CPCU 530 - Assignments 1 - 5

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1. 
Civil-law system
 
a basic legal system that relies on scholarly interpretations of codes and constitutions rather than court interpretations of prior court decisions, as in common-law systems
 
2. 
Doctrine of stare decisis
 
A method of case resolution in which courts follow earlier court decision when the same issues arise again in lawsuits
 
3. 
Equity
 
Fairness, or a body of principles constituting what is fair and right
 
4. 
Classifications of U.S. Law
 
1. Classifications as either criminal or civil 2. Classification by subject matter 3. Classification as either substantive or procedural law
 
5. 
Criminal Law
 
a classification of law that applies to acts that societ deems so harmful to teh public welfare that government is responsible for prosecuting and punishing the perpetrators
 
6. 
Civil law
 
a classification of law that applies to legal matters not governed by criminal law and that protects rights and provides remedies for breaches of duties owed to others
 
7. 
Classification by Subject Matter
 
group cases by type, defined by parties' rights and liabilities. In addition to criminal law, are contracts, torts, agency, and property law (civil law)
 
8. 
Substantive law
 
creates, defines, and regulates parties' rights, duties, and powers
 
9. 
Procedural Law
 
a classification of law that prescribes the steps, or processes, for enforcing the rights and duties defined by substantive law.
 
10. 
Jurisdiction
 
the power of a court to decide cases of a certain type or within a specific territory
 
11. 
Five sources of Law
 
1. A constitution, which establishes fundamental rights and creates the other branches of government 2. The legislative branch - Congress and state legislatures, for example - which enact statutes 3. The judicial branch - courts - which decide cases 4. The executive branch - the president and state governors, for example - which enforces law 5. Administrative agencies - in reality, part of the executive branch - which make and enforce regulation
 
12. 
Commerce Clause
 
The provision of the U.S. Constitution that give Congress the power to regulate commerce (trade) with foreign nations and among the states (interstate commerce)
 
13. 
Due Process Clause
 
The Fifth Amendment to the U.S. Constitution, guaranteeing notice and a hearing before the federal government can deprive any person of life, liberty, or property; and teh Fourteenth Amendment's extension of these the same requirements to state government actions
 
14. 
Equal Protection Clause
 
A part of the Fourteenth Amendment to the U.S. Constitution prohibiting state laws that discriminate unfairly or arbitrarily, and requiring equal treatment to all persons under like circumstances and conditions
 
15. 
Guest Statute
 
A law requiring a passenger who has been injured in a vehicle accident and is seeking to recover damages to establish that the accident resulted form the driver's gross negligence.
 
16. 
National Association of Insurance Commissioners (NAIC)
 
An organization established to promote uniformity in regulation among states, exchange regulatory information, and coordinate responses to changing conditions in the insurance marketplace
 
17. 
Original jurisdiction
 
The power of a court in which cases are initiated to hear those cases
 
18. 
Appellate jurisdiction
 
the power of a court to hear appeals from another court
 
19. 
General Jurisdiction
 
the power of a court ot hear a variety of types of cases
 
20. 
Original jurisdiction also rests with federal courts in what kinds of cases?
 
- cases involving admiralty and maritime law - lawsuits in which citizens of different states claim land under grants by different states - cases involving a legal minimum amount ni damages between citizens of different states or between citizens of one state and of a foreign state
 
21. 
Diversity jurisdiction
 
the authority of federal district courts to hear cases involving parties from different states that involve amounts in controversy over a legal minimum
 
22. 
Appellate court
 
an appeals court at any level of government
 
23. 
Writ of certiorari
 
an appellate court's order directing a lower court to deliver its record in a case for appellate review
 
24. 
Conflicts of Law
 
a body of law that resolves questions when states' laws conflict
 
25. 
Forum State
 
the state in which a party sues
 
26. 
What do courts look at to determine which state will hear a case?
 
- where the parties to the contract live - where the parties entered into the contract - where teh parties are to perform the contract
 
27. 
Administrative Law
 
the body of law, including agency rules, regulations, and adjudicatory rules, created by government agencies
 
28. 
The legislative delegation of rulesmaking power to an administrative agency is constitutional as long as it meets teh following three conditions?
 
1. The legislation carefully defines the scope of the delegated power 2. The agency exercises its rulesmaking power within the defined scope 3. The rules are subject to court (judicial) review
 
29. 
Why not go to court?
 
legal system encourage out-of-court settlements because litigation is extremely costly and time-consuming and often proceeds for several years.
 
30. 
Order of Pretrial Procedure
 
Allegation Complaint Plaintiff Defendant Pleading Cause of Action Answer Counterclaim Motion Motion to dismisss Motionfor judgment on the pleadings, or motion for summary judgment Discovery Deposition Interrogatories Motion to produce
 
31. 
Allegation
 
a claim that a party to a lawsuit asserts and expects to prove
 
32. 
Complaint
 
allegations made by the party starting a lawsuit
 
33. 
Plaintiff
 
The party who starts a lawsuit by filing a complaint
 
34. 
Defendant
 
the part in a lawsuit against whom a compliant if filed
 
35. 
Pleading
 
a formal written statement of a party's claims filed with a court as part of a lawsuit
 
36. 
Cause of Action
 
a plaintiff's legal grounds to sue a defendant
 
37. 
Answer
 
a document filed in court by a defendant responding to a plaintiff's complaint and explaining why the plaintiff should not win the case
 
38. 
Counterclaim
 
a complaint filed by a defendant against a plaintiff in a lawsuit
 
39. 
Motion
 
a party's formal request for a particular action from a court
 
40. 
Motion to Dismiss
 
a defendant's formal request to a court admitting the truth of teh plaintiffs allegations but asking teh court to end a lawsuit because the allegations are not sufficient to justify legal action
 
41. 
Motion for Judgment on the Pleadings, or Motion for Summary Judgment
 
a request made to a court before a lawsuit goes to trial in which one party accepts the other party's statement of facts but questions whether teh law provides a remedy; if request is granted, the lawsuit ends. "i admit all the facts, but the law is on my side"
 
42. 
Discovery
 
the pretrial process by which each party elicits the other party's evidence
 
43. 
Deposition
 
a pretrial discovery tool involving oral examination of a witness to produce a written verbatim record
 
44. 
Interrogatories
 
a pretrial discovery tool consisting of written questions directed to the opposing party, requiring written answers
 
45. 
Motion to Produce
 
a pretrial discovery tool requesting that a court order teh opposing party in a lawsuit to produce documents or physical evidence
 
46. 
Three Discovery Tools
 
Depositions Interrogatories Motions to Produce
 
47. 
Trail Procedure
 
Direct Examination Cross-examination Relevance Materiality Competence Hearsay Rule General Verdict Special Verdict Res Judicata Collateral Estoppel
 
48. 
Direct Examination
 
questioning one's own witness during a legal proceeding
 
49. 
Cross- Examination
 
questioning an opposing party during a legal proceeding to bring out information favorable to the questioner's own position or to challenge the witness's testimony
 
50. 
Relevance
 
Referring to evidence, the quality of relating directly to the matter at issue in a case; required for evidence to be admissible in a court proceeding
 
51. 
Materiality
 
referring to evidenc,e the quality of having significance and consequence in a case; required for evidence to be admissible in a court proceeding
 
52. 
Competance
 
a qualify of evidence that suggests the source is reliable and teh evidence is adequate to justify admission in court
 
53. 
Hearsay Rule
 
the rule of evidence that prevents the admission fo out-of-court statements not made under oath by a person who is unavailable to testify
 
54. 
Two Kinds of Verdicts:
 
General verdict Special Verdict
 
55. 
At any time during a trial, teh judge can decide to take the case from the jury by any one of the following actions:
 
- issuing a directed verdict telling the jury how to decide the case - declaring a mistrial because fo an egregious error, an extraordinary event, or the jury's inability to reach a decision. - declaring a nonsuit if the plaintiff has failed ot present a sufficient case or has not complied with a court order.
 
56. 
General Verdict
 
a kind of verdict that entails a complete finding and a single conclusion by a jury on all issues presented
 
57. 
Special Verdict
 
a kind of verdict reached by a jury that makes findings of fact by answering specific questions posed by the judge. Teh judge then applies the law to the facts as teh jury has found them
 
58. 
Two doctrines evolved in the common law to prevent parties from relitigation
 
Res Judicata Collateral estoppel
 
59. 
Res Judicata
 
a doctrine that bars parties to a lawsuit on which final judgment has been rendered from bringing a second lawsuit on teh same claim or on related transactions
 
60. 
Collateral Estoppel
 
a doctrine that bars parties from relitigating an issue on which a court has already rules, even if teh second lawsuit differs significantly from the first
 
61. 
Appeal
 
a request to a higher court for a review of a case
 
62. 
Appellant
 
the losing party in a court case who appeals the case to a higher court
 
63. 
Appellee
 
The winning (nonappealing) party in a court case, against whom the losing party appeals to a higher court
 
64. 
Alternative Dispute Resolution (ADR)
 
procedures to help settle disputes without litigation, including arbitration, mediation, and negotiation
 
65. 
Arbitration
 
an alternative dispute resolution (ADR) procedure that takes a dispute to an impartial third party (an arbitrator or arbitration panel) for a decision the parties agree will be final and binding.
 
66. 
Mediation
 
an alternative dispute resolution procedure that uses an intermediary, usually selected by the parties, to assist them in reaching a decision
 
67. 
Negotiation
 
ADR where parties to a dispute discuss all issues and determine a mutually satisfactory resolution
 
68. 
What are the types of rules an agency can promulgate?
 
Legislative Interpretative Procedure
 
69. 
Legislative rules
 
a types of substantive administrive agency rule that comes from a statutory delegation of authority and that has teh same force as a law enacted by Congress or a legislature
 
70. 
Interpretative rule
 
a typesof administrative agency rules that interprets statutes, providing guidance for agency staff or regulated parties, but that lacks teh force and effect of law and therefore is not binding on individuals
 
71. 
Procedural Rules
 
a type of administrative agency rule that prescribes procedures for agency operations, legislative rulemaking, and adjudication proceedings.
 
72. 
What is the procedure of administrative agency rulemaking?
 
1. Publish notice of intent to adopt a regulation 2. Provide opportunity for public comment 3. Publish the final regulation
 
73. 
What can an agency do after reviewing all comments in regards to a proposed rule?
 
* adopt the originally proposed rule * make minimal or extensive changes * nullify the proposed rule
 
74. 
In addition to rulemaking, agencies have an adjudicatory function (similiar to court cases). Appropriate notice is essential to due process, and improper notice can result in nullification of an entire proceeding. Appropriate notice requires what?
 
* statement of the hearing time, place, and nature * statement of the hearing's legal authority and jurisdiction * reference to the particular statute or rule involved * a short, clear statement of the matters at issue *
 
75. 
Subpoena
 
a legal order to a witness to appear at a certain place and time to testify or to produce documents
 
76. 
What to limitations does the U.S. Constitution place on agency investigations
 
* Fourth Amendment protection against unreasonable searches and seizures * Fifth Amendment protection against self-incrimination
 
77. 
Standing to Sue
 
a party's righ tot sue, as one who has suffered or will suffer a legal wrong or an adverse effect from an action
 
78. 
What two requirements must be met for judicial review?
 
1. the agency has issued a final order in the case 2. doctrine called exhaustion of administrative remedies must be applied.
 
79. 
Final Order
 
an administrative agency's final conclusion or disposition of any material private right of a party, terminating an agency proceeding
 
80. 
Exhaustion of Administrative Remedies
 
the completion of all possible administrative procedures and appeals in a case; required before a party can appeal an agency action
 
81. 
On what grounds can a court set aside agency action?
 
* action was arbitrary and capricious, an abuse of discretion, or otherwise unlawful * action was unconstitutional * action violated statutory authority * action violated agency procedural rules or was teh result of illegal procedures * action is unsupportable by substantial evidence in the record.
 
82. 
Privacy Act of 1974
 
responded to a growing concern over the increasing potential for the invasion of individual privacy in the name of information collection
 
83. 
Freedom of Information Act of 1966
 
first established a statutory right of access to agency information. Its goals were to ensure an informed citizenry, to prevent criminal misuse of information, and to hold government accountable to the governed
 
84. 
The FOIA prohibits what?
 
* properly classified security information * law enforcement investigation records * confidential commercial or financial information * records of financial institutions
 
85. 
McCarran-Ferguson Act
 
states that the business of insurance is subject to the laws of teh states relating to the regulation and taxation of the insurance business. Federal laws have governed insurance only when one of the following applies: * a federal law applies only to teh business of insurance. * a federal law affects insurers' activity that falls outside the business of insurance * the state has no law that regulates an aspect of the business of insurance covered by a federal law
 
86. 
Proponents of federal regulation
 
* federal regulation would provide regulatory uniformity across the states * federal regulation would be more efficient * federal regulation would attract higher-quality personnel
 
87. 
Opponents of federal regulation
 
* state regulation is more responsive to local needs * uniformity of state laws can be attained through the NAIC * Greater opportunities for innovation are possible with state regulation * state regulation already exists * state regulation results in a desirable decentralization of political power
 
88. 
DOI commissioner's responsibilities
 
* licensing insurers * monitoring insurer solvency * reviewing insurer investments * approving policy forms * setting or approving rates * regulating insurer marketing * acting as liquidator and operating guaranty funds * operating government-mandated programs * reviewing insurers' annual reports * promulgating regulations and proposing legislation
 
89. 
National Association of Insurance Commissioners (NAIC)
 
* produces and adopts uniform reporting requirements, standardized procedures for financial examinations, and uniform regulatory procedures, facilitating the regulation of insurers operating in more than one state * use model laws and uniform laws - competitve rating, reinsurance credit, unfair trade practices, unfair claim settlement, producer licensing, holding companies, insurance fraud, insurer rehabilitation and liquidation, asset valuation, redomestication
 
90. 
Zone Examination
 
a state insurance department's financial audit of an insurer on behalf of all states in a zone in which the insurer holds licenses
 
91. 
Managing General Agent (MGAs)
 
an independent business organizaiton that functions almost as a branch office for one or more insurers and that appoints and supervises independent agents and brokers for insurers using the independent agency and brokerage system
 
92. 
What are the duties imposed upon MGA's by the insurer?
 
* to have on file an independent financial exam of each MGA with which the insurer does business * To obtain an annual actuarial opinion of teh adequacy of any loss reserves established by the MGA * to conduct periodic on-site reviews of the MGA's underwriting and claim-processing operations
 
93. 
Surplus Lines Brokers
 
used to place any contract of insurance through a nonadmitted insurer
 
94. 
What four elemnets must be present for a legally enforceable contract?
 
1. Agreement 2. Capacity to contract 3. Consideration 4. Legal purpose
 
95. 
Contract
 
a legally enforceable promise
 
96. 
Promisor
 
the part to a contract making a promise
 
97. 
Promisee
 
the part to a contract to whom a promise is made
 
98. 
Third-part beneficiary
 
a person who is not a part to a contract but who benefits from it and has a legal right to enforce the contract if it is breached by either of the contracting parties
 
99. 
Breach of contract
 
the failure of a part to contract, without legal excuse, to perform all or part of the contract
 
100. 
Privity of Contract
 
the connections or relationship between parties to a contract because they have mutual interests
 
101. 
Agreement
 
one party's offer and another party's acceptance of that offer
 
102. 
Capacity to Contract
 
a legal qualification that determines one's ability to enter into an enforceable contract
 
103. 
Consideration
 
Something of value or bargained for and exchanged by teh parties to a contract
 
104. 
Categorizing of Contracts
 
* bilateral or unilateral * executed or executory * express or implied * voidable contracts or void contracts
 
105. 
Bilateral Contract
 
a contract in which each party promises a performance
 
106. 
Unilateral contract
 
a contract in which only one party makes a promise for or undertakes the requested performance (example: Jay promises to pay $500 when Tony has completed painting the garage. The performance of an act, painting, is required in exchange for teh promise, payment. tony does not breach a contract by failing to paint the garage)
 
107. 
Executed contract
 
a contract taht has been completely performed by both parties
 
108. 
Executory contract
 
a contract that has not been completely performed by one or both of the parties
 
109. 
Express Contract
 
a contract that contains both the terms and the parties' intentions, either in writing or orally
 
110. 
Implied-in-fact contract
 
a contract that is not express but tha th parties presumably intended,either by tacit understanding or by the assumption that it existed
 
111. 
Implied-in-law Contract
 
an obligation that is not an actual contract but that is imposed by law because of the parties' conduct or some special relationship between them or because one of them would otherwise be unjustly enriched
 
112. 
Voidable contract
 
a contract that one of the parties can reject (avoid) based on some circumstance surrounding its execution
 
113. 
Void Contract
 
an agreement that, despite the parties' intentions, never reaches contract status and is therefore not legally enforceable or binding
 
114. 
An agreement requires the following steps:
 
1. the presentation of an offer 2. an acceptance of that offer
 
115. 
Offer
 
A promise that requires some action by the intended recipient to make an agreement To be valid, require: 1. intent to contract 2. definite terms 3. communication to offeree
 
116. 
Example of not being an intent to contract:
 
1. social invitations 2. predictions 3. offers made in excitement or jest
 
117. 
Definite Terms
 
must be stated with at least a reasonable degree of certainty (contracting parties, the contract's subject matter, the price, adn teh time of performance) For UCC sales of goods only, allows parties to agree, in a binding contract, to set terms in teh future, including the price of the goods.
 
118. 
Communication to Offeree
 
an offeree cannot accept a proposal before knowing about it - an offer can be valid though if the offeree has begun performance before learning of the offer (as long as knew of the offer upon completing the performance)
 
119. 
Duration and Termination
 
* key to determining whether an offer is binding - Lapse of time - operation of law - offeree's rejection - counteroffers - offeror's revocation
 
120. 
Lapse of time
 
offers do not remain open indefinitely. an offer ceases to be binding when the time of the offer specifies expires or, absent no specific time, when a reasonable amount of time passes
 
121. 
Operation of Law
 
any one of several events occurring before acceptance can terminate an outstanding offer by operation of law - means that rules of law apply automatically to a situation without any act by the parties (example if it becomes illegal, declared insane, or dies)
 
122. 
Offeree's rejection
 
the offeree's rejection of the offer terminates it. counteroffer is a form of rejection
 
123. 
Counteroffer
 
* a proposal an offeree makes to an offeror that varies in some material way form the original offer, resulting in rejection of the original offer, resulting in rejection of the original offer and constituting a new offer
 
124. 
Offeror's Revocation
 
- an offeror can revoke, or withdraw, an offer any time before acceptance.
 
125. 
Option Contract
 
an agreement to keep an offer open for a specified period of time, and teh person making the offer receives payment of consideration, consequently, the offer cannot be revoked
 
126. 
Acceptance
 
creates an enforceable contract when an offeree agrees to the offer unconditionally and unequivocally, and teh offeree communicates teh acceptance to teh offeror by appropriate word or act
 
127. 
Forbearance
 
giving up a legal right or agreeing to do so
 
128. 
Substantial performance
 
is a partial performance of obligations under a contract. For a unilateral contract, teh substantial performance is sufficient to suspend teh offeror's right to withdraw the offer
 
129. 
Competent part
 
satisfies the minimum level of undersatnding and ability required to enter into a binding contract. persons are not competent parties if tehy are minors, insane, or intoxicated. entities may not be competent for some contracts
 
130. 
Restitution
 
returning something of value obtained from anotehr person or making na injured party whole. it is also a remedy for breach of contract where adefendant must pay the equivalent value of the benefits received from teh plaintiff under the contract.
 
131. 
Valuable consideration
 
something exchanged that has inherent value and is what is necessary and sufficient to support a contract. valuable consideratino is distinguished from good consideration
 
132. 
Good consideration
 
has no inherent value and is comprised of such things as natural love, affection, or a sense of moral duty. thus, a promise given in exchange for another person's love or affection is not binding
 
133. 
Promissory estoppel
 
an exception to teh unenforceability of gratuitous promises, and permits teh enforcement of a promise if a party acts of forbears in reliance on teh promise. the reliance must be justifiable andn enforcement of the promise must be necessary to achieve justice.
 
134. 
Accord and Satisfaction
 
a substituition of a new performance for what was perviously expected. Often, it is a settlement of an unliquidated debt, usually with payment of a compromise amount. The settlemtn precludes the creditor from suing to recover the rest of the debt
 
135. 
Usury
 
lending money at an excessive rate of interest. A usury statute limits the interest that can be charged on some loan transactions. an interst rate that exceeds teh allowable rate under the usury law is unenforceable.
 
136. 
Exclupatory clause
 
a provision of an agreement, relieving one party of liability for its negligence. For example, a landlord may place a provision in a lease, excusing the landlord from liability in teh event the tenant's property is damaged as a result of teh landlord's negligence. such provisions are strictly construed by eth courts, meaning that the courts will endeavor not to enforce such provisions
 
137. 
In pari delicto agreement
 
means both parties are at fault in entering into an illegal transaction, so the contract cannot be enfoced by either party
 
138. 
Severabel contract
 
contains two or more promises which can be enforced separately. if one provision is breached or becomes illegal, the other provisions will still be valid and enforceable
 
139. 
Genuine Assent
 
mean the parties actually intended the offer and acceptance to form a contract. genuine assent may be lacking due to fraud, mistake, duress, undue influence, or innocent misrepresentation
 
140. 
Fraud
 
any device, trick, untruth, or concealment of truth that deceives another, to his or her injury. fraud by intentional misrepresentation requires a false statement of a material fact made knowingly and with intent to deceive, and teh other party relied on teh statement to his or her harm
 
141. 
Rescission
 
a legal remedy for undoing a contract formed through fraud, mistake, duress, misrepresentation, or undue influence by a party. this rememdy attempts to put teh parties in teh position they would have been if had tehy never entered into the contract
 
142. 
Collusion
 
an agreement for fraudulent purposes
 
143. 
Concealment
 
withholding information to deceive someone. in insurance, silence can be a misrepresetnation when there is a duty to speak, and this deception is concealment
 
144. 
Mistake
 
occurs when teh true facts are not the facts that the parties believed to exist at the time the parties entered into the contract
 
145. 
Unilateral Mistake
 
occurs when only one party to teh contract is mistaken as to teh existence of a fact. a unilateral mistake generally will not render teh contract unenforceable unless the other party to teh contract knew of the mistake
 
146. 
Bilateral mistake
 
a contrac tthat both parties entered into based on incorect information. contract are voidable taht are entered on teh basis of bilateral mistake
 
147. 
Reformation
 
an equitable remedy sometimes imposed by a court to change teh provisions of a contract (if there is a mutual mistake) to reflect the true intent of teh parties to teh contract.
 
148. 
Duress
 
concept that a contract is void or unenfoceable b/c one party used force or other threats illegally to cause teh other party to enter into the contract; thus, no true assent was achieved.
 
149. 
Undue influence
 
generally arises in a confidential relationship, where one party exercises such control or domination over another party that genuine assent could not occur. a contract that is teh product of undue influence is unenforceable.
 
150. 
Statute of Frauds
 
requires a writing to evidence teh following promises and agreements: agreement for teh sale of realty, agreement which cannot be performed in one year, promises to pay anotehr's debt, sales of personal property in excess of $500, marriage contract, and an executor's personal promise to pay an estate's debt
 
151. 
Executor
 
the person named in a will to amange teh assets for a deceased's estate
 
152. 
Administrator
 
a person appointed by a court to mange teh assets for a deceased's estates when there is not a valid will naming an executor
 
153. 
Parol Evidence Rule
 
prohibits the admission of evidence fo prior negotiations to vary teh terms of a final written agreement. the rule assumes that all prior negotiations, conversations, and agreemetns were merged into the final written contract, adn teh final written contract is teh complete statement of what was agreeed. Terms of eth final agreement may not be varied by prior or contemporaneous oral, or written agreements
 
154. 
Assignment
 
a contract occurs when one party transfers its right to a third party
 
155. 
Assignor
 
the party making the assignment of contractual rights
 
156. 
Assignee
 
the party to whom the rights under a contract are assigned
 
157. 
Third-party Beneficiary contract
 
a contract that benefits a third party who is not a party to the contract
 
158. 
Creditor Beneficiary
 
contracts may be made between parties to benefit a third-party creditor. for instance, "a" owes "c" $1000. "a" sells "b" goods in return for his or her promise to pay $1000 to "c" in discharge of "a's" debt. "c" is the third-party creditor who is benefited by the contract between "a" and "b"
 
159. 
Donee Beneficiary
 
a third-party beneficiary under a contract and receives teh contract's benefit as a gift. For example, if 'a' does repairs to 'b's' house on teh promise that 'b' will pay 'c' the sum of $100, 'c' is a donee beneficiary
 
160. 
Incidental Beneficiary
 
on who has only an indirect interest in teh performance of a contract and has no enforceable rights under teh contract. if contracting parties did not intend to confer a benefit on a party, the person is an incidental beneficiary
 
161. 
Intended beneficiaries
 
today, courts are blurring teh distinction b/t "creditor" and "donee" beneficiaries by treating them as a single class - intended beneficiaries. the issue is what rights the parties to teh contract intended to confer on the beneficiary, rather than the particular status of teh beneficiary
 
162. 
tender
 
an offer to perform contractual duties. the offer may be to perform an act or to pay money
 
163. 
novation
 
an agreement replacing an old contract with a new one or the substitution of one debtor for another
 
164. 
Condition Precedent
 
an event that must occur or an act that must be performed before a duty of performance by teh other party to teh contract arises
 
165. 
Condition Concurrent
 
an event that must exist or occur at teh time the parties to a contract are to perform. if delivery and payment are to be accomplished simultaneously, these events are concurrent conditions
 
166. 
Condition Subsequent
 
a future contingent event that may or may not occur after teh contract becomes legally enforceable, which will terminate rights under the contract. failure to pay a future premium installment when due is a conditino subsequent taht will end the contract.
 
167. 
Repudiation
 
rejection or refusal of a contract and its obligations
 
168. 
Anticipatory Breach
 
an act or clear statement by a party, indicating that the party will not perform its contractual obligations. if there is an anticipatory breach, teh aggrieved party may sue immediately, even though performance is not yet due
 
169. 
Compensatory damages
 
an amount of money that will compensate a plaintiff fo rthe harm suffered as a result of a breach of contract. in contract cases, compensatory damages are the amount required to restore the benefit that would have been received if teh contract had been performed.
 
170. 
Consequential damages
 
damages taht arise indirectly from teh breach of contract and were foreseeable at teh time the contract was formed. teh defendant must have been aware tah tthe damages would probably occur from his or her breach, and teh damages must be a result of the defendant's breach.
 
171. 
Punitive (exemplary) Damages
 
awarded when the defendant engages in outrageous conduct which is evidenced by an actual intent to cause an injury, or when the defendant acts oppressively, maliciously, or fraudulently. many courts will also accept recless disregard for teh rights or interests of the plaintiff instead of proof of actual intent to cause harm. the factors taht the court considers in assessing punitive damages are teh nature of the defendant's actions, the size of teh defendant's assets, and teh purpose of awarding teh punitive damages. Punitive damages are seldom awarded in a breach of contract cases.
 
172. 
Mitigation of damages
 
a duty the injured party has to make reasonable efforts to minimize the amount of a loss after a breach of contract has occurred. in other words, the injured party cannot allow the damages to accumulate just b/c there has been a breach
 
173. 
Liquidated damages
 
an amount of damages that the parties agree in advance will be paid in teh event of a breach. Courts will enforce good faith attempts to estimate what actual damages will be as a result of a breach.
 
174. 
Specific Performance
 
an equitable remedy through which a court orders a breaching party to perform teh acts required under the contract. this remedy will be enforced only when money damages are inadequate
 
175. 
Injuction
 
a court order prohibiting a party from performing some acts or engaging in some course of action. a court will enter an injunction only where money damages are inadequate as a rememdy. an agreement not to compete can be enforced by injunction, where teh seller of a business agrees not to compete with the buyer.
 
176. 
Reformation
 
an equitable remedy sometimes imposed by teh court to change a contract's provision (in case of mutual mistake) to reflect teh true intent of the contracting parties
 
177. 
Insurance Policy
 
a formal contract b/t an insurer and an insured. in teh written policy (or contract), the insurance company promises to indemnify (or pay) the insured for losses from accidental events or occurrences
 
178. 
Conditional Contract
 
an insurance policy is a conditional contract b/c the insurer only has to pay for loss IF certain conditions have occurred, such as if a covered loss happens w/i the policy period. the insured also has to fulfill teh required conditions of teh contract, such as reporting teh loss in a timely manner. only when all the conditions are met will teh insurer have the duty to pay or perform its part of the contract
 
179. 
Utmost good faith
 
or complete honest is required by both parties of an insurance contract in order for teh contract to be enforceable. any concealment or misrepresentation of relevant or pertinent (material) facts by teh insured will render teh contract null and void. LIkewise, the insurer must act in good faith by not denying coverage for a claim that is clearly covered by teh policy.
 
180. 
Material Fact
 
crucial information that an insurer must have in order to decide to write an insurance contract or to pay a covered claim. an intentional failure by the insured to disclose all pertinent facts related to teh insurance coverage releases teh insurance company from its duty
 
181. 
Misrepresentation
 
a false statement made by teh insured regarding a material fact on which the insurer relied when deciding to enter into the insurance contract. the insurer may choose to void the insurance contract if teh insured misrepresented and/or concealed material facts.
 
182. 
Contract of Adhesion
 
drawn up by one party (the insurer) and offered to another party (the insured) on a take-it-or-leave-it basis. The second party must accept and adhere to teh contract under teh terms of the offer.
 
183. 
Contract of Indemnity
 
provides for reimbursing the insured for actual losses. a contract of indemnity is limited ot paying no more than the actual loss sustained
 
184. 
Principle of Indemnity
 
a standard, which regulates the amount of recovery an insured will receive after suffering an accidental loss. it provides that the insurance should not compensate teh insured for more than teh actual value of teh loss. insurance should not leave teh insured in a better financial position after the loss than before.
 
185. 
Valued Policies
 
require teh insurer to pay a fixed, stated amount when teh property is destroyed (total loss), regardless of teh property's actual value. normally, the insurer and the insured agree on teh stated value amount when the policy is written. that agreed amount approximates teh current market value of the insured property.
 
186. 
Binder
 
an informal oral or written contract summarizing the basic coverages and terms of teh insurance agreement. it provides temporary insurance coverage until a formal written policy is issued.
 
187. 
Conditional Receipts
 
unlike binders, do not provide immediate insurance coverage, but they may provide coverage retroactive to the date of receipt of the premium under certain conditions. these types of receipts are used by life, health, and accident insurers b/c of the need for highly specialized underwriting, in order to see if teh insurance applicant is insurable under their guidelines.
 
188. 
Binding receipt
 
life insuracne conditional receipts have three major forms: a binding receipt, an approval receipt, and an insurability receipt. a binding receipt provides coverage on teh date of receiving the premium until a specified time; if teh life insurer decides to reject the applicant, coverage would cancel at that time.
 
189. 
Approval Receipt
 
unlike the binding receipt, the approval receipt mirros teh insurer's intention to provide coverage only when it actually give approval. when teh approval or determinatio fo insurability of the applicant is made, teh coverage begins.
 
190. 
Insurability receipt
 
specifies that insurance is effective on the date of the receipt of the premium or on the date of teh medical examination, provided that the applicant is deemed insurable on that date; obviously teh applicant must be insurable in order fo rht insurance to become effective. this type of receipt is normally used by life, accident, and health
 
191. 
Direct-action statute
 
adopted by some states - a victim can sue both the insurer and teh wrongdoer jointly under one suit or sue the insurer directly. however, most states only allow this action against teh insurance company if the insurer denies payment of a claim once a court has ordered a judgment against the insured-wrongdoer
 
192. 
Incontestable Cluse
 
wall states require to be include din life, accident/health, an dgroup life insurance policies, states taht the insurance company cannot contest or challenge teh enforceability or validity of teh policy once it has been in effect for a specified period of time.
 
193. 
Contestable clause
 
allows a period of time in which the insurer can challenge teh validity of a life insurance policy. this period of time gives teh insurance company ample time to investigate teh insured's statements and insurability. however, once this period is over, policyholders are assured that their beneficiaries will receive payment, as teh insurance company can no longer claim fraud, misrepresentation, or concealment of facts by a policyholder in order to void the policy.
 
194. 
Warranties
 
oral or written statements in teh insurance contract, guaranteeing that certain facts are true. warranties can be affirmative, continuing or implied
 
195. 
Affirmative warranty
 
states that certain facts are true at teh time that the insurance contract is being formed
 
196. 
Continuing, or promissory, Warranty
 
states taht the parties to teh contract will do certain states actions or things, or that certain specified conditions will continue to exist during teh term of the insurance contract
 
197. 
Implied Warranty
 
refers to a warranty created by operation of law rather than teh seller's written or oral statements. teh UCC imposes two types of implied warranties: implied warranty of merchantability and implied warranty of fitness for a particular purpose.
 
198. 
Waiver
 
voluntary relinquishment of a known right. the right must be known, and there must be knowledge of teh facts of teh transaction before a party can voluntarily give up a right
 
199. 
Estoppel
 
a legal principle that prohibits a party to a contract from asserting a claim or right that is inconsistent with a past statement or conduct on which the other party to teh contract has detrimentally relied. estoppel arises in insurnace law from false representation of a material fact by teh insurer, reasonable reliance on that representation by the insured, and resulting injury or detriment to the insured.
 
200. 
Election
 
the deliberate, voluntary act of choosing b/t two alternative rights or privileges. a choice of one right may imply a relinquishment of teh other option right or privilege. "you can't ahve your cake adn eat it too"
 
201. 
Nonwaiver Agreement
 
both parties to teh contract agree that neither of them will waive any rights under teh policy as a result of the investigation of the claim or defense of a lawsuit against the insured.
 
202. 
Reservation of Rights Letter
 
a one-sided or unilateral notice sent to the insured, stating that the insurance company will proceed with investigating the claim against the insured, but it retains the right to deny coverage later for that claim.