contracts.
TENANT OBLIGATIONS
The obligation of the tenant may be altered somewhat by a contractual agreement (generally a written lease) between the landlord and the tenant. However, the tenant must:
A. Comply with all duties imposed upon tenants by building and housing codes relating to health and safety.
B. Keep the occupied unit as clean and safe as the condition of the premises permit.
C. Regularly remove all ashes, garbage, rubbish, and other waste from the dwelling unit and dispose of them in a clean and safe manner.
D. Keep all plumbing fixtures as clean as their condition permits.
E. Use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air-conditioning systems and other facilities and appliances including elevators on the premises.
F. Not deliberately or negligently destroy, deface, damage, impair or remove any part of the premises or knowingly permit any person to do so.
G. Conduct him/herself and require other persons on the premises with the tenant's consent to conduct themselves in a manner that will not disturb the tenant's neighbors' peaceful enjoyment of the premises
LANDLORD OBLIGATIONS
The obligation of the landlord may be altered somewhat by a contractual agreement (generally a written lease) between the landlord and the tenant. However, the landlord must:
A. Comply with the requirements of building and housing ,codes relating to health and safety.
B. Arrange for or make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.
C. Keep all common areas in a clean and safe condition.
D. Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning systems and other facilities and appliances, including elevators, supplied or required to be supplied by the landlord.
E. Provide and maintain appropriate receptacles and conveniences for the removal of ashes, garbage, rubbish, and other waste incidental to the occupancy of the dwelling unit and arrange for their removal.
F. Provide running water and reasonable amounts of hot water and heat.
G. Provide smoke detectors in each unit.
The landlord and tenant may agree that the tenant is to perform specified repairs, maintenance tasks, alterations, or remodeling only if:
1. The agreement is entered into in good faith set forth in a separate writing signed by the parties and supported by adequate consideration.
2. The work is not necessary to cure noncompliance with garbage removal (Landlord Obligation "E").
3. The agreement does not affect the obligation of the landlord to other tenants.
If the landlord does not respond to verbal notice of need for repairs, the tenant should send a written notice to the landlord of necessary repairs by certified mail, return receipt requested. The tenant should keep a copy of this notice. The tenant must give the landlord reasonable notice and a reasonable amount of time in which to make repairs. What is "reasonable" depends on the needed repair. If repairs are still not made, the tenant has three options under the law:
A. Repair the defect and deduct the expense from the rent. The tenant should notify the landlord in writing that he/she intends to do this.
B. Sue the landlord in Small Claims Court for the costs of the repairs and other expenses incurred as a result of the failure to make repairs.
C. As a last resort the tenant may vacate the premises after notice (preferably written). Should be used only if the repair problem is serious or a code violation. Notify the housing or health inspector to confirm that a serious problem or code violation exists.
Chapter 12
Is Writing Required When...
A student purchases software for $475? No
A mother co-signs for her son’s car? Yes
A man leases his land to a rancher for grazing? Yes
A student borrows $200, payable in two months? No
A daughter prepays her mother’s funeral expenses? Yes
Which type of discharge is indicated by the following:
Two parties agree that their contract will be voided upon certain natural disasters such as tornado or flood. Force majeure clause
Destruction of subject matter before the contract is performed. Impossibility of performance
Both parties agree that the contract is a bad idea and want to strike another agreement.
Mutual recission
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What type damages would be asked for in each case?
If a plaintiff really wanted to punish a defendant. Punitive damages
If a plaintiff just wanted to be paid for what he/she had lost. Compensatory
If a plaintiff wanted only to prove a point and not necessarily recover damages. Nominal
Chapter 14
A partnership name has to include the name of one of its partners.
No - it can be a fictitious name.
A partnership can operate as a not-for-profit charitable organization.
No - it must operate for a profit.
A partnership agreement can be oral, written, or implied.
Yes to all three.
UPA stands for United Partnership Association.
No - Uniform Partnership Act.