Flashcards in Exam 2 - Terms Deck (235):
What is a tort?
the French word for a "wrong"
What can a person do under tort law?
Under tort law, an injured party can bring a civil lawsuit to seek compensation for a wrong done to the party or the party's property
What are Compensatory damages?
Puts the victim in the original position and includes compensation for all injuries (personal and property)
What are Nominal damages?
Nominal amount to recognize that the plaintiff has been wronged
What are Punitive damages?
Money awards to punish the Defendant
What are the 3 categories of Torts?
1) Intentional Torts
2) Unintentional Torts (Negligence)
3) Strict Liability Torts
What does the law protect under Intentional Torts Against Persons?
1) protects a person from unauthorized touching, restraint, or other contact
2) Also protects a person's reputation and privacy
What are the elements of Assault?
1) Intentional Tort
2) The threat of immediate harm or offensive contact or
3) any action that arouses reasonable apprehension of imminent harm
Is actual physical contact necessary for assault?
What are the elements of Battery?
1) Intentional Tort
2) Unauthorized and harmful or offensive physical contact with another person,
3) actual physical contact is unnecessary between victim and perpetrator
4) May accompany assault
What are the elements of the Doctrine of Transferred Intent?
1) Party A intends to harm Party B, but actually injures Party C
2) Law transfers perpetrator's intent from target to actual victim
3) Victim can then sue perpetrator
What is False Imprisonment?
The intentional confinement or restraint of another person without authority or justification and without that person's consent
What are some methods that quantify as False Imprisonment?
1) Physical force
3) Threats of physical violence
4) False arrest
What is required to qualify as False Imprisonment?
1) Threat of future harm or moral pressure is not enough
2) Must be complete imprisonment
What is the exception to False Imprisonment?
the Merchant Protection Statute
What is the Merchant Protection Statute?
merchants may stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment
What are the 3 elements/requirements to the Merchant Protection Statute?
1) There must be reasonable grounds for the suspicion
2) Suspects are detained for only a reasonable time (15 min)
3) Investigations are conducted in a reasonable manner
What is a Misappropriation of the Right to Publicity?
1) An intentional tort
2) An attempt by another person to appropriate a living person's name or identity for commercial purposes
What is a Misappropriation of the Right to Publicity also known as?
A Tort of Appropriation
What is Defamation of Character?
1) Intentional Tort
2) False statement made by one person about another
What must the plaintiff prove to have a successful Defamation case?
1) The defendant made an untrue statement of fact about the plaintiff and,
2) the statement was intentionally or accidentally published to a third party
What are the elements of Invasion of the Right to Privacy?
1) Intentional Tort
2) Tort that constitutes the violation of a person's right to live his or her life without being subjected to unwanted and undesired publicity
3) Placing one in a "false light"
What is considered published, in regards to Defamation?
Communicated to a third party unintentional or not
What is Slander Defamation of Character?
oral defamation of character
What is Libel Defamation of Character?
a false statement that appears in a letter, newspaper, magazine, book, etc.
What is different about Defamation of Character with public officials?
Public officials cannot recover for defamation unless they can prove that the defendant acted with actual malice
What are the elements of Disparagement?
1) Intentional Tort
2) Untrue statement made about products, services, property, or reputation of a business
3) Also called product disparagement, trade libel, or slander of title
What is Intentional Misrepresentation (Fraud)?
1) Wrongdoer deceives another person out of money, property, or something of value
2) Injured party can recover damages
What are the elements of Intentional Misrepresentation (Fraud)?
1) Wrongdoer made a false representation
2) Wrongdoer knew representation was false and intended to deceive other party
3) Party must justifiably rely on misrepresentation
4) must have actual injury
What is Intentional Infliction of Emotional Distress?
- Tort that says a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable for that emotional distress
- Also known as the tort of outrage
What is Malicious Prosecution?
- Losing plaintiffs that have brought a frivolous lawsuit may be sued by the prevailing defendant
- Civil action for damages
- Must have suffered injury
What is real property?
- land and anything permanently attached to that land
What is personal property?
- things that are movable
- automobiles, books, clothes, pets
What is Trespass to Land?
- A tort that interferes with an owner's right to exclusive possession of land
- Unauthorized use of another person's property
When does a Trespass to Personal Property occur?
- whenever one person injures another person's personal property
- when one interferes with a person's enjoyment of his or her personal property
When does a Trespass to Conversion occur?
a severe (permanent) deprivation of property
ex: burn someone's car
What is an Unintentional Tort?
A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions
What is Negligence?
the omission to do something which a reasonable man would do, or something which a prudent and reasonable man would not do
To be a successful in a negligence lawsuit, what must the plaintiff prove?
1) The defendant owed a duty of care to the plaintiff
2) The defendant breached the duty of care
3) The plaintiff suffered injury
4) The defendant's negligent act caused the plaintiff's injury
What is Duty of Care?
the obligation we all owe each other not to cause any unreasonable harm or risk of harm
What is Breach of Duty?
a failure to exercise care or to act as a reasonable person would act
What is Causation?
a person who commits a negligent act is not liable unless his or her act was the cause of the plaintiff's injuries
What are the two requirements of Causation?
1) Causation in Fact: the actual cause
2) Proximate Cause : legal cause - foreseeable
What is Injury to Plaintiff?
the plaintiff must suffer personal injury or damage to his or her property to recover monetary damages for the defendant's negligence
What is Causation in Fact (Actual Cause)?
- Defendant's negligent act must be causation in fact
- The actual cause of negligence
- Must have cause and effect relationship
What is Proximate Cause?
1) A negligent party is not necessarily liable for all damages set in motion by his or her negligent act
2) The law establishes a point along the damage chain after which the negligent party is no longer legally responsible for the consequences of his or her actions
3) General test is foreseeability
What is Negligent Infliction of Emotional Distress?
- A tort that permits a person to recover for emotional distress caused by the defendant's negligent conduct
What is Negligence Per Se?
- Violation of a statute that proximately causes an injury
- Plaintiff must be within class intended to be protected
- Statute enacted to prevent the type of injury suffered
What is Res Ipsa Loquitur?
- "The thing speaks for itself"
- Defendant had exclusive control of a situation that caused plaintiff's injury
- Injury would not have ordinarily occurred but for someone's negligence
What are Good Samaritan Laws?
- Protects medical professionals that stop and render emergency first aid
- Relieves them from liability for ordinary negligence
- No Relief for gross negligence or intentional or reckless conduct
- Laypersons not trained in CPR not covered
What are Dram Shop Acts?
Taverns and bartenders can be held civilly liable for injuries caused to or by patrons who were served too much alcohol
What are Guest Statutes?
- Driver voluntarily gives ride to another
- No compensation paid
- Driver not held liable for injuries caused by driver's ordinary negligence
- Driver still liable for gross negligence
What is the "Danger Invites Rescue" Doctrine?
Persons who are injured going to the rescue of another can sue the person who caused the dangerous situation
What is Social Host Liability?
- Social host liable for injuries caused by guests who are served alcohol at a social function
- injure themselves or another due to intoxication
What is the Liability of Landowners?
1) Duty of ordinary care owed to invitees and licensees
- invitees on premises for mutual benefit of both parties with consent
- Licensee on premises for own benefit, but with consent
2) Duty not to willfully or wantonly injure trespassers
- Person has no invitation or right to be on property
What is the Liability of Common Carriers and Innkeepers?
Duty of utmost care to passengers and guests
What is Strict Liability?
1) Liability without fault
2) A participant in a covered activity will be held liable for any injuries caused by the activity even if he or she was not negligent
3) Applies to explosives, hazardous materials, and wild animals
What are defenses against negligence?
1) Superseding or intervening event
2) Assumption of the Risk
3) Contributory Negligence
4) Comparative Negligence
What is Contributory Negligence?
Does not allow plaintiffs to recover damages if they have contributed to their own injuries regardless of the degree of their fault
What is Pure Comparative Negligence?
You will get the amount damages that you are not at fault
ex: sue for 10k while 10% at fault, you would get 9k
What is Modified Comparative Negligence?
You must be less than 50% at fault to collect damages
What is Products Liability?
The liability of manufacturers, sellers, and others for the injuries caused by defective products
What are the elements to Negligence in Products Liability?
- A person injured by a defective product may sue
- The plaintiff must prove that the defendant breached a duty of due care to the plaintiff that caused the plaintiff's injuries
- In a negligence lawsuit, only a party who was actually negligent is liable to the plaintiff
Can a consumer recover negligence damages from the manufacturer of the product even though he or she was only in privity of contract with the retailer?
What does Failure to exercise due care include in Negligence Products Liability cases?
- Failing to assemble to product carefully
- Negligent product design
- Negligent inspection or testing of the product
- Negligent packaging
- Failure to warn of the dangerous propensities of the product
What is Misrepresentation in Products Liability cases?
- Seller or lessor fraudulently misrepresents the quality of a product, or conceals a defect in it
- Recovery limited to persons injured because they relied on the misrepresentation
What is the Chain of Distribution?
- All parties in the chain of distribution of a defective product are strictly liable for the injuries caused by that product (does not apply to services)
- All manufacturers, distributors, wholesalers, retailers, lessors, and subcomponent manufacturers may be sued under the doctrine of strict liability in tort
Is privity of contract required for a plaintiff to sue under strict liability?
Does the doctrine of strict liability apply if the injured party had no contractural relations with the defendant?
Is economic loss recoverable under strict liability?
When are Punitive damages often awarded under strict liability?
If the plaintiff proves that the defendant either:
- Intentionally injured him or her; or
- Acted with reckless disregard for his or her safety
Can a plaintiff allege multiple product defects in one lawsuit?
What are the 4 most common types of defective products?
1) Failure to warn
When does a Defect in Manufacture occur?
when a manufacture fails to:
1) Property assemble a product
2) Property test a product, or
3) Adequately check the quality of a product
What is a Defect in Design?
- Defect that occurs when a product is improperly designed
1) Toys designed with removable parts that could be swallowed by children
2) Machines and appliances designed without proper safeguards
3) Trucks designed without a backup warning device
How do courts evaluate the adequacy of a product's design?
The courts apply a risk-utility analysis
- Gravity of the danger posed by the design
- Likelihood that injury will occur
- Availability and cost of producing a safer design
- Social utility of the product
What is Failure to Warn?
- Defect that occurs when a manufacturer does not place a warning on the packaging of products that could cause injury if the danger is unknown
- Proper and conspicuous warnings insulates all in chain of distribution
What is a Defect in Packaging?
Defect that occurs when a product has been placed in packaging that is insufficiently tamperproof
- Manufacturers owe a duty of design and provide safe packages for their products
- Failure to meet this duty subjects the manufacturer and others in the chain of distribution of the product to strict liability
What are the defenses to Product Liability?
1) Supervening Event
2) Generally Known Dangers
3) Assumption of the Risk
4) Government Contractor Defense
5) Misuse of the Product
6) Statute of Limitations
7) Contributory and Comparative Negligence
What is the Generally Known Dangers defense to Products Liability?
- Certain Products are inherently dangerous
- Products are known to the general population to be so
- Sellers are not strictly liable for failing to warn of generally known dangers
What is the Government Contractor Defense to Products Liability?
- Contractor who was provided specifications by the government is not liable for any defect in the product that occurs as a result of those specifications
- Product must conform to specifications
- Contractor must have warned of known defects or dangers
What is the Assumption of Risk defense to Products Liability?
- Defendant must prove that the plaintiff knew and appreciated the risk
- the plaintiff voluntarily assumed the risk
What is the Misuse of the Product defense to Products Liability?
- Relieves the seller of product liability if the user abnormally misused the product
- Products must be designed to protect against foreseeable misuse
What the Correction of a Product Defect defense to Product Liability?
- Manufacturer must notify purchasers and users
- Must correct defect
- Usually achieved through recall and repair or replacement
What is the Supervening Event defense to Product Liability?
- Alteration or modification of a product by a party that absolves seller from strict liability
- Modification must be made after it leaves seller's possession
- Alteration must cause injury
What is a Statute of Repose?
Limits the seller's liability to a certain number of years from the date when the product was first sold and varies from state to state
What is a warranty?
a collateral assurance or guarantee that certain facets of a product sold are as factually stated or legally implied by the seller, and it often provides for a specific remedy such as repair or replacement in the event the product fails to meet the warranty
What is an express warranty?
a guarantee or a binding promise clearly stated by the seller or manufacturer of a product
What is an implied warranty?
a guarantee or a binding promise that automatically arises from a transaction, rather than from the express representations of the seller or manufacturer
What are the defenses to breach of warranty?
(1) that no warranties are made (as is),
(2) that the manufacturer or seller warrants only against certain against consequences or defects, or
(3) that liability is limited to repair, replacement, or refund.
What is the Social Responsibility of Business?
Social responsibility of business is a duty owed by businesses to act socially responsible in producing and selling goods and services
What are Business Ethics?
- A set of moral principles or values that governs the conduct of an individual or group
- What is lawful conduct is not always ethical conduct, (the law may permit something that would be ethically wrong)
What is the Profit Maximization Moral Theory?
When a decision maker looks to maximize a business's long run profits within the limits of the law
What is a criticism of Profit Maximization Moral Theory?
Critics argue that equating ethical behavior with legal compliance is a tautology in the US where business distort the lawmaking process by lobbying legislators and making political contributions
What is the Consequential Theory - Utilitarianism Moral Theory?
- moral theory that dictates that people must choose the action or follow the rule that provides the greatest good to society
- This does not mean the greatest good for the greatest number of people
What is a criticism of the Consequential Utilitarianism Moral Theory?
it is difficult to estimate the "good" that will result from different actions
What is the Deontological Theory - Kantian Ethics?
- says people owe moral duties that are based on universal rules
- "Do unto others as you would have them do unto you"
What are the 2 important principles that Deontology's universal rules are based on?
1) Consistency: all cases are treated alike with no exceptions
2) Reversibility: the actor must abide by the rule he or she uses to judge the morality of someone else's conduct
What is a criticism of Deontological Theory - Kantian Ethics?
that is is hard to reach a consensus as to what the universal rules should be
What is the Humanist Moral Theory?
- Evaluates actions as ethically good or bad depending on what they contribute to improving inherent human capacities such as intelligence, wisdom, and self-restraint
- Natural Law theorists believe that humans would arrive by reason alone at standards of conduct that ultimately derive from a divine being or another ultimate source such as nature
What is Ethical Relativism?
- holds that individuals must decide what is ethical based on their own feelings as to what is right or wrong
- There are no universal ethical rules to guide a person's conduct
What are the 4 theories of Social Responsibility?
1) Maximizing Profits
2) Moral Minimum
3) Corporate Citizenship
4) Stakeholder Interest
What is the Maximizing Profits Social Responsibility Theory?
- Social Responsibility Theory that says a corporation owes a duty to take actions that maximize profits for shareholders
- the interests of other constituencies are not important in and of themselves
What is the Moral Minimum Social Responsibility Theory?
- Social Responsibility Theory that says a corporation's duty is to make a profit while avoiding harm to others
- as long as business avoids or corrects the social injury it causes, it has met its duty of social responsibility
What is the Stakeholder Interest Social Responsibility Theory?
- Social Responsibility Theory that says a corporation must consider the effects its actions have on persons than its stockholders
- criticized because it is difficult to harmonize the conflicting interests of stakeholders
What is the Corporate Citizenship Social Responsibility Theory?
- Social Responsibility Theory that says a business has a responsibility to do good
- Business is responsible for helping to solve social problems
- Argues that corporations owe a debt to society to make it a better place
- major criticism is that the duty of a corporation to "do good" cannot be expanded beyond certain limits
What is the Sarbanes - Oxley Act?
- Enacted by Congress in response to corporate frauds discovered in the late 1990s and early 200s
- Public companies are required to disclose whether they have adopted a code of ethics for senior financial officers
What is the definition of property?
the set of rights and interests of a person or entity in relation to other persons or entities with reference to a tangible or intangible object
What is the most common form of real property?
Land and buildings
Are plant life and vegetation considered real property?
Only until they are harvested
What is a fixture?
Personal property that is so closely associated with real property that it cannot be separated without damaging real property (permanent attachment)
What are Estates in Land?
- Ownership rights in real property
- Bundle of legal rights the owner has to possess, use, and enjoy the property
What is a Freehold Estate?
-An estate where the owner has a present possessory interest in the real property
-ex: Estates in Fee, Life Estates
What is Fee Simple Absolute?
- Highest form of ownership of real property
- infinite in duration
- Has no limitation on inheritability
- Does not end upon the occurrence or non-occurrence of an event
What is Fee Simple Defeasible?
Grants owner all of the incidents of a fee simple absolute except that it may be taken away if a specified condition occurs or does not occur
What is a Life Estate?
- Interest in property that lasts for the life of a specified person
- Called estate pour autre vie
- terminates upon the death of a named person and reverts back to the grantor
What is a Leasehold Estate?
- It is created by an agreement (lease) that transfers possessory interest in a property from the owner (landlord/lessor) to the holder (tenant/lessee)
- A leasehold is not an ownership interest, it is a possessory interest
What is a Landlord-Tenant Relationship?
A relationship created when the owner of a freehold estate (landlord) transfers a right to exclusively and temporarily possess the owner's property to another (tenant)
What is a nonfreehold Estate?
an estate in which the tenant has a right of possession of the property but not the title to the property
What is a Leasehold?
a tenant's interest in the property
What is a Tenant?
the party who the leasehold is transferred
What is a lease?
A transfer of the right to the possession and use of the real property for a set term in return for certain consideration
What is the Tenancy for Years type of tenancy?
- Continues for the duration of the lease and then terminates automatically without notice
- It does not terminate by the death of either party
What is the Periodic Tenancy type of Tenancy?
- Continues from payment interval to payment interval
- May be terminated by either party with adequate notice
- Does not terminate upon the death of either party
What is Tenancy at Will type of tenancy?
- Continues at the will of the parties
- May be terminated by either party at any time with adequate notice
- Terminates upon the death of either party
What is Tenancy at Sufferance type of tenancy?
- Arises when a tenant wrongfully occupies real property after the expiration of another tenancy or life estate
- It continues until the owner either evicts the tenant or holds the tenant over for another term
- Terminates upon the death of the tenant
What is the Landlord's Duty to Deliver Possession of the Leased Premises?
- A lease grants the tenant exclusive possession of the leased premises (1) for the term of the lease or (2) until the tenant defaults on the obligations under the lease
- A landlord may not enter leased premises unless the right is specifically reserved in the lease
What is the Landlord's Duty to Not Interfere with the Tenant's Right to Quiet Enjoyment?
- The law implies a covenant of quiet enjoyment in all leases
- The landlord may not interfere with the tenant's quiet and peaceful possession, use, and enjoyment of the leased premises
What is the Landlord's Duty to Maintain the Leased Premises?
State and local municipalities have enacted building codes:
- Statutes that imposed specific standards to maintain and repair premises
- Provided minimum standards for heat, light, water
What are Tenant's Duties?
The tenant owes the landlord a duty to:
1) Not to use leased premises for illegal or non-stipulated purposes
2) Not to commit waste
3) Not to disturb other tenants
4) To pay rent
What is an Implied Warranty of Habitability?
A warranty that provides that the leased premises must be fit, safe, and suitable for ordinary residential use
If a landlord's breach of an Implied Warranty of Habitability affects tenant's use or enjoyment of premises, what can a tenant do?
- Without amount from rent reflecting this loss of value
- Repair defect and deduct expenses from rent
- Cancel lease if it constitutes a constructive eviction
- Sue for damages for amount leasehold value reduct
What is Premises Liability?
The liability of landlords and tenants to persons injured on their premises
What is the Tenant's Duty of Reasonable Care?
- A tenant owes a duty of reasonable care to persons who enter upon the leased premises
ex: If a tenant's negligence causes injury to a third person, the tenant is liable in tort for any damages
What is the Landlord's Duty of Reasonable Care?
- Landlords owe a duty of reasonable care to tenants and third parties not to negligently cause them injury
- This duty is based on the foreseeability standard of ordinary negligence actions
- Landlord who breaches duty is liable for tort damages
What is the Transfer of Rights to Leased Property?
- Landlords may sell, gift, devise, or otherwise transfer their interest in the leased property
- If complete title is transferred, the property is subject to the existing lease
What is Assignment of a Lease?
- A transfer by a tenant of his or her rights and duties under a lease to another
- The party who transfers the rights is the assignor
- The party to whom rights have been transferred is the assignee
- The assignor remains responsible for his or her obligations under the lease
What is a Sublease?
- Occurs when a tenant transfers only some of his or her rights under the lease
- The sublessor transfers those rights to the sublessee
- No legal relationship is formed between the landlord and sublessee
What is Concurrent Ownership?
When 2 or more persons own a piece of real property
- also called co-ownership
What is Joint Tenancy?
- Words must clearly show intent to create
Right of Survivorship: Yes, deceased tenant's interest automatically passes to co-tenants
Tenant May Unilaterally Transfer Interest: Yes, tenant may transfer his or her interest without the consent of co-tenants, severs joint tenancy
What is Tenancy in Common?
- Interests of deceased partner by will, not by survivorship
- May encumber, sell, gift, or devise their interest at any time
What is the Right of Survivorship for Tenancy in Common?
No right, deceased tenant's interest passes to his or her estate
May a tenant unilaterally transfer his or her interest in Tenancy in Common?
Yes, tenant may transfer his or her interest without the consent of co-tenants. Transfer does not sever tenancy in common
What is Tenants by the Entirety?
- Co-ownership form that can only be used by married couples
- Created by express wording
- Neither spouse may sell, gift, devise, or otherwise transfer property without permission of other spouse
Does Tenancy by the Entirety have a Right of Survivorship?
Yes, deceased tenant's interest automatically passed to his or her spouse
May a tenant unilaterally transfer his or her interest in Tenancy by the Entirety?
No, neither spouse may transfer his or her interest without the other spouse's consent
What is a Community Property?
- Applies only to married couples
- Each spouse owns one-half of assets acquired by income during marriage
- Property received by gift or inheritance or held before marriage belong to that partner alone
Does a Community Property have a Right of Survivorship?
Yes, when a spouse dies, surviving spouse automatically receives one-half of the community property; other half passes to the heirs of the deceased spouse as directed by will
May a tenant in a Community Property unilaterally transfer his or her interest?
No, neither spouse may transfer his or her interest without the spouse's consent
What is a Condominium?
- Purchasers of a condo:
1) have title to their individual units
2) Own the common areas a tenant in common with the other condo owners
May owners of a condo sell or mortgage their units without the permission of the other owners?
What is a Cooperative?
- The corporation owns the building
- The residents own shares in the corporation
What are Future Interests?
The interest that the grantor retains for himself or a third party
What is Reversion?
a right of possession that returns to the grantor after the expiration of a limited or contingent estate
What is Remainder?
a right of possession that goes to a third party upon the expiration of a limited or contingent estate
What is the Voluntary Transfer of Real Property Sale of Real Estate or Gift?
- The passing of title from a seller to a buyer for a price
- Also called a conveyance
- Closing: the finalization of a real estate sales transaction that passes title to the property from the seller to the buyer or donation if it is a gift
What are the 4 parts of Property Transfer?
What is a Deed?
- A writing that describes a person's ownership interest in a piece of real property
Grantor: the party who transfers an ownership interest in real property
Grantee: the party to whom an interest in real property is transferred
What is a Warranty Deed?
Contains certain warranties or promises called covenants such as seisen, right to convey, encumbrances, quiet enjoyment, and further assurances
What is a Quitclaim Deed?
No covenants, just transfer of interest
What are Recording Statutes?
- A state statute that requires the mortgage or deed of trust to be recorded in the county recorder's office of the county in which the real property is located
What is a Marketable Title?
Title that is free from any encumbrances or other defects that are not disclosed but would affect the value of the property
- Attorney's Opinion
- Torrens System
- Title Insurance
What is a Tax Sale?
- A method of transferring property ownership that involves a government lien on property for unpaid property taxes
What is a Gift?
a transfer of property from one person to another without the exchange of money
What is a Will?
If a person dies with a will, his or her property is distributed to the beneficiaries as designated in the will
What is Inheritance?
If a person dies without a will, his or her property is distributed to the heirs as stipulated in the state's intestate statute
What are Involuntary Transfers of Real Property?
1) Adverse Possession
What is Adverse Possession?
- Occurs when a person who wrongfully possesses someone else's real property obtains title to that property if certain statutory requirements are met
What are the requirements for Adverse Possession?
1) Statutorily prescribed time period
2) Open, visible and notorious (not hiding)
3) Actual and exclusive (have to be physically occupying)
4) Continuous and peaceful (no guards to keep true owner away)
5) Hostile and adverse (without consent)
What is Condemnation?
- The government acquires the ownership of private property for public use
What are the 3 Non-possessory Interests?
What is an Easement?
A given or required right to make limited use of someone else's land without owning or leasing it
What is Easement Appurtenant?
created when the owner of one piece of land is given an easement over an adjacent piece of land
What is an Easement in Gross?
authorizes a person who does not own adjacent land the right to use another's land
What is an Easement by Express Agreement?
Attaches to the land, i.e. Utility lines
What is Easement by Prescription?
Adverse use of the property for a specified duration
What is an Easement by Necessity?
Division of property - use of property for ingress or egress
What is a license?
- Grants a person the right to enter upon another's property for a specified and usually short period of time
- Does not transfer any interest in the property
- A license is a personal privilege that may be revoked by the licensor at any time
- Express or implied
What is a Profit?
- Grants a person the right to remove something from another's real property
ex: gravel, minerals, grain, or timber
What is a Profit Appurtenant?
grants the owner of one piece of land the right to go onto another's adjacent land and remove things from it
What is a Profit in Gross?
authorizes someone who does not own adjacent land the right go onto another's property and remove things from it
What is Land Use Control?
the collective term for the laws that regulate the possession, ownership, and use of real property
ex: zoning, restrictive covenants
What is are Zonings?
Local laws that are adopted by municipalities and local governments to regulate land use within their boundaries
What is the primary form of land use regulation?
What is a Variance Zoning?
An exception that permits a type of building, or use in an area that would not otherwise be allowed by a zoning ordinance
What is a Nonconforming Uses Zoning?
Uses and buildings that already exist in the zoned area that are permitted to continue even though they do not fit within new zoning ordinances
What is Personal Property?
All property that is not real property of intellectual property is personal property
What is Tangible Property?
All movable property with physical form
ex: Buildings, goods, animals, minerals
What is Intangible Property?
Rights that cannot be reduced to physical form
ex: stock certificates, certificates of deposit, bonds and insurance policies
How can one acquire ownership in personal property?
1) Possession or capture
2) Purchase or production
4) Will or inheritance
What are the 3 elements necessary to be a valid gift?
1) Donative intent
What is an inter vios gift?
made during a donor's lifetime that are irrevocable present transfers of ownership
What is a causa mortis gift?
made in anticipation of death
What is Ownership Acquired by Accession?
occurs when the value of personal property increases because it is added to or improved by natural or manufactured means
What is Ownership Acquired by Confusion?
- Occurs when fungible goods are commingled
- The owners share title to the commingled goods in proportion to the amount of goods contributed
What are Involuntary Transfers of Personal Property?
1) Lost Property
2) Mislaid Property
3) Abandoned Property
What is Mislaid Property?
- when its owner voluntarily places the property somewhere and then inadvertently forgets it
- the person who finds the mislaid property is entitled to take possession of the property against all except the rightful owner
What are Estray Statutes?
- Statutes that give a finder of mislaid or lost property clear title to the property if certain requirements are met:
1) Reporting the find to an appropriate government agency
2) Advertising the lost property
3) The owner not claiming the property within a stated time period
What are Bailments?
- Occurs when the owner of personal property transfers the property to be held, stored, delivered, or for some other purpose
- Title to the property does not transfer
What is a Bailor?
the owner of property in bailment
What is a Bailee?
a holder of goods who is not a seller or a buyer
What are the elements necessary to create a bailment?
1) Must be personal property
2) Delivery of Possession
3) Bailment Agreement
What is the Delivery of Possession for a Bailment?
- The bailee has exclusive control over the personal property
- The bailee must knowingly accept the personal property
What is a Bailment Agreement?
1) A bailment may either be express of implied
2) Express bailments can be either written or oral
3) Under the Statute of Frauds, a bailment must be in writing if it for more than one year
4) A bailment may be implied from the circumstances
What are Ordinary Bailments?
1) Bailments for the sole benefit of the bailor
2) Bailments for the sole benefit of the bailee
3) Bailments for the mutual benefit of the bailor and bailee
What is a Common Carrier?
- Common carriers offer transportation services to public (mutual benefit of both parties)
- Held to duty of struct liability
ex: if goods are lost or damaged, carrier is liable
What is a Warehouse Company?
1) Warehouser is bailee engaged in storing property for compensation
2) Owes duty of reasonable care
- Liable only for loss from their own negligence
- Can limit dollar amount of loss if offer bailor opportunity to increase limit at additional charge
What is an Innkeeper?
- Held to the strict liability standard
What is intellectual property?
the property created through the mind
What does a patent protect?
a product, process, invention/machine, or plant produced by asexual reproduction for a certain period, and grants an inventor a monopolistic right to make, use, or sell his or her property to the absolute exclusion of others for a specified period.
Are patents renewable after its original expiration period?
No, they enter the public domain
Patents must be registered with patent office. T/F
What are the three elements an inventor must meet to obtain a patent?
The invention must be:
1) novel (new)
What is utility patent?
any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof
Are naturally occurring substances patentable?
No, an invention must be created or modified by humans to be patentable
What is a plant patent?
protects the exclusive right to reproduce a new and distinctive variety of asexually producing plant
What is a design patent?
- protects a new, original, and ornamental design of a manufactured product
- only protects the appearance of the product and not its structural or functional features
How long does a utility patent last?
up to 20 years
How long does a plant patent last?
up to 20 years
How long does a design patent last?
up to 14 years
What is a trademark?
A distinctive symbol, word, name, device, letter, number, design, picture, or combination of any arrangement that a person or company adopts or uses to identify the products it manufactures or sells, and distinguish them from products manufactured or sold by others
ex: Apple logo
What is tradedress?
the distinctive but non-functional design of packaging labels, containers, and the product itself or its features
ex: shampoo bottle shape
What is a servicemark?
Used to identify or distinguish the services provided by a person or a company from those services provided by others
Do trademarks and servicemarks have to be registered?
Can trademarks and servicemarks be renewed?
Yes, every 10 years as long as still in use
What does copyright protect?
Anything in a fixed form that is an original work of authorship
Do copyrights need to be registered?
No, but you gain additional protection if you do
How long is copyright protected for an individual?
life of the author + 70 years
How long is copyright protected for a corporation?
Whichever is shorter: 120 days after creation or 95 years after the date of publication
What is the first sale doctrine?
the owner of a legally acquired copyrighted material can sell or otherwise disposed of the copyrighted material without retaining a copy or any rights
What is the fair use doctrine?
Someone can exercise limited use of copyrighted materials without the owner's permission for limited purposed, so long as the use is reasonable
What is the only intellectual property you can use without infringing?
What is a trade secret?
any formula, device, pattern, compilation of information with some attributed value to a business
Does a trade secret require protection?