News Items 0-54
Torts PMBR Red Posted Friday, July 22, 2005 by mikvu
188. D poison liquor ; D1 sold liquor to drunken D3 violating statute; D3 crashed car to injure P. D is cause in fact and legal cause to P
190. remove cloth of examinee b/c of suspecting cheating ==> batttery b/c did not csent to touching
192. Claim retaining privilege ==> Examiner loose b/c of refusing to let examinees leave until they removed cloth ==> Intrusion of privacy
193. rat was desased at the time of the sale ==> SL
197. Fraud must have scienter (knowledge of false stmt). Oral promise not to dev commercially, later changed mind ==> good faith " did not intend to dev commercially" ==> sufficient defense to fraud
199. intent an assault ==> offensive harmful touch ==> battery
Crime PMBR Red Posted Friday, July 22, 2005 by mikvu
153. legal imposs = def of attempted sale of heroin (oregano)
155. self def must be immediate danger
156. mislaid pperty ==. larceny:
- intent to steal
- know / or reason toknow of owner identity
false pretense:
-lie
-obtain title to victime's pperty
163.
forgery:
-protect confidence in the genuieness docs relied on commercial and bus activity. guilty of forgery ==> no doubt guilty of False pretenses
169. live together in one roof not closly related ==> dty to aassit helpless partner ==> Dies, no help ==> Invol Mans
170.
Knowingly makes a false stmt == element. Lack of knowledge of doing bus w/ fed ==> NO defense
172.
absence agreement, if intended to give aid to the conpiratorial objective, guilty of conspiracy
Evidence PMBR Red Posted Friday, July 22, 2005 by mikvu
177. settlement offer inadmissible only where ther is actual dispute. Here spontaneous stmt is admissible as admission
179. character evid is admissible to show trait of P and D caracter in assault and battery
181. character evid is admissible to show trait of P and D caracter in assault and battery
182. Bias or racial prejudice specific act as extrinsic evid admissible to IMPEACH W
183. To IMPEACH W,
- extrinsic evid of specific act inadmissible
- conviction admissible only when elicited from W or established by pub recordduring cross
189. A-C privilege ptects client's narrow rt to communicate confidentially w/ his lawyer about a legal problem. billing info Not confidential
190. psychiatrist-patient privilege Not regconized by FRE or CL. Since the claim arose under fe law, privilege of Patient will use modern CL ( CL priciples interpreted by the fed court)
195. Lay opinions allowed concerning vehicle speed, person's intoxication
Cons Law Pmbr Red Posted Friday, July 22, 2005 by mikvu
176. 5th A takings clause
- viable econ impact
- Interference of idistinct nvestment -backed expectation
- character of gov act
No egg sold interstate
kill turk for meat; sell at discount
==> takings
177. Fed bought turks and eggs==> gov pperty clause A IV
178. congress has power to reg armed forces and sate malitia under necessary and proper clause.
179. not discriminate religion on its face ==> rational basis
but marriage ==. fund rt==> state burden to futher compelling interest
180.supremacy prohibits ST from regulating fed activity
181. tax target news pub ==> 1st A viol
182. to vote/holding elective office, jury rt ==. related to go functioning : exception to strict scrutiny==> upheld
186. secular purpose indirectly burden free exercise clause issue ==> rational basis; NO strict scrutiny
187. standing: must be direct injury NOT mere suffuring indefinite way in common w/ people in general
189. police power of stae to regulate welfare, health==. rsnble upheld
192. President may not enact a law; Congres passe the law over President's veto (2/3) ==. treasure must pay as law autorizing
194. state law unduly burdens or discriminate @ interstate commerce==> law struck down
195. Sidewalk: pub forun
Gov may enforce rsnb time, place, manner regualtion:
- content neutral
- narrowly tailored to achieve sig gov interest
- open alternative channel of communication
ad sign are content-specific ==> strict scrutiny- unconstitutional
197. fed cannot tax ST on sovereign functions of ST gov, but can tax proprietery bus (outside investment)
198.State cannot tax Fed gov function , but can tax indirectly peron/identity connected to gov
199. Congress spending power for gen welfare is very broad. Not unlimited but rationally related to fed interest.
K PMBR Red Posted Friday, July 22, 2005 by mikvu
176. executory K , before pfmc time, anticipatory repudiation treated as total breach, but Ar must be positive and unequivocal
177. The cover price at the time of K breach use to cal damage (cover p- kP)
180. breach of implied promise ( make profit) does not discharge Promisor but make his duty absolute
182. absent unenforceable LD clause, Concord notified V an anticipator repudiation. V acn treat it as mutual rescission and accept K discharge and sue to recover in restitution the pfmc value rendered
183. subcontract paymt cdition on pmt from customer is independent of K pmt cdition, i.e. no discharge of K pfmc between Ker and subKer==> Ker must pay
185.indefinite duty to perform can fail the whole K pfmc enforcement due to lack of consideration
190. UCC implies rsnble price after counteroffer ( rejection of original offer $7200)
195. breach causes no pecuniary loss ==> nominal damage only b/c expectant damage is none
196. bargained -for exchange exists even "as long as you make satisfactory progress"
198. basic assumption of k is to win then buy property. Here, D won ==> term enforceable
200. Illegal K: law will refuse aid to either pty, but will leave them where it finds them. 2 exceptions;
1. innocent pty can sue to enforce
2. Pari delicto : lesser fault party(more excusable pty) can sue for relief
Property PMBR Red Book Posted Thursday, July 21, 2005 by mikvu
180. Judgment lien not attach RE that was conveyed, but not recorded
181. Lease K . No assumption of continued existence of heavy traveled roadway at restaurant site ==> Tenant liable for rent
182. Deed is void b/c grantee not rsnbly identifiable (executives of church)
183. Life Tenant terminates Lease K; remainderman interest effective when LT dies
185. Remainder to the children who do not exist at time of int creation. Title to all children born including future ones during parent's life time
187. Val del of deed rqrs Grantor's intent ( written deed not sufficient intent to convey yet)
189. Fixture: Kitchen components + lite fixture
190. Land conveyed w/
- 1/2 parking
- no merchandise sales
- 1st refusal rt to grantor
==> equitable servitude mor than covenant
192. Joint Owner ==> Joint Tenant
Sever JT 70%; 15% TC w/ X; 15% TC w/ Y
193. Fixture: Annexer intent to remove, LL csents ==> can remove all
195. Deficiency judgment @ original mortgagor ; he is secondary liable ( act as surity)
-Buyer asumming loan ==> personally primarily liable
196. Assignment valid w/o LL consent
ASSIGNABLE EVEN lEASE CONTAINS A NON-ASSIGNABILITY CLAUSE
200. Conveyance by a JT ==> complet severence of her int and destroys JT as to the extent of the int conveyed.
3 day PMBR Posted Tuesday, July 19, 2005 by mikvu
Goal scaled 145
Raw 87 + 36 = 123
33 Q 1hr
behind: eliminate 2 answers in long Property Q
1. Evid Exclusion rule not extended to Grand Jury
2. Standing:
- Injury in fact
- Redressability : relief sought to correct harm
Contactor has existing K to pay for inspection has standing
CON LAw question
1. Who passes the law: ST/ Fed?
2. Subject matter: eg. commerce power
3. Review Level and Burden
3. FO Rule 2-205
Merchant Offers to buy/sell by terms in wrintg w/ promise to hold open. The O is irrevocable for lack of consideration for time stated or < 90d
D is better b/c directly answer the call of question
4. Dty to control 3rd party
Special Relation must exist to have duty to control:
eg. common carrier (passenger on Airplane)
Therapist : rsnble care to ptect intended victim
A - must be affirmative duty eg. "Do not go to him, he will kill you"
5. Neg Per Se Violation of stattute
-class of person S protects
-type of harm S protects
Most JX : NOT conclusive
only evid of NEG ==> FActual to Jury
Follow Pure comparative unless directed otherwise
PURE
Just reduce P's rec by amt of his fault
MODIFIED COMP
1. P's negmust be less than D's neg
2. Rev reduced by P's fault
CONTRIB
P's NEG bars recovery unless:
1. LCC
2. D 's reckless conduct
B: full rec if Dis not neg
6. DISABILITY
A: rational basis related to legitimate ST interest
7. stmts in police report is HS (TOMA_Truth Of Matter Asserted) and inadmissible, BUT can be used to impeach W as inconsitent stmt
A
8. Offeree sent Rejection 1st and changed mind to send acceptance, MAILBOX does not apply. whatever arrive 1st will control
==> B
9. JOINT TORTFEASORs
each has substantial factor to cause single injury
- Each liable for full amt of dam (Jointly ans severally liable)
- Can rec fro either D
- Other D can seek contribution from D
==> D
10. Present Sense Impression
stmt made while or immediately after event happening
-Admissible as HS exception
11.K Rightfully reject nonconforming goods
Buyer cannot take goods inconsistent w/ Seller's ownership rt when rightfully rejecting goods.
-After a reasble time, B can sell goods and take <10% of selling fee
==> A - 120K 10% 12k
12. Del terms
FOB destiny ==> ROL on buyer after entrusted goods to carrier
13. Holdover Tenant
Renew same term as before
-1yr lease ==> renew for 1yr
-3yr lease ==> renew max for 1yr
Unilateral mistake K formed unless nonmistaken pty knew/SH known mistake
==> B LAwson has no reason to know
14. Life Estate
==> D
15. Strict Product Liability
Com Seller sells defective cdition that unreasonably harmed consummer will be SL
No COntributory Neg for SL
AOR ==> yes
==> C
16. DefectDesign
17. Sl recovery
No reco for econ loss
18. Landlord - Teanant
Lease agreement -privity of K
Land - privity of estate
Assign Whole estate to other- assignee ==> in privity of estate
Sublease - less than a whole ==> No privity of estate
Cannot sue sub lease tenant ==> tenant and assignee both are liable. Tenant can seek contribution from assignee
19. Subteanant
L can not sue (No privity of estate)
==> B
20. Tort Misrep (Fraud, Deceit)
1. False stmt
2. Scienter
3. Intent to induce D to act
4. Justifiable reliance on fraud
5. causation
6. Damages
Non disclosure if fiduciary exists ( banker, maj SH vs. min S?H)
C; did not intend to induce D
21.
leading allows in
-cross
- direct hostile W (opponent pty, his spouse)
- Not in cross from own lawyer
==> B
22. Racial quotas violation of EP
even to remedy past University's discrimination
23. Electoral college vote - 12th Amend
election result procedure dispute belongs to congress; Fed dismiss the suit
==> D
24. Privacy tort
appropriation liable for com use even repeat magazine article w/o consent
AFLIP
appropriate use name /likenes for com use w/o consent
False light objectionable to a RP
Intrusion on seclusion objectionable to RP
Public diclosure of private fact objectionable to a RP
25.
UCC Gap filler
- Rsnble price
- Del Term ==> seller's place of bus
26. Competency of W
FER: every person competent to testify
CL: mental/incompetent untrustworthy to testify
27. Crim Law
Never use INtox to reduce M --> Mans
Can use to negate SI ie. MI --> MII
SI of prmeditation and deliberation formed before vol intox==> MI
28. 10th Amend
-Ptect St sovereignty
- Congres may not compell ST to adopt Fed law
- May prempt, force std by fed funding
29. LARCENY
Trespassory - taking - carry away - pers pty - of another - intent to steal/ permernently deprive
-accessory after the fact: NOT guilty of main crime
- false pretense : must pass title; C did not give jewelry to B
- Receiving of stolen Pty: NO b/c no knowledge of stolen pty
-Finder of lost pty: Intent to keep at finding moment and know /SH known identity of owner ==> LARCENY
- Continue Trespass of Larceny: Initial taking is temporary, later intent to steal
87. lawful possession ==> embezzlement
88. If statute given ==> Read carefully
89. lawful possession ==> embezzlement
30. IIED
- intent/ reckless (outrageous and extreme conduct)
- Severe ED more than upset (No need of physical harm)
- 3rd PTY must be close fam member OR physical harm AND
- D knew 3rd PT presence
31. character evid inadmissible if matter is not trait of character ( car accident). D is dying declaration stmt
32. Self-Defense
GR: D can use equivalent threatened force to defend
EXCEPT: D knows of mistake of identity, has time to correct but fails to correct==> loose selfdefense
33. INCHOATE CR
-SOLICITATION - asking to commit crime
-CONSPIRACY - agreement of 2+; CL: No overt act rqd
-ATTEMPT - Specific Intent, Substantial Step to commit crime; Legal Impossibility = Dfense BUT NOT Factual Impossibility
34. Sever JT ==> Tenancy in Common
-Death - Final partition decree - coveying intr vivos - mortgage in title theory jurisdiction
35. Unilater mistake
not prevent K formation unless other know/SH known
36. Med diagnosis stmt admissible:
-pertinent
-no fault stmt unless by child to Dr.
-no accusation
37. NOT at scene ==> NO first hand knowledge ==> inadmissible
38. Qualified Privilege def in Defa (Job reference)
- act in pub interest
-interest of other
Reasbly believes stmt is true
39. Full Faith Credit Art 4 of CONS
State Y must regconize expugement from State X
40. law must be dicriminatory on its face to trigger EP
- effect or impact of discrimination is not enough to trigger EP
-No purpose of sex dicrimination ( prevent pregnancy)
==> rational basis==> burden on P
41. Same as 40, No discrimination of race ( GPA improvement)
==> rational basis==> burden on P
42. Legal duty to act
Close family member - fails to assist
-Died ==> Murder
Shoot to freight train ==> IM
Shoot to Passenger train Murder
43. Testify about hearing ==> beyond scope when crossed, objection sustained
44. Debt barred by SOL/Bankruptcy
New terms enforceable w/o CONS
45.
Conviction to impeach Wif misdemeanor involves dishonesty/false stmt.
Here, BAttery conviction can not be used to impeach
46.
Employee theft
low level ==> larceny
Hi level ==> embezz
47.
receiving SP ==> must be aware of Stolen P
No Larceny b/c no trespassory taking
48,
FEL < 10yrs
Def ==> Inadmissible (Ct has discretion: probative> prejudice)
Witness
46. LArceny
take jewelry w/ intent to steal guilty of Larceny
47. No trespassory taking b/c Reba did not take jewelry==> No LArceny
Receiving Stolen Property==> must have knowledge of stolen pperty
48.
2nd Restatement opposite from CL
Moral obligation can serve as a substitute for CONS, Not under CL
49.
no plain V b/c W testifies the stmt NOT Diary
-No BER reqd b/c no diary
50.
Del of deed depends on Grantor's intent NOt Physical delivery
51.
Offer is terminated by lapse of time. O stays open in a renble time.
52, Taking:
- needs not to be physical taking
- rendering land valueless or no viable econ use
53. Punitive reqs Reckeless conduct such as IIED nOT Neg or Battery
54.
Vol intox ==> No def to gene intent crime like RAPE
-Unreasonble mistake of consent is NO defense to general intent crime
55. Limitted Public Figure
- achieves frame / noterietery
- injected herself into controversy
P must prove malice disregard of truth
56. S & S
Rsnble mistake of warrant S ( 1st Floor nane identified name, mistake of 2nd floor belongs to the same unit) admissible
57. Difference-in-value damages
if P did not suffer any monetary loss==> No recovery
58.
Natural Disaster is a K duty excuse if K specified pduct from the impacted area
59.
Judge 's decision based on personal belief is overturned as plain error
60. Ex post factor violation offense occured before the law went into effect
61.
Presidential executive order authorized by fed statute under inter commerce ==> constitutional
- President does not have plenary foreign affair; shares w/ Congress
- K clause obligation impairement applicable only to ST law
62.
RAP not applicable to Reenter Rt
Applicable RAP: future interest value only if vested w/ in 21 yr after a life in being from the time of int creation:
1. Contingent remainder
2. executory interest in future
3. Option to buy land in the deed
4. power of appointment
5. class gift subject to open members
fee simple determinable ( until , solong as, while, during) ==> reverse toGrantor automatically
-reenter rt is not automatic
63. RAP not applicable to Covenant
- partition of JT by equity court
- covenant not to partition is not enforceable b/c cannot override judicial authority
64. funiture catalog inadmissible to read to jury to prove property loss
65. Dying D :
not available
made w/ belief D will die
About the death
66. use proceed at closing to remedy the title defect
67. no sufficient nexus between gov and private actor even receiving funding from the state ==> resolution upheld
68. intent to rob but failed ==> attempted Robbery
No attempted LARCENY b/c no intent
69. Anticipotor repudiation:
GR: can immediately sue total K breach
EX: not applicable to Unilateral K OR non-breaching pty has fully performed
==> to recover Partial breach & wait for the next performance
70. death penalty Constitutional
- migration fact consideration NOT mandated by law
- only cimes of killing No RAPE/ Kipnapping of kid
71.
- fed law
-No lion as pet
- No nexus with commerce clause
72. Accomplice Liability
abet/encourage w/ intent a crime committed
- substantial certainty to cause false report to be made
73.
SL is subjective not rsnble std
AOR is val defense when D is aware of the horse excitable nature
74, Animal SL
directly/indirectly harmed by animal 's propensity
tornado cause fence ripped apart ==> not superseding event
75.
Res Ipsa Loquitur
-Reasonable Inference of neg (probability that D's neg)
-exclusive control of instrumentality
- no harm w/o neg
W/o rsble inference ==> directed verdict for D
76. P must have evid D's neg
77. acceptance of nonconforming goods fas accomodation ==> liable for K price
78. SOF . $500 goods must be in writing to enforce
MY LEGS
79. testifier of stmt that was impeached on cross
- pol report quoted the same stmt is inadmissible for both rehabilitation and as substantive evid
80.
specific bad act is admissible as proof of character trait for dishonesty in misrep case
CHARACTER EVID
-Trait to shoe propensity by all means 9rep, opin, sp act)
- inadmissible unless in issue
-defa, neg entrustment, child custody, fraud, battery def
CRIMINAL CASE:
1. GR: inadmissible to pro propensity
EX: D opens the door by REP and Opinion ; NO SPEC act
CAN COME IN TO IMPEACH
2. D introduces Bad character of victim; self-def
3. RAPE; only specific act NO rep/Opinion
-past sexual act ==> csent
- past sexual act w/ others ==> Shows d is not the source of semen
4. Prosecution can show spec act in sexual case/ chils molestation
MI MIMIC
Motive - Intent - Mistake (absense) -Identity - Common plan/ scheme
81. previous stment of plead not admissible
82. mortgage of lfe tenant
-grantor devised son subject to mortgage ==> son is not personally liable b/c no assumption
83. mentally K pty may void the k Not the other Pty.
-Vendee can not raise Vendor's incapacity
84. Anglo-saxon law= CL
CL; LL must del possession at the inception of the lease
ML: tenant liable for rent
85. 1st A freedom of Speech
pub Form ( Park,street, sidewalk0
3 tests;
-content neutral
-narrowly tailored to serve sig gov int
- leave open alternative channel of communication
86.
mortgage and note are inseparable
Holder of due course: taking the note w/o notice of title defect
Notice Jurisdiction ; BFP w/o notice pay for val and record ==>Win
87. lawful bailment " look after Skeeter"
==Embezz
88. intent to steal ==> Burg -Jaguar
Intent to steal but after brok into garage 2nd time ==> larceny
89. larceny
Winston borrow necklace ==> No LAR
after Willow asked to keep he csented to keep ==> LAR
90.
counter O terminates power of acceptance
91. Indirectly revocation when offeree learned of the sale to others
92. Financial records exist before A_C relation ==. not privileged
NOT violate 5th A of selfincrimination
93. Competency to stand trial must be proved bu prosecution by preponderance of evide or some states requires beyond rsnble doubt
94. low fed ct system authorized by congress NOT Supreme ct
==> violates Article III
95. S& S
must be gov cduct
96. Dragnet clause to include other purpose loan (improvementz) using RE as security wil be ENFORCEABLE if dragnet clause described w/ specificity (improvement loan)
97. unforseeable (unsually late winter storm) delayed del ==> nO breach
98. pub education ==> fund rt ==> rational review
==> Upheld
99. No intent to kill, inflict BH, reckless ==. NOT guilty
100. D must have possessory int to file for exclusion of heroine in Veto's house==> No standing
101. Defamation
Neg P: private
of / concerning P
overcharge customer reputation
P wins
102. Tort action
def: No damage
IIED: No SED
103. Evidence
before Joy fell, install carpet
stmt before as Vicarious admission
nonparty (STM @Interest) and not available
NOT Available
Dying D
Former Testimony
Stmt of predigy
104. FM
unintent'l killing during felony of BARRK
Exception:
Redline Rule:
Def NO FR if justifiable death : Victim, Felon death
where Co felon force /use victim as shield ==> FM of victim
Corp killed both. C death : redline
M death : exception to Redline ==>FM
105. Tattle death : redline: justifiable homicide
106. Evidence - 6th Amend
Right to confrontation
needs eliminate HS b/c not asked
107. Miranda
Custody
Interrogation
voluntary response to police: NOT in Custody
C b/c waive Miranda
108. Riparian Water Right
Rsnble Use doctrine: land abut water may use as long as not interfere w/ rsnble use of others
- Competing usage ==> Domestic use is superior to agriculture use
Right of appropriation : 1st win doctrine
109.
covenant of warranty
grantor agrees to defend grantee @ the 3rd person claim
B
110. Waive K cdition, but cannot waive a promise
cdtion event, which qualifies P prfmce
B waived the condition of ins coverage
111. No valid mod to waive promise
112. EP
intent to discriminate then trigger std of review
state
on its face no discrimination b/c anybody applicable
Race: compelling after P's burden shows dicrimination
113.
Prior bad act: No extrinsic evidence, must impeach on cross
W open door on character of honesty
Impeachment prior bad act: No extrinsic evidence==> report excluded
114. FI - Intent Tort
1. intent/sub certainty
2. cause confinement
3. p aware of confinement or physical harm except infants
115. Sentencing
Enhanced sentence: go beyond statutory max; any fact to prove beyond must be beyond reasonable doubt
116. Respondeat Superior
employer liable for neg of employee occurred during that scope of relation
NOT for intent’l Tort
Exception if Tort further employer ‘s bus : bouncer
B limits only neg è wrong
C transferred intent to cause harmful touching
117.Defamation
communicated to 3rd party and understood
P disseminate def stmt è Not actionable unless in good faith necessity inquiry to ascertain its dissemination
B exception of P’s dissemination
118. reform K by equity ct
to adequately express the true agreement
119. Tort – B
120. Accidental conduct if neg conduct
D
Pick answer preventing tort/crime (elements)over defense
121. CON LAW hierarchy
Const
Acts of Congress/ Treaties ( last in time wins if conflict between acts and treaties)
Presidential executive orders/ Agreements
State law
D
122. Accord and Satisfaction
Agreement that existing dispute will be discharged upon substitute performance
Satisfaction when performed
123. UCC del of nonconforming goods
Acceptance & breach
124. Mailbox rule
Offeror authorizes means of acceptance
“Notify me “ Mailbox not applicable until open letter of notice è NO K
No Firm O rule
125. Fixture
Life Tenant not intent to have perm fixture. Remove after death as long no sub damage to property
Structurally attached, com fixture can not be removed
C
126. no time for closure
seller must provide marketable title at closure
must sufficiently describe the property
127. Taking
Valueless: no viable use of land
128. private has exclusive rt : agent of Stateè State action
D taking
129. Installment sale contract
Last pmt to convey good marketable title
130. Mortgage
M’or ç=====è M’ee (Bank)
Note: debt owed
Mortgage is security interest that follows Note
Default ==è In Rem (Foreclosure) before personal liability
Property 1st and go after IN PERSONAM for deficiency
Until forclosure M’or has redemption equity rt
If buyer ASSUME mortgage è pers liable
If Buyer Take property subject to the mortgage è No pers liability
If silent Deed è Subject to è NO pers liability
Statutory rt of redemption after foreclosure
131. mutual mistake as content of writing. Will allow to come in to reform
132. Employment K
Pers K never enforceable
B
133. Ex post facto violation
Retroactive law unconstitutional
134. Condition precedent
Age 70 is conditionè duty discharged
135. contract only applies to state
K clause violation law upheld if :
K obligation of state, If there is valid ST interest , ST will win over K obligation
No valid ST interest è Not upheld
136.
Intent to battery
137. sol : crime cannot be achieved b/c she knew of unloaded gun
138. insanity:
fact if believed it is true è M’Naghten satisfied
MPC less stringent: lack of capacity to appreciate wrongfulness
139. GR: K terms merge into the Deed
Exception : auxiliary agreement regarding the physical of the property enforceable
140. No 6th A b/c W took stand
141. superior skill will be held as that superior std.
tax law specialist std even gratuitous è held as tax specialist std
142. consideration – bargained- for exchange
143. naming a child è consideration
144. independent contractor
Employer not liable unless;
Nondelgable duty or carrying out inheritent dangerous activity
EER liable for trespass harm cause by IC if he knew/SH known
145. Mortgage
redemption rt still exists b/c no foreclosure
146. mortgage cannot prevent remodeling unless reducing valid to danger zone ( to zero)
147. Firefighter not immuned to reckless cduct
148. Offer to pay med expenseè inadmissible , and stmt w/it is admissible
149. admission connected w/ med expense pmt stmt is admissible
150. . K 3rd PT beneficiary
A ç==K===è B
To enforce must have valid underlining K
- Intended? Not incidental
- Donee /Creditor?
Right vested?
Learned and assent to it
Sue on the K
No K agreement was entered
151. All K assignable except:
Pers service
Long term rqmt K
Substantially altered the rt and duty
Loretta can seek relief
152. 11th A State cannot be sued by ST citizen or OF ST citizen w/o consent of ST
153. Co-adverse possessors hold as TC
154. . Accomplice liability
- intent a crime to be committed
-Aid/abet principal to commit crime
155. Causation in Crim Law
Actus reus
Mens rea
Concurrence
Intervening act in response of D ‘s causation
156. common knowledge W è Expert not rqd
157. Fund rt
Education to educate kid the way you see fit. Not rt to receive free education
.Strict Scrutiny è rt to marry è unconstitutional
158. congress
tort limit max recoverage in state
No impact on commerce power (no fact)è struck down
159. Abandoned lease
CL: 1) surrender 2) no surrender , mitigate, rent it out, 3) do nothing and sue when rent due
JX may require to mitigate è B the best
160. Quasi-K relief
Unjust enrichment for restitution
161. breaching party seek deposit refund. No contract term:
- course of previous dealing
- customary bus practice
162. Spousal immunity privilege :
Criminal only, before and during marriage, divorce loose it
Holder: XXXX
Marital communication priviledge: both crim and civil during marriage Divorce keep it, Holder Both
163. Burden of Proof in criminal
Beyond reasonable doubt
164. .
165. FI act intent causation
Battery, IIED
166. Words alone not actionable for assault
Plus cduct è actionable
A
167. Implied War
2:
1. Merchantability war: goods generally fit for general usage
2. Implied War: Fit particular purpose
Prior dealing to violate war of fitness for particular purpose
168. Authenticate handwriting:
1. expert testify
2. Jury to compare sample handwriting w/
3. Lay person familiar w/ handwriting
Familiar w/ handwriting OK, but Not for litigation purpose
169.
Breach of fiduciary duty
C: No mortgage rt
D: Lien on property is the answer
170. All have vested interest , Not all have possession interest è consent of all reqd
171. Burglary
Co-habitant : Occupancy rt controls dwelling; No dwelling house
Arson: CL legal impossibility not own home burning g
172. Com Speech ptected unless:
misleading/ fraudulent
However can be restricted when showing advance sub gov interest and restriction is narrowly tailored
173. Conlaw
Fed judicial review
Standing ripeness
Ct Not hear non justiciable
political question
K clause only applies to ST law not Federal Law
174. ST law
Not ripe: “ potential harm”
175. Initial taking must be trepassory to form Larceny
176. work product and confidentiality will be protected
177. bargained –for exchange
K past consideration: No new consideration for 3K
New cons for $7K to induce future treatment
178. Recording Statute
- No FIRST
-
Race
FIRST
1st record wins
Notice
No FIRST, Subsequent BFP
Good faith pay valid
No notice
Race-Notice
FIRST
Good faith pay valid
No notice
Record 1st
179. Material Breach
Not substantially performed
Non breaching Party can be discharged
180. boundary by Agreement
dispute about boundary line then make agreement ( relinquish and taking boundary line) will have boundary line by agreement
that will control over survey report
181. Prepayment penalty enforceable
182. . Congress can set up fed lower ct NOT Supreme Ct
183. Conslaw
Mall privately owned; not allow bus loading/unloading off the shopping
NO ST action
184. Speech
no state action ; permission to be there ; license revocable
185. Evidence
Effect on the hearer: ST of mind :NON HS
186. high std : ineffectiveness of counsel:
Act causes result is different
Failed to interview alibi W è result may be different
187. Evidence
Market report admissible
Bus Record: need somebody to testify for authentication
188. Evidence
Catchall exception fact to guarantee trust worthiness
Present sense impression must be during or immediately after NOT 1day after
189. No police trickery è D intend to relinquish control over itemè No search
190. real evidence needs testimony to authenticate evidence.
191. Punitive Damage
Trespass action aggravate to have punitive dam
192. Common authority rule
Csent the search of reasonable item in living room
193. child molestation case exception
194. seller can cure after time of performance if:
rsnble ground: nonconforming tender will be accepted
notify buyer to cure in a reasonable time
195. Intervening causation
D ========CAUSE========è Y Broken leg=è accident Broken arm èDr. fixed wrong leg
Foreseeable è liable
Unforeseeable è Not liable (act of god, criminal act by 3PT, Intent’l tort)
Steal of the beer even criminal act but foreseeable in a high crime area è Foreseeable è liable
196. Establishment clause
Gov entangles w/ religion
-Secular(nonreligious) purpose
-Not inhibit or advance religion
-Not excessive entangle w/ religion
A
197. Certain form Objection must be made at GJ or deposition stage
Substantive objection can made at trial
198. President has Pardon power fed convicted crimes
Set forth in CONS
199. Open mine doctrine
Life tenant/ tenant for years may operate open mine w/o liability for waste. New mine will be liable to remainderman
200. K relation based on promise
-
MBE law in flash Real Property Posted Thursday, July 7, 2005 by mikvu
FUTURE INTEREST
RAP
- class gift (Inter vivos @RAP b/c possible after-born children; Will is OK)
Life Tenant
- Mortgage (LT pays interest, Remainderman pays pricipal)
RAP void
- Result after deleting Remainderman
++ "so long as" determinable --> defeasible fee --> auto revertx to Grantor &heirs
++ "but if" Fee Simple subject cubsequent cdition --> Grantee
Any senerio @ RAP
- Old woman possibly has children
BFP - relevant in subsequent purchase only
Doctrine of Merger
- Quit claim : No covenants
- Marketable title implied in land sale K
- Once deed takes effect, the terms of deed control, NOT the K
NOTICE
- Express
- Implied
Recording Statute
PURE RACE
-no good faith
- " First in time wins"
-rarely tested in MBE
PURE NOTICE
- no actual notice (gd faith)
- Sub BFP ptected at conveyance as long as prior conveyance is not recorded then.
- BFP need not record to be protected
RACE_NOTICE
- no actual notice ( gd faith)
- priority of record: sub BFP ptected if 1st to record
CL Conveyancing rule
- 1st in time, 1st in right when no BFP
PMBR Property Posted Saturday, May 21, 2005 by mikvu
PMBR Property
1. X==> Y and his heirs : Fee simple under CL
Fee simple detrminable:
-As long as
-while
-during
-until
+
"liquor not sold in property" = fee simple detrminable
==> automatic reverts to grantor
Fee Simple sbject to subsequent cdition:
-but if grantor has option to reenter:
- ejectment action OR
- suit to quiet title
==> C
2. ==> C
RAP applies:
1. contingent remainder
2. executive interest
3. option to purchase land infuture
4. power of appointment
3-5.
Life Estate
life tenant can do during the lifetime:
-easement creation
-mortgage
-lease
-lien
-convey
autre vie : other's life estate
4. trust is fiduciary relationship concerning specufic property
Trustee adheres to the terms of trust agreement which requires parties w/ vested interest to approve.
5. Life tenant cannot encumber a greater than what he actually owns.
Mortgage extending to the life of tenant will not affect remainderment
6. restraint @ alienation
Any restrain on alienation of fee simple is unenforceble
7. RAP - Rule against Perpetuties
No interest is valid unless it vests w/i 21 yrs after a life in being from the time interest created.
- contingent remainder
- executive interest
- option to purchase land in future
- power of appointment
- vested remainder subject to open
RAP not apply b/c Garp is "life in being" and only binds Ber's heirs not Garp's heirs
8. 3 concurrent ownerships
1. tenancy by entirety ( 1 spouse cannot sever)
2. Tenancy in common
3. Joint tenancy
h ==> 1/2 TIC ==> C
9. Joint Tenancy Termination
1. Death
2. conveyance Intr vivo ( JT ==> TIC)
3. Final petition Decree
4. In title theory: mort taken out by 1 tenant.
JT is destroyed to the extent of conveyance interest
A: 30% conveyed interest
Title Theory Jurisdiction
mort taken out by 1 spouse will sever JT b/c it severs the unty of title and the unity of interest
11. Filing partition not sever JT
12. Equity ct has power to partition land
RAP not apply to partition
13-22 NON-Possessory in land
1.license
2.profit
3. easement
4. covenant runs w/ land
5. Equitable servitude
License: rt to enter the land od another w/o being required as a trespassor.
-revocable at option of licensor unless copled w/ interest in land
-ticket can be revoked & rejectedfrom licensor
==> C
14. Lodging K not Landlord relation; it is licensor-licensee relation
3 nite ; checout after 2 nites ==> pay 2 nites b/c NO landlord relation
15. Easement: rt of person enter land of another and makes limited use of pprty such as egress or ingress.
==> SOF applicable unless:
-prescribed easement
-by implication
2 types: Appurtinent and In gross
Appurtinent runs w/ the land
In gross still burdened when transfered
16. A by elimination B: express; C: express; D; element of prescribed
Easement Termination
-merger
-written release
-abandonment
-condemnation
-destruction of servient tenement
Mere non-use ==> NO termination of easement
17. Easement termination by merger
- Dominant estate acquires servient estate or vice versa ==> distinguish easement
18. Easement by implication : landlock buyer has easement by implication from subdivider's land
19. Fee simple "as long as" ==> determinable
==> automatic reversion to grantor
==> C
20. Neg easement for heir life has been repudiated in all jurisdictions
21. Remedies
-money damage ==> covenant runs w/ land
Enjoin nonconforming use ==> equitable servitude or implied recipocal servitude
22. A
23. falling behind , read call of question of long K/Property and choose correct rule of law/hornbook answer
23. land restriction can be enforced @ buyer even not restricted in the deed
==> C
24-28
Landlord -Tenant
Sublease transfers the term of less than original term
-fails to pay rent, sub tenant ==> NOT liable
b/c no privity of K/estate
Assignment:
when tenant transfers possession entire term or remaining term of lease
- If assignee fails to pay rent, assignee primarily liable; assignor is secondarily liable
25. 5months
1000/month
26. A sublease
27. English CL Landlord dels possession of lease pprty at inception of lease
Old America View _ LLord does not have dty to del possession at inception of the lease
ANglo Saxon ==> English CL
==> C
28. CL
29. Fixture
chattel has been annexed to the prperty
-Residential:
1. intent of tenant
2. Nature
3. Mode
4. Damage
-Commercial fixture doctrine
1. removable b/f lease expiration
2. rsnble time after expiration unless
3. accession where chattel structurally attached to bldg
30. Every landowner has rt to lateral and subjacent support in its natural cdition. If artificial cdition ==> neg rqd for liability
==> B
31. tobacco crop: pers pprty
32. Riparian Water Rt
land that abutt a lake,river, stream
-farmer cannot divert water for agriculture use as he diminishs another 's normal domestic use down stream
Under prior appropriation doctrine farmer can
33. Adverse possewssion
1. adverse
2. open
3. continuous
4. for a statutory period
last 2 yrs lease ==> NOT adverse
possession b/c lease is permissible
34-35 Conveyancing
SOF MYLEGS
Land Sale K
D
35
Sub Pfmc exception to SOF: pays part/all purchase price and take possession or makes viable improvement
36 C
17. VAlid Conveyance
must have del of the deed
Intent of grantor - Daisy intended even not received ==> val conveyance
==> B
38. Val deed must adequately describe the land being conveyed
-must diagram the facts
zoning violation: title defect
land use restrict : no title defect
42. clear title at closure ==> clear title to buyer
==> D
44. 3 Recordings:
-pure race ( 1st in time)
-pure notice (ptect BFP w/o notice)
-race notice combines PR/PN: BFP record 1st prevails
Equity Conversion
Vendor --------->K Vendee
executory state; escrow period ==> vendee has equitable title ==> ROL on vendee
39. ==> D
40. Vendee has Appreciation during executory state b/c ROL is passed to vendee then benfit should shift to purchaser as well
41. vendor must render marketable title
43. land use restriction does not render unmarketable title
44. other did not record, BFP prevails most of the time
in pure notice jurisd
45. forged instrument has no legal effect
46. -50.
puchase money takes priority over all mortgages have been executed over previously recorded
47. ==> B Intended 3P
48. Deed sate "assume" ==> pers liable
- Deed states land is subject to mortgage or make no ref to mortgage==> buyer not personally liable
EXONERATION
-Buyer assume and primarily liable for debt. If short at forclosure, lender can sue original mortgagor b/c he acts as a surity
==> C
50.
senior encumberancer(1st) and junior encumberancer(2nd)if dfault 1st in forclosure action must join 2nd as a party. If 2nd not joined , rt to redeem is not eliminated
==> C
PMBR Cons Law Posted Saturday, May 21, 2005 by mikvu
23/33 average
Judicial Review
Case and controversy Rqmt:
Actual and definite dispute between paties who have adverse legal interests
Fed court: No opinion
State court: may grant opinion
Ripeness:
To be ripe there must be a genuine immediate threat of harm.
1. B case is not ripe
2. Political Question
Non-judicial question committed by other branch of power
Foreign affair:
generally controlled by Congress and President
CON LAW Essay: Standing is 1st issue
standin: P must establish concrete personal stake in the outcome:
1. Injury in fact
2. Causation/redressibility -- P must show the harm redressable.
2. Nationwide has standing (injury, causation)
political question is correct answer
3. Fed Tort Claim Act
Fed gov only; Not official
to recover for damages for pers injury, pprty loss
D is correct
4. standing
5. Mootness: case is moot unless an actual controversy exist at all stage reviews
Fed court will not hear case if it is pending state proceeding decision
14th A EP based on gender
6.President may issue an executive order to ensure efficient operation of executive agency
No unfettered congress power
7. Presidential pardon for fed crime only
8. Hiarchy of LAW
1. Constitution
2. Act of congress/ Treaty (latest in time wins)
3. Executive Agreement( foreign)/ order(domestic)
4. State law
8. 1st A supersedes executive order ==> D
9. President appoints officer of US who is member of agency and has administrative /enforcement power
Congress cannot appoint US officer ==> A
10. executive order is lower than congress act ==> C
11. Supremacy Clause
1. Fed law superseds any state law in direct conflict
2. Preemption:
Any sate law in an ares where congress intend to occupy the field
C==> supersedes
12. Health & safety:
State may enact law more stringent than fed law
13. 11th A immunity to sate
A state may not be sued in fed court by state citizen or citizen of other state w/o state consent
Congress lack of power to override state 11th A Immunity from law suit
14. Testimonial privilege: speech/debate on legislative floor
tort and conlaw cross ==> defam of public figure requires malice ==> both have No liability
15. Congress has exclusive tax and spending power to serve general welfare.
buzzword: "appropriate" == Tax and spending power
==> B
16. Art 3-sect 1 : Judicial power vested in 1 spreme court and lower fed courts.
Congress has plenery power over lowwer fed courts (district,appeal)and can confer or remove jurisdiction
==> C
Most cases these are WRONG ANSWERs:
1. general welfare clause: not independent power; tax & spending is OK
2. Necessary and proper
3. 14th A P&I always wrong; protect rts of national citizenship
4. Article 4 P&I:prevent econ discrimination from one state against citizen or other state
5. K clause: applies only to state not Fed
6. Ex post facto Law: criminal only
7. Bill of Attainder
8. Right vs. Privilege ==> always wrong
9. 11th A weak limitation on fed
COMMERCIAL POWER
CONGRES MAY NOT PASS LAW TO REQUIRE STATE TO PASS THE FED LAW. THIS VIOLATES 10TH A
(State sovereignty)
17. Congress has power of disposal of property
Property Power:
- wild animal
-Military Ship/airplanes
-Fed bulding/enclaves
-Indian Reservation
18. Congress has War power - even after the war is over ==> C
19.
20. Congress has enumerated power to setup post office
21. Commerce Clause
Congress may regulate any activity that has substantialy economical effect in interstate commerce
22. No EP ==> any auto
==> B
23. 10 A wrong
No sub econ effect ==> C
24 EP Page 7
STRICT SCRUTINY(necessary to further a compelling sate interest)
BURDEN: STATE
SUSPECT CLASS: (R A N) RACE ALIENAGE NATIONAL ORIGIN
FUND RTS:
TO VOTE
TO TRAVEL
RT TO PRIVACY (CAMPER)
-contraception
-abortion
-marriage
-procreation
-education(private)
-relation(family)
PROTECTED 1ST A RTS
INTERMEDIATE SCRUTINY (subly related to an important gov objective)
BURDEN: STATE
-genders
-Illegitimacy
-Children of illegal Aliens
RATIONAL BASIS(rationally related to a legitimate state interest)
BURDEN: P
-pub education
-social economic measures
-housing
- age
-poverty
-wealth
-mental retardation
-necessity
CON LAW APPROACH
1. WHO PASSING THE LAW
2. SUBJECT MATTER OF QUESTION
3.MATCH THE APPROPRIATE POWER OF REGULATION
TO UPHOLD FED STATUTE
1. SUPREMACY CLAUSE 11TH A
2. ENUMERATED POWWER OF CONGRESS
3. FED PROPERTY POWER
TO UPHOLD FED STATUTE
1. DORMANT COMMERCE CLAUSE
a. non-discriminatory
b. No undue burden on IC
2. POLICE POWER - HEALTH & SAFETY
WELFARE, MORALS, AESTHETICS
Rsnble interest = Pocice Power
26 pub education==> not fund rts
30. rt to be a candidate ==> Not fund rt
Rt to vote: fund rt
31. age: not rational
32. geographic discrimination= strict scrutiny
-use rational basis b/c statewide
33. Funf Rt to vote
34. econ rt/liberty
A recreation, nonecon ==> comm power
35.Procedure Due Process
Notice and a hearing wherever serious of deprivation of any life, liberty, pperty interest
35. refuse hearing ==> PDP
36. Taking: regulation that denies owner all rsnble economical viable use of his land
inverse condemnation: by regulation
37. Val Police Power
10th A generally wrong
K clause generally wrong
No due process
38. Ex Post Facto
crim law: retroactive law
- not crime when committed
- increase punishment for the act
-change procedure for conviction
39 A
40. 1st A
Render void on its face
1. overbreadth
2. vagueness: unclear defined
3. Prior Restrain: un constitutional
4. Unfettered discretion: "Mayor determine qualification"
Pub Speech:
-content neutral
-narrowly tailored
- further significant gov interest
==> D
43. Content specific
sing religious song
protected
==> Strict S
EP not necessary to analyze ; 1st A is stronger
44. 21st A reg adult speech
obsenity= unprotected speech
1. appeal to one's prurient interest in sex act
2. Depict sexual cduct in a patently offensive way
3. lack seriuos literary, artistic, political or scientific value
46. 1st A> EP
47 . Gov reglation burden : free speech exercise may not be religion related. However, religious cduct may be regulated.
48. 2 issues: Free exercise of religion and Due Process Right
Purposeful Interference : SS applies
INcidental Burden: NO SS usually upheld use rational basis
49. Pol power: safety interest ==> rational basis
necessaru and proper: fed not state
50. NOT violate Establishment clause
-pripary purpose must be secular
-neither inhibit nor advance religion
-gov not entangle with religion
PMBR Contracts Posted Thursday, May 19, 2005 by mikvu
1.
Offeror, offeree must have power to accept
- 3 persons w/ 2 seats ==> No offer
2. B
3. Termination of an offer
1. Daeth of offeror
2. Revocation
3. Rejection
4. counteroffer
5. Lapse of time
Face to face terminated ar the end of F to F conversation
A answer
4. Rejection terminates power to accept.
Offer was revived - C answer
10.
CL : offer open by K option
UCCC: 2-205
-By a Merch
-buy/sell in a signed wrting
-promise to keep open as time stated
-no time then <90 days
OPTION K
UCC:
NO CONS
CL:
CONS necessary
11. "notify by friday": revocation effective b/c not notify by friday
12. go to Princeton is not legal detriment ==> benefit ==> NO bargained-for-exchange ==> Gift from uncle
13. Gen contractor accepts bid from a subcontractors, uses that bid and relies on it; This creates an option K to void injustice
D is answer
14. D is incorrect stmt of law
C is answer
MODIFICATION
sub agreemt to alters or changes the parties' duties and obligation under the terms of their original agreement.
UCC
No CONS
"good faith"
CL
Preexisting duty rule
New CONS
18. Mistake
-Mutual mistake ==> essence of K ==> recission
-unilaterl mistake: mon-mistakennpty knows/should know the mistake, he is not permitted to snap up the batgain.
18. mutual mistake ==> remedy: rescission
Remedy
-At law
-Equitable relief ( spec Perfmc, injunction, rescission )
20. Assignment
All K are assignable, delegable except personal service K or long term reqmt K
- Oral/wrting valid for assignment
21. FOB, seller's place ==> del to com carrier ==> risk on buyer
FOB, destination/buyer's place
==> risk of loss on seller.
Courts will fill the gap for del term missing, price (rsnble); NOT quantity ==> K fails for definite
22. Assignor ==> Assignee
2 Wars:
1. Not to defeat/impair val of assignment
2. Rt exists and is subject to NO limitation/defenses
23. C: iplied-in-law (QUASI K)
Implied-in-fact
REMEDIES
LAW Money Damage
Equity
Injunction
Dpec Pfmc
REscission
Reformation
Suit to quite title
Partition
27. Condition
Precedent
act/event must occur first before duty to pform arises
subsequent
discharge party's duty under K
concurent
Both pties to perform concurrently
28. K of a monor
voidable
but liable for food/lodges at rsnble val ( quasi-K)
C is correct
29. Condition precedent: 3 types
1. pfmc of K
2. Formation of K
No SOF for service K
D is correct by proses of elimination
PE Rule
Writing
-complete, totalintegration
-Pror/comtemporaneous oral evid varying/contradicting the terms will be barred by PER
EXCEPTIONS:
1. Fraud
2. Mistake
3. Illegality
4. duress
5. Prtial integration
6. Condition Precedent
SOF
M arriage
Y ear
L and
E xecutor
G uarantee
S ale of goods $500 +
32. Oral guarantee ==> D
33. The main purpose rule exception : surety for his own economic ad vantage ==> No SOFs
34. PE rule
35. Cond Precedent
37. Rqmt K
good faith reductions are allowed when actual buyer's sale falling
IMPOSSIBILITY
Subjective: NO excuse for duties
Objective Will excuse duties ( Objectively impossible by anyone at anytime
41. Intended 3rd Pty
Promisor ==> K Promisee
Intend to benefit 3rd PARTY
When term benefit parties ==> Incidental 3rd Party cannot enforce K
Vesting
1. Learns of K and Assent to it
2. Reliance on K
3. Sues on the K
41. D relied on K
42. D -- No interest to 3rd party
43. All K assignable and delegable except personal service K or long term rqmt K
A: nondelegable b/c pers service K
44-45
Non-conforming tender
-Remedies of seller:
1. Accept whole shipment
2. Reject whole shipment
3. Accept any com unit or units and rject the rest
45. Divisible K Pfmc is divided 2 or more parts
5 Vases => NOT Div K
46. B must pay K price of accepted goods
47. Lost Volume Sale
UCC can recovers loss profit from original sale if seller can show inventory of more than one item
48. Time is ofessence /Perfect Tender Rule
Cure not allowed if time is up
; no time to cure
49. Perfect Tender Rule PTR
ship nonconforming ==> accepted w/ breach
50. Installment
IF substantially impair the value of that installment and cannot be cured then buyer may reject that installment.
3 K formation
1 capacity to K
1 implied in fact/law
2 CONS
2 MODS
2 Accordance Satisfaction
3 PER
3 SOF
2 Intented 3PT
2 Assignmt/Delegable
3 condition
2 Breach
2. Anticipated Rep
3 SPec Pfmc/ remedy
3. Damage
3. Impossibility
PMBR Crime Posted Wednesday, May 18, 2005 by mikvu
PMBR Crim
1.
-Actus reus
-Mens Rea
-Concurence of AR & MR
-Causation
-Harm/injury
Unconcious state of mind ==> No AR ==> No crime
C: Reckless b/c awareness of disease.
2.
Mens Rea
Lack of requisite state of mind
B: mistake/ignorance ==> defense to negate mental state as element of crime.
3. Deliberately refrain.. ==> S/H known even though No knowledge of content
4.
Mens Rea Rqmt
B: Lack of intent to cause...
5.
crime element elimination is better than def
-mistake of fact = def
-element of crime = Mens Rea
6.
Answer by process of elimination
-duress no def to Murder
7.
Self-def
-rsnbly believes immediate danger of unlawful bodily harm/injury
A: not address life in danger
8.
MBE assums CL unles told otherwise
CL ARSON:
maicious burning of another dwelling
-mere blackening not enough
-must char the structure
General Intent Crimes B A R I D
-battery
-Arson
-Rape
-Inv Mans
-Depraved Heart M
Specific Intent Crimes B A R V I T
-buglary
-Assault
-robbery
- vol Mans
-inchoate
-theft
Vol INTOX can negate specific intent ==> def
Vol Intox : NO def to gen intent crime b/c no spec intent
8. no SI to negate
9.
M' NAGHTEN
D has disease of the mind and does not know the nature and quality of the act. If he does, he did not know what he did is wrong.
I. not justified to shoot at shadow
II. would be rsnble to shoot to defend himself
10. MPC opposite CL
- Vol Mans -- intentional killing w/ heat of passion
CL: objective rsnble std
MPC: subjective test - personal feeling, sensitivity
Vol Intox never reduces M ==> Manslaughter; only reduce M1 ==. M2
11. Unintentional manslaughter/killing
A: Usher owes no duty since he is not criminally neg
Legal duty to act due to special relationship ( family, contract, good samaritan statute, ship captain & passenger, ER & Eee)
12. No duty ==> D
13. Vol Intox never reduces M == Mans
- B: provocation reduces M ==> Mans
14. CL : 4 types of Murder
1. Intent to kill
2. FM (BARRK)
3. Intent to inflict Seriously BH
4. Depraved Heart M -- reckless conduct
Assault under CL is misdemeanor; if Assault intended ==> death ==> Misdemeanor Mans or Invol Mans
15. false claim ==> NOT inherently crime ==> NO FM
16. Read statute carefully
INCHHOATE CRIME
1. sol (SI+ aid/encourage) merged to crime
2. Attempt (SI+ sub step)merged to crime
3. Consp ( SI + Agreement 2 or more) NO MERGE
19.
At CL, Legal Imposs ==> val def for Attempt
factual Imposs ==> No def to Attempt
23. No true agreement among K, R,E
Conspirator liability
- Each liable for all foreseeable crimes committed and subsequent crimes in furtherance of the conspiracy.
CONSPIRATOR WITHDRAWAL
- No def for conspiracy
- Withdrawal by notifying other conspirator will be effective for subsequent crimes.
ACCOMPLICE LIABILITY
1. Spec Intent
2. Aid, abet, or encourage the P1 in the comissiopn of crime or attempt.
ACCESSORY AFTER THE FACT
Not AL ==. only guilty of separate law obstruction
26. Criminal Assault
1. Attempted Bat
2. Intent to frighten
battery: unlawful application of force
CL: general intent crime
LARCENY:
1. Trespassory
2. taking
3. carrying away
4. Pers ppty
5. Of another
6. Intent to steal
If taking by lies, deceit, false stmt ==> LarceNY by trick
THEFT
1.Larceny
2. Larceny by trick ==> possession
3. False Pretense (Poss + title)
4. Embezzlement ( bailment, entrustment: low level only has custody ==. Larceny)
-Title passed w/ money
Robbery = Larceny + Assault
30. EMP THEFT
- lOw level EE has custody ==> LARCENY
- Hi Level EE has lawful poss ==> Embezz
33. fixture = RProperty
LArceny for pers ppty
34. Solicitation merges to crime
35.
Assault NOT felony at CL
==. NO Burglary
Taking Rolex ==> Larceny
36. Child NOT tangible Pers ppty
37-50 CRIM PRO
Jury Rt if jail > 6m
Rt to counsel
A suspended sentence may end up in imprisonment ==> Rt to counsel
38.
No new trial if harmless error
Grave injustice ==> plain error ==> New trial even no timely ojection
39. Inventory Search
valid to safeguard itemized pers belongings
40.
consent search must has equal rt of control or has possessory authority
41. Police may follow D to his home so D can obtain ID, pers belongings or change clothes
- Protective sweep permitted if rsnble suspicion of danger to plice
42. Auto Search incident to an arrest ==> permissible - even after removing D from the car.
43. Miranda (custody, interrogation)
No account of D's personal characteristic in waiving Miranda rts
Police overreaching (2hr questioning) ==> Miranda waiver ineffective
44.
45.
Auto Search
PC justifies search of lawfully stopped vehicle.
46. 4A prtects unrsble search by Gove
- Private person ==> No 4A violation
47. Standing
challenge legality
-ownership/possessory in area searched
_ Random stop of auto ==> passenger has standing to challenge search of interior of vehicle.
48/49
Double Jeopardy
No reprosecution after final judgment
- after acquitting
- after conviction
- motion to dimiss due to misconduct of prosecution
48. REs Judicata in cil proceeding not in crim law
Collateral Estoppel: issue exclusion for crim
49. CAL FED
acquitted Reprosecuted OK b/c separate sovereignty ==> DJ not apply
50. School search
Rsnble suspicion
OR school regulation violated ==> School pricipal acts as agent of police
PMBR Evidence Posted Tuesday, May 17, 2005 by mikvu
CHARACTER (404,405) = 5
IMPEACHMENT (608, 609) = 5
HEARSAY + EXCEPTIONS (801,803,804) =12
18 AVERAGE
APPROACH:
1. CIL OR CRIM?
2. SITUATE PROCEEDING PROCEDURELY
3. PURPOSES OF EVIDENCE
Rule 403: Evid is inadmissible if unfair prejudice substantially outweighs probative value
1.
-crim
-relevant yes
-admission? No b/c video not made by party
- no testimony ==> No self incrimination
2. BER
-contents of writing/recording are in issue or needs to be proven
BE must be presented or shown not available thru no fault of proponent.
- Testimony relying on docs/video tapes.
- eg. Dr. testifies on Xray symtom ==> must show Xray. Opinion is an exception.
C: he did not testify video content ==> first hand knowledge admissible.
-Complete Doctrine:
A part of writings or recordings introduced by one party, the other party may show other part to complete the picture of evidence.
3. civil/ oral k at trial ==> the completeness rule only applies to writings and recordings
Legal relevancy
-Subsequent remedial measure: inadmissible to prove neg /improper conduct unless:
1. showing ownership/control
2. Feasibility of caution if controverted
3. impeachment.
4. civil C: show control ==> admissible.
-Offer to pay med exp inadmissible but any stmt made w/ pmt stmt will be admissible. Admission stmt is severed
-Offer to settle/compromise to dispute claim ==> inadmissible
7: inadmiss b/c dispute + settle (compromise)
8: admission: no dispute
5&6 Judicial Notice shortcut to proof: facts are not subject to rsnble dirspute. Generally known in that jurisdiction and capable of acurate and ready for determination.
-Effect of JN
--civ: conclusive
--crim : may be conclusive; jury is not rqd to; prosecution satisfies persuation on that element.
5.
prosecution satisfies persuation on that element.
6. Habit/routine evidence
always relevant and admissible to prove act conforming
9. Judge may not testify in the trial he presides
10. leading?
proper on cross unless bias in favor of cross examiner (his own lawyer) D: hostile W crossed by his own lawyer ==> improper
CHARACTER
GR: Char evid is inadmissible to prove cduct in conformaty w/ character trait.
CIV: character in issue ==> admissible to prove that element using repu, opinion, spec acts. e.g., defa, child custody, neg entrustment, self-def
CRIM: No showing prpensity
exceptions:
1. D opens DOOR with REP and OPIN; spec acts on cross to impeach W
2. D introduces bad char of Victim (REP/OPIN)
3. RAPE: D intro spec acts of Victim:
a. past sexual acts w/ D ==> CONSENT
b. Past sexual acts w/ other men to show D # source of semen
4. Sexual Assault/ Child Molestation
Spec ACTS
5. MIMIC Rule: admissible to rebut by prosecution
Motive, Intent, Mistake(Absence), Identity, Common scheme
IMPEACHMENT
1. Bias 9family member)
2. Sensitive defect ( wear glasses)
3. Prior inconsitent stmt
undre oath ==> come in substantive too.
4. 608-609 by character of W
a. REP/OPIN: truthfullness
b. Prior bad acts: No extrinsic evid on cross
c. Felonies< 10 yrs
- W : admis unles unfair prejudice
- D : inadmis unless unfair prejudice
d. Dishonesty/False stmt < 10yrs ==> Admissible
e. >= 10yrs ==> inadmis unless prjudice
15 bad act ==> NO extrinsic evid; should ask on cross about bad acts.
16. extrinsic evid allowed to show bias
17. MIMIC
absence of mistake ==> admissible
18. A
50 MBE/day
1. Glance down the anwers
2. Facts
3. Questions
4. Read all 4 answers
19. VL admission incorporated in a pub record.
sucker answer: docs must be offered in entirety
HEARSAY
1. OOC stmt
2. Declarant
3. Offered for the TOMA
4. Exceptions
MBE
admission /exceptions : Pick admission
Page 36 HS exceptions
23. stateof mind & effect on hearer
24. Intent ; non-HS: state of mind
29. Absence of an entry inrecord ++BER not applicable
30. custodian od record to testify bus record ==> admissible
PSI
-explain/describes and while decl perceives or immediately
EU
Relates to while under stress
Declarant NOT available:
1. Dying Decl
2. Decl against Interest
3. Former Test
4. Stmts of pedigee
36. admissible if dif P sueing the same D; former test of the W
40/41
Learned Treatise
passage is read in not exhibit
42 PCR
chart page 13
refresh if not recored
44. anyone familiar w/ handwriting unless become familiar for litigation purpose
45 self authentication
-encription
-tag, label
HUS Wife Privilege
Spousal
-crim
-before and or during MARR
-Divorce -loose it
-HOlder: W-spouse
MCP
-civ/crim
-during MAR
-Div: Keep it
Holder: both
46. W-Spouse
47. Made in 3rd paty presence ==> NO
48. Hired by Lawyer ==> com protected
49. expert/lay opinion
Expert may not testify to defendant's mental state if constituting crime element
INTENT element==> NO
PMBR Torts Posted Monday, May 16, 2005 by mikvu
torts and K 34 others 33
remedies inclued in all subjects
need 145 or 130-132 raw
goal 70% or 140 raw
mbe 36%
TOTRS
INtentital tort
Facts must show intent
or substantial certainty
1. A& B no intent
C is correct
INtential Tot Def:
1. Privilege pub necessity
2. Mistake if acting on pub interest
3. consent - scope limit
4. Self defense
5. def of other
6. def of property
7. Recapture bof chattel
2. Sport csent permitted under the rule of the game -- csent to physical contact.
3. When contact results --> assault becomes battery
A no intent when B ducked
C accidental cduct still may be neg
D self def --> intentional tort
B==> correct
4. Car is extension of Asher
B is correct
5. Duty
General no duty owed unless special relationship
Fiends not brelated ==> NO special duty
6, 7
IIED
D; E & O
V; victim
must suffer severve ED
3P : closed family member OR Physical harm/injury
AND Presnece and D is aware
6. no family member
7. D zone of danger ==> neg NOT IIED
8.
A: Neg need damages or physical harm to recover
Exception:
Mishandling corps, no physical harm rqd to recover
C: Battery yes but def of consent
B: reckless conduct b/c of relationship abuse
9. private necessity : liable for damages
CONVERSION
- dominion & control
- serious substantial interference
- no damage rqd
- remedy: force sale: full value
TRESPASS TC:
-Slight Interference
-Slight damage
- recover dimished value.
10. Mistake of ownershio is no def to conversion
11. INTENTIONAL TRESPASS
- intent to enter
- liability even if no damage
NEG/RECKLESS ENTRY
-Liable if only if damage
UNINTENTIONAL & NON_NEG
NO LIABILITY even if damage.
11. mistake is no def
14. SHOPKEEPER privilege
-rsnbly detain suspected person of theft.
FALSE I
- confine in fixed boundary
- Knowledge of confinement OR
- Physical harm ( Not required for small child)
NEG
1. Duty
2. Breach
3. Causation (actual , legal)
4. Damages
5. Defenses
Pick element answer in the above order, i.e., breach over valid def
15. A Breach coose duty first
B: is duty which is correct answer
16. Special relationship - duty to act Teacher- Student , Airline -passenger
C is breach over D causation
TRESPASSER
Unanticipated: NO dty
Anticipated: Dty to warn unless obvious natural condition (lake, creek, NO dty
LICENSEE
- duty to warn of known unsafe condition.
INVITEE
-public
-bus
1. Dty to inspect
2. Dty to make safe
17. just warn known condition
18. Invitee must make safe and inpect.
Attractive Nuisance ( Child trepasser)
1. Artificial cdition on property
2. Know/Should know that children likely to trespass
3. Child with his age, experience, intelligence fails to appreciate the risk of harm
4. Utility v. risk.
NEG PER SE
1. P is a member of a class that the statute intends to protect
2. P's harm is the the type of harm the statute intends to prevent.
Majority : No automatic liability, still go to the jury; NPS is an evidence of neg
20. Did clerk owe duty of care?
NO NPS b/c harm is not the type the statute to prevent.
when noNPS ==> regular neg
21. RES IPSA LOQUITOR -- Inference of NEG
- motion of directed verdict raises RIL
- Harm will not occur w/o neg.
- Instrumentality is in D's exclusive control.
D is correct since NEG has not been proved.
Respondeat Superior (VL)
P v. ER $25K
Eee 's neg ==> ER can seek INDEMNITY from Eee for Eee's neg
No VL for Eee's Intentional Torts unless Eee commited in furtherance of ER's business (Bouncer in a Dancing Club)
Strict Product Liability:
VONS can seek INDEMNITY from Campell for a defective can soup as VONS paid for the foreseeable consumer's harm.
ER has no VL for IC unless:
1. inherently dangerous act OR
2. Non-delegable duty (mall common area safety)
NEG DEFENSES - MBE follows "PURE"
1. PURE comparative NEG
P:40% -D:60% ==> P recover 60%)
2. Modified Comp NEG
P's neg< D's neg ==> Recovery is reduced (P:40% -D:60% ==> P recover 20%)
3. Contributory NEG
hash rule ==> NO recovery
- Last clear chance. OR
- D acted w/ wilfull conduct.
25. P ==> 0% neg, thus full recovery 100K
26. Joint Tortfeasor
Any part of calim satisfied from one tortfeasor will diminish the claim of other tortfeasor.
27.
-act of god
-Intent act of 3P
- criminal act
those 3 are superseding events to cut off chain of liability unless forseeable.
28. Act of god that D knew " it is unsafe.." ==> foreseeable ==>NOT cutoff liability.
29. U Hazardous A SL will not apply superseding events.
If subsequent acts of neg are foreseeable ==> Original D liable for all including subsequent damages.
30. eys patch cause additional harm ==> foreseeable ==> original D liable for both.
31. Neg
32.
UHA
33. SL
Seller of defective product that unreasonbly causes harm to foreseeable users will be SL.
34. No warning reqd:
- if exessive use.
- long period use
- known to public.
37. No foreign language warning rqd
38. Wild animal
HARM SL for both direct and indirect:
- direct: bite SL
- indirect : cause from animal propensity ( duck to void contact with monkey)
40. FRAUD
1. False stmt
2. Scienter
3. Intent to induce
4. Justifiable reliance
5. Causation
6. Damages
If no False stmyt ==> Non-disclosure issue
42. Remedies for nuisance ==> both damages and injunction
44. Defamation
1. Defamation stnmt
2. Publication.
3. Damage
-Slander Per Se CLUB
-Malice
4. PMalice if Pub Figure (P) and Media D
INVASION OF PRIVACY
1. Appropriation
2. False Light - good and bad light
-objectionable to a reasonable person
3. Disclosure of private facts
4. Intrusion of privacy
49. A III only
Professional Reponsibilities Posted Sunday, May 15, 2005 by mikvu
1. What 5 issues do the duties to the client organize under?
1. Fairness.
2. Loyalty.
3. Overreaching.
4. Competence.
5. Zealousness.
2. What 5 issues do the duties to the profession organize under?
1. Integrity.
2. Candor.
3. aVAILABLE.
4. rESPECT.
5. eXCLUSIVity.
3. What 3 main issues come under the duty of fairness?
1. fees (and fee arrangements).
2. funds.
3. decisions.
4. Name 5 factors used to determine if a fee is fair?
1. time and labor required.
2. customary fee for similar services.
3. amount of fees.
4. results obtained.
5. time limitation.
6. whether it prevented attorney from other employment.
7. novelty or difficulty of questions and skill required.
5. What is the basic rule regarding fee agreements?
An attorney should explain the basis of the fee arrangement and should notify the client of a revised estimate.
6. what special rules regarding fee agreements does the california code add?
The california code adds if the fee exceeds $1000, a writing is required stating fees and services.
7. what must the writing referred to in 6 contain?
1. the hourly rate and other fees and charges.
2. the general nature of the legal services to be provided
3. responsibilities of lwayer and client.
8. what exceptions are there to the writing requirement referred to in 6?
1. emergencies.
2. previous relationship with the client.
3. client waives the fee agreemenr.
4. client is a corporation.
9. what is the egeneral rule regarding contingency fee agreement?
The general rule regarding contingency fee agreenments is that they are to be avoided unless the client could not afford
representation or it is in the best interests of the client and states ceratin reqyuirements in writing.
10. What must the contingency fee agreement writing state:
1. How the fee is arrived at.
2. percentage for settlement, trial, appeal.
3. what expenses willbe deducted.
11. In what kind of case s are contingency fee agreements are prohibited or disfavored?
Contigency fee agreement are prohibited or disfavored in criminal cases and divorce.
12. Is it valid for a client to waive his right to sue for attorney malpractice at the outset of the attorney-client
relationship?
No. It is forbidden or permitted only after independent legal advise. California rules prohibit waiver at the formation of
the attorney-client relationship but permit it as part of dispute resolution.
13. Referral fees are permitted in certain circumstances, where:
1. the fee is proportional to services provided by referring attorney.
2. the client consents after full diclosure.
3. the referral is made by an attorney (referral fees are not permitted to be paid to non-lawyer).
14. California has a more liberal rule regarding referral fees. What is it?
It permits flat referral feea, even if the referring attorney did not perform any work on the case, so long as the total fee
to the client is not increased solely due to the referral fee.
15. nEGOTIATING a fee as part of a settlement of the client's case raises a separate issue. What is that issue and what is
the rule?
the issue is duty of loyalty. An attorney ha s aduty of loyalty not to allow his independence of judgment to affect the
client's paramount interest.
16. An attorney has a duty to segregate a client's funds. What is your one-sentence rule on this?
An attorney must preserve the identity of client funds and property and must maintain complete and acurate records.
17. The duty of fairness also involves decisionmaking . What are the two areas of decisionmaking and who control each, the
attorney, or the client?
1. Objectives - client's decision.
2. Means - attorney's sole decision.
18. Name three important decision in a a criminal case that are in the client's control.
1. waive jury trial.
2. plea.
3. testify.
19. In a civil case, if the attorney decides to settle without consulting the client, what duty has been vioalated?
The duty of fairness (decision) has been violated.
20. In a civil case, if the attorney fails to communicate a settlement offer to his client. What duty has been violated?
The duty of fairness, to communicate with his client.
21. What is the one-sentence rule regarding anattorney's duty to communicate with the client and three types of actions or
developments must an attorney communicate to the client?
The attorney must communicate to the client relevant factual information and give timely advise about legal
matters sufficient to allow the client to intelligently participate.
The attorney must communicate:
1. negotiation.
2. settlement offers/plea bargains.
3. actions that incur costs.
22. wHAT ARE THE TWO main issues in duty of loyalty?
1. conflict of interest.
2. confidences and secrets.
23. What are the two levels of severity of conflicts of interest.
potential and actual conflicts.
24. As to a potential future conflict of ninterest, may the attorney satisfy his ethical duties without withdrawing from
representating either client? How?
As to a potential future conflict of ninterest, the attorney MAY satisfy his ethical duties without withdrawing from
representating either client BY FULLY DISCLOSING THE POTENTIAL CONFLICT AND ITS CONSEQUENCES and seeking informed written
consent to continue to continue representation from both clients.
25. As to an actual, present conflict of interest, may the attorney satisfy his ethical duties without withdrawing from
representing either client?
When there is an actual, present conflict of interest, the attorney may not continue to represent both clients under any
circumstances.
26. How is an actual conflict determined?
An attorney must not represent two parties in the same side of a case if a disinterested lawyer would conclude that they
should not consent because of a present, actual conflict between their interest.
27. IN addition to a conflict between multiple clients, an attorney may also have another kind of conflict. What is that, and
how is it defined?
IN addition to a conflict between multiple clients, an attorney may also have a conflict between his interests and that of
his client, such that his independence of judgment to fully act in his client's best interests may be compromised.
28. State the rule for 27 and the exception that permits continued representation of the client.
" An attorney must avoid acquiring personal interests that may affect independent judgment on behalf of the client, unless
the client gives informed consent and the transaction is fair and reasonable to the client."
29. The ABA code and the california code prohibit use of or revealing confidences and secret in a manner that harms or
embarrasses the client, with three exceptions:
1. to prevent a future crime likely to result in death or substantial bodily harm.
2. to protect the Attorney from civil or professional liability.
3. under court order.
30. The ABA Model code prohibist use of or revealing confidences and secret in a manner that harms or embarrasses the client,
with five exceptions:
1. to prevent a future crime
2. to protect the Attorney from civil or professional liability.
3. under court order.
4. prevent fraud upon the court.
5. in order to avoid sequestering real evidence of a crime
31. Bewtween what duty to the client and what duty to the court is there a tension that is repeatedly tested on the essay?
There a tension between the duty of loyalty to maintain aclient 's confidences and secrets and the duty of candor to the
court and this is repeatedly tested on trhe essays.
32. Can you envision a set of facts that would raise the issue of conflict of interest and confidences and secrets in the
same essay?
When an Attorney has during the course of representation of multiple clients learned confidences and secrets from them and
there later arises a present actual conflict of interest that requires the attorney to discontinue representing both clients.
Then the confidences he learned from the client he no longer represents would require that he also discontinue representing
the remaining client.
33. In general terms what does the duty not to overreach include?
Adverstising and solicitation.
34. What sorts of solicitation are prohibited under the ABA code?
ABA: The attorney shall not directly solicit because of the potential for overreaching and undue influence. Improper
solicitation that is prohibited includes:
Telephone.
Telegraph, letter or other writing.
Communications directed at a specific group.
35. California is more liberal than an outright prohibition, but it also forbids very specific activities. List California's
three rules regarding solicitation.
1. direct mail is permitted but must be clearly labeled as an advertisement on the envelope, even to former or present
clients, and must name the responsible attorney.
2. Advertisements cannot be transmitted in ways that involve intrusion, coercion, duress, compulsion, intimidation, threats
or vexatious or harassing conduct.
3. Forbidden activities include:
communication at the scene of the accident or en route to the hospital.
cappers( non-lawyers acting as agents to solicit business).
guarantees, warranties or predictions regarding the result of the representation.
36. State the two-sentence rule for the duty of competence and nane two duties it involves.
An attorney must act as a reasonably competent general practitioner. In matters requiring sophisticated or technical
knowledge, an attorney must demonstrate that degree of knowledge and skill required by trhe matter.
1. Duty to research the law.
2. Duty to research the facts.
37. State the rule for the duty of zealous advocacy.
An attorney must pursue his client's matter with vigor, tenacity and imagination, regardless of personal considerations.
38. What is the rule statement for the duty of Integrity to Opposing Counsel?
An attorney shall maintain the integrity of the profession. He has a duty to keep apponents informed and to treat them
fairly.
39. Duty of Candor to the court encompasses three issues. Name them.
1. Duty not to abuse the legal process (frivolous claims, improper delay).
2. Duty not to perpetrate a fraud upon the court.
3, Duty not to sequester real evidence of a crime.
40. How long may attorney retain real evidence?
An attorney may retain real evidence that has come into his possession for as long as it takes to conduct dicovery on it.
Then he must turn it over to the court.
41. In turning over real evidence to the court, what is the attorney's countervailing duty to his client?
An attorney must not turn over real evidence that came into his possession as a result of a client's confidence or secret in
a manner that harms or embarasses his client. Duty of candor to the court is in tension with duty of loyalty to the client.
42. When an attorney is aware that his client is perpetraing a fraud on the court, what 2 duties are in conflict and how does
the ABA Model and the ABA code address this?
The duty to the client to maintain confidences and secrets is in conflict with the duty to the court not perpetrate a fraud
on the court. The ABA Model says that the client's confidence can be breached to prevent a fraud on the court. The ABA Code
says that the client's confidence must be preserved and the attorney should seek to persuade the client to correct the fraud
and then, if he fails, to withdraw from representation if it can be done without prejudicing his clients interests. If it
cannot be done without prejudice, the attorney should not rely on the fraud in his arguments.
43. An attorney has a duty to disclose adverse authority to the court. What three items fall under this?
1. An attorney must disclose adverse law to the court.
2. Attorney's duty to disclose adverse facts is limited to facts about representation and the identity of the client and.
3. Information necessary to rectify a fraud.
44. If an attorney asks a non-lawyer to convey a settlement offer to the attorney's client, what two ethical duties has he
violated?
He has violated the duty of fairness, to communicate settlement offer and he has violated the duty to the profession to
engage in a conduct that will undermine the exclusive right of lawyers to practice law.
corp Posted Sunday, May 15, 2005 by mikvu
1.what is the rule of a director's duty of care?
1. reasonably prudent person.
2. using good-faith business judgment.
3. exercise reasonable care, including reasonable investigation.
2. What shield to a director's liability for violation of a duty of care should you examine first and what is that rule?
1. rational decision.
2. reasonable investigation.
3. no taint of self-dealing
3. What is the relationship between the business judgment rule and the duty of due care, and in what order should you
discuss them in your answer?
The business judgment rule is a shield against personal liability under the duty of due care. The duty of due care sets forth
procedural requirements that are fairly stringent. The business judgment rule will not delve into the substance of the
decision, so long as it was informed, not self-interested and minimally rational. Because the business judgment rule is more
easily met, discuss it first then the due care rule.
4. Give two common types of duty of loyalty issues.
Two common types of duty of loyalty issues:
1. Self-dealing.
2. Usurping a corporate opportunity.
5. When the board acts or votes, which issue is it, duty of care or duty of loyalty?
When the board acts or votes, the issue is always duty of care.
6. When you are examining duty of loyalty, you are examining the actions of how many directors?
Duty of loyalty involves the actions of an individual director (or officer).
7. What is a promoter and what duty does he have to the corporation-to-be-formed?
A promoter is a person who creates a corporation. He owes the corporation a duty of loyalty.
8. WHat is a promoter's liability to creditors, and what does it take to get the promoter off the hook, personally?
A promoter is personally liable to creditors, until the corporation and creditor rewrite the contract (novation) replacing
the promoter with the corporation, or unless the creditors intent at the time of the contract was to bind only the
corporation.
9. When does the corporation become liable for contracts enter into in its behalf?
A corporation becomes liable for contract entered into in its behalf after it is properly formed and it accepts the benefits
of the contract or ratifies it.
10. What three-part test excuses a director's conflict of interest.
Three-part test excusing a director's conflict of interest:
1. Disclosure of all facts regarding conflict to either board or shareholders.
2. Approved ( by majority of disinterested either board or shareholders).
3. OR fundamentally fair to corporation.
11. Name three circumstances that may make an opportunity a corporate opportunity.
three circumstances that may make an opportunity a corporate opportunity:
1. corporation has an interest or expectancy in the subject matter of the opportunity.
2. the oportunity is in the corporation's line of business.
3. fairness - unfair for directors to take the opportunity for himself.
12. Name four factors that make a court more likely to find that the opportunity are usurped.
1. offered to key player as acorporate representative.
2. key player learned of opportunity in his corporate role.
3. key player used corporate resources to take advantage of the opportunity.
4. key player was a full-time corporate executive.
5. opportunity was essential to the corporation's well being.
6. corporation i s public held.
7. corporation had the ability to take advantage of the opportunity.
13. If usurpation of a corporation opportunity is proved, what is the remedy?
The remedy for usurpation of a corporate opportunity is disgorgement of profits. The amount owed the corporation may be the
loss to the corpoaration or the profits it could have made. The actual form the remedy takes is a constructive trust.
14. What is a controlling shareholder and what two duties does a controlling shareholder have?
A controlling shareholder is one who owns a sufficient percentage of the shares of the corporation to use the assets of the
coporation as he chooses. In other words, he control the board vote. This may be as little as 30% of the shares, if the rest
of the shares are widely dispersed among many shareholders. A controlling shareholder has two duties:
1. duty not to sell to alooter.
2. duty not to sell the vote of the board for a premium.
15. In a public held corpoaration , does a controlling shareholder have a duty to minority shareholders?
No. In a public held corporation, a controlling shareholder has no duty to minority shareholders.
16. What sort of subject matter justifies calling a special board meeting?
Extraordinary business. This is generally the same types of matters that require higher than majority vote or the vote of
both shareholders and directors.
17. regular meetings of the board are scheduledin the by-laws. But for special meetings, what three requirements must be met
for actions to be valid?
1. Notice.
2. Quorum (generally , majority of directors) at time of vote.
3. Vote by majority of those present.
18. If the requirements are not met , what can later validate board actions at an invalid meeting?
1. Ratification - board confirms earlier action through proper procredure.
2. Estoppel -- corporation accepts benefits under contract invalidly entered into.
19. Name 5 proper matters for shareholder action.
1. Remove directors.
2. vote on fundamental changes (merger, sale of all assets).
3. vote to amend articles of incorporation.
4. inspect books and records.
5. Bring suit in behalf of corporation.
20. may a special shareholder meeting be called , and for what purpose?
A special shareholder meeting may be called for any purpose that is a proper subject subject of shareholder action.
21. What is the test to determine if a matter is proper for a shareholder derivative suit?
The test to determine if a matter is proper for a shareholder derivative suit is that the harm flows directly to the
corporation , not the individual shareholder. The primary two harms to the corporation are vilations of duty od care and duty
of loyalty.
22. CAn you think of three things that might be a direct harm to the shareholder?
1. Refusal to pay a dividend after one has been declared.
2. Refusal to permit a shareholder to inspect the books.
3. Staggering the terms of the board , thus undermining cumulative voting rights.
23. Name five matters that require approval of both directors and shareholders and/or require higher than a majority vote.
1. Sale of all or substantially all corporate assets.
2. merger.
3. amendment of articles.
4. voluntary dissolution.
5. liquidation of assets
24. Define proxy voting.
Shareholder may appoint another shareholder to cast their vote at the shareholders' meeting. Only shareholders may vote by
proxy; not directors.
25. Define proxy contest.
A proxy contest is a competition for shareholders' proxies on a specific matter. The most common matter is when a dissident
group of shareholders put up a competing slate of directors to replace the corporation 's slate of directors.
26. Define cumulative voting.
cumulative voting is a mean of computing shareholder votes for board of directors. A shareholder has the number of votes
that is the product of his number of shares multiplied by the number of director positions being voted upon. Its purpose is
to amplify the influence of minority shareholders.
27. Cumulative voting is limited to voting about what?
cumulative voting is limited to voting about the board of directors.
28. What effect would staggering the terms of the board on cumalative voting?
Staggering the terms of the board would dilute the power of minority shareholders under cumulative voting. Board decisions
that dilute cumulative votong are subject to challenge if the articles guarantee cumulative voting. If a board staggers the
terms of directors as a defensive maneuver to prevent hostile takeover, it will be tested by the test discussed in 33.
29. Define preemptive rights.
The right to maintain the same percentage of shares of a given class of stocks.
30. To what do preemptive rights apply?
Preemptive rights apply to new offerings of the same class of stock as the shareholder owns.
31. To what do preemptive rights not apply?
preemptive rights not apply to:
1. Payments for services or property.
2. Payments of debts.
3. reissuance of treasury stock.
4. Stock of a different class.
5. Previously authorized but unissued stock.
6. Stock issued as payment to employees.
32. Define stock repurchases and 3 conditions making a stock repurchase invalid.
Stock repurchases are when the corporation repuchases the shares of a shareholders.
They are invalid where:
1. the corporation paid too high a price.
2. The corporation did not extend the opportunity to sell back shares to all shareholders.
3. Repurchasing the shares renders the corporation insolvent.
33. when the board takes a defensive step to deter hostile takeover, how is the validity of the action judged?
The board's defensive step to deter a hostile takeover is judged by a heightened business judgment test (if combines aspect
of due care with conflict of interest rules):
1. Board had reasonable grounds for believing ther was a danger to the corporation's welfare.
2. The response is reasonable in relation to the threat posed.
3. good faith and reasonable investigation by.
4. Independent directors (not full-time employees and not closely affiliated with management).
34. Why was 10(b)(5) enacted , when there is a tort of misrepresentation?
Because the tort of misrepresentation does not cover material ommissions and requires face-to-face transaction between buyer
and seller, which is hardly ever the case since trading is done through exchanges.
35. List 4 requirements for 10(b)(5) that are always present.
1. use of instrumentality of interstate commerce.
2. P was puchaser or seller (or the SEC).
3. D was insider.
4. D made a material mistatement or omission.
36. Can there be liability under 10(b)(5) insider trading even without trading? Under what circumstances?
There be liability under 10(b)(5) insider trading even without trading, where an insider makes an affirmative
misrepresentation (not simply an omission) at a press conference.
37. In addition to an insider trading, 10(b)(5) also covers trading by someone who learned the inside information by an
insider. What is this called?
tipper-tippee liability.
38. What requirements must be present for liability as a tipper? (requirements for 10b5).
1. use of instrumentality of interstate commerce (can be the trade itself).
2. P was purchaser or seller (or the SEC).
plus:
3. tipper is an insider.
4. Who conveyed material inside information.
5. for monetary or reputational gain.
39. What requirements must be present for liability as a tippee? (requirements for 10b5).
1. use of instrumentality of interstate commerce (can be the trade itself).
2. P was purchaser or seller (or the SEC).
plus:
3. tipper knew the tipper was an insider.
4. Who conveyed material inside information.
5. tipper had scienter -- he conveyed the information for monetary or reputational gain.
40. can a tippee be liable if the tipper had no scienter?
No. A tippee cannot be liable if the tipper had no scienter.
41. Under 16b, there is strict liability for buying and selling 9or vice versa) within six months if the following three
requirements are met.
1. The defendant is an officer, director or 10% shareholder in the corporation whose stocks are traded.
2. The corporation is listed on a national syock exchange or has assets greater than $10 million and 500 or more shareholders
in a single class of stock.
3. the defendant both bought and sold or sold and bought within 6 months.
42. In a close corporation , there are 2 special arrangements regarding voting. Name them.
shareholder pooling agreements and voting trusts.
43. What are the requirements for a valid voting trust?
1. In writing.
2. Disclosed to all sahreholders.
3. Formal transfer of ownership of stock.
4. limited period of time.
5. For proper purpose (improper is to establish minority control or to prevent minority from electing any directors).
44. What are the requirements for a valid shareholder pooling agreement?
1. DOes not operate as an oppression or fraud on minority shareholders or directors.
2. Is only on innocuous variance from the director's unlimited discretion in decisionmaking
45. Name two circumstances where shareholders are entitled to a dividend.
Shareholders are not entitled to dividends, unless a dividend has been declared or unless witholding the dividend is an
oppression on the minority, as in a squeeze-out.
46. When the defendant board files a motion for security for costs , what is the actual issue?
When defendant board files a motion for security for costs, the actual issue is whether it is a proper matter for shareholder
derivative suit.
47. Under what circumstances will a court step in to disolve a corporation?
A court will step in to dissolve a corporation only if it is hopelessly deadlocked.
48. Under what circumstances will a court step in to remove a director?
A court will step in to remove a director to prevent fraud.
49. Under what circumstances will a court pierce the corporation veil? What issue is being tested?
A court will pierce the corporate veil where the formalities of corporate decisionmaking have been ignored. The issue being
tested is holding an individual director (or another corporation) personally liable for the puppet corporation's debts.
50. Who is a key player?
A key player is an officer, director or controlling shareholder. This term is used in relation to self-dealing.
51. What is the test for self-dealing?
1. key player.
2. influences corporation's decision.
3. key player's interests are at least potentially in conflict with that corporation.
civ procedure Posted Saturday, May 14, 2005 by mikvu
1. There are two kinds of jurisdiction. What are they?
Personal and subject matter.
2. What is the type of jurisdiction that relates only to federal courts?
Subject matter jurisdiction relates only to federal courts. State courts are courts of general jurisdiction; there are no subject matter limitations on state court jurisdiction.
3. Give the two grounds that give rise to federal court jurisdiction.
Diversity and federal question.
4. Name the three types of matter that are within federal question jurisdiction.
a. the U.S. Constitution.
b. a federal treaty.
c. a federal statute.
5. Name the two requirements for federal diversity jurisdiction.
1. Complete diversity of citizenship between Ps and Ds (no D can reside in the same sate as any P).
2. Amount in controversy of more than $75,000.
6. What is it called when the defendant wants a case that has been filed in state court to be heard instead by a federal court.
Removal.
7. What must be defendant prove in order to get the federal court to the case?
D must prove that the matter, as it stands now ( with any added claims or parties) could have been filed originally in federal court. That is, the federal court had original subject matter jurisdiction.
8. When the defendant's theory for the federal court taking jurisdiction over a matter that P filed in state court is based on diversity of citizenship, the defendants must prove two additional things. They are:
All Ds must join in the motion to remove and no D must reside in the state of the state court that now has jurisdiction.
9. Where a federal court has taken jurisdiction over a matter that P filed originally in state court, and P wants the matter to returned back to the state court?
Remand.
10. Where the federal court took jurisdiction based on a federal question, what P must prove for the federal court to send the matter back to state court.
P must prove that there is or remains no substantial federal question in the suit. Where there had been a federal question which has been resolved, the federal court may retain at its discretion. It is not mandatory that the federal court remand the case.
11. Where federal court took jurisdiction over a matter originally P filed in state court based on diversity of citizenship, what must P prove for federal court to send back the matter to state court?
That the requirements of diversity jurisdiction are not present, either because diversity was achieved collusively or the amount in controversy is not actually met. Remand is mandatory where the federal court never had jurisdiction over the matter.
12. Certain matters can be heard by a federal court even though they do not independently meet the federal court's subject matter jurisdiction. What is it called?
Supplemental jurisdiction (formerly ancillary and pendant).
13. When the federal court has jurisdiction based on a federal question what is the standard for whether an additional non-federal claim may be heard by the federal court?
The federal court may hear any closely related state matter. The standard is whether it derives from a nucleus of operative facts.
14. When a federal court has jurisdiction based on diversity, what three types of additional matters may be heard by the federal court, without independently meeting the requirements of diversity jurisdiction?
1. compulsory counterclaims.
2. cross-claims.
3. Impleader.
15. What is a compulsory counterclaims?
A compulsory counterclaim is a claim by the opposing party that must be raised in the same suit, if it is not raised, it is lost forever.
16. What is the relationship of compulsory counterclaim to res judicata?
The relationship of compulsory counterclaim and res judicata is that if a claim is compulsory, it is lost if not raised in the same suit. It is lost because it is barred by res judicata. So re judicata is the theory that will bar later litigation of a compulsory counterclaim.
17. What is a cross claim?
A cross claim is a claim against a co-party (as opposed to an opposing party). For example, Defendant 1 files a cross claim against Defendant 2.
18. Is a cross claim ever compulsory?
A cross claim is never compulsory.
19. What does compulsory mean, in the context of compulsory counterclaim?
Compulsory means it must be brought or it is forever lost. The reason the claim
20. What is impleader, and name three types of matters that are within the definition of impleader.
Impleader is joinder by D of another D on the theory that the person joined is or may be liable to the original D for all part of any judgment P may be awarded against the original D.
Three types of matters that fall within the impleader theory are products liability suits where D joins another D who is in the retail chain; subrogation where D joins his insurance company, claimimg he is covered by insurance and that the claim falls within the insurance company's obligation to pay, and idemnification, where D and the party D joins have a contractual relationship obligating the newly joined party to reimburse D for liability (as where P sues the employer for tortious acts of the employee, and the employee is obligated to reimburse the employer the amount P recovers).
21. Id D joins a new party as a defendant , claiming that matter cannot be fully adjudicated without the new party's presence, what is that theory of joinder called, and is it granted supplemental jurisdiction.
It is called necessary and indispensable party. It is not granted supplemental jurisdiction.
22. What must D prove to show the new party he seeks to join is necessary?
1. Complete relief cannot be granted to the parties before the court in the absence of necessary party OR.
2. In the absence of the necessary party, the existing parties would be subjected to multiple or inconsistent obligations.
23. If D is able to prove to show the new party is necessary , what must the court do? What if it can't do that?
The court must join the necessaru party, if possible. If the party is not subject to the court's reach (service) or if joinder of the paty would destroy the court's diversity jurisdiction, then the court must decide whether it must dismiss the entire matter.
24.What factors does the court use to determine the appropriate course of action if the party D seeks to join is necessary but can't be joined?
The court uses factors to determine whether it must dismiss the entire matter or whether it can shape or limit the relief:
1. extent of prejudice to existing parties if the suit is retained.
2. ability to fame or limit court's relief.
3. adequacy of the remedy the court can grant in the absence of the necessary party.
4. ability of P to get an adequate remedy if the actionis dismissed ( has the statute of limitation run? Can P sue D in a sate court and gain jurisdiction over him?)
25. If D seeks to join a new party as a defendant, he may be doing so under one of two theories. Name both . Are either of them granted supplemental jurisdiction?
D may be joining a new D under the theory of necessary party or under the theory of impleader. Impleader does carry with it supplemental jurisdiction; necessary party does not.
26. What is personal jurisdiction traditionally based on?
Presence in the forum state or consent
27. Under long-arm statutes, the jurisdiction of courts has been extended. name five theories that permit a court to excersise jurisdiction over a party?
1. implied consent, such as use of state highways.
2. state interest , such as committing a tort in another state the consequences of which are suffered in th forum state.
3. placing a product in the stream of commerce such that it is reasonably likeely that it will rech the forum state.
4. purposeful availament -- acts directed toward the forum state to sel product or service in the forum state.
28. Even after a theory of long arm jurisdiction is found, there are two other requirements in order to establish personal jurisdiction, based on long-arm statute. name all three:
Personal jurisdiction requires:
1. basis for long arm jurisdiction (see answer to 27 above), plus:
2. that the subject matter of the suit arises out of the basis for jurisdiction. If it does not, that the party who is sought to be joined as a systematic and continuous contacts with the forum and.
3. It does not offend notion of fair play for the court to hail this D into court ( Asahi).
29. Even though a court has both personal and subject matter jurisdiction, the defendant may move to change courts. What is this theory and waht three places are proper?
Venue is the logical relatioship between the parties and subject matter and the place of trial. Venue is proper where:
1. D resides (if all Ds are citizens of the same state) or.
2. The events in the suit occured or.
3. Where any D is subject to personal jurisdiction.
30. Even where there is personal jurisdiction and proper venue, there may be a beter location of a court to hear the matter. What is this called and what are factors the court will look at to determine if there is a more convenient court?
Forum non conveniens is based on such factors as.
1. covenience of parties.
2. location of the witnesses and evidence.
3. ability of the court to compel attendance of witnesses.
4. cost to the parties to compel witness attendance.
5. ability nof jury to view scene.
6. interest of the state in providing a forum.
7. burden on the court (backlog, jury duty).
8. familiarity of the court with law to be applied
31. To what types of suits does the Erie Doctrine apply?
The Erie Doctrine appies to suits in federal court based on diversity of citizenship.
32. What did the Erie case actually Say?
The Erie case actually said when a suit is infederal court based on diversity of citizenship , the court should apply state sustantive law and federal rules for procedure.
33. what two situations under Erie are clear as to the law to be applied?
What two situations under Erie are clear as to the law to be applied? Where there is a state substantive law, apply state law; where there is a federal rule governing procedure that is directly on point, apply the federal rule.
34. When there is a conflict between a federal rule and a sate policy? What two things does the court ask?
1. Is the federal rule ndirectly on point?
2. Does the federal rule enlarge , abridge or modify a sate substantive right.
If yes to 1 and no to 2, apply the feeral rule. No federal rule has ever been found to enlarge , abridge or modify a sate substantive right. However, court have held that the federal rule in question was not directly on point and have refused to apply federal rule on that basis.
35. If there is no federal rule and no sate statute, what are the two things the court balances?
If ther is no federal rule and no state statute, the court engages in a rough balancing.
1. If ther is a strong federal policy and a weak state interest, the court applies the federal policy. (Note thatb the twin policies of Erie, to prevent forum shopping and to prevent prejudice against out of state litigants, will always be present, wnd will always provide a strong federal interest.).
2. If a state substantive right is only incidentally affected , and the FRCP is reasonably necessary to maintain the integrity of the federal court system, the federal rule is applied.
36. What is ine issue in which the state interest has been found to be strong such that state law, even though not substantive , is applied.
state statute limitations.
37. Name three kinds of matters (claims or joinder) that use the standard , same transaction or occurence.
Same transaction or occurence is used for:
1. compulsory counterclaims
2. cross claims.
3. permissive joinder of parties..
38. In addition to same transaction or occurence, what is the other requirement for permissive joinder?
Permissive joinder also requires common question of law or fact.
39. Aside from including latin words what do res judicata and collateral estoppel have in common?
40. What's different about res judicata and collateral estoppel?
Res Judicata bars relitigation of an entire suit. Collateral estoppel prevents relitigation of an issue is a suit that has been previously determined.
41. What is the test for res judicata?
1. Identity of parties.
2. Matter was actually adjudicated or should have been adjudicated in the prior suit.
3. Final judgment on the merits.
42. Name two types of matters that are addressed by res judicata.
Res judicata addresses compulsory counter claims (matters which should have been adjudicated, but were't and are now barred) and claim-splitting (damages which are considered merged, even though not claimed, in a previous suit arising out of the same transaction or occurence). In sum, re judicata covers merger and bar.
43. What is the test for collateral estoppel?
Collateral Estoppel:
1. The party against whom it is asserted was a party in the first action;
2. The issue was actually litigated, and necessary to the first judgment; and
3. Same issue of law or fact.
44. When the plaintiff seeks to assert collateral estoppel against the defendant, what 's that called and what factors does the court use to decide whether to permit its use?
44. It is called offensive use of collateral estoppel as a sword. The court uses 5bfactors to determine whether to permit the plaintiff to assert it:
1. was the defendant a defendant in the first action? If so, never voluntarily before the court. Operates against allowing its use.
2. Did P know about the first suit against D, and deliberately sit it out, waiting to see who won? Operates aginst use.
3. Is it a matter for the jury? Courts like to let juries decide matters within their domain afresh. This cuts against use of collateral estoppel as a sword.
4. Similarly, it is a question of fact. Courts want the finder of fact to determine question of fact, rather than be forclosed from it by a previous judgment. This cuts against use of collateral estopel as a sword.
5. Did D have the same incentive to fully litigate in the first action? If he did, then this would permit collateral estoppel to be used against him.
45. What term describes the privilege accorded attorney work product? Under what circumstances can the opponent discover work product?
Attorney work product is qualified privileged. It can be discovered where:
1. It is unobtainable elsewhere without undue expense.
2. Party seeking discovery has a substantial need for the information.
46. When is attorney product absolutely privileged?
46. Attorney work product is absolutely privileged if it contains the mental impressions, conclusions, opinions or legal theories of an attorney.
47. When is ther a right to a jury in a civil case?
47. There is a right to a jury trial where there are legal issue, i.e., claims for damages
48. What does a motion for summary judgment represent? What is the motion based on? When is it made?
Motion for summary judgment states that there is no genuine issue of material fact or, taking the facts in the light most favorable to the non-moving party, the movant is entitled to judgment as a matter of law. It nis based on the pleadings, results of discovery and affidavis. It is generally made pre-trial.
49. What is the standard for a motion for judgment as a matter of law? when is it made?
Motion for judgment as a matter of law states that considering all the evidence in the light most favorable to the non-moving party, reasonale persons could not disagree about the verdict. It is made at the close of plaintiff's case or at the close of all evidence.
50. What is the standard for a motion for a new trial?
Motion for a new trial is granted if the verdict was against the weight of the evidence, excessive or seriously erroneous.
Community Property Posted Thursday, May 12, 2005 by mikvu
CP
1. What is the basic assumption regarding property acquire dduring marriage?
The basic presumption is property acquired during marriage is community property.
2. What are the two exceptions to that basic assumption?
the two exceptions are gifts and bequests.
3. How can the presumption to be rebutted.
The presumtion that property acquired during marriage is community property may be rebutted by simple tracing.
4. What is the presumption regarding form of title?
Form of title creates a presumption of characterization.
5. When will the court refuse to use the presumption regarding form of title?
the court refuse to use the title presumption when title to CP was taken in the name of one spouse, the spouse now asserting
the title presumption. In other words, when the title presumption would be self-serving.
6. What is the presumption regarding the characterization that can be determined from the source of the property?
Character follows source.
7. What is the presumption regarding earnings during marriage?
Earning during marriage are community property.
8. Name thrree other sources of income that are treated as earnings substitutes:
1. Disability benefits.
2. Severance pay if it is intended to substitute for future earnings.
3. Worker's compensation.
9. What rules governs the right to collect a pension that is earned partially during marriage and partially before (or after)
marriage?
Pension are governed by the time rule. The denominator is the total number of years to earn the pension. The numerator is the
total number of those year during which the marriage existed.
10. Name three other kinds of assets that this same formula applies to:
Time rule formula applies to:
1. insurance paid for by CP or employer as job benefit
2. stock option
3. installment sale contracts.
11. What 's the general rule regarding personal injury awards or judgments for injuries that occur during marriage.
personal injury awards or judgments for injuries that occur during marriage are treated as CP during marriage, but awarded to
the injured spouse at divorce.
12. What are the two exceptions to this rule?
1. Interests of justice (future income disparity or costs borne by community). In no case should injured spouse get less
than half the personal injury.
2. Personal injury commingled with CP, it cannot be traced back unless the personal injury funds can be clearly identified.
If the funds are inextracably commingled, tracing will not be permitted.
13. What kind of property can be commingled and what does commingle mean.
Fungible assets, like cash, can be commingled. Commingling means mixing SP assets and CP assets, usually in a bank account.
14. What is always the character of property after it has been commingled?
commingled property is always CP.
15. What can be used to rebut this character presumption?
Tracing can rebut the CP presumption.
16. What spouse manages and controls the CP?
Both spouses have equal management and control over the CP.
17. What doctrine limits the ability of a spouse to commandeer community asset in a way that harms the other spouse's
interests?
Spouses owe each other fiduciary duties. A breach of that fiduciary duty permits a cause of action for an accounting and for
the value of the asset to be returned to the CP.
18. What can a spouse do about a gift or transfer for less than fair market value of CP?
The non-gifting spouse may void a gift or transfer for less than fair market value of CP.
19. What the gifting spouse in # 18 dies, what effect does that have?
When the gifting spouse in # 18 dies, the gift is treated as a tetamentary bequest. Since each spouse has the ability to
bequeathe one half of the CP, the non-gifting spouse may only void to the extent of one half the value of the gift, that
represents the non-gifting spouse's one half interest in the CP.
20. What difference does it make if the property one spouse gives away is SP used as a family dwelling, or personal clothing
or CP household items?
The non-gifting spouse may void at any time gifts by the other spouse of SP used as a family dwelling, or personal clothing
or CP household items. That is tosay, the death of the gifting spouse is not trated as a testamentary bequest.
21. What rule applies to conveying CP real property?
When Cp real property is conveyed, it requires the written consent of both spouses.
22. If the conveyancing rule is not met, what are the non-gifting spouse's rights to avoid a conveyance of CP real property?
The non-consenting spouse can void the sale within one year of the conveyance of CP real property.
23. What if the purchaser of the CP real property were BFP (with no notice)?
If the purchaser of CP real property conveyed without both spouse's signatures was a BFP (with no notice), the non-consenting
spouse must reimburse the BFP the purchase price.
24. What can the other spouse do if his spouse encumbers CP for a SP debt?
Encumbrances on CP by a SP debtor spouse may be entirely voided by the non-consenting spouse.
25. What is the definition of transmutation?
A transmutation is an action changing title of property.
26. What does a transmutation require?
A transmutation requires a writing, after 1/1/85.
27. Do gifts of relatively insubstantial value require this, too?
Personal gifts of relatively insubstantial value are an exception to the writing requirement.
28. When either spouse uses CP to contribute to SP real property, what is the rule regarding reimbursement?
CP contribution to SP real property are entitled to pro-rata reimbursement, or actual dollars reimbursementr, whicever is
greater.
29. Does it matter whether the spouse using the CP was the SP owning spouse?
No. It does not matter whether the spouse using the CP was the SP owning spouse. It requires reimbursement in either case.
30. Does it matter whether the contribution is only for maintenance?
No. the CP is always entitled to reimbursement, regardless of whether the contribution was for an improvement or only for
maintenance.
31. If an SP owing spouse contributes SP to improve CP real property, what is the rule regarding the classification of the
contribution and reimbersement on divorce?
If an SP owning spouse contributes SP to improve CP real property, it is considered a gift. However, the SP is given actual
dollar reimbursement on divorce. (If there is awriting proving the intent to preserve the SP character of the gift, then the
SP is given pro-rata reimbursement.
32. If an SP owning spouse contributes SP to maintain or pay taxes on CP real property, what is the rule of the regarding
the classification of the contribution and reimbersement on divorce?
It is a gift, there is no reimbursement to the SP for maintenance or taxes to the CP real property.
33. If an SP owning spouse contributes SP to improve CP real property, what is the rule regarding the classification of the
contribution and reimbersement on death?
The former case , the Lucas rule, applies. It is treated as a gift with no reimbursement, unless the SP contributing spouse
intended to reserve SP character of the gift. Then the SP is reimbursed pro-rata.
34. What property may a creditor of one of the spouses (SP debt) reach?
An SP creditor may reach all property over which the SP debtor has management and control: his own SP, the CP, and QCP.
35. Are there any exceptions?
The no-debtor spouse's earning if kept in a separate account titled as SP and not commingled with any other CP are not
subject to the reach of a creditor of debtor spouse.
36. Can CP be reimbursed if it is used to satisfy an SP creditor?
CP is reimbursed if it is used to satisfy an SP creditor from the debtor spouse's SP.
37. What property may a CP creditor reach?
A Cp creditor may reach CP or QCP.
38. What difference does it make if the debt is for medical necessaries of one spouse?
Spouses have an obligation to provide medical necessaries of other spouse. The CP and even the SP of the non-debtor spouse
are reachable.
39. Does the obligation to provide medical necessaries extend after separation?
The obligation to provide medical necessaries extends after separation until there is a formal property settlement agreement
reached.
40. If the other spouse pays out of his own SP for medical necessaries of the other spouse, is he entitled to reimbursement?
The non-debtor spouse who pays out of his own SP for medical necessaries of the other spouse is entitled to reimbursement if
there were debtor SP funds available to pay the debt at the time it was acquired.
41. When a creditor is a tort creditor, he may reach the same sources of property, but rules apply to the order in which he
may reach those sources of property. What are those rules?
The order of satisfaction of a tort creditor depends on whether the tort is classified as an SP tort or a CP tort. If it is
an Sp tort, the creditor must satisfy the debt first out of Sp of tortfeasor spouse, then QCP of the tortfeasor spouse, and
last CP.
If It is a CP tort, the creditor must first satisfy the debt from CP, then QCP, then SP of the tortfeasing spouse. This order
of satisfaction applies only to tort creditors.
42. What is a prenuptial agreement and what are the requirements for a valid one?
A prenuptial agreement is an agreement before marriage as to the characterization of the marital property. It requires a
writing. An executed oral agreement will also be enforced.
43. What are exceptions prevent enforcement of a prenuptial agreement?
1. agreements that promote divorce.
2. agreements that alter the duty to support.
3. agreements induced by coercion where the value or extent of assets was not disclosed.
44. When a spouse works in the spouse's own business during marriage, how is the community compensated for the lack of
salary, on divorce?
Where a spouse works in an SP business, the community is entitled to a portion of the appreciation in the value of the
business as earnings.
45. What is the Pereira rule and when does it apply?
Pereira applies when the cause of the appreciation in the business is due primarily to the skills or talents of the
business-owning spouse. It gives the initial investment and a reasonable return on investment to the SP and all the remaining
appreciation in value is awarded to the CP.
46. What is the Van Camp rule and when does it apply?
Van Camp applies when the cause of the appreciation in the business is due primarily to the nature of the business itself or
the economy. It gives the CP a reasonable salary comparable to what the spouse would earn doing the same job as an employee,
and the rest is SP
47. What is quasi- community property?
Quasi community property is property that was acquired when the marriage was sited in another state that would have been
community property had the marriage be sited in California at the time the asset was acquired.
48. How is QCP trested during the marriage and lifetime of both spouses?
QCP is treated as the SP of the spouse that acquires the asset, during the marriage and during lifetime of both spouses.
49. What is the one exception?
QCP is treated as CP for purpose of creditors.
50. What interest does the other spouse have if the QCP-titled spouse dies?
If the QCP-titled spouse dies, the QCP is treated as CP. (If the spouse who dies is not the owner of the QCP, then the
deceased takes no interest in the QCP).
51. What rule governs reimbursement to the community for the costs of education?
The costs of an education paid for by CP are reimbursable to the CP, unless the marriage continues for 10 years or more after
the end of the education. In that case, the CP is presumed to have been reimbursed.
52. When a federal law controls an asset, what's that called? name two types of assets this rule applies to, and two that are
exceptions?
Federal Law preempts state community property law. Preemption applies to social security and savings bonds. Preemption does
not apply to ERISA or military pensions.
53. What effect does a disolution with a formal property settlement have on bequest in the will to a former spouse?
A disolution with a formal property settlement serves to revoke bequests in the will to the former spouse, by operation of
law.
54. What is the definition of a putative spouse?
A putative spouse is one who has a good faith belief that she or he is validly married when in fact there is no valid
marriage. Only one spouse need have this belief for the putative spouse rules to apply.
55. How does California treat title to the property in a putative spouse situation, when that property would be community
property if they had been married?
Property which would be CP if the marriage had been valid is called quasi-marital property. California courts are split on
how to treat it. Some courts treat it as CP. Other courts treat it as tenancy in common. Other treat it as the separate
property of the acquiring "spouse", but with a ossible award in equity to the other "spouse". Only one who had a good faith
belief can receive relief as a putative spouse.
Evidence Posted Monday, May 9, 2005 by mikvu
Evidence
1. What four-part checklist should you apply to every interrogatory?
1. Form.
2. Logical relevance.
3. Substantive issue.
4. legal relevancy.
2. What four issues does the substantive issue break into?
1. Hearsay.
2. Opinion.
3. Impeachment.
4. Character.
3. How do you know when there is a form issue?
When there is a question of a witness on the stand. There may or may not also be an answer.
4. Give four common types of form problems.
1. Leading.
2. 2. Compound.
3. Argumentative.
4. Non-responsive answer.
5. What two types of situations raise the Best Evidence Rule?
1. When the contents of the document are at issue.
2. When the witness’s only knowledge of the matters about which he is testifying depend on the document.
6. Name three exceptions to Best Evidence rule that do not require the original
1. Voluminous records exception.
2. Ancient documents.
3. certified copies of public records.
7. Does testifying from present memory trigger the Best Evidence rule?
No.
8. Does past recollection recorded trigger the Best Evidence rule?
Yes. Even though the document is merely read into the record in past recollection recorded, the contents of the document are at issue, so it requires satisfying the Best Evidence rule.
9. Does official record or business record trigger the Best Evidence rule?
Yes.
10. Define logical evidence.
Evidence is logically relevant when it tends to prove or disapprove a material fact in issue.
11. What‘s a “material fact in issue?”
A material fact in issue is one that must be proved to prove the claim of a party.
12. The difference between logical relevance and legal relevance is this: Although evidence may be probative, it is too Prejudicial. To be admitted. ( logical relevance = probative; legal relevance = prejudicial).
13. Define hearsay.
Hearsay is an out-of –court statement offered for the truth of the matter stated.
14. Define non-hearsay.
Non-hearsay is evidence that is not hearsay. It includes non-assertive conduct, statements that has a significance other than proving the truth of the matter stated, and statements coming in for another purpose, as to impeach.
15. Name four issues that are non-hearsay.
1. Admission (under the Federal Rules).
2. Statements to show the effect on the hearer.
3. legally operative acts or facts.
4. State of mind (beliefs).
16. Define admission.
An admission is a statement by a party that contradicts or undercuts his claim at trial.
17. Define a declaration against interest.
A declaration against interest is a statement by a non-party who is unavailable at trial that was against his penal, tortuous or contractual interest at the time the statement was made.
18. Define a legally operative act or fact.
A legally operative act or fact is an act or a fact that has a legal effect, independent from the truth of the statement. Examples; contract offers, grants of licenses.
19. Define a statement to show the effect on the hearer.
A statement to show the effect on the hearer is a statement that is necessary to show what the hearer was reacting to. It is the hearer’s reaction that is important, not whether the statement is true.
20. Define state of mind.
A statement showing state of mind is a statement that shows the speaker’s belief. It is admissible to show that is what the speaker believed not that the statement is true. Example: “I am the Pope”.
21. Name three variations on admissions
1. Vicarious admission.
2. Adoptive admission.
3. Implied admission ( admission by conduct or silence).
22. Define a vicarious admission.
A vicarious admission is a statement that contradicts a party’s claims at trial by a person who stands in such relation to the party that the statement can be attributed to the party. The most common example is employee for employer.
23. Define an adoptive admission.
An adoptive admission is a statement contradicting the party’s claims at trial, made by a party who is quoting what someone else said. By repeating it, the party is indicating he believes the statement.
24. Define an implied admission.
An implied admission is conduct or silence by a party under circumstances where a reasonable person would be called upon to correct the misstatement or accusation.
25. What is the relationship between a statement to show the effect on the hearer and an implied admission?
They are frequent coupled as double hearsay. The misstatement or accusation is admissible to show the effect on the hearer. The hearer’s nonverbal response or failure to respond is an implied admission.
26. Why is hearsay generally inadmissible?
The statement was made outside of the courtroom and usually the declarant is not in court subject to cross-examination, so the statements are untrustworthy..
27. What makes heasay exceptions admissible?
Hearsay exceptions are statements made under circumstances that increase the likelihood that the statement made was true.
28. State the rule for excited utterance and say why it is likely to be true.
An excited utterance is:
1. A statement made shortly after an exciting event.
2. About the event.
3. While the declarant is still under stress from the exciting event.
It is likely to be true because the declarant has not had time to fabricate following the stressful event.
29. State the rule for a dying declaration, both FRE and common law and say why it is likely to be true.
A dying declaration is:
1. A statement made in the belief death is imminent.
2. About the cause of death.
3. Declarant in fact died (common law) or is unavailable (FRE)
It is likely to be true because our society believes people want to clear their consciences before they die.
30. What is the rule for business record and why is it likely to be true?
1. By a business.
2. Made in the regular course business.
3. By one with a duty to record.
4. Who has personal knowledge.
5. At or near the time of the event.
6. Authenticated.
It is credible because it is a record made in themordinary course of the business. Police reports and police lab reports are considered business records. When offered against D in a criminal trial, the person making the report must take the stand at trial and be subjected to cross-examination.
31. An official record is a written record:
1. By a public agency.
2. Within the activities of that agency.
3. By one with a duty to record.
4. Who has personal knowledge.
5. At or near the time of the event.
6. Self-authenticating.
It is credible because it is a record made in the ordinary course of the public agency.
32. Past recollection recorded.
1. Witness on stand has no present recollection.
2. Record made when the events were fresh.
3. Recorded by the witness or under his direction.
4. Witness confirms the writing was true when made.
5. Witness authenticates the writing.
It is credible because the person who wrote the document is on the stand in court and subject to cross-examination.
33. Scene of the accident hearsay issues:
1. excited utterance.
2. admission or declaration against interest.
3. dying declaration.
4. present sense impression.
34. What is the rule for former testimony and why it is likely to be true?
1. Made under oath.
2. Party against whom it is offered was aparty in the former tribunal.
3. Party against whom it is offered had a similar motive and opportunity to dispute the statement in the former tribunal.
4. Declarant is unavailable for this trial.
It is credible because it was made in court under oath.
35. define absence of an entry in a business or official record and state what it is admissible to prove.
36. Define occurrence or happening of similar events and state what it is admissible to prove.
Happening of similar events.
Condition were substantially similar.
Admissible to show notice, existence of a defect, causation, knowledge or risk.
37. Define lay opinion and name five matters that are admissible as lay opinion.
Lay opinion is matter that is commonly within the experience of a lay person and about which a lay person has the ability to perceive and to judge.
1. handwriting.
2. voices.
3. distances.
4. sanity.
5. drunkenness.
38. define expert opinion.
Expert opinion is testimony by a properly qualified expert that is:
1. helpful to the jury and.
2. based on the kind of evidence a similar expert would reasonably rely one.
39. What is the purpose of impeachment and,in general, what two forms does impeachment take?
The purpose of impeachment is to undercut the credibility of a witness’ testimony. Impeachment can attack the credibility of the ewitness or contradict the substance of the witness’ testimony.
40. When an examiner is contradicting a witness’s testimony, under what circumstances must that be done on cross examination of the witness?
Contradicting the substance of a witness’s testimony must be done on cross-examination of that witness if the matter is collateral (not concerned with an issue that must be provided at trial).
41. Two other forms of impeachment can only be done by cross examining the witness on the stand. What are they?
Must be done on cross examination:
1. prior specific acts of misconduct.
2. Basis of witness’s knowledge when witness is a character witness for D in a criminal trial.
42. Name five other bases for attacking the credibility of the witness.
1. Bias, motive.
2. Perceptual or memory deficit.
3. reputation for or opinion about honesty.
4. Crime conviction (involving honesty or FRE, any felony within 10 years).
5. Prior inconsistent statements.
43. When is character evidence admissible in a civil trial?
Character evidence is admissible in a civil trial only when that character trait is at issue (must be proved to prove an element of the case or defense). Examples: defamation; negligent entrustment; in self-defense, plaintiff or victim’s propensity for violence.
44. State the general rule for the admissibility of character evidence in a criminal trial.
Generally, character evidence is never admissible in a criminal trial to prove probable conduct on this occasion.
45. State the four purposes for which character evidence is admissible in a criminal trial.
1. Good character of criminal D or bad character of victim in criminal trial.
2. probable conduct in criminal trial where crime is sexual assault, rape, child molestation.
3. To prove something other than probable conduct, such as: motive, intent, absence of mistake, modus operandi, common plan or scheme, preparation, opportunity.
4. Habit
46. When a character evidence is coming in to prove the good character of a criminal D or the bad character of victim, what forms of proof are permitted?
Opinion and reputation.
47. What are the two categories of legal relevance?
The two categories of legal relevance are policies and privilege.
48. What are the requirements of marital communication privilege and who holds the privilege?
Marital communication requires:
1. valid communication.
2. made in confidence.
3. divorce does not end privilege.
4. privilege may be asserted by either spouse
49. What are the requirements of spousal immunity and who holds the privilege, at common law and under FRE?
Spousal immunity requires:
1. criminal proceeding
2. during a valid marriage.
3. privilege belongs to the accused at common law; privilege belongs to witness spouse under the FRE.
50. What does the physician- patient privilege require?
physician- patient privilege requires:
1. patient-provider relationship.
2. statement made during the course of treatment.
3. necessary to treatment.
It does not apply where the patient has put his physical condition at issue in this trial, in criminal proceedings, oe where the statement involves a plan to or commission of a crime, tort, or to escape detection of a crime.
51. What are the three exceptions to attorney-client privilege?
Three exceptions to attorney-client privilege:
1. communication made in the presence of others, thus not confidential.
2. privilege asserted against person who was a joint client and statement was made during attorney’s course of joint representation.
3. advise is about planning a future crime or fraud.
52. What is the exception to evidence of insurance coverage that makes it admissible?
Evidence of insurance coverage is admissible to show ownership or control over insured property or person.
53. What is the rule for settlement offers, both at common law and under the FRE?
Settlement offers:
Common law: need not already be a disputed claim (can be made at scene of accident, eg.g.) but only the actual settlement offer is inadmissible.
FRE – must be disputed claim and all statements made in conjunction with the settlement offer are inadmissible.
54. If an offer to pay medical expenses is made in conjunction with another statement, how does the court treat it?
The offer to pay medical expenses is severed and inadmissible but all statements made in conjunction with it are admissible.
55. What is the exception to subsequent remedial repair evidence that makes it admissible?
The exception to subsequent remedial repair evidence that makes it admissible isspoliation of evidence, in other words, a cover-up.
56. In business records hearsay exception, how is business defined?
Very broadly, to encompass any business, institution, school, church, hospital, association, profession, occupation, and calling of any kind whether or not conducted for profits.
57. In business records, must the person writing the report have first-hand knowledge?
No. The person who originally supplies the information to the person who writes it must have first-hand knowledge. But the one with first-hand knowledge must also work for the business. If the person with first-hand knowledge does not work for the business making the record, the business records exception can be used to prove the statement was made, but another hearsay exception must apply to make the contents of the statement inadmissible. (This would give you the double hearsay analysis – bystander to report; report to person on the stand)
58. can a police report be used against a criminal defendant?
No. under FRE rule 803(8) B and C, a police report is a business record, and it cannot be used against a criminal defendant.
59. Can a police report used against a criminal defendant that is inadmissible under the business records exception come in under any other exception that may apply?
Courts are split, but trend is yes, especially if the officer is available for cross-examination. It can come in, for example, as past recollection recorded.
60. Give two reasons a prior consistent statement can be used.
To rebut a claim of recent fabrication raised by introducing a prior inconsistent statement and to rebut a claim of bias.
Con Law Posted Wednesday, May 4, 2005 by mikvu
1. How many issues are there in constitutional essay questions?
Three.
2. If a preliminary issues, such as standing, is given a separate
interrogatory, how many other issues are there?
Two.
3. When suit is filed in federal court, what four issues are raised?
1.Standing
2. Mootness
3. Ripeness.
4. Advisory opinion
4. What is the test for standing?
1. injury in fact.
2.economic or otherwise.
5. If a church is bringing suit for a violation of free exercise
clause, what theory is used to prove standing and what is the test?
Association standing
1. nexus between subject of law suit and purpose for which association exists.
2. individual members have standing.
3. neither claims nor relief require presence of individuals.
6. If an employer is bringing suit for the violation of the fundamental rights of his employee, what theory is used to prove standing and what is the test?
Third party standing
1. relationship between party and RPI who has standing.
2. economic or numerosity impediment to the RPI bringing suit on his
own behalf.
7. What is the exception to the requirement that P's injury must be
unique and not be shared by all citizens?
Taxpayer standing.
When government is spending to promote or hinder a particular religion.
8. What is the definition of mootness?
A suit is moot when the court's decision will no longer provide relief to the parties before it.
9. What is the exception to mootness that allows the court to hear the case, even though the parties before it no longer need the court's relief, such as in suits regarding denial of right to abortion?
When the harm is capable of repetition yet evading review, the court will still hear the suit.
10. Why are federal courts prevented from hearing advisory opinions?
Because jurisdiction of federal courts is limited to resolving actual cases and controversies between the parties.
11. What is the exception that permits a court to hear a case, even though the plaintiff is only seeking to have a law declared unconstitutional?
when P seeks declaratory relief it is not considered an advisory opinion if P is threatened with imminent harm.
12. What is the definition of ripeness?
A suit is ripe when the parties and issues are fully developed and ripe for litigation.
13. What constitutional issues are individual rights?
1. First amendment speech.
2. First amendment exercise.
3. Substantive due process.
4. Equal protection, fundamental rights strand (but not Equal Protection classification).
5. 4th Amendment Search and seizer
6. 5th Amendment right against self-incrimination.
7. 15th Amendment right to vote.
14. When P brings suit claiming violation of an individual right, what preliminary issue must P prove?
state action.
15. What is the order for analysis of issues under First Amendment speech?
1. Is it speech?
2. Is it protected speech?
3. Can the government regulate it?
4. Vagueness and overbreath.
16. Name three kinds of unprotected speech.
1. fighting words.
2. clear and present danger of imminent lawless action.
3. obscenity.
17. What is the test for obscenity?
1. appeals primarily to the purient interets in sex.
2. patently offensive when judged by community standard.
3. lacks literacy, artistic, political, social or education value.
18. What kind of speech is deserving of a lower level of protection than pure political speech and what is the test for it?
Commercial speech.
1. not false.
2. not misleading.
3. narrowly tailored to serve a substantial government interest.
19. What is the most commonly tested way that government regulates speech and what is its test?
Public form.
1. content neutral and neutral as applied.
2. narrowly tailored to serve a significant government interest.
3. leave open ample alternative channels of communication.
20. What does "content" mean?
The message of the speech, such as " Nazis are evil" or "Smoke marijuana."
21. What can render the regulation of speech not neutral as applied?
Insufficient standards leading to unfettered discretion.
22. What is the purpose of the narrowly tailored requirement?
Invalidating regulations that cover more speech than is necessary to achieve the government objective.
23. What is the proper order for discussing the two elements in the narrowly tailored prong of the time, place, and manner test?
1. Identify government objective.
2. Determine if the regulation is narrowly tailored to meet it.
24. Define vague.
Does not give sufficient notice of the conduct prohibited.
25. Define overboard.
Sweeps within its ambit more speech than is necessary to achieve the government objective.
26. What is a prior restraint?
Suppresses speech in advance of its being spoken.
27. What is not a prior restraint?
punishing speech by subsequent punishment.
requiring a permit.
regulation of the time, place and manner of speech.
28. Give an example of a prior restraint.
court ordered injunction.
29. In general, a citizen cannot challenge the validity of a law by disobeying it, but if the law chills speech, he may challenge its validity by disobeyong it but only if:
the law is facially void, not merely as applied to this citizen. Laws are facially void for vagueness and when they are not content neutral or neutral as applied.
30. what do the tests for free exercise clause and undue burden on commerce have in common?
exercise:
1. intentional discrimination against a certain relegion.
2.importance of the state's interest.
3. degree to which the beliefs are burdened.
commerce:
1. intentional discrimination against out of state interests.
2. importance of the state's interest.
3. degree to which interstate commerce is burdened.
31. What facts tend to show that a law does not intentionally discriminate against a certain religion?
A statewide law of general applicability tends to show neutrality.
32. What is the test for Establishment clause?
1. secular purpose.
2. effect does not inhibit nor advance religion.
3. no excessive antanglement.
33. If there is a danger, but not a certainty, that the recipient of federal funds may be using it to proselytize in favor of certain religious beliefs, which prong of the test is likely to fail?
Government would have to monitor and that would create excessive entanglemenmt.
34. What preliminary issue marries with Establishment Clause and only with Establishment Clause?
Taxpayer standing.
35. What is the order for analysis in Commerce?
1. Preemption.
Undue burden.
36. Id a state is intentionally discriminating against out of state interests, do you go on to do the balancing test?
No
37. What two issues does it raise when a state is intentionally dicriminating?
1. market participant.
2. important state interest (means preserving scarce natural recource).
38. If a state is running a recreational reort for trout fishing and is also issuing state fishing licenses, can it claim that is a market participant? Why or why not?
No, because the state is not acting solely as private industry; it is still undertaking a state regulatory function, issuing fishing licenses.
39. If a state is seeking to protect vast Eucalyptus tree preserves, trees imported during the 1800's from Australia, can it claim an important state interest exemption to discriminating against out of state interests?
No, because that exemption is limited to preserving scarce natural resources in favor of a state's citizens, and the Eucalyptus trees are not native, thus not a natural resource.
40. What is the test for determining the degree to which a state's activity burdens interstate commerce (prong 3 of the burden on commerce test)? Remember the mudflaps case.
What if every state sought to regulate this activity, and did so in a different way?
Just about any regulation of commerce fails this test.
41. What is the order for analysis for Equal Protection?
1. determine classification.
2. apply appropriate test for that classification.
3. go to fudamental rights strand - identify fundamental right.
4. apply compelling state interest test.
42. what btwo classifications result in mid -level scrutiny?
1. gender.
2. legitimacy.
43. What is the test for midlevel classification?
1. substantial related to a.
2. important interest.
44. Who has the burdenof proving the rational basis test?
The challenger, whereas the burdenis on the state for the tests for the other two levels.
45. What kind of rights are covered by the fundamental rights strand of Equal Protection?
Right to travel interstate (note related right to earn a living, source: Privilege & Immunities).
right to privacy (also protected under substantive due process)
right to litigate (for important interests only)
46. What rights are protected by substantive due process.
Only those right actually named in the constitution, plus procreative privacy.
47. For easy purposes, when should you use Equal Protection, fundamental rights strand and when should you use Substantive Due Process?
Use substantive due process only when the question actually names Due Process and the issue involves procreation (laws that burden or punish people for their decisions to have or not to have children). Use Equal Protection Fundamental Rights strand in all other cases.
48. If government does not actually physically occupy the property or completely destroy all economically viable use of the property, what is the test to apply to determine whether it is a taking or merely zoning?
1. They substantially advance legitimate state interests and.
2. do not substantially diminish value of land.
3. talking into consideration landowner's resonable expectations regarding use.
Real Property & Remedies Posted Tuesday, May 3, 2005 by mikvu
1. What is the definition of an easement?
An easement is the NONPOSSESSORY RIGHT to USE the land of
another.
2. What does an express easement require to be valid? A writing to satisfy the Statute of Frauds.
3. Give two common examples of easements.
A right of way (right to use a road on another's land) and a
water pipe running across another's land.
4. What are the two most common resons an express easement is not valid?
1. No writing.
2. Merger.
5. Name three types of implied easements.
1. In grantor, by reservation.
2. In grantee, by grant or by later-arising strict necessity.
3. Prescriptive easement.
6. What do all implied easements except prescriptive
easements have in common?
1. common grantor.
2. necessity.
7. All but one implied easements share another element: use existed at the time of the grant.One doe not. What is that called and what does it require?
Implied easement in the grantee.
1. common grantor
2. strict necessity
8. If there is no common grantor, there is only one kind of implied easement it could be. What 's that and what are its
requirements?
Prescriptive easement.
1. open and notorious.
2. adverse and hostile.
3. continuous.
9. What are the two types of implied negative easements?
1. lateral and subjacent support.
2. light and air.
These are generally not enforceable.
10. If an easement cannot be established, either expressly or impliedly, what 's the next issue to raise?
License.
11. What 's the problem with this theory, from the license holder's perpective?
It is revocable at will, so unenforceable by P.
12. What two theories give P an enforceable right?
1. detrimental reliance.
2. Coupled with an interest.
13. If either of the above theories is proved, what is P's
remedy?
Injunction only; no legal damages.
14. What is the trigger word that signals license?
"permission".
15. If D gives P permission to build a lemonade stand and to sell lemonade on D's land, and P does build a lemonade stand and does sell lemonade, what fact shows detrimental reliance?
spending money to build the lemonade stand.
16. What fact shows coupled with an interest?
P's interest in replenishing the supply of lemonade and
collecting money from its sale.
17. What remedy could P get?
Injunction until his value of his expenditures is recouped, plus a reasonable profit.
18. What are the requirements for an easement to pass to
future owners of the dominant estate?
Appurtenant.
19. What are the requirements for an easement to burden
future owners of the servient estate?
Appurtenant.
Notice.
20. What does appurtenant mean?
The easement affects the use and enjoyment of the property, as opposed to the unique use that this owner of the dominant estate is making of it..
21. what is a covenant?
A promise regarding land.
22. What are the requirements for a valid covenant to be
formed?
Writng.
Conveying an interest in land
Mortgage, deed, lease.
23. Why must a covenant be in writing?
Because it is an interest in land so it must be in writing to
satisfy the statute of frauds.
24. When ownership or possessory interest in the property
that is subject to a covenant changes hands, what is the issue?
Whether the covenant runs with the land.
25. If the covenant obligates the landlord to do something and the owner of the property sells and there is a new landlord, what is the test for whether the new landlord is obligated to obey the covenant?
Burden of the covenant runs.
1. intent.
2. notice.
3. horizontal privity
4. vertical privity
5. touch and concern.
26. What is the definition of intent, modernly?
INTENT: Original parties intended future parties to be bound.
Modernly, it is shown by the length of the lease.
27. What is the definition of horizontal privity?
HORIZONTAL PRIVITY - the promise is contained in a deed, lease or mortgage.
28. What is the definition of vertical privity?
VERTICAL PRIVITY -- Entire remaining possessory interest passes from original covenanting party to new party (either fee simple absolute if title passes or assignment is leasehold passes).
29. Who has to have notice? And what are the three kinds,
plus definitions?
NOTICE: Party to be bound has notice at time he acquired his
interest.
1. actual - knowledge.
2. 2. constructive - record notice, discoverable by searching chain of title.
3. inquiry - purchasers held to what they would find by a
reasonable inspection of property.
30. What does touch and concern mean? Give an example of a promise that definitely meets the test and one that does not.
Promise must affect use and enjoyment of the covenantor's land(the person burdened by the promise, in the case of the burden
running).
Covenant that does touch and concern the land: promisor covenant to maintain common areas of dwelling.
Covenant that does not touch and concern because it is personal to promisor and not related to his use and enjoyment of the land: promisor covenants to do promiseee's taxes for him, because promisor is an accountant.
( Close call are tenant's promise not to compete with the
business landowner is in, located nearby and promise to trade
exclusively with landowner in business of landowner in different
location.)
31. If the person obligated by a covenant is the landlord, and the tenant assigns to a new tenant, what is the test for whether the new tenant may enforce the covenant against the landlord?
Benefit of covenant runs.
1. Intent.
2. vertical privity
3. touch and concern
32. If a lease contains two covenants, one that obligates
the landlord and one that obligates the tenant, and the the tenant
assigns to a new tenant, what two issues would you have to discuss to
determine whether the covenants run?
Benefit of covenant runs.
Burden of covenant runs.
33. If a landlord and tenant enter into a lease containing covenants and the landlord sells the building to a new owner by the following language:" conveys and assigns all his interest.' What did the new owner take as to the lease and how would the tenant enforce the lease promises against the new owner?
New owner assumed rights and responsibilities under the lease by contract assignment. He is bound by the lease, as if he signed it originally. Tenant would not have to show that the covenants'run" to the new owner, as he bound directly under the lease.
34. What remedy is available for breach of a covenant? Legal damages only.
35. If a valid covenant exists and the covenantee wants
topr event the covenantor from breaching the covenant, what legal
theory would he use and what would be the remedy he seeks?
Equitable servitude; injunction.
36. What are the requirements for establishing an equitable servitude?
1. intent
2. notice
3. touch and concern
37. Aside from seeking an injunction, name two other reasons to use equitable servitude.
1. merger: same person held title to servient and dominant estate, destroying covenant by meger.
2. no writing: deed of party sought to be bound did not contain
covenant.
38. name six defenses Tenants has for failing to pay rent?
1. constructive eviction.
2. partial constructive eviction.
3. repair and deduct.
4. violaton of residential lease code.
5. frustration of purpose.
6. breach of warranty of habitability.
39. If T's apartment is destroyed by fire, what does that
give rise to?
Constructive eviction.
40. If L gives T the key, but fails to evict the squatters in the apartment L let to T, what doe that give rise to?
Constructive eviction.
41. If T cannot use one of the bedroom in a 3 bedroom flat because of a leaky roof, what does that give rise to and what is T entitled to do?
Partial constructive eviction. T is entitled to reduce the
amount of rent he pays by the reduced value of the premises.
42. If L rents T an apartment with exposed faulty wiring,
what does that give rise to? Violation of a residential lease code. The lease is invalid and T is not obligated to pay rent.
43. If T rents a commercial unit for a business of boarding dogs and cats but the zoning does not allow such use, what doe that give rise to?
44. Frustration of purpose, T is discharged from performing under the contract (lease). Move out promptly.
45. In order to claim constructive eviction due to breach of warranty of habitability as a defense against paying rent, what must T do?
Notify L of the need for repair and give L a reasonable time to respond.
46. If T installs French doors in the apartment, what
happens to them when he leaves?
They belong to L because they are fixtures.
47. If T rips out the French doors and does noa sloppy job of replacing dry wall and plaster, what damages is L entitled to?
Value of French doors
Cost of repairing damage T created in removing French doors.
48. If T enters a 10 years commercial lease with L to run a beauty shop and T installs 3 sinks. What happens to the sinks when T leaves? Give 3 reasons why.
T may still own the sinks. They may not be fixtures because:
1. length of the lease.
2. commercial lease.
3. purpose for which premises let known to L.
49. Regardless of whether T trashes the place or increases its value, what is the test for waste?
Change was made without L's permission.
50. What does quitclaim deed grant?
All the interest grantor had, with no representation as to
title.
51. What kind of warranty does quitclaim deed include?
Warranty of marketability is implied in every deed, even
aquitclaim deed. It warrants the deed is free from claims of another.
52. What is the effect if one joint tenant writes a will
bequeathing his interest in the property to his son?
No effect. It does not destroy the joint tenancy.
53. what interest does the son take at his father's death?
None. A joint tenancy is characterized by right of survivalship and at the instant of Joint T's death the interest passes to the other joint tenant. No interest passes by will.
K Tape Posted Monday, May 2, 2005 by mikvu
. By Transactions
. Facts -Issue sheet
- may be 3 columns: facts - subject matter 1 - subject matter 2
. each SM may be splitted to 2 columns: 2 interpretation eg. A vs Counter O
. Offer requires:
- present intent
- communicated to identified offeree
- containing certain and definite terms
. firm O Rule:
- Offeror must be M
- writing to keep O open
- time specified/ <90d
- OPtion K: consideration
. A requires:
- present intent
- communicated to offeror
- unequivocal
. C/O vs. grumbling A
. 207 added terms
- Both Ms K is FORMED
- Material: NOT b/c K
- Not material: b/c K
- Unless O limit A on original terms
. MB
-send rejection 1st ==> MB not applied, whatever comes first
-send A 1st then rejection ==> MB applies unless Rej received and rlied upon
. Consideration:
- brief exchange of detrimental and benefit
Def to Formation
SOF - land- >500, 1 yr K
SOF satisfied by:
1. writng signed by pty to be charged (DEFENDANT)
2. Merchant writing confirmation memo unless objection w/i 10d
. Mutual mistake goes to the heart of the bargain
. Unilateral mistake ==> no def
. Ambiguity: more than one meaning ==> def unless latent to one pty==> k formed with latent term (non-knowing)party
. fraud
. duress
EXCUSE (outside of pty's control)
anticipatory repudiation: say not to pform (I will not render..)
vol disablement: act inconsistent w/ K duty (sell car to other)
impossibility: objectively nobody can pform
impracticality: too costly to pform
frustration of purpose: event destroys val of K
DISCHARGE
Action
BREACH:
legal damages
F U C C
equitable damages
sub pformance :
liquidated damages:
- diff to predict at time of K
- rsnble cost of harm AND
- NOT a penalty
Wills & Trusts Posted Sunday, May 1, 2005 by mikvu
Wills and Trusts
1. RELIEF for FRAUD IN THE INDUCEMENT
1. If fraud taints whole will , will set aside
2. If fraud taint just one provision and deleting that provision will cure the fraud, that provision is set aside
3. If beneficiary's fraud causes T to exclude an heir, thet beneficiary must hold his share in CONSTRUCTIVE TRUST in favor of the excluded heir.
2. Which one of these remedies is never the right remedy on the essays and why?
Striking a provision will never work because on the essays the fraud results in leaving out a beneficiary and thus striking a provision will not cure the fraud.
3. when is DRR used to revive will #1?
Where the second will is void by operation of law, the first will can be revived through the Doctrine of Dependent Revocation (DRR)
4. DRR test It requires:
A. First will revoked and second will created simultaneously
B. The new will is invalid by operation of law (due to fraud in the inducement, undue influence of lack of formalities)
C. T believed the second will was valid in disposing of his property
D. But for T's belief that the second will was valid, he would not have revoked his first will.
5. List three things that make T's will void by operation of law
1. Fraud in the Inducement
2. Undue influence
3. failure of formalities
6. Waht is the test for undue influence?
A. T susceptiveble to influence
B. Beneficiary (B) took some action concerning the will
C. CONFIDENTIAL RELATIONSHIP between
T and B
D. UNATURAL RESULT IN WILL (bequests made to other than the natural objects of T's affection kindred) in favor of B
7. What is the relief for Undue influence? The relief for undue influence is voiding the entire will or voiding the tainted provision.
8. When is "intent of the Testaor used to revive will # 1?
When T revoked will # 2 or it cannot be found it is thus presumed to have been revoked.
9. Give an example of a provision in will #1 which could be used to show T would want to revive will #1.
A special provision that would not occur if T's estate passes by intestacy, such as a trust for T's Harvard classmates.
10. Waht is an INTERESTED WITNESS/
An interested witnesss is one who both serves as one of the witnesses to the will and stands to benefit under it.
11. What effect does the interested witness have?
DOES NOT INVALIDATE WILL
REUTTABLE PRESUMPTION OF UNDUE INFLUENCE
12. How can the presumption be overcome?
1. Later will that also gives an equal or larger benefit to IW where IW was not a witness to the later will or
2. Where IW does not take for himself, but is holding in trust for another, thus he does not really stand to benefit
13. What if the facts tell you there was no undu einfluence, will that overcome the presumption?
no
14. If an attempt tochange a provision in a will fails to be valid, waht issue is raised in order to try to save that earlier bequest that T crossed out?
DRR
A. First will revoked and second will created simultaneously
T crossed out the former provision at the same time T wrote in the new amount, so it is simultaneous
B. The new will is invalid by operation of law. yes the codocil fails to meet the formalities because all material provisions are not in T's handwriting.
C. T believed the second will was valid in disposing of his property. T believed what he wrote in would be effective.
D. But for T's belief that the second will was valid, he would not have revoked his first will. If T still wants to leave to the same beneficiary and he still wants to leave just as much or more money to that person, he would still want to give the beneficiary the earlier gift.
DRR will be effective in reviving the earlier provision that T crossed out.
15. If the attempt to change the provision decreases the amount of the gift to a benifiary, and the attempt fails to be valid, canthe earlier bequest to that beneficiary the larger amount of money, since his attempted codocil decreased the gift.
16. When a specific gift does not exist among T's estate at the time of his death, what is this called?
ADEMPTION - When the will leaves a specific item, like a diamond and the ring is not part of T's property at that time of death, the specific gift adeems and B does get the gift or its value
17. When ther is'nt enough money in T's estate to meet all bequests, what happens/
ABATEMENT - When there are insufficient assets in the estate to pay every bequest, the first to be reduced is the residuary, then general gifts, then demonstrative.
18. What are three ways to save a specific gift when it cannot be found among T's estate at his death?
1. DEMONSTRATIVE - demonstrative gifts are treated same as general - not adeemed
2. tracing the missing property to the new assset.
3. intent of T was not to revoke (e.g., the item was destroyed in fire with T at her death)
19. Can extrinsic evidence be used torevive an earlier will when the later will is:
1. revoked by physical act?
2. revoked by a writing?
1. Extrinsic evidence can be used to revive an earlier will when the later will is revoked by physical act.
2. Extrinsic evidence cannot be used to revive an earlier will when the later will is revoked by a writing.
20. Name 3 forms of INTEGRATION
1. Physical connection. The papers can be physically connected a s with a staple, or set aside together, as in a safe deposit box.
2. Sense connection. Or they may be connected by the sense that they make in reading them together. Again, extrinsic evidence of T's intent, including that these papers are intended tobe read as one document, can be introduced.
3. codocil
21. name two kinds of ASENSE CONNECTION:
1. INCORPORATION BY REFERENCE
2. ACTS/DOCUMENTS OF INDPENDENT SIGNIFICANCE
22. What is a codocil? Must it be the same form as the will itself?
It is an addition to a will , written at a separate time. A formal codocil can be effective to a holographic will and a holographic codocil can be effective to a formal will as long as the codocil meets the formalities of either a formal will or holographic will.
23. Why does incorporastion by reference usually fails?
What are its requirements?
It fails because it must be IN EXISTENCE AT THE TIME THE WILL WAS WRITTEN.
A will can refer to another document and incorporate its terms into the will, To be efefective as a part of the will, the document must be:
1. refered to in the will and
2. in existence at he time the will was written.
In fact, the very entry sought to be incorporated must be in existence at the time the will was written. Holographic wills can incoporate other documents that are typritten or printed.
24. What theory of integration usually succeeds and what are its requirements?
ACTS/DOCUMENTS OF INDEPENDENT SIGNIFICANCE
key factor: SIGNIFICANCE INDEPENDENT OF ITS TESTAMENTARY EFFECT
1. reffered to in the will
2. has an independent reason for being, separate and apart from their testamentary effect.
25. For intestacy, what does per capita mean?
Counting the number of heads at the first level of living relatives who are either
1. stll alive or
2. are dead but have living heirs
26. For intestacy, what does per stripes mean?
Splitting a dead "capita" share among the heirs by right of representation.
For example, if dead capita has two children, per stripes means they split 50-50.
But if the dead capita has two children, but one of the children has died, leaving two children, there are still two 50-50 shares for the two children; the dead child's share is split between his two children 1/4 and 1/4
27. In this example, how many per capita shars are there?
Children is the first level of living heir, so you count the number of living children and the number of dead children who have living heirs. C is dead but has two children, so C counts as a"head". There are 3 shares
28. In the same example, who takes per stripes and what are their shares?
S and D take per stripes, which means by right of representation as being the heirs of C.They share C's 1/3, each taking 1/6.
29. What is hotchpot and when is it used?
Hotchpot is an accounting technique for apportioning shares among intestate heirs when T has made advancements during life to one or more of the heirs. The amount given as an advancement is added back in to determine the total amount in the estate, then each heir's share is determined. The share of an heir who has received an advancement will be reduced by the amount of the advancement. If that heir was already overpaid out of the estate, that is, her advancements exceeded her estate share, she is not liable to rerurn the excess to the estate.
30. OMITTED HEIR
Where will omits a child presumption is that it is unintentional and child takes intestate share. Presumption can be overcome:
1. T intended to omit child or spouse and that intent appears in will.
2. T made a separate transfer of property to child. Intent that replace gift in will is shown by extrinsic evidence - either T's statements or the amount of the transfer of property is roughly equal to the child's estate share.
3. T left all or substantially all property to her spouse and at the time the will was executed had a child who was not provided for.
31. If a will has a no-contest clause, will a child be prevented from making an omitted heir claim?
A no-contest clause cancels bequests to beneficiaries who challenge the validity of the will, with exceptions if the challenge is based on fraud or undue influence. An omitted heir is not challenging the validity of the will and thus will not be subject to a no-contest clause.
32. What happens when a beneficiary, alive at the time the will was executed, dies before T?
The gift to B lapses
33. What are two exceptions to the above rule?
1. class gift
2. antilapse
34. Waht happens if a member of a class ,alive at the time the will was executed, dies before T?
The gift does not lapse but is distributed to remaioning members of the class.
35. Waht happens if a member of a class is already dead when T executed her will?
There is a presumption T did not intend to include the dead person in the class
36. What happens if a beneficiary, alive at the time the will was executed, dies before T and he is a blood relative? state the full rule
A blood relative
of T' or T's spouse
Who has living issue
the bequest does not lapse, but antilapse applies and the gift passes to the living issue of the dead blood relative
37. It revokes the bequests to the spouse, by operation of law.
38. waht happens if a beneficiary, alive at the time the will was executed, dies befoore T and he is both the member of a class receiving a class gift and also a blood relative meeting the rule 33?
Antilapse trumps class gift and the gift will pass as in 33.
39. What are the 5 requirements of a valid trust?
1. intent
2. purpose
3. res
4.
beneficiaries
5. trustee
40. Which of the five is not fatal to the creation of a trust?
Failkure to name a trustee, the court can appoint one
41. What issue arises with respect to T's intent
Mere precatory language wors of wishing or hoping donot show intent tocreate a trust and the trust will fail.
42. What can cure intent problems?
1.Actions during T's life in caring for beneficiary to show trust intent
2. Beneficiary is a close relative of T, making it more likely T intended a trust
3. Trustee is fiduciary
43. What is the rule regarding beneficiaries?
beneficiaries must be identifiable at the time trust benefits are to come into enjoyment
44. What is meant by trust purpose?
I must simply not be an illegal purpose
45. Waht happens if there is insufficient res to accomplish the purpose of charitable trust or if the trust is illegal?
A resulting trust in favor of residual beneficiaries or, if none, intestacy
46. What is the counterarguement to try to save a charitable trust?
Doctrine of Cy Pres, meaning to make the trust purpose the nearest purpose to the one T had wanted
47. What is it called if a beneficiary makes a promise to use his bequest to take care of someone T wants him to take careof, but all the will says is " To beneficiary"
Secret trust
48. What is the remedy for that?
constructive trust
49. What are the two primary duties of a Trustee?
1. Duty of loyalty
2. Duty of Prudent Investment
50. If a trustee fails to earn income from a trust asset what trust duty would that raise?
Duty of Prudent Investment, duty to Make Assets Profitable
51. If a trustee invests trust assets in a corporation in which Trustee is a sunstantial shareholder what issue would that raise?
Duty of Loyalty, self-dealing
52. trustee consolidating all the trust funds into a single asset, would raise duty of Prudent Investment, Duty to Diversify
53. What are the trust remedies?
1. Constructive trust, to prevent unjust enrichment
2. Resulting trust, when express trust fails
54. What is a purchase money resulting trust?
If it is a remdy for P when P pays some or all of the opurchase price of real property but the title is put in D's name.
K & Remedies Posted Tuesday, April 26, 2005 by mikvu
1.OFFER to be valid must contain 3 things:
1. Present intent.
2. Definite terms.
3. Communicated to identified offeree.
2. Give an e.g. of words that signify present intent:
“I quote you…”
“I have decided to sell”
“I want to purchase.”
3. Give an e.g. of words that do not signify present intent:
“ I am interested”
Is it still available”
How much would you charge?”
4. What does definite terms mean under the UCC?
Only subject matter must be definite, meaning quantity
5. Two kinds of UCC contracts that are considered sufficiently definite, even though the quantity is not a specific amount:
1. Requirement Contract – one Merchant promises to buy all that he needs from another Merchant
2.Output Contract – one Merchant promises to sell all that he produces to another Merchant
6. Name three kinds of offers that cannot be terminated:
1. Firm offer between Merchants in writing signed by Merchant who promises to hold the offer open explicitly in the writing. It requires no consideration
2. Option Contract supported by consideration cannot be revoked
3. Offer for unilateral cannot be revoked once performance has begun
7. What is the rule regarding how long an offer remains open when it is made face-to-face?
face-to-face negotiations generally terminate an offer when face-to-face meeting ends, but this can be varied by the intent of the parties
8. ACCEPTANCE to be valid must contain 3 things:
1. Present assent
2. Unequivocal
3.communicated to offer or
9. Give an e.g. of words that signify present assent.
10. What is the UCC variation on the acceptance element, unequivocal
UCC_207 states that between Merchants an A or Confirmatory memo can add new terms or vary existing terms and a Contract IS STILL FOrMED. The only question is what are the Contract ’s terms.
11. What is the test to determine whether a new term becomes part of the contract between merchants?
1. If new term changes term stated in offer or is material, it doe snot become part of the Contract unless the other party expressly accepts it.
2. If the added term was left open by the offer or is immaterial, it automatically becomes part of the Contract unless the other party expressly rejects it.
3. If the offer expressly limits A to the terms of the offer, no new or added terms become part of the Contract .
12. What is the mailbox rule?
The MB rule protects the offeree by making an A effective the moment it is placed in the mail or other reliable means of communication
13. When would the mailbox rule become important in an essay fact pattern?
In one of two situations; when the offer or tries to revoke after the offeree has put his A in the mail. Or when the offeree tries to reject an offer he has already accepted and the A is in the mail. If neither of these two facts is in the question, the MB rule is not an issue.
14. What if the offeree sends an acceptance then attempts to overtake it w/ a rejection?
The MB rule applies unless both:
1. The rejection is received first AND
2. The offer or relies on the rejection
15. What if the offer or sends a rejection then attempts to overtake it w/ an acceptance?
The MB does not apply (b/c it does not apply to rejection) and it is simply a RACE between the Rejection and the A. whichever arrives first is effective
16. If an acceptance has been sent and the mailbox rule applies, what would you call it if the offer or tells the offeree " never mind" before the offer or has received the acceptance?
Anticipatory repudiation
17. Once there has been a valid offer, acceptance and consideration. What have you got?
A contract
18. Once you have a Contract , what the very next issue u look for?
Defenses to formation
19. What is the most common def to formation and what facts usually cause the issue to be raised?
SOF applies to Contract s involving the sale of goods over $500
20. What are the two most common cures for solving this def?
1. A writing signed to the party to be charged
2. A confirmatory memo between Ms sufficient in detail to prove that a Contract exists and signed by either M
21. What is a confirmation memo?
A writing signed by one M that binds both Ms to the Contract terms in the writing. It satisfies the SOF when Ms have made an oral Contract .
22. What other issues are defenses to formation?
1. Fraud
2.Ambiguity
3.Mutual mistake
23. What is the effect of a unilateral mistake on a Contract ?
A unilateral mistake is no def to formation of a Contract unless P knew of D’s mistake and take advantage of it. Then it permits P to rescind the Contract and receive back any consideration P paid (rescission and restitution)
24. What is the effect of a mutual mistake on a Contract ?
Mutual mistake that goes to the heart of the bargain means there was no meeting of the minds and no Contract are formed. The remedy for this is rescission and restitution
25. What kind of mutual mistake does not result in rescission and restitution, but rather in reformation?
Transcribing error does not prevent the meeting of the minds b/c the parties agreed to the same term. The ct permits the Contract to be rewritten (reformed) to conform to the true intent of the parties
26. What is it called when a term central to the bargain is capable of more than one interpretation, and each party gives the term a different interpretation? What is its effect on the Contract ?
Ambiguity. It prevents a meeting of the minds and no Contract is formed
27. What is the remedy that applies to all defenses to formation (except the one in the next question)?
Rescission and restitution
28. What variation on ambiguity that permits a Contract to be formed, despite having a term w/ a double meaning?
Latent-patent ambiguity. Where one party knows of the term’s double meaning and the other party does not, it is termed Latent-patent ambiguity and a Contract is formed. The term is given the meaning that the non-knowing party gave to it.
30. If a promisor does not completely perform his promise, he may be in breach. What is the measure of his damages if he is in breach?
He receives pmt under quantum meruit theory, that is, the value of the benefit conferred
31. If a promisor does no completely perform his promise he may not be in breach. What is this called, and what is the measure of his damages?
Substantial performance. A party who has substantially performed is entitled to Contract remedied, less any abatement for his less than-100% performance
32. What is the test for subs performance?
1. Nearly complete performance
2.Promisee received the expected benefit of the Contract
33. If 100% performance had been a condition, what percent of the Contract price would the promisor receive under the Contract if he performed 97%?
Nothing. Conditions create the harsh result of forfeiture. That ‘s what courts prefer to interpret as promises
34. There is a famous bumper sticker, usually seen on beat-up cars, especially pick-up trucks, "SH** HAPPENS". There is a Contract theory, after the Contract is formed, but performance is due, that corresponds w/ bumper sticker. What is it?
Discharge
35. Define it and name three issues that come under it.
1. Impossibility
2. Impracticality
3. Frustration of purpose
36. What is the test for Frustration of Purpose?
1. Event unforeseen
2.Purpose of Contract known to both parties
3.D did not assume the risk of the occurrence of the event
4.Event destroys value of Contract
37. What is the dif between frustration of purpose and impracticability?
Commercial impracticability is used in UCC situations. It requires only a disparity between cost of performance and the benefit of D wd receive, whereas frustration of purpose requires that the event totally destroys the value of performing under the Contract to D.
38. When a building contractor cannot complete construction on time b/c the neighbors obtained a temp restraining order, but then the TRO is dissolved. What discharge would that raise?
Temporary impossibility suspends the duty to perform for the period of the temp impossibility
39. In addition to external events that can release D of the duty to perform, the plaintiff can act in a way that relieves D of the duty t perform. What is called and name three?
EXCUSE TO PERFORMANCE INCLUDES:
1. P’s failure to cooperate – P won’t allow D to enter to peform D’s duties
2. Anticipatory repudiation – P tells D that P does not plan to honor the Contract
3.prospective inability to perform – P disposes of the subject of the Contract
40. In addition to P's unilateral actions and external events, P and D could agree in a way that relieves D of his original duty to perform under the Contract . What is that called and name two types
1.waiver – P allows D not to perform the duty on past occasion
2. Estoppel – P’s conduct leads D to believe that D will not have to perform
41. Once it is established that D has breached, P is entitled to damages. The first kind of damage to consider is what?
Legal damages, money damages
42. Expectation damages break into two forms. Name them
1. Expectation. P is entitled to the benefit of the bargain
2. Reliance. P is entitled to be repaid for money he expended, relying on D’s performance
43. Regardless of which form of compensatory damages, what are the four elements? FUCC
1. Foreseeable - D knew at time of Contract P would suffer this loss
2. Unavoidable (duty to mitigate) – P has a duty to lessen his loss and the damages are reduced by the amount P would have been able to reduce his loss
3. Causal – D’s breach brought about P suffering this money loss
4.certain – not too speculative). The amount P lost is a specific ascertainable amt
44.What is the threshold requirement for a court to apply the equitable relief of injunction? Specific Performance and Quantum meruit?
Inadequate legal remedy
45.What is the most common equitable remedy in Contract s and what are its elements? Specific performance
1. Inadequate legal remedy (money won’t make P whole or P cannot prove what his money damages are)
2. Definite and certain Contract (all defenses to formation are resolved)
3.Feasibility of enforcement (a court’s order can be done by D)
4. Mutuality of performance (both parties had duties under the Contract )
5.Absence of equitable defenses
46. What are the two equitable defenses?
1. Unclean hands
2.Laches
47. What equitable remedy is available in both torts and Contract s and what are its elements?
1. Inadequate LR
2 Property right (formerly injunction applied only to real property, then personal property. Now requirement is meaningless)
3 Feasibility of enforcement
4balancing of the hardships. Burden on D of performing vs. harm to P if D does not perform. Not done when tort was willful.
5.Absence of equitable defenses
48. What does Quantum M mean and to what two situations does it apply?
1.D is a breacher but has provided some benefit to P.
2. P has performed in reliance on a unilateral Contract offer, which D revoked before P completed performance
49. What do liquidated damages substitute for and what is the test?
1. Difficult to ascertain at time of forming the Contract
2. A reasonable estimate of the cost of breach
3. Not be a penalty
50. What is an assignment of Contract rights valid? Assignments are
1. Valid, w/o notice to the other party to the original Contract
2.unless the assignment adds to or varies the rights or duties of the non- assigning original party. In such case, the assignment is void.
3. Any change in the time or place for performance is said to vary the non-assigning party’s duties
51. When is promissory estoppel successful as a substitute for consideration?
Promissory estoppel is a substitute for consideration when it was foreseeable to he offer or that the offeree would rely and when the offeree actually relied and the reliance was reasonable
52. What measure of damage is generally awarded for a Contract where consideration is based on promissory estoppel?
Generally, reliance damages are awarded for Contract s where consideration is based on promissory estoppel. However, where only expectation damages can make the plaintiff whole, they are awarded.
Case reading notes Posted Monday, April 25, 2005 by mikvu
FIND THE RULE OF THE PFMANCE TEST CASE
. Trial court found
. The trial court held
. Appellant contends
. Appellant argues
. Citing a case w/i the pfmc test case
. case cited w/ approval ==> the rule of cited case is the rule of the pfmc test case
=========================>>> Anouncement of ISSUE
. Shortly therafter the rules appear
. After "However, nevertheless, But" ====> Rules are modified
. Rules S/B before "applying this approach
STATUTE:
. REPEATED TERMS are relevant rules
. Heading statements for each issue sheet
neg v. SL v. I War fitness v. War merch Posted Sunday, April 24, 2005 by mikvu
Dty same ( fseeable P)
breach D' cduct v. defect type (3)
Causation same
Damages same (pi & econ loss)
Def contrib v. misuse and AOR
Misrep
act: intentional/neg misrep act
intent: consumers to rely
causation: csumers did rely
Express war
Torts & remedies Posted Wednesday, April 20, 2005 by mikvu
1. Ultra hazardous Activity prime facie case
1. Activity poses serious risk of harm to human or property
2. Activity is unusual for geographic area
3. Activity cannot be made safe through the use of ordinary care
4. If the activity has social utility, courts refuse to find it is UH
2. ALL INTENTIONAL TORTS
1. ACT
2. INTENT
3. CAUSATION
3. WHAT DO YOU PUT UNDER "ACT" FOR ALL INTENTIONAL TORTS
ACT - the entire def to the tort belongs here and is discussed and established on the facts here
4. Definition of INTENT for all IT
Intent- intent to do the act or acting w/ sub certainty the tort will result
5. DEF of "CAUSATION" for all IT
Causation - D's act does bring about the desired result
6. BATTERY ACT
Act- Act bringing about harmful offensive touching
7. What if D does not touch P himself? What special additional rule applies?
Battery is met where D sets in motion of force that harmfully touches P.
8. ASSAULT ACT
Act- Act That creates a reasonable apprehension of immediate or harmful offensive contact
9. Are words alone sufficient for assault?
No. Words alone are insufficient
10. What, added to words, makes D's act sufficient for assault?
Words coupled w/ threatening gestures is sufficient
11. If D says "your money or your life", what is this called?
Conditional threat
12. Is that sufficient for assault?
Conditional threat is sufficient
13. For assault, at what time must P must be afraid he will be offensively touched?
Threat of harm must be imminent, or immediate harm
14. Elements of negligence
To prevail, P must prove, duty, breach, causation, damages
15. Rule for negligence, std of care
Absent a special relationship, the std of care is that of a rsnbly prudent man, or ordinary care.
16. What are the issues that vary the std of care? Name three
Special relationship between P and D alters the std of care
P is patient, D is professional (MD, Lawyer)
P is patient, D is MD -specialist
P is paying passenger, D is common carrier
P is invitee, D is landowner (bus visitors)
P is licensee, D is landowner ( social guests, police, fire)
P is trespasser, D is landowner
P is user of D's personal property, D is property owner-bailment
17. What is landowner's duty to a trespasser?
If L does not know of T's presence, no duty.
If L knows of T's presence or anticipates trespassers,
duty to warn or make safe
artificial conditions that could cause death or serious bodily harm
( Attractive nuisance doctrine is an offshoot of the known or anticipated trespasser rule. In addition to the foreseeabiity of the T's presence, it adds the foreseeabiity that the trespassing children will not appreciate the risk of danger from the artificial condition that attracted them. L's duty is the same; warn or make safe)
18. What is the L's duty to licensee/
A licensee is a social guest. L's duty is to warn of known danger conditions that he knows the licensee is unaware of and is unlikely to discover. Note this includes natural and artificial conditions but does not include the duty to inspect. L also has a duty to make safe, but this is satisfied by warning. The only difference between licensee and invitee in terms of L's duty is l has duty to inspect for invitees.
19. Actual causation rule contain two elements of neg. What are they?
But for D's breach, P would have not be injured. Plug in breach fact and damages fact.
20. Proximate Causation - where a 3rd party's actions intervene. Discuss the three possibilities or the complete rule:
Where a 3rd party's actions enter the chain of events after D's breach leading to P's harm, it is necessary to determine if the 3rd party’s actions are merely intervening or superseding.
Merely intervening? Another's negligence is always merely intervening and does not serve to cut off D's liability
Superseding? Another's gross negligence, intentional tort or crime or an act of God is terms superseding and generally cuts off D's liability.
Foreseeable? However, where D set the stage for the gross negligence/intentional tort/crime/act of God, such that D could have anticipated it might occur and w/o D's action the 3rd party’s action could not have occurred, the 3rd party’s act will be found to have been foreseeable to D will remain liable.
22. False Imprisonment
Act -Act that confines P to a bounded area.
23. three def to FI
1.Shopkeeper's privilege
Privilege to detain P where D rsnbly suspects P of committing theft of personalty. detention is limited to the period of time D needs to investigate P's suspected for a crime.
2. Citizen's arrest
Felony actually committed
Misdemeanor of breach of peace or, minority, other misdemeanor
D actually witnessed
3. Consent
Fraud vitiates consent
24. What is the intent for TTL
Act- Act of physical invasion onto P's land
Setting into motion a force that invades P's land is sufficient
Intent - general intent that D intended to go on to the land
Transferred intent between trespass to chattel
Causation
25. TTC
Act- Act that interferes w/ P's right of possession in personal property
Intent general intent between TTL and chattel
Causation
Damages
26. CONVERSION
1. Act - Act that substantially interferes w/ P's right to possess property as to amount to its total deprivation or destruction.
2. Intent - general intent to do the act D did
3. causation
27. Difference between TTC and Conversion is one of degree. Conversion requires substantial interference w/ possession or total destruction of P's property
28. Name two defenses to TTL
1. Pub necessity - privilege to act for the pub good when the threatened harm is greater than the invasion to land or chattel
2. Private necessity - Privilege to act to benefit a private person to prevent
destruction of or serious injury to land or chattel. Even where private necessity is established, D must pay P's actual damages.
29. INTENTIONAL IED
1. Act - extreme and outrageous conduct
2. intent -intent to cause ED or acting w/ reckless disregard that ED may result
3. Causation - P was in fact emotionally distressed
4. Damages
(Negligence IED is limited to D's negligence acts to a 3rd party, generally resulting in personal injury, witnessed by p WHO IS CLOSELY RELATED TO INJURED 3RD PTY.)
30. intentional misrep
Though an intentional tort, different prima facie case:
1. ACT- Express stmt of material fact that is false
2. intent - intent to induce reliance (Scienter)
3. Causation - P did rely
4. Justifiable reliance (it was rsnble for P to rely)
5. Damages
31. Negligence misrep is limited to bus or commercial transactions where D is a speaking in a bus or professional capacity and it is foreseeable to D that P relies. It also requires damages
32. Prima facie case for DEFAMATION
1. ACT defamatory stmt
of or concerning P
publication - communication to a 3rd party
2. INTENT intentional or negligence publication
[P must prove MALICE only if BOTH:
1. P is pub figure AND
2. D is media
malice= publication knowing stmt is false or w/ reckless disregard of its truth or falsity.
In all other cases, P need only prove negligence]
3. Damages Presumed in
libel
slander per se
33. Two way qualified privilege of newsworthiness can be lost?
1. exceeds scope of privilege 9e.g., beyond publication interest) OR
2. reckless-disregard malice
34. Name the three privacy torts that are tested on the essays
1. Intrusion into seclusion
2. false light
3. publication of private facts
35. Def of Intrusion of privacy
Intruding on the private area of P in a manner that wd be objectionable to rsnble person
36. def of FL
Widespread of publication of facts, even if true, that place P in FL by attributing to him views he does not hold or acts he did not do which wd be objectionable to rsnble person
37. Def of Pub of Private Facts
Widespread publication of facts, even if true, which wd be objectionable t a rsnble person
38. MALICIOUS PROSECUTION
1. institution of criminal OR CIVIL proceeding
2. def prevails
3. absence of PC (lower std where basis is civil suit)
4. IMPROPER PURPOSE
5. Damages
39. ABUSE OF PROCESS (CRIMINAL OR CIVIL)
1. institution of civil or criminal proceeding
2. IMPROPER PURPOSE
40. NEG PER SE
1. the harm that occurred is the kind that the statute sought to prevent
2. The person asserting negligence per se is of the class of persons that statute sought to protect
41. Products liability threshold test
1. product , not service
2. com supplier, entire retail chain
42. test for defective product
Feasibility test (majority)
1. Less dangerous alternative was commercially feasible
2. w/o affecting utility of product or increasing expense prohibitively
43. COMPENSATORY damages - compensate P for his loss
1. FORESEEABLE 9met proximate causation of tort is established)
2. UNAVOIDABLE P has a duty to mitigate his damages. The damages that are left are unavoidable.
3. CAUSAL (but for D's tort, P wd not have suffered this harm)
4. CERTAIN amount of loss can be ascertained
44. REPLEVIN
LEGAL remedy for return of personalty
45. QUASI_K
1. Tort by D
2. D benefits
3. D ordered to pay market price, as if he contracted to buy P's personality
46. INJUNCTION
1. Inadequate legal remedy
2. Property right
3. Feasible to enforce injunction
4. Balancing hardships
(no balancing necessary where D willful/intentional)
5. Defenses - absence of
47. CONSTRUCTIVE TRUST
1. wrongful appropriation
2. D has title
3. Tracing. P can trace his property to the asset now owned by D, so P can obtain the benefit of any increase in the value of D's property, which D is said to be holding in constructive trust for P. Used when D's property has increased in value
4. unjust enrichment
48. EQUITABLE LIEN
1. 1. wrongful appropriation
2. D has title
3. Tracing. P can trace property to D's property
4. unjust enrichment
Used when P's property has been converted to another asset belonging to D. P is said to have a lien, or a security interest, on D's property in equity. When D 's property has fluctuated in value and now is lower than what P lost, this is P's remedy.
crime 04 summer Posted Monday, April 18, 2005 by mikvu
Question
1: Crimes/Criminal Procedure
On
August 1, 2002, Dan, Art, and Bert entered Vince’s Convenience Store. Dan and
Art pointed guns at Vince as Bert removed $750 from the cash register. As Dan,
Art, and Bert were running toward Bert’s car, Vince came out of the store with
a gun, called to them to stop, and when they did not do so, fired one shot at
them. The shot hit and killed Art. Dan and Bert got into Bert’s car and fled.
Dan
and Bert drove to Chuck’s house where they decided to divide the $750. When
Chuck said he would tell the police about the robbery if they did not give him
part of the money, Bert gave him $150. Dan asked Bert for $300 of the remaining
$600, but Bert claimed he, Bert, should get $500 because his car had been used
in the robbery. Dan became enraged and shot and killed Bert. He then decided to
take all of the remaining $600 for himself and removed the money from Bert’s
pocket.
On
August 2, 2002, Dan was arrested, formally charged with murder and robbery,
arraigned, and denied bail. Subsequently, the court denied Dan’s request that
trial be set for October 15, 2002, and scheduled the trial to begin on January
5, 2003. On January 3, 2003, the court granted, over Dan’s objection, the
prosecutor’s request to continue the trial to September 1, 2003, because the
prosecutor had scheduled a vacation cruise, a statewide meeting of prosecuting
attorneys, and several legal education courses. On September 2, 2003, Dan moved
to dismiss the charges for violation of his right to a speedy trial under the
United States Constitution.
1.
May Dan properly be convicted of either first degree or second degree murder,
and, if so, on what theory or theories, for:
a. The death of Art? Discuss.
b. The death of Bert? Discuss.
2. May Chuck properly be convicted of any crimes, and,
if so, of what crime or crimes? Discuss
3. How should the court rule on Dan’s motion to
dismiss? Discuss.
Answer
Crimes/Criminal Procedurestyle='font-size:13.5pt'>
Answer to Question 1, Summer 2004
1a.
D for A’s death – Murder?
Murder is the unlawful killing of a human being with malice aforethought.
Malice is proved by D’s acting showing intent.
Malice?
1. Intent to kill
2. Intent to inflict serious bodily injury
3. reckless and abandoned heart or
4. felony murder
Intent
to kill?
The first three intents for malice require that D did the act. D did not kill
A; V did. Therefore none of the first 3 intents for malice is present.
Felony
Murder?
Felony murder is a killing that occurs:
1. Felony or attempt
2. Felony is ongoing
3. Killing is a foreseeable consequence of the felony
4. F/M I requires the killing is one enumerated in the state’s statute.
Felony
or attempt?
Burglary?
Burglary is the breaking and entering at night of a dwelling with intent to
commit a felony therein.
Breaking? Constructive breaking satisfies the element where the
defendant entered under false pretenses. Here, D entered the store apparently
as a customer, but his actual intent was to rob the storekeeper. Therefore,
this is a constructive breaking.
Entering? D entered the store.
Night? We are not told whether it was nighttime; however, modern
statutes have eliminated the nighttime requirement.
Dwelling? Here, D entered a store, not a dwelling. At common law the
element would not be met. However, modern statutes have eliminated the dwelling
requirement. Any structure suffices. A store is a structure. Therefore, the
element is met.
Intent? D had the intent to commit robbery. Therefore, he had the intent
to commit a felony at the time of entering.
Therefore, burglary is met.
Felony
ongoing?
A felony is ongoing until the felons reach a place of temporary safety. Here, D
has left the place of the robbery, but he is still running down the street
outside the store. He has not yet reached a place of temporary safety.
Therefore, the felony is ongoing.
Foreseeable
consequence?
On one hand, D may not have planned that one of his co-felons would get shot by
the victim, so A’s death may not have been foreseeable.
On
the other hand, use of a deadly weapon during the commission of any inherently
dangerous felony makes a death foreseeable. Here, D had a gun and burglary is a
dangerous felony.
Therefore,
A’s death is foreseeable.
Felony/Murder
I: Enumerated? When the felony is one that is enumerated in a majority of
states’ Felony-Murder I statute, he is guilty of Felony Murder I. Here,
burglary is a felony that is enumerated in a majority of states. Therefore, D
is guilty of Felony Murder I.
Defense:
Redline Rule. When a co-felon is killed by a victim the other co-felons are
not guilty of felony murder. Here, V, the victim of the burglary, shot A, a
co-felon. Therefore, D is not guilty of felony murder.
Therefore,
D is not guilty of the murder of A.
1b.
D for murder of B
Murder II
Intent to Kill?
Use of deadly weapon establishes intent to kill. Here, D shot B.
Therefore, D had the intent to kill.
Therefore,
Murder II is established.
Murder
I
When Murder II is established by malice, Murder I requires premeditation and
deliberation.
Premeditation?
Premeditation is found where the defendant planned the killing. Here D and B
were arguing and D shot B. While D did not have a great deal of time to
formulate a plan, a plan can be formulated in an instant. Therefore, D may have
had sufficient premeditation to kill B.
Deliberation?
Deliberation is carrying out the killing dispassionately. Here, D was angry
at B for demanding a larger share of the proceeds. Therefore, D was not
dispassionate. Deliberation fails.
Therefore,
D is not guilty of Murder I.
Therefore, D is guilty of Murder II.
Defense: Voluntary manslaughter. When D acts in the heat of passion
under circumstances that would move a reasonable man to kill, the crime is
reduced to voluntary manslaughter.
Heat of passion? D was angry at B’s demands. He was acting in the heat
of passion.
Reasonable person? However, a reasonable person would not be moved to
kill simply because of an argument over money.
The defense of voluntary manslaughter fails, and the conviction for Murder
II stands.
Felony Murder based on D’s robbery of B
Felony?
Robbery
Taking. D took cash from B.
Carrying away. D moved the cash from B. Therefore, he carried it away.
Personal property of another. Money is personal property. D took B’s
money.
From his person or presence. D took the money out of B’s pocket.
Intent to permanently deprive. D intended to keep the money he took from
B.
Through force or fear. D shot B. However, he did not shoot B in order to
rob him. Instead he shot B because of a dispute over the money. After he killed
B, he decided to take the remaining money from B.
Therefore, D is not guilty of robbery.
Therefore, D is not guilty of felony murder on this theory.
Felony Murder based on he burglary of the convenience store
Felony -- Burglary? See above.
Ongoing? On the one hand, Chuck was a cohort of the felons and did
provide a hideout. This establishes Chuck’s house as a place of temporary
safety.
On the other hand, Chuck threatened to turn them in if they didn’t pay him
to keep silent. Under this view, Chuck’s house was not a place of temporary
safety.
Therefore, the felony was still ongoing.
Foreseeable consequence?
On one hand, the felony plan did not envision one co-felon killing another.
On the other hand, D used a gun in the felony, thus any death is foreseeable.
Therefore, B’s death is foreseeable.
Enumerated? Burglary is an enumerated felony, supporting F/M I.
Therefore, D is guilty of felony murder I.
2. C’s crimes
Accomplice
An accomplice is one who aids a crime before, during or after the crime.
Elements are: act of aiding and the intent to aid (malice) plus the intent that
the crime he aids carries. The accomplice is liable as a principal for all
crimes he aids and all other crimes that are a natural and probable consequence
of the crime he aided.
Accomplice to Felony Murder of A.
An accomplice cannot be liable if the principal is not guilty. Here, D was not
guilty of felony murder. Therefore C is not liable as an accomplice for the
murder of A.
Accomplice to Burglary and Robbery
Act—Chuck helped D to hide out after the burglary and robbery.
Therefore, C aided the crimes after the fact.
Intent—
Intent for Accomplice.
Intent is established when the defendant has a stake in the outcome.
Here, C is getting a share of the proceeds. Therefore, he had the intent to
aid.
Intent for burglary and robbery.
Burglary requires the specific intent to commit a felony therein. Since C is
profiting from the burglary, it can be proved that he had the specific intent
for the burglary. Robbery requires the specific intent to permanently deprive.
Chuck took and plans to keep part of the proceeds of the robbery. Therefore, he
has the specific intent to permanently deprive.
Therefore, C is liable as a principal for burglary and robbery.
Accomplice to Felony Murder of B
Act—Merely because a crime occurs in the defendant’s presence does not
make him an accomplice. It does not appear that C did anything to assist D in
shooting B. Therefore, A did not aid the crime and is not liable as an
accomplice.
Felony Murder of B as a Natural and Probable Consequence of Burglary and
Robbery. An accomplice is liable for all other crimes that are a natural
and probable consequence of the crime he aided. Here, C permitted B and D to
hide at his house and divide the proceeds. The question is whether a dispute
arising between B and D over their shares and resulting in D shooting and
killing B is a natural and probable consequence.
On the one hand, dividing the spoils of the crime is natural to do in the
hideout, and disputes over shares is also a natural consequence.
On the other hand, it cannot be said that one co-felon killing another over
the shares is probable.
Therefore, C is not liable for D’s killing of B.
Extortion
Extortion is obtaining personal property from another through a threat of
future action with the general intent (malice) to acquire the victim’s
property.
Act
Here, C threatened to tell the police about B and D’s burglary in order to
acquire money. C in fact did acquire money.
Malice. C acted with the general intent to obtain D’s money.
Therefore, C is guilty of extortion.
C. D’s 6th Amendment Right to a Speedy Trial
The defendant’s right to a speedy trial is analyzed using the following balancing
test:
1. Length of delay in relation to complexity of the charge. Delays of
five months or less are generally not prejudicial. Here, the delay is 11 months
and the charge is not complex. Therefore, this factor favors finding a
violation.
2. Reasons for delay. We are given no reason for the delay of five
months in setting a trial date. If this were for systemic reasons, such as
court congestion, it may favor a finding of no prejudice. However, the
rescheduling of the trial an additional six months for the prosecutor’s
personal vacation is unjustified and is a clear indication of a violation.
3. Whether the defendant asserted his sixth amendment rights and was
ready for trial. Here, the defendant moved for an October trial date,
meaning he was ready for trial and was asserting his right to a speedy trial.
Favors a violation.
4. Prejudice. The defendant was denied bail and will have served
nearly a year in jail prior to any determination of his guilt. This is clearly
prejudice.
Therefore, D can establish a violation of his sixth amendment right to a
speedy trial.
Crime Rules Posted Sunday, April 17, 2005 by mikvu
1. CL murder
KILLING of a HUMAN BEING w/ malice. Malice is defined:
1. Intent to kill
2. Intent to inflict serious bodily injury
3. Reckless and abandoned heart
4. FM (FM II = inherently dangerous felony)
2. Murder I
1. Premeditation and
2. Deliberation
or
FM I (enumerated felony)
3. FM I
1. Felony or Attempt
2. felony ongoing
3. death foreseeable consequence of felony
4. Enumerated felony
4. Burglary
1. Breaking
2. Entering
3. Dwelling
4. of another
5. At night time
6. Intent to commit a felony therein
5. Robbery
1. Taking
2. carrying away
3. Personal property
4. of another
5. through force or fear
6. Intent to permanently deprive
or: 1. Larceney plus
2. assault or
3. battery
6. Larceny
1. Taking
2. carrying away
3. Personal property
4. of another
5. Intent to permanently deprive.
7. Battery
1. unlawfull application of force
2. to another person
3. resulting in bodily injury or offensive touching
8. Assault
1. intentional creation
2. a rsnble fear
3. of imminent bodily harm
(intent is malice)
or
1. attempted
2. battery
(intent is specific intent)
9.Attempt
1. specific intent to commit unlawful act
2. substantial act in furtherance
10. Conspiracy
1. agreement
2. between two or more
3. specific intent to agree
4. specific intent to commit the unlawful act
5. overact in furtherance
11. Solicitation
1. urging, counseling or commanding another to commit a felony with
2. specific intent the felony be committed
12. Co-conspirator liability
1. all crimes committed in furtherance of the conspiracy
and
2. which was a natural and probable consequence of the conspiracy.
13. Accomplice
1. aids, counsels, or encourages
2. before or during crime
3. malice- intent to aid or encorage the commission of the crime
(knowledge that crime will occur is not sufficient; accomplice's stake in the outcome is sufficient intent.
4. AND w/ intent necessary for the underlying crime -- specific intent if it is a specific intent crime.
14. Accomplice liability
1. crime he encouraged and
2. all crimes that were probable or foreseeable result of crimes he encouraged
15. Kidnap
1. confinement plus
2. movement
or
3. concealment
16. Reasonable mistake of fact
1. If the facts were as D believes them to be
2. D wd not have not committed the charged offense
3. mistake must be reasonable for malice crimes
17. Unreasonable mistake of fact
1.mistake of fact that
2. negates specific intent to commit the crime
is a defense. E.g., D mistakenly believes that the coat he takes is his. he lacks SI necessary for larceny/robbery
Mistake of law also be a defense to SI property crimes like larceny/robbery where D believes he is lawfully entitled to possession of his property, as when he extorts rent owed to him by tenant, steal back pperty he believe was stolen from him, or taken his car which was lawfully repossessed by a loan company.
18. Imp
An essential element of the crime is not present thus preventing the crime from being established.
E.g., D shoots V, who is already dead at the time. D is not guilty due to impossibility
19. Self-def
1. rsnble blief D's life is in danger
2. rsnbl blief deadly force is necessary to ptect D's life
20. Def of others
1. rsnble blief another's life is in danger
2. rsnbl blief deadly force is necessary to ptect other's life
21. Crime pvenh
deadly force may be used where:
1. rsnble blief fel involving ser injury or death under way
2. such a fel actually under way
22. Def of dwelling
deadly force may be used where:
1. violent entry
2. persons at risk in dwelling
3. rsnvle blief deadly f is necess to pvent attack on persons in dwelling
23. Insanity
1. disease of the mind
2. caused D to lack substantial capacity
3. to appreciate the wrongfulness of his cduct
4. or conform his cduct to the law
24. Diminished cap
1. mental defect short of insanity
2. caused d to lack mental state required for crime
(limited to SI crimes)
25. vol mans
1. heat of passion
2. that wd move rsnble person to kill
3. D was in fact provoked
4. no time to cool down
or
5. imperfect def (unresnble blief in selfdefense or def of others)
26. invol mans
1. killing cauesd by D's criminal neg
or
2. accidental killing during commission of misdemeanor or non-inherently dangerous fel (misdemeanor-manslaughter rule)
27. 5th A Miranda inheres when there is:
1. custody
2. interrogation
28. Miranda warning excused if:
1. volunteered
2. waived
or
3. pub safety exception
29. 4th A search & seizure requires
1. gov cduct
2.
rsnble expectation of privacy
a. standing = possessory interest in place serched
b. place searched is one society treats as private
3. no war based on no pC
30. 4th A S&S 7 exceptions to war rreqmt in order of frequency tested;
1. plain view
2. arrest search
3. auto search
4. inevitable dis
5. exigent circumstances
6. hot pursuit
7. consent
31. plain view
1. evid in plain view
2. pol is in lawful; vantage point
3. discovery of evid is inadvertent
32.
Arrest Search
1. lawful arrest (PC)
2. search contemporaneous w/ arrest
3. search area limited to D's wingspan
33. Auto s
PC
34. 4th A reqmts for a val war
1. PC
2. neutral & detached magistrate
3. specific as to evid, time and place to be searched
35. 6th A rt to counsel
1. for fel (1 yr or more in jail) or misde whre actual jail term is imposed
2. at all critiacl stages
36. 6th A rt to jury trial
pot sentence is more than 6 months
37.
exclusion of jurors opposed to death penalty impermissible unless:
1. juror's view pvent him from rendering verdict based on evid and instruction
2. relevant only at penalty phase in bifurcated trial
38. 8th A dP is cruel and unsual punishment unless:
jurors are given:
1. stds
2. discretion to csider lesser sentence
3. all info, both aggravating and mitigating
39. 8th A DP for co-felon who did not do killing is not cruel and unsual punishment where:
Co-felon acted w/ sub disregard for human life
40. 6th A confrontation clause does not pvent admission od co-conspirator's confession where:
1. indicia of reliability ( stmt implicates confessor, too0
2. Witness of unavailable (includes co-conspirator's excercising his 5th A rt)
3. stmt is most reliable evid on matter
41.competence to stand trial
1. D is able to know and understand the charges @ him and pot sentence and
2. is able to participate in his own defense
42. 6th A Knowing and intelligent waiver of rt to trial
1. judge must iform D and make a record that D understands:
2. charges @ him
3.max and min sentense
4.rts he is waiving
43. 6th A Effective assistance of counsel
1.specific errors
2.that may have changed th results (cannot be harmless error)
Crime Bonus Posted Wednesday, April 13, 2005 by mikvu
Direct Liability
Murder II CL
1. I to kill
2. Inflict SBI
3. Reckless disregard of HL
M I
1. Premeditation
2. Deliberation
Vol manslaughter
1. impefect defense
2. provocation/ heat of passion
Vicarious liability
FM
1. fel or attempted
2. ongoing
3. forseeable consequences
4. enumerated crimes ( Burg, robbery, mayhem, kidnappin, rape)
Invol manslaughter
gross criminal neg
vol intoxication is def for intent crimes
invol toxication ( mental disease) is def for malice and intent crimes
PT 1 Writing Edge Posted Sunday, April 10, 2005 by mikvu
. 26% of BAR exam
. Learning patterns
. Simple problem and actual solution
. Practice
. Legal analysis (core of PT)
. Know instruction boilerplate, look for new items
. The most important doc: Assiggment Memo (AM) - Key doc (1st reading)
. Organize well and state answer clearly
. FILE: Factual information/ Index facts to find later
. Speeding up reading
. LIBRARY: Rules are tools to solve issues (Statutes and cases - Dates)
1st HR
. Skim statutes in 1st reading - Give it a title.
. Cases: Holding is buried within the case
- Procedure setup: NOT important
- Facts - skim lightly NOT important to your problem solving
- Must understanding reasoning of the court ** Read carefully
- Look for " Therefore, we hold ....."
2nd HR
1st 10 minutes of 2nd HR
. Back to AM - reread thoroughly ( 2nd time)
. Leave room for 2-3 minutes
. "I am going to find the organization..."
. Read AM entirely for the 3rd time.
Last 50 minutes of 2nd HR
. AM points to Pointer Doc which has 3 issues (PT usually has 3 issues )
. 3 Worksheets =====> 3 Issues
. Issue #1 has case name A, statute
. Issue #2 has case name B, statute Section 101
. Issue #3 has case name C, statute Section 201
AM
Look at this document
xxxx
yyyy
This document (Pointer Doc)
I.
xxxx
II.
A. xxxx
B yyyy
Issue #1
Case name A
Statute
Issue #2
Case name B
Sect 101
Issue #3
Case name C
Sect 201
. Use every case in library, may not use all statutes
.
ORDER OF RULES
. Deal out all cases and statutes
. Statute 1st if statute is big as the issue
. Cases OLDER ===> NEW (Chronological order)
. Case construes statute ===> Statute S/B 1st
. AND : all elements must meet
. OR : either element must meet
. WRITE THE HEADING FOR EACH ISSUE
- full sentence
- conclusion
- max information to grader ("... because...")
. eg: H is not likely to prevail on the claim of loyalty duty breach BECAUSE the directors's actions are just and reasonable to the corporation.
3rd HR
. Begin to write
. Pattern repeat themselves
. 1st pattern
AM 1====> Statute/Case
AM 2====> Statute/Case/File docs
WHAT IS AT ISSUE = ORGANIZATION
DID D COMMIT BURGLARY? BURGLARY ELEMENTS: A AND B OR C
eg. Abner v. Chemco
AM page 4
. Reading statute: disregard excessive adjectives. Pay attention to AND / OR
MBE Strategies Posted Sunday, March 6, 2005 by mikvu
Evidence
DETAILS DETAIL DETAILS
Fed Rule NOT Common LAw
HEARSAY
Must have the out-of-court declarant. Cannot identify the declarant then it cannot be HEARSAY.
FRE 801 d1
For Prior Identification; Prior inconsistent stmts, Prior consistent stmnts; If declarant (witness) is not currently testifying, the exception of PI, PIS, PCS cannnot possibly apply.
801c
Even PIS does not meet the rqmts for admissibility, it is non-hearsay to impeach, rehabilitate a witness.
Expert testimony is not needed to authenticate a photograph. anybody who saw the scene and can testify that the photo fairly and acurately represents or illustrate waht it's supposed to depict.
Handwriting: a lay witness who is familiar w/ an individual's handwriting can testify as long as the familiarity was not acquired for the purpose of the litigation. Expert testimony is not necessary.
BEST EVIDENCE RULE - requires origial Doc; must be material terms; the subject of the testimony is only a collateral matter then the rule won't apply.
1. The terms of the writing are being proven; or
2. The W is testifying relying on the writing
FRE 609a - prior unrelated acts to show character if 1) D testifies, 2)prosecutor's question as an intrinsic impeachement, 3) conviction is not more than 10 yrs, 4) crime involving dishonesty
** Evid of bad acts (convicted or not) must be intrinsic to be valid (from the testifyer's mouth)
** Eliminate answer choices which donot apply to the facts.
** Evid may be admissible for one purpose and not for another
Wrong answers:
1. "inadmissible due to its self-serving nature"
2. "Admissible as res gastae"
3. "Inadmissible b/c the declarant is available to testify"
4. "inadmissible b/c of inference on an inference
Right answers:
1. Inadmissible b/c the probative value of the evid is outweighed by the probability of undue prejudice. (shocking evid: eg: 1day after robery, D has heroin and needles)
2. In admissible b/c it is hearsay not w/in any exception
Overcome natural instinct that every piece of evid is admissible, somehow.
FRE are extremely liberal concerning competence. "Incompetence" answer is usually wrong.
**
1. offers and pmt of settlements themselves
2. admissions in conjunctions w/ an offer to pay a settlement
3. offers and pmnt of medical bills
4. admissions in conjunction w/ an offer to pay medical bills.
4 is the only one admissible
Property
STUDY STRATEGIES
BFP: relevant if subsequent purchasers are involved
Marketable title is implied in land sale K
Doctrine of merger: the quit claim deed controls over the land sale contracts
Real covenants and equitable srvitudes: notice can be express or implied. eg. physical appearance of a neighborhood can provide a notice that a building restriction exists.
Pure race: 1st in time wins; no good faith; rare in MBE.
Pure notice : sub BFP protected before he records his interest; w/o actual knowledge
Race notice: sub BFP NOT protected until he records his interest; w/o actual knowledge; test often in MBE
EXAM TACTICS
Read Property question carefully b/c more complex
Eliminate wrong answer:
1. wrong on the facts
2. wrong on the law
3. irrelevant answer; ie. true but so what?
Jury Closing Argument/Opening Stmt/Memo of P&A Posted Sunday, January 30, 2005 by mikvu
JURY CLOSING ARGUMENT
Ladies & gentlemen of the jury, thank you for your time and patience in listening to all the evidennceof this case. The evid presented has established the two facts that we need to prove X's cruel punishment claim against Y.
First, we must show... Second, we must show...
1.
2.
Therefore, based on this evid, defendabt have violated X Eighth Amendment rights.
Thank you
OPENING STMNT
Introduction:
Ladies & gentlemen of the jury, I rep X. Mr. Y has sued X for age discrimination
However, during this trial, you will hear evid of wrongdoing by Mr. Y...
Theory of case and story:
L&G, we will set two reasons to show mr. Y cannot prevail in his claim of age dicrimination.
First,
Second,
Mr. Y's Defenses
Mr. Y will attempt to show you that... The truth is, L&G, that Mr. Y was let go b/c of his poor perfmce.
Conclusion:
In closing, L&G , I ask you to find 4 things:
First, ...
Second, ...
Thank you
MEMORANDUM OF POINTS & AUTHORITIES
Jurisiction:
The ct has jurx over the subject matter of this matter b/c P has sued under the fed Age Dis in Employment Act.
Stmnt of Facts:
P, Mr. X was employed...
Through discovery, Mr. X...
In addition,....
Argument:
I. Mr. X's wrongdoing is admissible to show Y would noy have hired or would have fired Mr. X
II. Mr. X evid of wrongdoing should bar all relief b/c would not have hired Mr. X if it had known of his mis representation.
Conclusion:
Based on the foregoing, Mr. X's motion should be denied.
PT John Holtz Posted Tuesday, January 4, 2005 by mikvu
PRESENTATION
Cover Your ASS (CIRCLE)
The Big Picture (RECTANGULAR)
Strategy Ethis Timing (TRIANGLE)
WHAT Y axis
What issues do examiners want to see?
HOW X axis
How do they want to see issues discussed?
** Look for add-on or split after seeing obvious elements
** Read the first line of paragraphs for THEME
** Read file/library once
** More facts, better paper
** No paraphasing b/c of taking more time; examiners look for their words
** Grade given on compliance to content, thorougness, organization
** First to find issues (IRAC)
** Find discussion center
*** The purpose of point headings is to provide the reader with an outline and summary of your argument. Each point heading or sub- heading is written as a conclusory statement that combines the law with the relevant facts. It should be a coherent, logical, and persuasive thesis sentence. Do not state abstract principles of law. Do not write objective, neutral statements. If your adversary would agree with your statement, then you haven't written it righ
EVIDENCE OF ENTRY THRU AN OPEN WINDOW IS SUFFICIENT TO SATISFY THE "BREAKING" ELEMENT OF BURGLARY
*** cONTROL pANEL:
Cast of characters - Client Concern - Cases - Code Sections - Cost - Chronology
[1] Library page #1
(2) File page # 2
(4/5) Page 4 paragraph 5
"each" element == colune (Y)
** Circle boss name ( may have 2 memos, one from boss and one written to boss) and underline client name in File Table of Content
** Library: Add dates (enacted, effective), type of court
** Use exact Roman Numero (I, II) or Arabic number 1,2,..) per the boss's memorandum
** The order of finding ISSUES
1. Boss letter
2. 2nd Boss letter
3. Opponent counsel's letter
4. Client's letter
** Analytical Terms: Since "facts", Therefore....
** Balck pen for law, Blue pen for fact
** 4 A- Approach
1. Actor/
2. Actee come to the act (client)
3. Act eg. excluded, denied..
4. Acception (program/activity denies actor's right/privilege)
MBE
1. Barbri ---> BArpasser ----->PMBR
-----------DIFFICULTY------------->
2. Shiifting thru different books to experience different style
3. Use Conviser to mark the area of weakness to focus study spot
Essay
Use Cross to cross Rule/Fact
R I F
I
Community Property
ASSET <-- SOURCE <-- CONDUCT <--PRESUMPTION <-- DISTRIBUTE EQUITIES
Evidence
ITEM <-- LOG R <-- LEG R <-- PRI <-- HRSY <-- EXC
Remedies checklist Posted Thursday, December 16, 2004 by mikvu
TRO: LS 10d
Prel INJNX: LSB Notice+Hearing
Perm INJNX: I P F B D Def: U n L oad I n F o
Spec P: C C I M F D Def: U L U
--------------------------------------------------------------------------------
Inadequate: S T I M I S
Dam: C N P
Comp: FUCK
Punitive: Dam; >Neg; >W > amt; Prop
--------------------------------------------------------------------------------
CTrust: I T BFP N-secured-C
Comingle: 1) LIB 2) Repl
ELien: Ct-sale; #T solely to res; BFP
Remedies essays -Barbri Posted Sunday, December 12, 2004 by mikvu
Essay Workshop
I. Red Cross
Damages
-Insco can recover for conversion
Restitution:
-Replevin: recover $5K wrongfully witholding by RC
-Quasi-K : RC retained $5K that was unjustly enriched
-Constructive trust: res:$5K; RC not BFP
-Equitable lien: no acquisition of other property.
Conclusion:Inscocan recover $5K
II. H's savings account fund
Equitable lien: comingling and tracing
-$25K traceble to saving accoubts
-Lowest intermediate bal rule: never can rec greater > the least amt in account ($15K)
-Alternate replenishment rule: to deposit money to replenish misappropriated money ($30K) ==> Insco recover $25K
III. Susan's COD
Constructive trust
- Trace to life ins policy premium and ins proceeds to buy CD
- CT applies to the increase
- Susan not BFP
IV. PP in H's estate
Compensatory Damages
-Insco s/b put back where it was before the tort
Restitution
CT and EL not avalable b/c no proof of acquisition of pers pperty
--------------------------------------------------------------------------------
I. Al v. Betty
K breach
-compensatory damage: diff of K price & market price( Al did not buy ==> no market price)
-consequential damage : income loss w/o shopping per acre fseeable (big prject but speculative)
-punitive: not allowed
-restitution
* legal: unjust enrichment $100K from Claude
-SP: I: land; D&C: contract; F: C's shopping nearly done; M: Al can pfrm; Def: none
Misrepresentation
Intentional misrep mat fact; Al rsbly rlied to his detriment
-Damages: $200 per acre
-Punitive: willfull and malicious
-Restitution: money received from C or CT over $100K
-Injunction: feasible?
II. Al v. Claude
Interference w/ K relation
-Damages: actual loss
-Punitive: willfull and malicious
-Restitution -- CT over
-Injunction: stop building shopping; tear down and convey land to AL; I: land; PI: land
F: nearly done; B:not perm injx bc K dealing; D:laches
--------------------------------------------------------------------------------
remedies barbri Posted Saturday, December 11, 2004 by mikvu
I. ALWAYS LOOK TO LEGAL REMEDIES THEN LOOK TO EQUITABLE REMEDIES
A. Legal Remedies
Damages: Money
Restitution:
a. Money
b. Replevin: recovery of specific personal P
c. Ejectment: recovery of specific Real P
B. Equitable Remedies
Restitution
a. Constructive Trust: ct-imposed obligation to convey specific property to the plaintiff
b. Equitable Lien: ct-imposed security interest in specific property owned by Defendant
Injunction: Negative or mandatory order
II. ANALYZING TORT PROBLEMS
A. Damages: P's injury arising out of the tort
Actual damages: comp dam to put P back where he was b/f the tort
Nominal damages: samall; no actl dam c b proved
Punitive damages: to punish D; proportional to actl/nominal dam
B. Restitution
Benefit unjustly retained by D
Legal remedies
a. Money: Look at D's benefit. "Waive the tort and sue in asumpsit"
b. Replevin
c. Ejectment
Equitable remedies
a. Constructive trust
b. Equitable lien
C. Injunction: negative and affirmative order
III. ANALYZING K PROBLEMS
A. Damages
Injury to P arising out of K breach
Expectation damages: Benefit P expected to get out of K
Consequential damages: Additional to lost expectation. Must be fseeable at the time the K was entered into
Liquidated damages: actl dam difficult to ascertain; rsnble forcast of dam. If clear valid intent LD may serve as true alternative to pfmc.
B. Restitution
Money Restitution: void/ unenfcble K; P may recover in quasi K/ quantum neruit. Breaching pty may recover in restitution
C. Specific perfmc
Order to D to specifically pform the K
D. Special Remedies
Recission: K void/voidable, deal is called off b/c misrep/mistake
Reformation: valid, enfcble K but written form of K is wrong
IV. PERMANENT INJUNCTION IN TORT CHECKLIST
I P F B D - I PUT FIVE BUCKS DOWN
A. INADEQUATE
Damages and Money restitution: Inadequate if too speculative; too small to compensate; multiplicity of suits; irreparable harm; injury to land
Replevin: Inadequate if D posted bond to keep pperty; Sheriff canot find pperty
Ejectment: adequate if in trespass P wants D out of his land; inadequate P wants toremove encroaching structure.
B. PROPERTY RT
Most cts today protect both pperty and personal rts by injunction
C. FEASIBLE
Too much ct supervision? neg / mand injunction appropriate?
D. BALANCED
Required for encroachment and nuisance
Encroachment: intentional, no balancing; innocent/negligent D will balance but favoring P.
Nuisance: always bal hardship in private nuisance case
E. DEFENSES
Laches: P's inaction allows D to act to his detriment
Unclean Hands: must b related to transaction in the suit
Freedom of speech: 1st A rule @ prior restraint; exceptions; nat security, trade libel, bus torts
Criminal act: Equity will not enjoin crime; exceptions for nuisance and pub nuisance
V. SPECIFIC PERFORMANCE IN K CHECKLIST
I D F M D - I DONT FIGHT MAD DOG
A. INADEQUATE
Damage and money restitution: supra in tort checklist
Replevin: supra in tort checklist
Ejectment: NA
B. DEFINITE AND CERTAIN
Even D&C but must show clear intent to be granted SP
C. FEASIBLE
Jurisdiction over prties or property? land outside the state; neg injunction appropriate?; employee breached to work for a competitor
D. MUTUALITY
Traditionally, old test SP of both paties available at the time of contracting? Modernly, P's obligations can be secured to the satisfaction of the ct.
E. DEFENSES
Laches : supra in tort checklist
Unclean Hands: supra in tort checklist
Freedom of speech: supra in tort checklist
Hardship: ct may refuse to enforce K w/ inadequate consideration (low price) and there are onerous terms
Professional Reponsibilities Essay Rules Posted Saturday, December 4, 2004 by mikvu
1. "Pass the word around” -- Duty against Overreaching?
An attorney cannot target a specific group, such as victims of mass disasters
2. Bert gave out business cards in hospital emergency room -- Duty against Overreaching?.
The codes prohibit direct personal contact with people at a time when they are vulnerable. It prohibits advertising that is intrusive or coercive. This includes approaching people at the scene of an accident or when they are in the hospital
3. L bought B dinner for client referrals -- Duty against Overreaching – Capper?
An attorney has a duty not to employ a non-lawyer to solicit business
4. L paid B $500 for client referrals -- Duty against Overreaching – Capper?
However, L also paid B $500 fee for every client who retained L as a result of B’s work. This is capping and L has violated her duty against overreaching
5. L went to Dinoworld as guest and did not identify herself as opposing counsel -- Duty of Respect?
An attorney has a duty to the profession to conduct herself in a manner commensurate with the office and not to bring dishonor on the profession
6. L questioned of Dinoworld’s CFO without his counsel present –Duty of Integrity?
An attorney has a duty to opposing counsel to safeguard the integrity of the practice of law and not to participate directly or indirectly in deceitful or fraudulent practices
1. Letter to targert each tenant - Duty to avoid false/misleading ad
A ad enjoys limited 1st A protection. State may regulate misleading, deceptive or false ad. Targeted mailin to persons in need of representation must clearly indicates ad material.
2.Duty of loyalty - Joint rep- Conflict of interset
An interest of a C is adverse to another C, there is a potential or actual conflict of interest
3. Duty of confidence
An A cannot use or reveal information related to rep of a C w/o her consent
4. Fee Agreement
Under ABA rule, contigent fee must be in writing and contain: 1) reasonable percentage, 2) WHAT EXPENSES ARE TO BE DEDUCTED FROM THE REVOVERY, AND 3)whether the percentage is taken before or after expenses pmt. CA rule also requires how work that is not covered by the contingency fee will be paid and that lawyer fees are negotiable, not std recovery
5. Fee Splitting agreement
ABA ok w/ rsnble fee, disclosure & consent, proportional to work
CA not unconscionable , no proportionality needed
6. A & T dating relationsship
An A must not use her position to coerce relationship
7. Duty to communicate -settlement offer
1. Board member duties: Fiduciary conflicts w/ ethical duties
Duty of care
Duty of loyalty
Duties as A
-Who is C?
-Duty of loyalty
-Duty of confidenciality
-Duty of candor
2. Must A disclose Dave's fraud to CAP board?
-As Board member: fiduciary duty to oppose audit, disclose real reason
- Disclosure is ethical breach to Dave if AC relationship exists
-Should have informed Dave her duty owed to CAP and Dave should seek counsel
- A may not report Dave's crime
-If A rep CA; should report to CAP and WD
3. A rep CAP?
-breached Duty of candor b/c covering up Dave's crime
- Argued for CAP, A advancing a frivolous claim (duty of candor/fairness)
1. duty of Loyalty to C
loyal to the entity
COI exits if their interest s differ
-remedy; disclosure and advise outside counsel
2. Duty of confidence
3. Board of Directors can waive AC privilege
4. conflict of interest
A must reveal XYZ incorporation and WD
Martinek v. FmHA Outline Posted Saturday, November 27, 2004 by mikvu
Opinion Letter to Client Martinek:
1. Is Martinek obligated to present the settlement offer to CHDC?
2. Should M withdraw b/c of conflict of interest?
3. Issues M should address in counseling CHDC to accept/reject the offer.
Assuming CHDC will accept the offer, memo identifies specific facts needed to support fees award from CHDC/FmHA
Powell v. Columbia Outline Detail Posted Saturday, November 27, 2004 by mikvu
Outline Detail
Case facts
Ronald Powell died in hotel fire
Debbie and Elizabeth (stepdaughter)
Ct granted summary jdgmt motion
Fire Marshall James Black deposition testimony stipulated
Green Declaration filed to oppose the judgmt and stoipulated
Ronald not E's natural father
E is not adopted or other guardianship
rt to bring action is limited to heirs
only natural and adopted qualify as heirs
Ronald and Dade died in the fire
Unknown cuase of fire
Inspection
19 months before the fire
Switch 10 feet from the desk
Mrs Dale health is frail
hotel had
-only a manual fire alarm
-known to hazardous and inspection was priority
-alrm not tested during insp
-open staiwells and storage of flammable mat were fire hazards
Proper P:
Aunt Green Guardian of E
oppt to observe E's family
Ronald held out E as his daughter even after Debbie born
intoduce her as my d, E
E believed R as her father
private school, ins policy to both
No support from unknoen E's nat father
R wished both to be heirs
Due care:
R preocupation w/ fire
fire extinguishers/smoke detector in every bedroom/kitchen
all cloths be fireproof
never stay in cheap hotel b/c firetrap
Authority
2 pot violations
-299 fire alarm be "immediate adjacent" tohotel desk
- sw shal be under supevision of reponsible employees"
I/Facts
Good law Bad law
General facts
Ronald dies in hotel fire Jan 28 1983 #377
Debbie (natureal d), Elizabeth ( Step d); both minors Heirs may maintain action for damage @ wrong doers
E born 1968; married to Martha 1971 given th circ is just
Ct granted WDA summary jdmt favored Columbia heirs rt determined by ct
Martha die 1982; Ron never adopt or institute guardianship
Qualified P
Ct Rules Child
CCCP 377 - Heirs are class of persons who have been eligible to inherit from decedent's estate had he died intestate R: Action rts of WD are authorized for illegitimate
no nauthority for inheritance by dep step-children, thus step children can not maintain WD action A: Due process and EPC of 14th A
E argued for statute should be subject to an intermediate level of scrutiny; Ct ruled rational relationship to achieve legitimate state purpose familiar relationship between M & C
Green Declaration Not deny rts b/c of his birth out of wedlock
Aunt Green Guardian of E suffered wrong in the sense any dependent wd
oppt to observe E's family
Ronald held out E as his daughter even after Debbie born
intoduce her as my d, E Worker
E believed R as her father R: Dependent illegitimatechild is entitled to rts given to other dep legitimate childeren
private school, ins policy to both A: Due process and EPC of 14th A
No support from unknown E's nat father
R wished both to be heirs
Due care Duty
Understaff to investigate 2 cases a month by himself #299 Guest
81 yrs old owner prevention of fire R:
partially crippled not conform, close hotel
cannot climb stair for yrs place w/ sleeping accomodation Student
alrm sw 10 f from the main desk R:
wood construction w/ open stairwlls
No cause of fire/ no arson
flammable mat in basement
inspection 19 months ago
Knew the codes, Dales not acompany JB when inspected
No ther employee besiseds the maid
Known especially hazardous
No alarm test during inspection
No hearing of alarm
R preocupation w/ fire
fire extinguishers/smoke detector in evry
bedroom/kitchen
all cloths be fireproof
never stay in cheap hotel b/c firetrap
Powell v. Columbia Outline Posted Saturday, November 27, 2004 by mikvu
Powell v. Columbia
Outline
Appeal re Elizabeth
1. E is not qualified as P re Col WD statute
2. Even qualified, No duty of care due to E
I. Strongest arg inclduding facts and law to persuade and reverse judgment (No arg on Col summary jdgmt b/c contested issues of mat facts exist).
II Format
Rule 13:
- Stmt of facts 100 words : pertinent, acurate to legal arg to support reversal
-Stmt of questions presented
Subject headings
- Summaize reasons the case s/b reversed
- Appliaction of specific law to the case facts
State v. Winters Outline Detail Posted Sunday, November 21, 2004 by mikvu
Facts Analysis
I. CLOSING ARG
-Attemppted M
Case Facts
-If she continue to resist he wd kill her
-saw she was still moving, D picked up log and hit Lucy behind the ear
-Tied a towel around her bleeding head
-left Lucy in the vacinity of a house
DA's Arg:
*More than preparation when swinging club @ her skull
*Specific intent to unlawfull kill
-If you donot quit moving I am going to kill you
* Malice aforethought - Manifestation or expressing an intent to kill
-aforethought : intent formed before the act was done/at least they coexist
-log capable of inflicting great bodily injury
Authority
6.0
R: specific intent and ineffective act
A: mere prep not attempt; unambiguous intent to commit specific crime
3.34
R: intent w/act done is shown by a stmt of intent made by D or by the circumstances attending the act.
A: Assume D has a sound mind.
8.11
R; Malice is the mental sate used to evaluating the D's intent to kill
2.02
R:SI shown by the circumstances surrounding the commission of the act
A:jury duty to accept the rsnble interpretation and to reject the unresonable.
2.0
R:evid is anything presented to the senses and either direct or circumstantial
A: Facts can be proved by either or both direct and circ evidence
2.01
R:Guilt not based on circ evid unless: consistent w/ theory that d is guilty and not be reconciled w/ any other rational conc
A: circ evid must be proved beyond rsnble doubt
-Assualt w/ deadly Weapons (NO authority)
-Kidnapping for Robbery
Case fact
-Put Lucy in the trunk of Triumph and close the lid
Drove 2 miles & stopped in vacinity of a house and left Lucy
DA's Arg:
Authority (SPECIFIC INTENT)
9.23
3.34
2.02
2.0
2.01
-Robbery
Authority (SPECIFIC INTENT)
9.10
3.34
2.02
2.0
2.01
-Unlawful Driving and Taking of a Vehicle
Authority (SPECIFIC INTENT)
14.36
3.34
2.02
2.0
2.01
Favorable Statutes
II. ARG TO COMMIT DAVID TO THE YA
facts
18 yrs old
Not emotionally/developmentally mature
An unhealthy dependance on make-believe
extremely immature and most impressionable
exposed to hardened criminal
No past criminal record
authority (favorable)
1731.5
authority (unfavorable)
R: <21; #sentence to death, life,fine
A: Ya should accept if benefited by reformatory, educational discipline
People v. Reynolds
R; Not suitable must be sent back to prison
A: Credit of time spent w/ YA not allowed b/c "hopeless"
State v. Winters Outline Posted Sunday, November 21, 2004 by mikvu
I. Prepare closing arg
-No contest to the facts froming the case
-David's Intent
-Did David intend to to commit the specific intent crimeS?
- ex: rebut DA's arg that David intended to permanently deprive Lucy of her car
- Other specific intent arguments supported w/ the facts by
using jury instruction
II. Aurg to convince ct to commit David to the YA instead
of State prison
Potter v. Transco Outline Detail Posted Saturday, November 20, 2004 by mikvu
Neg
Duty
-T transpoerted expolosives material
-Overnight stop
-Usual security precaution
-explosives owned by CMC
-Layoff at CMC
- P is Beta's employee in bld across street
Breach
-Truckload detonated at T's warehouse
Causation
-suspected sobotage by laid off worker
- P lost wages during Beta's bld repaired
Damages
-Lost Wages - 5m
-P lost wages while Beta bld repaired
-P ready & willing, able to work
Strict Liability
-Transco transported
-Stored expolosives
-Caused damage to BETA's bld
-Potter precluded from work for 5m
NEGLIGENCE
Favorable Cases
- Bishop (Causation)
R: Damges are recoverable if they are natural and proximate consequences of wrongful act and are not remote
A: Natural gas stored in D's premises exploded causing P's loss of 8d of work. law is complelled to adopt practical rule of proximate cause. Permit recovery would open the door to a mass of litigation which might overwhelm the courts.
-Resthome(Duty)
I:: extension of liablility for neg not allowed based on contractual obligation between the D and the injured third party
A:No familial status- duty to support under statutory law.
unwarranted extension of liability for neg. Cts consistently refused to reconize recovery for neg as oppossed to intentional torts which interfers w/ performace of K.
-Grain dealer (Causation)
R: remote or indirect Injuries of a consequence of D's neg are not recoverable.
A:connection between D's neg and the claimants' damages is too tenuous and remote to permit recovery.
-Chevy (Duty)
R: The range of duty must remain confined to the limit of a controllable degree
A: Foreseeability priciple would extend endlessly far beyond the zone of danger. Thus rt to lost wages of P attribitable to the closing down Cherolet plant caused by explosion is limitted to a controllable degree. b/c liability cannot be confined.
Unfavorable Cases
Fish Coop (duty)
R: Pecuniary loss of particular and special nature is legally conizable and the recovery is permitted.
A: speciall relationship qualification. D could reasonably foresee drilling opertions might diminish aquatic life and thus injure the bus of com fishmen
-Eating Place (Duty)
R: Whre the risk od damage is foreseeable, P's economic interests should not go uncompensated even there is no contract privity between the claimant and the D.
A: Foreseeablity is a primary consideration in establishing the element of duty. But to litmit any remote consequence of wrongful conduct, the risk of harm must be foreseeable and is closely connected w/ D's conduct. (6 citeria applied) PAGE 70
STRICT LIABILITY
Favorable cases
Chevy
R & A: Supra
Unfavarable cases
Fish Coop
-R: Res 519: ADA is subject to liab for harm to the person, land, or chattels of another resulting from the activity although utmost care to prevent was excercised.
A: No opinion on applicability of the ADA doctrine to the case facts.
Recommendation
-Motion to dismiss b/c more favorbale cases support T's position
Potter v. Transco Outline Posted Saturday, November 20, 2004 by mikvu
Memo analyzing merits
-Legal theory support our position
-Authority support our position
- Legal contentions expected from Potter
- How should we respond to the comtentions
Recommendation
- Move to dismiss or
- File an answer
PT Practice Posted Thursday, November 18, 2004 by mikvu
1. Potter v.Transco (Memorandum of Law)
2. State v. Winters (Closing argument/Sentencing Arguement)
3. Powell v. Columbia (Appeal)
4. In Re Richard Martinek (pinion Letter/Office Memo)
5. State v. King ( Witness Testimony Memo)
6. Bloom v. Peterson (Pre-counseling Client Letter)
PT Outline Template Posted Thursday, November 18, 2004 by mikvu
Jurisdiction : Columbia
RE: A vs. B
Client: Plaintiff A
Issues/facts Law to compare Law to contrast
Negligence FACTS FACTS
APPLICATION APPLICATION
HOLDING HOLDING
Duty:
Law suit fact
Breach
Law suit fact
Causation
Law suit fact
Damages
Law suit fact
BARBRI Performance Exam Guide Posted Friday, November 12, 2004 by mikvu
1. Look for OBVIOUS
2. Finish READING in 85 min; 5-10 min planning/Big picture (Who is my client?); 85-90 min to write
3. Start w/ a few Facts (Refocus if you are unfocused); "You asked me to do the following"; "Introduce yourself"
4. MOST COMMON STILL - Legal Analysis (Objective/Persuasive)tone
Can be all kinds of documents!
Either follow their format or Issue by Issue/ Argument by Argument
5. Fact Gathering *****
Ultimate facts == Theory/Elements Approach
Gather Facts Element by Element (Dog Plays Tennis)
a. Documentary Facts
b. Physical Facts
c. Tetimony Facts
* Also for each element ==> Facts we have & Facts we need
* Every Fact should be verified
* Everyone in file knows or have something ==> Should be checked out
* Should collect all documents
* Tools ==> Interrogatives/Dispositions
6. FactAnalysis (Open/Closing Statement)
Organize Facts by law 1, 2.., 3.
7. Affidavit
8. Drafting ==> Must explain why we drafted like that
9. Problem Solving ==> Identify problems in terms of goals/options/consequences/recommend actions
10. Identify ethical violation problems/ Suggest options:
Withdrawal
Substitute
Disclose/Consent
2nd Opinion
Professional Reponsibilities Rules Posted Saturday, October 30, 2004 by mikvu
Confidentiality
Loyalty
Fiduciary
Competence
Candor/Honesty
Fairness
Dignity/Decorum
CONFIDENTIALITY
Confidentiality
The lawyer has a duty not to use or reveal anything related to the representation of a client without her consent. The duty continues indefinitely and applies whether the client requests it be kept “confidential’ or whether its revelation might harm or embarrass the client
A-C Privilege
A-C Privilege limits the government’s ability to compel you with a subpoena or threat of contempt to disclose confidential communications. ABA Model Rule of confidentiality applies whether or not the information is privileged.
Confidential Information Sources
Any source of information received by the lawyer or his agent is confidential communication. A-C privilege only shields information from the client or his agents
Exceptions to Confidentiality (4)
1. Consents after consultation
2. Crimes
ABA: The lawyer MAY reveal confidential information if he reasonably believes disclosure is necessary to prevent death or substantial bodily injury. CA does not provide clear exception even for death.
3. Defending yourself as a lawyer
Sued for malpractice
Discipline actions
Sue clients for fees
4. If compelled by law or final court order
LOYALTY
Loyalty: Conflicts of Interest(CoI)
The lawyer has a duty of loyalty to her client. If an interest of her, another client, or a third party materially limits or is directly adverse to loyal representation, the lawyer has a potential or an actual conflict of interest.
Imputed Disqualification
All members of a law firm are treated as a unit for the purpose of conflicts. This includes any group of lawyers that work together closely or share responsibility.
CoI Representation
The L must not take on the rep unless the lawyer reasonably believes he can represent everyone effectively despite a potential conflict, or that actual conflict will not adversely affect the representation and 1) the clients are informed, and 2) they consent, and 3) The consent is reasonable. In CA the consent must be in writing
CoI Remedies
1. refuse the rep
2. Advise clients to get separate counsel
3. Withdraw from the rep.
Conflicts between lawyer and client
Business transactions/ adverse interests:
The L may enter into bus w/ a client or obtain an interest adverse to hers only if: a) the terms are fair to C, b) fully disclosed in understanding writing, c) the C has opp to consult an outside lawyer, and d) the C provides written consent. These conditions apply to criminal cases also.
Interest in the subject of litigation
A lawyer should not become interested in the subject matter of the litigation.
Exceptions:
1. A’s lien to secure pmt of fees
2. Work on a contingent fee basis
Use of information
Use or communication of info relating to the rep of a C to her advantage ordinarily violates the duties of both Confi & Loyalty.
Pub Rts Ks
Under ABA K rt is not permitted until rep has ended. CA rules vigorously discourage Ks before the end of proceedings, but tolerate them if the C clearly understand and consents.
Loan & Advances to C
ABA: generally prohibits loan to C w/ exceptions in litigation matters for : cost, expenses when representing an indigent, and the advance of expenses if the C promises to pay L bac. Repayment contingent on recovery is OK. CA prohibits pmt of debts to gain business, but allows loan in all matters for any purpose after the L is hired if there is an IOU.
Gifts to L &L’s family
Must not draft legal instrument for a C who is not your relative if it provides substantial gifts to L or L’s close relative
Limiting liability for malpractice
A L can not proscriptively limit his malpractice liability. In a malpractice action, L can settle after written advise to C to consult an outside L first.
Close relationship
Close relationships w/ the L for the other side create potential conflict. CR clearly include relatives, i.e., spouse, parent , child or sibling. CA law extends this rule to rep of any different client in the same matter, even if they are not directly opposed to each other, and to any intimate relationship
Trial Counsel as necessary W
L Can not serve as counsel & W in the same trial. If not prejudice the C, L may testify under the following exceptions:
ABA: mere formality, Re: service rendered, Hardship to C if WD and only may be called by adversary.
CA: C’s written consent and testimony to judge , not jury
Conflicts among clients
Opposite side of the same matter
Imputed DQ does not allow representation opposite side in the same litigation matter.
Opposite side of the non-litigation matter or unrelated cases
Consent of parties opposed to each other may be but rarely reasonable.
Two Clients w/ in consistent positions
OK w/ reasonable consent
Multiple Cs in the same matter
In criminal matters, there is an absolute prohibition @ multiple rep if you are appointed counsel. Dual rep may also impede the 6th A’ guaramtee of “ effective assistance of counsel”
In civil matters L may take on mult rep or act as an intermediary between mutually agreed pties if L (1) reasonable believes he can rep all effectively, (2) disclose pot cflicts and disadvantage to all, (3) get csent from all and (4) It is reasonable
New Cs in matter related to current or former Cs
L may violate continuing duty of Conf and Loyalty to the former client if L confi info. From another C might be relevant to work on a new C ‘s matter. L canot take on the new C w/o rsble permission of both current and former Cs
No rep If new C’s interest is materially adverse to the former C
Former government lawyer now in private practice.
Regulations are NOT matter
No rep if it is a matter that L worked for the gov
Exception to imputed DQ of firm members of former gov worker ( Judicial Clerk of Court): if L1) is screened off, 2) does not share fees in ay way; 3) gov employer is notified.
Conflicts due to Third Party interference
Your sole duty is to your C, not to 3rd party
C must consent 3rd party’s service compensation
Organizational Cs, L must act in the best interest of the entity
CEO conflict, recommend outside counsel to review. If CEO refuses go to the Board of D
FIDUCIARY DUTIES
Attorney fees
In non-contingent cases, CA requires written agreements: how fee is calculated, what services, L/C duties
Exceptions to Writing :
1. $1000
2. corporate C
3. routine services for reg C
4. emergency/impractical
In contingent cases, written agreement includes;
1. %
2. What expenses to be deducted from th recovery
3. whether % is taken before/after expense
CA requires to state how work that is not covered by contingency fee to be paid. Fees are negotiable
Types of actions for contingent fees
May not be used in criminal and family law matters. CA is silent on crim matters, but Ok on contingent fee divorces “ provided the fee arrangement won’t encourage the breakup of an otherwise savable marriage”
Fee too high?
ABA: fee must be reasonable. Take into account the labor, skill, difficulty, skill, timing required.
ABA encourages arbitration
CA: fee must not be unconscionably high
CA requires a L to agree to submit to arbitration
Fee Splitting
OK to split with other l in the law firm. ABA requires fee proportional to work done. CA has no proportion rqmnt if fee is not increased due to split
Fee split w/ non-L not allowed except for death benefit i.e., deceased L’s firm or heirs and fee shared w/ non-L employees via pension& compensation plans
Partnership w/ non-L to provide legal services is prohibited
C Trust Accounts
Duty to safeguard C’s ppty by labeling and storing it in safe place such as office safe or bank safe deposit box
Money held for C
Must be placed in a C trust account – No commingling –use an individual interest-bearing trust account to hold C funds; the interest belongs to the C.
Pool C trust accounts to hold funs for short period of time for several C at once. Interest to pay bank’s service charges and the remainder to CA State bar to fund legal services for indigent.
Duty to keep record, render accounting. CA requires to keep record of C pperty for 5 yrs and make available to the State Bar for audits
COMPETENCE AND OTHER COMMON SENSE DUTIES
Duty of Competence
L will be subject to malpractice liability, and discipline by the Bar. Competence means the legal knowledge, skill, thoroughness, preparartion reasonable necessary for the rep.
Do not know law, learn w/o undue expense or delay to C or associate w/ a L competent in the area.
Malpractice in a civil court ; ethical violation is relevant evid but nor presumption of malpractice
Accepting rep
Free to accept or to reject nay case, but must reject if you would violate law or ethical rule to take it.
Should accept defenseless or oppressed cases. ABA/CA both urge 50 hrs of pro bono for real indigent Cs
Scope of Rep
C; substantive rights decision
L: Procedure/strategy
Duty of Diligence
Duty to diligently, promptly, and zealously pursue case to completion
Duty to communicate
C to be informed including settlement offers
Duties on Withdrawal from rep
1. C fires L – contingent fee can be recovered by Quantum Meruit if C wins; refusal of settlement can be grounded to Withdraw
2. Mandatory withdrawal – must W/D if continuing would require violating law or ethical rules; incompetence, frivolous claim
3. Permissive withdrawal – FAIR, Financially burdens L, Acts illegally, Insist on pursuing a repugnant objective; Refuse to fulfill obligation after warning W/D
4. Procedures for withdrawal – Timely notice to C, return unspent fees including work product. CA: illegal to withhold C’s material for your money
Other Duties
Be rsnble and sensible. CA No sexual relationship w/ C
DUTY OF TRUTHFULNESS TO THE PUBLIC & DIGNITY OF THE PROFESSION
Basic idea
State can regulate L advertising and solicitation subject to constitutional rt of free speech. Under the intermediate scrutiny approach, state regulation can assert substantial interest if it is narrowly tailored
Advertising
Not false or misleading
No unjustified expectations/unverified comparison
No Guarantees/Warrantees/Predictions of a result
Certified specialist issued by ABA/identified not approved by state
No improper affiliations/partnerships
Ads must be labeled” advertising/dramatization”
One L responsible for ads content; keeps record 2yrs
No ad to harass if wants to be left alone
CA presumption of ad violation; Burden to L to disprove violation
Solicitation
Ok only for family and prior client
For pecuniary gain
Cannot use agents
No referral fees unless small
DUTY OF CANDOR TO THE COURT & FAIRNESS TO ADVERSARY
Duty to state the law truthfully
Must cite adverse authority if in JDX and on point
Duty to present evidence truthfully
Cannot facilitate perjury
Cannot tell Witness to be unavailable
Cannot pay for witness unless for travel,meal, wages, rsnble expert fee but not contingent
5th and 6th A
ABA ==> If perjury, urge C to tell truth, try WD, then tell judge
CA If perjury, Do not further or argue it
Duty to produce evidence
Cannot withhold, tamper, or fraud/deceit
Cannot tell C to be ignorant of crime (competence)
Must turn over evid by C(No A-C) but doesn’ t have to say it (A-C, confidentiality)
If you don’t touch evid found, no duty to disclose
If you touch, must turn over, must testify about where it is found, but not where information was from.
You must reveal more in EX PARTE (judge) proceedings
Duty to uphold the law
ABA prevent C from killing or GBH by disclosure (Not exception in CA)
No duty to reveal lesser illegality i.e, fraud (MAY withdraw)
Can be compelled to reveal info. Under the “future crime or fraud” exception to A-C privilege.
Do not assist /counsel to do crime (MUST withdraw)
ADDITIONAL DUTIES OF AN ADVOCATE
Procedural mandates: preserving the decorum of the tribunal
Expedite cases
CA: cannot unnecessarily delay cases
Not abuse/obstruct discovery
No undue influence of the court
No disruptive conduct
No “chicanery” Trcikery i.e., alluding to inadmissible material
Dealing fairly w/ others
No false statement
No com w/ person who is rep by counsel unless counsel consents
Special duties of prosecutors
Probable Cause
Disclose exculpatory evidence
Additional duties to the profession
No dishonest, fraud deceit conduct, even in their personal lives
DUITIES OF SUBORDINATE LAWYERS
Clear Violation: subordinate is subject to discipline
Debatable Problem: Partner is solely responsible, senior partners are subject to discipline b/c they knew of the violation , but failed to prevent it.
Remedies Posted Wednesday, September 15, 2004 by mikvu
Tort Analysis
1. Legal Remedies
Money: Compensate P to return to pre-tort condition. Causation, foreseeabe , certain (not speculative), unavoidable (mitigation)
Nominal: Nominal amount of money available when no actual damages can be proved.
Punitive: Punish willful, wanton or malicious conduct; and deter.
Some proportionality between actual/nominal damages to punitive. D’s wealth is a factor.
Restitution: Prevent unjust enrichment of D, even if no injury to P.
Money: Based on value of benefit to D. Can’t get both restitution and compensatory damages – evaluate both and elect.
Replevin: Recovery of specific personal property. Prelim hearing; P must post bond; D can defeat w/bond.
Ejectment: Remove trespassing D from land – recover specific real property. Coupled w/damages for loss of use.
Duty to reasonably mitigate
2. Equitable Remedies
Defenses: Laches (time); unclean hands; freedom of speech; criminal act; undue hardship.
Restitution: Use if legal restitution inadequate if D can keep property by posting bond, or if sheriff can’t find property.
If property goes up in value, use constructive trust. If decreases in value, use equitable lien.
Constructive trust: Court-imposed obligation on D to convey specific property which D has title to P. $ must be traceable.
Equitable lien: Court-imposed security interest in specific property owned by D. Deficiency judgment ok. BFP wins.
Injunction: Negative (refrain from doing something) or mandatory order. Punishment is contempt.
Breach; inadequate legal remedies; property right (ML: personal right ok); feasible (not too much supervision);
balancing of hardships (esp. nuisance); defenses.
Money inadequate if: Too small or unavailable; damages speculative; multiplicity of suits; irreparable injury.
Contract Analysis
1. Legal Remedies
Expectation: Benefit P expected to get out of the K.
K not yet started: K price – cost of performance (lost profits)
Partially performed: K price – costs saved (promisee’s breach), or cost of completion – payments due (promisor’s breach)
Fully performed: K price
Defect: Diminution in value or cost of repairs
Consequential: Special damages in addition to expectation. Must be foreseeable at time K was entered into.
Liquidated: Specified in K. Actual $ must be difficult to calculate, $ must be reasonable approximation. No penalty.
Restitution (quasi-K or quantum meruit; unenforceable K). Available even to D (breaching party).
Money: Value of benefit unjustly retained by D when K is void or unenforceable, or P chooses not to sue in K.
Replevin: Recovery of specific personal property, if it is unique or D is insolvent.
Ejectment: Remove trespassing D from land – recover specific real property. Coupled w/damages for loss of use.
Duty to reasonably mitigate
2. Equitable Remedies
Defenses: Laches (time); unclean hands; freedom of speech; criminal act; undue hardship.
Restitution: Use if legal restitution is inadequate if D can keep property by posting bond, or if sheriff can’t find property.
If property goes up in value, use constructive trust. If decreases in value, use equitable lien.
Constructive trust: Court-imposed obligation on D to convey specific property which D has title to P. $ must be traceable
Equitable lien: Court-imposed security interest in specific property owned by D. Deficiency judgment ok. BFP wins.
Injunction: Negative (refrain from doing something) or mandatory order or decree (K). Punishment is contempt.
Breach; inadequate legal remedies; property right (ML: personal right ok); feasible (not too much supervision);
balancing of hardships (esp. nuisance); defenses.
Money inadequate if: Too small or unavailable; damages speculative; multiplicity of suits; irreparable injury.
No specific performance to perform personal services K, but available to enjoin from doing other work (covenant not to
compete) if legitimate interest and reasonable in duration and geography.
Rescission: K is void, and deal is called off. Used with misrepresentation and mutual or should-have-known mistake.
Reformation: K is valid, but written form is wrong. K is rewritten correctly and enforced. Mistake of material fact; unilateral
mistake; no mutual assent.
Professional Reponsibilities Posted Wednesday, September 15, 2004 by mikvu
“The lawyer owes a duty of ___ to ___.” Examine duties to each possible person, and conflicts. Discuss what L should have done.
Confidentiality
Duty: Can’t use or reveal anything related to rep w/o consent. Continues indefinitely.
Privilege: Limit on gvmt ability to compel atty by subpoena/contempt to disclose confidential communication.
Corporate clt: EE talk w/lawyer at direction of super; for legal advice for corporation; topic w/in scope of employment.
Exceptions: Consent, conservatorship of clt (ABA only/not CA); crime/fraud, prevent death or subst body injury; defending self.
Loyalty: Imputed to entire firm/organization; remedy by blocking off related contact between conflicting atty and other lawyers.
Potential conflicts: No representation unless reasonable belief atty can represent client. Notice & written consent.
Actual conflicts: Must withdrawal.
Business w/clt if: Fair terms; fully discl in understandable writing; written advice to consult w/TP atty; clt consents in writing.
Interest in subject of litigation: No per ABA; CA requires disclosure. N/A to liens for fees or contingency fee.
Publication rights: ABA: None until case ends. CA: OK with notice and consent.
Loans: ABA: Prohibited except costs. CA: OK for costs, or with promissory note.
Gifts: Can’t draft legal instrument for non-relative if provides substantial gift to you or close relative.
Limiting malpractice: Can’t. No settlement of malpractice claim w/o written advice to clt to consult TP attorney.
Relationship w/OC: Conflict if OC is close family or boyfriend/girlfriend. Reasonable consent ok. Not imputed to firm.
Trial counsel witness: Only if mere formality, re: services, undue hardship for w/d, written consent of clt (CA), or only to judge.
Fiduciary responsibilities
Fee must be reasonable (CA: Not unconscionably high) – evaluate knowledge, experience, difficulty, time, sophistication.
Fee K: In writing, how fee calculated, what services/duties covered. Not needed if <$1k, regular client, or emergency.
Contingent fee K: Must include expenses to be deducted from recovery; % taken before or after expenses. CA: “% negotiable”
Fee split w/lawyers: Ok if in firm. External ABA: Total reasonable, consent, % to work done; no ref. fee. CA: Not
unconscionable, written disclosure/consent, no % requirement so ref. fee ok.
Trust account: Keep all property separate from own and identified; interest to state bar. Keep good records.
Competence: Act w/legal knowledge, skill, thoroughness and preparation reasonably necessary.
Violated by accepting a case atty can’t handle.
Criminal/fraudulent conduct: Can discuss, not recommend. Good faith challenge ok. Must w/d if use services for crime/fraud.
Malpractice: Civil liability based on intentional tort (fraud/misrep), breach of fiduciary duties, or breach of K.
Dilligence: Duty to act diligently, promptly, and zealously to pursue the case to completion. Use all lawful/ethical steps.
Communicate: Keep client informed; convey all crim offers and all significant oral or all written civil offers.
Withdrawal: Timely notice, return unspent $, return all papers and property even if bill not paid.
Mandatory: Rep would violate law or ethical rule.
Permissive w/d: $ burden, acts against judgment, illegal acts, refuses to cooperate. Ct may not allow if undue delay or disruption.
Candor/truthfulness
State law truthfully: Knowing false statements = discipline. Cite adverse controlling authority on point if O/C hasn’t.
No frivolous claims or defenses.
State evidence truthfully:
Clt perjury: Instruct to tell truth; attempt withdrawal; ABA says tell judge, CA says use narrative and don’t reference testimony.
If you learn past testimony is perjury, tell clt to recant. Can’t tell W to lie or be unavailable. Can’t put W perjury on stand.
Produce evidence: Can’t knowingly withhold or tamper w/phys evid. Must turn over contraband after inspection, incl drug cash.
Fairness
Preserve decorum of tribunal: Expedite cases, no delays for personal gain, follow procedural rules, preserve juror impartiality
Uphold the law: May disclose intent to commit death/serious bodily harm. Wld if clt using services to commit crime/fraud.
Deal fairly w/others: No false statements of fact, embarrassing or burdening others, communic w/rep person/corp emp, threats.
Dealing w/press: Avoid statements w/substantial likelihood of material prejudice to case. Except public record, replies to attacks.
Duty of prosecutor: To seek justice. Must have probable cause, protect D’s constitutional rights, disclose exculpatory evidence.
Dignity
Restrictions on advertising ok w/reg which directly advances a substantial gvmt interest, narrowly tailored.
Solicitation: Individual contact on phone or in person w/layperson initiated by lawyer enticing him to hire you for pecuniary gain
Contracts Posted Wednesday, September 15, 2004 by mikvu
Contract = legally enforceable agreement.
Applicable Law: Common law is default; UCC A2 applies to sale of goods (more important part of K is goods).
Formation: Words (express) or action/conduct (implied). Mutual assent.
Bilateral is open as to method of acceptance. Unilateral results from offer requiring performance as method of acceptance.
Offer: Manifestation reas interpreted by offeree as present intent to K (promise, undertaking or commitment); comm. to offeree
Terms: Definite and certain. C/L required price; UCC implies reasonable $ but requires quantity (requirements/output ok)
Advertisement: Invitation to offer, unless specific quantity and who can accept.
Termination: Lapse of time, revocation (effective on rx); rejection (effective on rx); law (death, destruction, illegality).
Irrevocable offers: Option, merchant’s firm written offer, detrimental reliance, start performance of unilateral K.
Acceptance: Effective on tx by offeree, by manner authorized, else upon receipt. CL requires mirror image.
UCC: New terms = acceptance; part of K if btwn merchants w/o rejection/material change; btwn non-merch if accept.
Consideration or substitute: Bargained for exchange; legal detriment/benefit. Not past consideration or pre-existing duty.
Modification: CL required new consideration or commercial impracticability; UCC requires only good faith.
Part payment: Only consideration for release if debt was unliquidated: not yet due, or amount in dispute.
Subsitutes: Promissory estoppel (reliance); written promise to pay barred debt; complete performance.
Defenses: Capacity (except necessities), illegal subject matter, unconscionability @ time of K, duress (physical), fraud
SOF: Marriage, Year, Land, Executor, Guarantee, Sale of goods > $500. Satisfied by performance; memo between merch.
Mistake/ambig: Innocent party protected; no K if mutual (but value isn’t a mistake; can’t take advantage of obvious error).
Terms
Interpretation: Course of performance between parties; past dealings; custom & usage of industry.
Parole Evid: No prior/contemp agreement to change terms of written K intended as final expression. Add’l terms ok unless K
fully integrated (merger clause), and even then ok if normally not included in writing. Ok to show no K, error, defenses.
Performance
Conditions: Express (req strict compliance), constructive (CL req substantial; UCC strict), precedent, concurrent, subsequent.
Satisfaction; or Excuse: Failure to cooperate; breach/anticipatory repudiation; waiver.
Delivery: Seller bus, or loc of goods. FOB seller = seller ships & notifies buyer, risk on buyer. FOB buyer = risk on seller.
Risk of loss: K; breaching party; FOB term (above); if seller merchant, risk shift on buyer’s receipt (else when tendered).
Express warranty: Words (not puffery/opinion) or sample/model. Cannot be disclaimed, but remedy can be limited.
Imp W of merchantability: Merch seller, goods fit for ord purpose. Disc by “as is” or conspic lang mentioning merchantability.
Imp W of fitness for particular purpose: B’s reliance on S, S knows of reliance. Disc by “as is” or conspic lang.
UCC Cure: If time of performance has not yet expired; or if goods sent to accommodate seller w/reasonable belief that was ok.
Excuse of nonperformance: Failure of condition; other party’s breach (CL: only if major)
Impossibility: Death or physical incapacity (unless service K), illegality, destruction of subject matter resulting in imposs perf.
Impracticability: Extreme and unreasonable difficulty that was unforeseeable, makes performance impossible/impracticable.
Frustration of purpose: Unforeseen, post-K occurrence, eliminates purpose of performance.
Rescission: Cancels K, if performance not yet complete.
Novation: Agreement by both parties to substitute in a new party in place of one of the old parties.
Accord & satisfaction: New K (accord) extinguishes old K upon performance of new K (satisfaction). Ex: “payment in full”
Breach: UCC requires perfect goods at time of delivery (subst perf for installment K); CL allows substantial performance-minor brch.
Demand for adequate assurances: has reasonable grounds for insecurity and makes written demand. No resp = antic repud.
Anticipatory repudiation: ’s performance must be pending. Immediate COA; excuses P’s performance.
UCC
Rejection: Before acceptance; for any nonconformity (except subst perf ok on installment); must notify seller.
Acceptance: Express, or implied by retention w/o objection for reas. time; act inconsistent w/seller’s ownership.
Revocation: Nonconformity subst impairs value; ignorance of grounds for rejection; reasonable time; notify seller.
Remedies: Must be reasonably certain and not speculative.
Remedy limitation: Unconscionable if eliminates recovery for personal injury.
Compensatory: Expectation (benefit of bargain=replacement performance, lost profits); consequential $ if foreseeable.
UCC: Defective goods which buyer keeps = Perfect FMV – Delivered FMV. Buyer reject: FMV – K, or replacement – K.
Liquidated: Actual damages difficult to determine at K; amount foreseeable forecast of likely damages.
Punitive: Not allowed.
Specific performance: If no adequate remedy at law (land/art). Equitable defenses (laches, unclean hands) apply.
Duty to mitigate: No recovery for loss that could have reasonably been avoided. Burden of proof on .
Quasi-K: Equitable remedy for when K fails. Benefit; reas expectation of comp; at request of ; unjust enrichment result.
Third-party problems
TP beneficiaries: Promisor and promisee K with intent to benefit TP. Intended benef. is named; incidental is not.
Rights vest: Detrimental reliance; filing a lawsuit; accept K in manner expressly invited by K. No changes once rights vest.
TP can sue promisor, subject to defenses against promisee. Creditor beneficiary TP can sue promisee on underlying debt.
Assignment of rights: Must be present, not future. Valid unless invalidated (not merely prohibited), or material alter duty or risk.
Revocate if oral and no consid, otherwise irrevocable. TP sue obligor, subject to . Obligor must perform to TP if knows assmt.
Original parties can mod K if obligor didn’t know of assmt & in good faith. Last gratuitous assmt wins; 1st for value wins.
Delegation of duties: Permitted unless K prohibits, personal judgment/skill, or change obligee’s obligations. Sue delegator or TP.
No duty unless consideration exists. If other party agrees, then it is a novation. Delgator = TP beneficiary
UCC-barnone Posted Friday, September 10, 2004 by mikvu
Question 1
Governing Law
The UCC will govern the sale of tangible and moveable goods.
Offer
An offer is the outward manifestation of present contract intent
communicated in clear and definite terms to the offeree.
Acceptance
An acceptance is the outward manifestation of unequivocal assent to the terms of an offer.
Consideration
Consideration is the bargained for exchange in a contract, whereby each party incurs a legal benefit and a legal detriment.
Defenses-
Statute of frauds
The SOF requires all contracts for the sale of goods of $500 or more to be in writing to be enforceable.
Exceptions to the SOF
UCC contracts may be exempted from the SOF by 1) a sufficient
memorandum, 2) part performance, 3) part payment or, 4) manufacturing of unique goods.
Mutual Mistake
When both parties to a contract share the same mistaken assumption
concerning the terms of the contract. Mutual mistake makes acontract
voidable by either party
Unconscionability
When the contract is so unfair as to be unconscionable for the courts to enforce, they may render it null and void.
Negligent Misrepresentation
A negligent misrepresentation occurs when one party to a contract makes a 1) negligent false representation, 2) of past or present material fact, 3) with intent to induce plaintiffs reliance, 4) causing justifiable reliance and 5) damages.
Fully executed Contract - All duties performed
Discharge of duties -
Frustration of purpose
Contract duties can be discharged due to the frustration of contract
purpose by an unforeseeable event
Defenses to Formation
Material Breach
Material breach is the unequivocal and unjustifiable refusal to
perform, which goes to the essence of the contract
Breach of Express Warranty
Party expressly stated the nature of goods when in fact the goods are not of that nature.
Implied Warranty or Fitness for intended use
Only for merchant
Right and remedies
UCC Perfect Tender Rule
When goods delivered are not conforming to the terms, the buyer may 1) reject the whole, 2) accept the whole, or 3) accept any commercial unit and reject the rest.
Buyer's Remedies after Acceptance
Good faith notice to seller
Ask for instruction on returning non-conforming goods
No instruction buyer may 1) return goods to seller, 2) sell them on
open the open market or, 3) keep them for seller's account.
Avoidable Consequences -Cover
Take reasonable steps to mitigate the loss.
General Expectation of Damages
The difference between the contracted price and the price of the goods as delivered.
Consequential Damages - Hadley v. Baxendale
Foreseeable damages
Restitution
Required to pay damages for the reasonable value of the goods.
Equitable Remedies-
Specific Performance
When money damage is not adequate , the courts may grant the equitable remedy of specific performance.
Rescission
Rescind the contract
Bonafide Purchaser
Voidable title may transfer valid title to a third party who reasonably believes the seller has good title.
Question 2
Merchants
A Merchant is a person who delas in the goods involved in the transaction or holds himself as having special knowledge about the subject matter by occupation or by virtue of employing someone in that occupation
Battle of Forms (UCC207-1 &2)
Under the UCC as between merchants if additional terms are introduced in the acceptance memo it will become part of the contract unless:
1. the offeror limits acceptance to the terms of the offer;
2. the additional terms materially alter the contract; or
3. the offeror has already objected to the terms within a reasonable time.
Demand for assurance of performance
Under the UCC a merchant may demand assurance of ability to perform in writing if after the formation of the contract events arise to give rise doubts about the ability of the other merchant to perform. the other merchant must comply in reasonable time within 30 days.
Modification
Under the UCC a mod is valid if in writing. It does not require new consideration and must be in good faith
Breach of Contract
A breach occurs when one party whose performance is due does not perform or performs defectively.
Anticipatory repudiation
Anticipatory repudiation occurs when one party to an executory contract declares that he will not perform before his performance is due
Damages
INjured party can claim his expectation damages for loss of profits on the contract
Divisible contract
A contract where performance can be divided succinctly over time
Conditions-expressed, implied, precedent
expressed: A fact or occurence which creates or extinguishes an absolute duty to perform.
implied: Good faith under UCC
precedent: Condition to occur before duty to perform produced
Perfect Tender Rule
Under the UCC, any deviation from a perfect tender under the contract is a breach. The aggrieved party must give notice to the breacher and provide opportunity to cure.
Question 3
Output or Requirements Contract
A requirements K is one in which the buyer agrees to purchase all of his requirements from a specific supplier.
An output K states that a supplier will produce all of his output for a specific customer.
Parol Evidence
Any oral or written statement, made prior to or any oral statemnt made contemporaneous to the K shall not alter or vary the terms of the original K
Enforceable Contract
K is enforceable when parties are on equal footing, and there are no illegal or onconscionable clauses.
Expectation Damages
Expectation damages are awarded to give the non-breaching party benefit of their bargain. However, such damages must be reasonably certain and can be calculated with reasonable acuracy
Interference w/ Contractual relations
Tort can be used to show that a party has intentionally interfered with another's perpective business advantage by taking steps to deliberately interfere with such
Valid termination (per contract terms)
Written notice Termination at the will of either party is specified in K. Thus the registered mail to terminate the K is valid.
Question 4
Defense--Unconscionability
A K is so one-sided that it is unconscionable to enforce
Illusory Promise
where one party is not bound, neither party is bound
Detrimental Reliance on Offer rule
Offeror reasonably foresees the offer to induce offeree's substantial reliance of action or forbearance to act, the offer will be held open for a reasonable amount of time to avoid injustice
Termination of Offer- death
Words or conduct which a reasonable person would understand as a revocation of an offer. The death of offeror before acceptance terminates the offer.
Modification
Under the common law consideration is required. However under the UCC, only good faith is required to change or add a term to K.
Question 5
Merchant Firm Offer
Under the UCC, an offer can remain open if supported by consideration(an option K) or if a merchant firm offer is made. The offer must be a signed writing and remains open for the stated time not to exceed 3 months, or for a reasonable time if no time is stated.
Detrimental Reliance
Offeror forsees offeree's detrimental reliance on the offer. The offer will be held in a reasonable time.
Expectation Damages
Benefit of the contract bargain or expectation damages
Consequential Damage
Breaching party is aware of forseeable and certain harm.
Question 6
Promissory Estoppel
PE is a substitute of consideration where one party has reasonably relied to his detrimrnt on the other party's promise.
SOF- divisible contract
A K is a sequence of Ks, each such K is not within SOF
Breach of Implied Warranty
A product putting in the stream of commerce will carries an implied warranty that the goods are suited for their ordinary use. Parties (P must be purchaser or user), Merchantable (defective by manufacturing defect and it did not fit for ordinary use); Defense: War of merchantability and fitness for a particular purpose disclaimer is effective if conpicuous
Question 7
Contract Validity
Valid K must contain definite and certain terms and be supported by a valid consideration
Special Consequential Damages
SCD are awarded if the breaching party foresee the damages that flow naturally from the breach.
Reformation
Where a contract has error causing lack of meeting the parties' minds, The equity jurisdiction of the court would allow the terms to be reformed.
Punitive Damages
Generally punitive damages are not awarded in breach of K cases unlesss actual malic exists.
Question 8
Additional Terms 2-0207
The UCC allows any additional terms to become incorporated into the K so long as they do not materially alter the K; or if they do materially alter the K, then they will become part of the K if the offeror assents to them.
Perfect tender Rule
Delivery of goods must strictly conform to the order or the seller is at risk of non-acceptance by the buyer.
UCC General Approach Posted Saturday, September 4, 2004 by mikvu
1. Agreement?
2. Contract formed?
3. Terms /Conducts confer rights/duties?
4. Performance obligation mature?
5. Performance excused?
6. Not excused -> breach, law of remedies
UCC PMBR CD 1 Posted Monday, August 16, 2004 by mikvu
Offer & Acceptance
K intent
Bargain for exchange
defense
express condition
cdih implied in fact (unspoken)
cdih implied in law (constructed by law)
Insert contingency which must be sartisfied
Pfmc excused:
Objectively impossible – no one can do
Commercially impractical- grossly unproportional
Frustration of purpose
Breach
Remedies
Restitution
Damages
Equity
Max 6 issues on bar; always merchant
K Formation:
Approach for Aggreement:
Offer?
O still outstanding?
Defective A?
Offer? Objective manifestation of intent to form a present K.
Intent to form present K
State of mind -- spoke in jest, in anger
Preliminary negotiation—future business; use objective approach to decide on facts.
Content: essential terms—party, quantity, sub matter, price, time QTIP
Missing terms Use rsnble terms: history terms
Revoked by operation of law(death, destroyed)
Revoked by offeror before acceptance even Offeror set the term
Firm Offer Rule: signed writing from merchant offeror.
Communication—
Acceptance:
Post office Rule
Acceptance w/ different terms: counteroffer to reject the offer. Mirror image rule.
Revive offer
Vacillated offeree: not reject offer
Altered Terms:
Fatal under CL but K under UCC;
2 Merchants
consistent additional terms K unless rejected by Offeror
Materially reallocate risk, economic terms not consistent
