What is the name of the statute that overrules the common law rule?
Tortfeasors and contributory negligence act
What is the tortfeasors and contributory negligence act?
A judge can portion out the blame
What is a tortfeasor?
A person who commits a tort
What is subrogation?
when the insurance company gains the right to sue on your behalf
ex: when an insurance company pays out, they can then act in your name and sue the person at fault
Explain professional liability.
- liability of professions
- professionals and areas they can be sued in
ex: professionals who do something (advice or service) and now the client is suing because they have harmed them by professional negligence
What are the 3 areas a professional can be sued?
- duty in contract
- duty in tort
- fiduciary duty
Explain duty in contract as part of professional liability.
- contracts do not have to be written
- a professional promises to provide service it has to be done with due care (due care = meeting a professional standard)
- due care is implied even if it is not explicitly said
- sometimes there is no contract
ex: providing a service for free but you mess up - do not need a contract to sue someone for negligence
Explain duty in tort as part of professional liability.
- tort law/negligence law
ex: when a lawyer gives legal advice, a lawyer is liable if they gave bad advice harming the client - can’t double collect
if you can’t sue a lawyer in contract law, you still can in negligence
Explain fiduciary duty as part of professional liability.
- when you owe a fiduciary duty, you must act in the best interest of the person I am acting on behalf of
- Problem of loyalty
- being sued for a fiduciary duty can ruin your career
General Rule: a fiduciary duty is owed typically by the dominant party in a special relationship to trust
* dominant party is often the professional because they are knowledgeable
Explain contract law.
- different than substantive law because it is facilitating in nature
- facilitates business
- contracts are voluntary (you enter a contract because you want to unless you need it, then you have to)
What are the 6 elements of a contract?
- offer
- acceptance
- consideration
- intention to create legal relations
- capacity to contract
- legality of contract
Explain offer as an element of a contract
- must be communicated
- 3 main rules about lapse of an offer
- standard form offers
- you can revoke an offer
What is the general rule of standard from offers?
unconditional acceptance of an offer is deemed to be acceptance of each and every term in that offer
- if you agree to it, it doesn’t matter if you read or understood the terms *
What are the 3 types of situations that lapse an offer?
- an offer will lapse if the time set out for acceptance has expired and there has been no acceptance
- if the offer does not suggest when it must be accepted by, then the offer will lapse if a reasonable period of time has passed and there is no acceptance
- an offer will lapse (assume only 2 parties in a contract) if any of the parties die or become insane PRIOR TO ACCEPTANCE
What are the 4 possible responses to an offer?
- rejection (when you reject the offer, you kill it)
- counter offer (either the rejection of the offer and making of another offer)
- request for more information (making it clear what is and is not included) - does not kill the offer
- acceptance (after acceptance there will be a binding agreement)
COMMON EXAM QUESTION!!! define acceptance
when the offeree agrees to be legally bound by the offer
what is an offeror?
person who makes the offer
What is an offeree?
person who receives the offer.
What a 2 ways can acceptance occur?
words or conduct
What is the exception to words or conduct?
if the parties have been using no words or conduct over time.
ex: if i don’t cancel my delivery by friday then I will accept the delivery for monday
Explain acceptance
- usually communicated (bilateral contract)
- some situations where unilateral contract is acceptable (ex: no need to call and say I saw your flyer for your lost dog and I accept your offer. I will start looking for your dog now)
When and where is acceptance complete?
- fall back for what law will govern is when the acceptance was complete which is when it reaches the person who made the offer
- where it is received (general rule)
Explain the postal rule of acceptance
if mail is allowed as a mode of acceptance, the postal rule says “acceptance will be complete when and where the offered puts the envelope containing the acceptance in it into a public mailbox as long as the envelope is properly addressed and stamped”
downside is there is a binding contract the person who made the offer is not aware of yet
What are some acceptance rule cons?
- postal rule of acceptance
- a vaguely worded agreement that is not enforceable by a court
- law does not recognize a “contract to enter into a contract”
