Priority MEE

Question 1

Federal jx includes… (+ well pleaded complaint R)

Answer 1

Federal jx includes both federal question jx (involving a federal law) and diversity of citizenship jx (complete diversity btwn the parties and an AIC over 75K). The PTF’s good faith allegation on the face of the complaint will suffice unless it seems certain the amount cannot be met.

Question 2

General Fed Jx R:
Supplemental jx (def + 2 primary limitations + 4 situations where dist ct may use discretion to decline)

Answer 2

Generally, every claim in fed ct must have a basis for fed SMJ. Supp jx allows claims to be brought in fed ct that a fed ct would not independently have jx over if the additional claims are part of the same case or controversy (common nucleus of operative fact) as the claim which does have federal jx in the case.
Supp jx may not destroy DIV or be used for 3rd P claims. LOW AMOUNT = OK JUST NEED T/O!!
Fed ct may decline if complex/novel state issue, claim predominates over claim w/ OG Jx, fed ct dismissed all claims it had OG Jx, or other exceptional circumstances

Question 3

Transfer Rule…. (2 parts)
+ bonus pro (Ps, time limit, rsn for denial)

Answer 3

For the convenience of the parties and witnesses, in the interest of Justice, a dist ct may transfer any civil action to any other dist or division where it could have been brought or any dist or division to which all parties have consented (ex- FS CL)
Bonus- Any party may bring a transfer at any time, although the motion to transfer will be denied if delay causes undue prejudice.

Question 4

Venue is proper

Answer 4

Venue is proper where any Def resides (if all Defs reside in the same state) or where a sub part or omission of the events in the claim occurred.

Question 5

Parties may be permissively joined when…
Required joinder of parties requires ____________ and __________ OR __________ and _____________

Answer 5

Parties may be permissively joined when there is a common question of law or fact arising from the same T/O (or series of occurrences).

Jx kept in tact + ct inability to afford complete relief w/o the 3rd P
OR
Jx kept in tact + 3rd P’s int may be sub impaired / risk of inconsistent judgments

Question 6

A fed ct may Abstain from hearing a case when (+pro w/ state ct)

Answer 6

A federal court may abstain from hearing a case if the constitutionality of a STATE STATUTUE is at issue. The federal court will wait until the state court rules on the case and then decide the state constitutionality issue.

Question 7

A party may Amend a PL _________ within ______days of ______________or otherwise need _______ or __________

Answer 7

A party may amend an answer to a complaint once within 21D of the OG PL, responsive PL or pre-ans M,
or otherwise with the opposing party’s written consent or the court’s leave.

Question 8

Omnibus motion rule (which defenses apply)

Answer 8

Generally, failing to raise Rule 12 defenses related to service of process, personal jx or venue in a P’s first answer or pre-answer motion will result in waiver

Question 9

Work Product is..
WP is not discoverable unless…

Answer 9

WP is considered he documents prepared by lawyers (and others involved) in anticipation of litigation. Work product is not discoverable unless the requesting P can show a substantial need to avoid undue hardship in obtaining the material from another source.

Question 10

Summary Judgment must be granted if… (3 parts)
To defeat…

Answer 10

Summary judgment must be granted if, from the PL, affidavits and discovery materials, there is no genuine dispute of material facts and the moving party is entitled to judgment as a matter of law. The CT will view the evidence in light most favorable to the nonmovant and without considering the credibility of any witnesses. To defeat a MSJ, the nonmovant must counter the presented evidence with relevant evidence of her own to show a genuine issue of material fact on the matter.

Question 11

Claim Preclusion…(3)
Issue Preclusion…

Answer 11

Claim preclusion precludes the same parties or parties in privity from subsequently re-litigating the same claim (T/O) after a VFJOTM
Issue preclusion will preclude the relitigation of an issue already and actually decided that was essential to a VFJOTM after the party against whom it is asserted against had a fair opportunity to be heard on the matter. Generally, no new PTFs permitted.

Question 12

To grant a JAMOL the ct must find _____________ by ________________.
+ timing pro
RJAMOL will depend on if ________________ and __________
timing pro + will be limited to________________

Answer 12

To grant a JMOL, the CT must find that a RSB jury would not have a LEGALLY SUFFICIENT BASIS to find for that P on that issue. The CT will view the evidence in light most favorable to the Nonmovant and without considering the credibility of any witnesses. A JAMOL must be made during trial to preserve the right to move for a RJAMOL.
To determine if a ct should grant a RMJAMOL, cts will consider if a P previously moved for JAMOL and on what grounds.
Must file w/in 28D of the judgment and will be limited to the grounds raised in the initial JMOL.

Question 13

A new trial may be granted if…

Answer 13

There is a SERIOUS ERROR that occurred DURING the trial that caused the jury verdict to lack substantial weight.
ex. admitting evidence that would have a substantial effect on the verdict, errors in a material jury instruction, the verdict is found excessive, or if the verdict is against the clear weight of the evidence- as long as the judge is not replacing the jury’s verdict with the verdict she would have reached and based in a serious error of judgment).

Question 14

To be appealable…
(+collateral order doctrine + interlocutory appeals)

Answer 14

To be appealable, an order must be a FJOTM. A FJOTM is one that ends the litigation on the merits, resolves all claims and leaves nothing for the court to do but execute the judgment.

Collateral order = exception where claim/issue is separable. Look for IMMEDIATE HARM in deferring

Under the Interlocutory Appeals Act, review remains discretionary and may be available when the trial judge certifies that the interlocutory order involves a controlling question of law, as to which there is substantial grounds for difference of opinion, immediate appeal from the order may materially advance the ultimate termination of litigation, and appeals court then agrees to allow the appeal.

Question 15

In determining whether to certify a class action, the court will consider (4 req.’s +defs)
(+ bonus classifications)

Answer 15

NUMEROSITY (that joinder is impracticable), any COMMON Q L/F , the named P’s interest must be TYPICAL of the class and ADEQUATELY REP the absent class members and rep of class
Bonus: Additionally, the action must fall into a category of risk of inconsistent results to where separate trials would impair all ptfs, def acted or refused to act on grounds applicable to the whole class to where injunctive relief would be inapplicable, or common questions of law or fact predominate to where a class action is the superior method of adjudication.

Question 16

Broad R to obtain a sec int (2)

Broad attachment Rule

Procedure to attach (3)

Answer 16

To obtain a valid sec int in collateral, a creditor must ATTACH the collateral.
To attach a valid security interest,
1. sec’d party gives value to the debtor
2. the debtor must have rights in the collateral (ownership/possession)
3. and the debtor must authenticate (sign) sec agreement describing the collateral or the sec’d P otherwise retains possession/control —- SUPER GENERIC NOT OKAY

Question 17

General Perfection Rule

Answer 17

To obtain rights against a third party claimant to a debtors collateral, a secured party must also perfect its security interest.
Unless automatically perfected (like a PMSI), a creditor can perfect its security interest in goods by
1. Filing, in the proper public office, a financing statement that IDs THE PARTIES, authorized by Debtor, & describes the collateral —- SUPER GENERIC OKAY
2. Or by taking possession/control

Question 18

If a security agreement includes an AAP clause, the sec int attaches when _____________________.

AAP R for Consumer Goods?

Answer 18

If a security agreement includes an AAP clause, the sec int attaches when the debtor OBTAINS AN INT in the property.

For consumer goods, an AAP CL is ineffective unless the debtor acquires within 10D after given value

Question 19

A PMSI arises when __________ or ______________.
PMSI in CONSUMER goods perf R: ____
A PMSI in inventory if perfected upon _______ and will have priority over other inventory if ______ and ______

Answer 19

A PMSI arises when a creditor sells the goods to the debtor on credit (or advances funds to purchase the goods), RETAINING A SEC INT in the goods
A PMSI in CONSUMER goods is automatically perfected upon attachment.
The PMSI in inventory is perfected upon filing and will hold priority over other inventory if the the PMSI is perfected upon Debtor’s possession AND sec’d P sends a NOTIFICATION of the PMSI TO THE HOLDER of any conflicting sec interests before the debtor receives possession

Question 20

A PMSI in equipment or other goods has priority over conflicting sec interest if

Answer 20

the PMSI is perfected before or within 20D of the debtor RECEIVING POSSESSION

Question 21

Proceeds are ___________ OR ELSE ___________ or ______________
Proceeds perfection R: ____
identifiable proceeds attachment rule and perfection rule

Answer 21

that which is acquired upon disposition of the collateral.
Proceeds are perfected automatically (after attachment) if the sec int in the original collateral is perfected within 20D or else perfection beyond 20D must be pursuant to the financing statement or identifiable cash.
A sec’d int automatically attaches to identifiable proceeds and automatically perf for 20D.

Question 22

Chattel paper is…
A deposit account is …
+ DNI?
+ method of perfection?

Answer 22

the document used to sell property on credit while retaining some interest in the property.

a right to payment obligation maintained with a bank.
DNI investment accounts
*can only be perfected by control

Question 23

The authenticated record is…
The financing statement is…

Answer 23

is the sec agreement in a record which contains
1. a description of the collateral
2. and is authenticated by the debtor.

is the statement filed in the proper public office that contains
1. the parties names
2. and a description of the collateral

Question 24

A BOCB is… (5)
Shelter Rule for BOCB

Answer 24

A buyer for goods who has given NEW VALUE in the ordinary course to a seller in the business of selling goods of that kind in GOOD FAITH w/o actual knowledge of a conflicting int
Under the Shelter Principle, if a buyer a acquires property free of a security interest, then any subsequent transfer by the buyer to someone else is also free of the security interest.
***The second buyer is not required to qualify as a BOCB.

Question 25

General Buyer Collateral Rule?
However, a Consumer Buyer of consumer goods takes ____________ even if ________________ unless _____________.
A consumer buyer is (def)

Answer 25

(A buyer of collateral subject to a perfected sec int generally takes the collateral subject to that int. However,)
A consumer buyer of consumer goods takes free of a sec int, even if it is a perfected PMSI, unless prior to the purchase, the sec’d party filed a financing statement COVERING the goods.
A consumer buyer is a person who buyers consumer goods for value, for his own personal, family or household use, from a consumer seller, without knowledge of the sec int.

Question 26

Marriage is _____________
3 Elements of a ceremonial marriage

Answer 26

A marriage is a civil contract involving the legal Union of two people.
1. Consent
2. Capacity (age usually 18 unless parent consent)
3. Compliance w/ legal formalities (usually a license and solemnization by an authorized officer)

Question 27

Legal formalities for a marriage license (& when it will be rejected)

Answer 27

Age- usually 18+ or need parental consent
Waiting period
Premarital testing if nec (results cannot block issuance)

License not issued if a party is married to someone else, parties are too closely related, sham marriage, or parties of incapable of understanding the nature

Question 28

A CL marriage is…. (2 parts)
A CL marriage generally requires.. (4)

Answer 28

A valid marriage that creates marital rights and obligations IDENTICAL to a ceremonial marriage without having performed the legal requirements. CL marriage has been abolished in most states.
1. Consent- both parties must agree and be old enough and not related
2. Cohabitate
3. Holding out in public (joint bank account, telling fam & friends they’re married, etc)

Question 29

An annulment is …..
void marriage is…
3 types of void marriages

Answer 29

An annulment is a judicial declaration that a marriage was invalid due to an impediment at the time of the marriage, and therefore, never occurred. It may be void or voidable.
void marriage- was never valid from the start and cannot be made valid (judicial decree unnec).
1. Bigamy (although under the UMDA, a bigamous marriage can be validated upon the removal of the impediment- when the prior marriage has been terminated as long as good faith)
**also under presumption of validity, the last of several marriage is presumed valid
2. Incest / blood relationship
3. Incapacity (P lacks ability to understand the nature- voidable if P gains capacity under the UMDA)

Question 30

What is a limited divorce (& 2 common situations)

Answer 30

A limited divorce is when the court resolves support and property issues while the parties live apart and remain legally married (mainly medical or religious situations)

Question 31

A divorce is….
Filing for divorce requires…. (Divorce jx). This allows____________
To divide marital assets in a divorce______________
Modification R?

Answer 31

A divorce is a judicial decree that terminates the legal marriage.
Filing for divorce requires at least one of the parties to be a resident of that state. P jx of merely one of the parties will allow a state court to issue a divorce decree and then other states may recognize the decree through FF&C CL.
To divide marital assets, a court needs pjx over both parties. Property distribution orders are generally not modifiable, absent fraud.

Question 32

Ex parte divorce is… (what is it + limitation)

Answer 32

When a court with personal jx over only one spouse can issues a divorce decree but can not determine property division, maintenance or custody issues

Question 33

3 requirements for enforceability of premarital agreements

Answer 33

1. Full & fair disclosure (of assets/obligations or else unconscionable)
2. Fair & rsb terms (considering wealth, age, and health of parties- no public assistance or child custody/support)
3. Voluntary signed in writing by both (no fraud, duress, time pressure, consider business experience & opportunity for legal counsel)

Question 34

Modification of a premarital agreement may be prohibited if…
*ct caveat?
Under the UPAA, ________________ unless______________.
Always consider _________

Answer 34

The parties include a no-modification clause in the agreement, but the ct may always modify child support, provisions, despite a no-modification clause.
Under the UPAA (Uniform Premarital Agreement Act), modification or elimination of spousal support is permitted unless it would leave a spouse to depend on welfare.
Always consider public policy.

Question 35

Community property vs equitable distribution

Answer 35

Community property- all marital property (acquired during marriage no gift/inheritance) split 50/50
ED- equitable split not nec equal (ct will consider length of marriage, health/income/age of spouses, education, child rearing, future needs, standard of living). NO MODIFICATION UNLESS FRAUD

Question 36

General spouse support duty R:
spousal support is… (def)
To modify a spousal support order, one must show_________

Answer 36

Generally, a spouse has a duty to support their spouse.
Spousal support is the obligation of one party to provide financial support to the other, even upon divorce, if that person cannot provide for his or her own needs (cannot be discharged in bankruptcy)
*to modify, show a sub change in circumstance

Question 37

The Uniform Interstate Family Support Act acts as a __________ (hint: pro)

Answer 37

LAS for PJx over a nonresidents to establish or enforce child support

Question 38

General child support R:
7 factors to consider in determining child support

Answer 38

Both parents have an absolute duty to support their children until the child reaches the age of majority or is otherwise emancipated.
Ages, special needs, party obligations, assets, medical expenses, standard of living and BIOTC

Question 39

Child custody is….
Uniform Child Custody Jx & Enf Act (UCCJEA) 2 part analysis
How is “home state” defined?
What is considered evi for sig connection?
*continuing jx R
In awarding child custody, the court will consider ___________, which encompasses (5 things)
Modifying a support order requires _____________such as (2)

Answer 39

Child custody is a parent’s right to make legal and/or physical decisions affecting a child’s life.

1. Grants SMJ if child’s HOME STATE (residence w/ parent since birth or at least 6 consecutive months or was child’s home state for at least 6 months and 1 parents continues to live there)
2. Allows ct to enter/modify order IF NO HOME STATE as long as SIG CONNECTION AND EVI in the state regarding CHILD CARE)
   **Ct that makes initial ruling has exclusive cont jx until neither parents nor child resides in state or child no longer has sig connection & no more evi available

In awarding child custody, the court will consider the BIOTC (encompasses parent’s wishes, the child’s wishes, ability for the parent to provide for child’s needs, adjustment to home/community)

Modifying a support order requires a showing of a substantial change in circumstances, such as the needs of the child or the ability for the parent to pay

Question 40

A ct may have Temporary emergency jx over a child for custody orders if _________

Answer 40

child is in immediate danger (if prior order exists, rsb time for parties to return to original state)
*order will cont until future determination or emergency order will cont

Question 41

The Parental Kidnapping Prevention Act (PKPA) requires that ______________ as long as _______________ and ______________

Answer 41

state courts MUST give FF&C to child custody decrees of other state courts when: (1) issuing court had jx
AND (2) the assertion of jx consistent with the jx requirements of the PKPA.
UCCJA or UCCIEA (most states)= sub same requirements as the
РКРА

Question 42

Visitation Rule (including the presumption)
Denial of visitation only allowed if…

Answer 42

Generally, there is a rebuttable presumption that the noncustodial parents should be granted RSB VISITATION w/ a minor. Visitation cannot be denied for non-payment of child support.
Denial of visitation is only allowed if it would seriously endanger the child’

Question 43

6 situations that will terminate parental rights + standard

Answer 43

clear and convincing proof of
abuse (even of a sibling), abandonment, neglect, incapacity or proof that the child has been placed outside the home of a relative for 15 of the past 22 months
*note- biological parents may voluntarily give up their parental rights

Question 44

Adoption is _____________
Generally, adoption may only occur…
However, (consent caveat) ___________

Answer 44

Adoption is the legal severance of the biological parent’s legal rights and responsibilities for the child (visitation rights usually lost) for their child.
Generally, both bio parents need consent, apart from cases of mental illness or abandonment. And if child is non-marital, consent of bio father only req.’d if he has assumed responsibility

Question 45

UPAA governs ____________
Challenger must prove __________ OR _________________.
COL caveat?

Answer 45

Uniform Premarital and Marital Agreements Act governs the enforcement of premarital agreements. Specifically, the party against whom enf is sought must prove involuntariness OR unconscionability.
The act also allows parties to a prenup to choose which state’s marriage laws apply.

Question 46

A debtor may give security rights in future property by…

Answer 46

Including an after acquired property clause

Question 47

General Authority R (from P to A) Actual Authority may be express or implied….
Parties must have?

Answer 47

An agent has the power to bind the principal to a contract when the agent acts with actual or apparent authority Actual authority may be express or implied. Express authority is when the P clearly gives authority to A through oral or written words.
implied authority exists when the PRINCIPAL’s conduct leads the A to RSBLY believe that she has authority, such as through nec acts to complete a transaction on the P’s behalf
***must have consent (capacity)

Question 48

General Rule for Apparent Auth?
Apparent authority exists when ______________ due to _____________
Will establish ___________ liability.

Answer 48

Even when an A lacks actual or authority, the P can be held liable for the A’s acts if the A acted with Apparent Auth.
Apparent Auth exists when the third party dealing with the agent RSBly believes that the agent has authority to act on the P’s behalf due to an act or neg from the P (holding out A as an agent)
**will amount to vicarious liability

Question 49

a P may be vicariously liable (3 parts) if

Answer 49

the A or emp was acting within the scope of their employ, made a minor deviation from employ, or committed an intentional torts for P’s benefit

Question 50

an A will be liable for contracts entered into with a third party if (3 parts)

Answer 50

1. the A had no actual or apparent authority to enter into the K
2. if the P is undisclosed to the 3rd P (where the 3rd P does not know the A is acting on another’s behalf)
3. or if the P is partially disclosed (3rd P knows A is working on behalf of a P but doesn’t know ID)

Question 51

A General Prtnrship is (3 parts + test + liability)

Answer 51

The association of two or more persons to carry on a for-profit business as co-owners. All partners will be J/S L.
Specific intent to form a Prtnrshp unnec (only the agreement to form a for-profit business together). No paperwork is needed and will be the default if parties have improperly tried to form another business association.
TEST- sharing of profits (presumption). Also, exercise of control & day-to-day operations considered.

Question 52

Generally, an agent is prohibited from delegating authority to a 3rdP without…….

Answer 52

P’s express authorization

Question 53

Revocation of Agency Authority is effective… unless___________

Answer 53

As soon as either party gives notice to the other party (unless A has an interest in the subject matter of the power)

Question 54

6 ways to terminate the agency relationship besides revocation

Answer 54

Agreement states expiration, change in circumstances, passage of time, loss of capacity, A’s breach of fiduciary duty, revocation

Question 55

An agent has a duty to their Prinicipal of… (3 + basic definitions)
A principal has a duty to it’s agent to… (3)

Answer 55

1. Duty of care (follow instructions, rsbly perform, notify P, diligence, etc)
2. Duty of loyalty (avoid self-int)
3. Accounting (provide P with notice of issues and info of funds)
4. Rsb compensation (unless A has agreed on gratuitous)
5. Reimbursement (for expenses and losses rsbly incurred in carrying out duties)
6. Cooperation (P must cooperate with A to help A carry out functions)

Question 56

3 ways to end a prtnrship

Answer 56

1. Death of any partner
2. End of a definite term / completion
3. Partner dissociates

Question 57

When a partner dissociates from a partnership (which occurs when ___________) _________ occurs which triggers _________ (define).

Answer 57

When a partner dissociates (may occur at any time upon desire to withdraw, agreed upon event, expulsion or bankruptcy) dissolution occurs which triggers the winding up of the assets (procedure by which the prtnrship assets are liquidated and creditors are paid).

Question 58

An LLP is…
Any partnership can become an LLP upon _____________ and _____________.
Who has Liability before vs after LLP statement is filed?

Answer 58

An LLP is a partnership that limits a partner’s personal liability obligations and actions of the business.
Any partnership can become an LLP upon approval of partners by vote and filing a statement of qualification with the state containing partner names, addresses, election and effective date.
Before statement is filed, partners are jointly and severally liable.
After the statement is filed, LLP partner is liable.

Question 59

Ratification will allow __________even if ______________ as long as ____________and then ______________.

Answer 59

P to be liable for the acts of the A, even if the A lacked authority as long as P KNEW the material facts w/ capacity to authorize a transaction and then affirmed/manifested the BENEFIT of the transaction.

Question 60

An LP is…
Define general partner vs limited partner (+ liability)
An LP is formed by

Answer 60

An LP is a partnership that contains both general partners and limited partners for purposes of liability. General partners manage and control day-to-day operations (owe same fiduciaries as a general partnership & are J/S L) while limited partners have limited authority and are usually passive investors (no fiduciary duties and liable only to the extent of their investment)
Formation - Filing a certificate of limited partnership that contains names, addresses and signatures of general partners with the state

Question 61

Consumer goods are _______
Inventory refers to _________
Equipment refers to _________

Answer 61

Goods bought primarily for household, family or personal purposes.
Goods other than farm products that are for sale or lease or (includes goods at a store, raw material, work in process or materials used/consumed in business like fuel or wood)
Goods other than consumer goods, inventory, or farm products that is generally used the business, such as machinery, vehicles or computers

Question 62

Farm Products are

Answer 62

Goods such as crops, livestock, and supplies used or produced in farming operation

Question 63

Default occurs when…
Sec’d P has a right to ______ or________ as long as _____________
Courts will consider….3

Answer 63

The debtor does not make the required payments to the sec’d party. The sec’d party has a statutory right to repossess the collateral pursuant to the judicial process or self help as long as the sec’d party does not breach the peace.
To determine whether repossession was peaceful courts examine: (i) where the repossession took place; (ii) who was present; and (iii) whether any protests were made. In general, breaking into locked property is a breach of the peace.

Question 64

A promoter is personally liable for _______________ even if _______________
Unless ____ (3)

Answer 64

A promoter is personally liable for KNOWINGLY ACTING on behalf of a corp even if the Corp has not come into existence unless
1. NOVATION releasing the promoter from liability
2. A 3RD P RELIES ON the corp for performance
3. or the promoter had NO ACTUAL KNOWLDEGE that the corp’s charter has not yet been issued

Question 65

Corp liability for preincorp transactions

Answer 65

Corp is not liable for pre-in Corp transactions, even those for the benefit of the Corp

Question 66

A security interest in a nonconsumer deposit account is perfected by…

Answer 66

control

Question 67

Art 9 governs…

Answer 67

Sec interests of personal property and fixtures, and provides the rules for their priority

Question 68

Minor errors in the debtor’s name = ok unless________
Primary example? Unless______

Answer 68

Minors errors = ok (will not render the fin statement ineffective) unless seriously misleading
Sufficient name of debtor = seriously misleading unless statement discoverable in search of the records of the filing office under correct name

Question 69

Art III requires… and permits…

The judiciary has the power to review..

Answer 69

Art III requires the establishment of a SC and permits Congress to create other fed courts w/ limitations

The judiciary has the pwr to review:
1. Another branch act and declare uncon
2. The constitutionality of a decision by a state’s highest ct
3. And state actions under the supremacy CL

Question 70

11th A prohibits
+ 4 exceptions

Answer 70

a state or state agency for being sued in fed ct unless
consent, inj/dec relief, when damages are paid by the officer and Congressional enforcement of 13, 14, & 15

Question 71

4 Standing Requirements (w/ definitions)

Answer 71

1. Injury in fact- concrete & particularized (future must be actual/imminent)
2. Causation- injury caused by D’s violation of a con or other fed right
3. Redressability- the requested relief is likely to prevent injury
4. Prudential- PARTY = proper party in invoke judicial resolution

Question 72

An organization may sue on its own behalf or on behalf of its members if… (3)

Answer 72

1. Members would have standing in their own right
2. the interests at stake are germane to the ORG’S PURPOSE
3. Member participation = unnec

Question 73

The Commerce Clause of the Constitution grants Congress the BROAD pwr to _____________ including (3)

Answer 73

Regulate commerce btwn the states, including the Channels and instrumentalities of interstate commerce (including persons and things moving in) as well as any activity that substantially affects interstate commerce.

Question 74

Congress May regulate INTRAstate non-economic activity as long as…

Answer 74

there is a RATL BASIS for concluding that there is a cumulative national impact that has a SUBSTANTIAL EFFECT ON interstate commerce

Question 75

5 limitations on conditional funding

Answer 75

1. Condition must be for general welfare
2. Conditions must be CLEAR
3. Relate to fed interest in particular nat’l project/program
4. No uncon requests
5. And no commandeering- cant exceed the point to which pressure turns into compulsion

Question 76

The entire DCC Rule

Answer 76

As enumerated in the constitution, Congress has the power to regulate commerce among the states and foreign nations. The dormant commerce clause, also known as the negative implication of the commerce clause, allows states to regulate in commerce areas where the Congress has not already enacted a law unless:
1. The state law is discriminatory against other states- to where it protects the local economy at the expense of out-of-state competitors (& even if the law is discriminatory, it will still be permitted if the state is acting as a market participant, had clear permission from Congress, is acting on a traditional state function such as waste disposal, or its nec to achieve an important non-economic state interest where there are no rsb alt)
2. The state law avoids regulating wholly out-of-state activity:
3. And there is no undue burden on interstate commerce

Question 77

State action is… requires….
(+DNI)

Answer 77

Necessary to trigger con protections (includes traditional govt functions or sig state involvement like joint venture). Needs state affirmative act to facilitate, encourage or authorize activity.
DNI mere licensing

Question 78

A lease will be considered a security agreement for the purposes of ART 9 when…
Consignments will be considered a security agreement when…

Answer 78

The economic reality of the transaction involves personal property (especially where there is a payment obligation and the lease has some sort of “economic life”)

Delivery to a merchant that deals in goods of that kind— no auctioneers — he uses his own name (individual or biz), & not known by creditors to be engaged in selling others’ goods
***no consumer goods and the value must be at least 1K

Question 79

A disposition if collateral is deemed commercially rsb BY LAW if (3 different ways)
+ Order of proceeds disposition after a sale/auction (sec’d trans)

Answer 79

1. Usual manner of a recognized market
2. At the current price in any recognized market @ time of dis
3. Or in conformity w/ rsb comm practices among dealers w/ similar property
   Disposition expenses then Satisfaction of the obligation owed to the disposing sec’d P then subordinate interests

Question 80

Effect of a sec’d party’s disposition in collateral

Answer 80

After default when the sec’d party disposes of the collateral, the sec’d party’s interest is discharged as well as any subordinate sec interests

Question 81

Slayer statute bars…

Answer 81

An individual who feloniously and intentionally kills the decedent (D)
**includes vol man but not invol man

Question 82

Lapse R (IOW when will the gift fail?)
vs anti-lapse conditions

Answer 82

Generally, if a B does not survive T, the gift will lapse/fail. However, an anti-lapse statute will save the gift if B had living descendants related by blood

Question 83

To distribute assets in a divorce… (2 req.’s)

Answer 83

There must have been a valid marriage and pjx over both parties

Question 84

Define these types of gifts
Specific
General
Demonstrative
Residue

Answer 84

1. Specific - property distinguished with rsb accuracy from T’s other property
2. General- property that is described in a general manner, not as specific as a specific gift, but can still be ID’d from T’s estate. General gifts must “speak” and be clear at the time of death
3. Demonstrative- comes from a particular source
4. Residuary- property that remains in the estate after all other gifts are made

Question 85

Articles of Incorporation are… they must include (4)
Bylaws are….
Bonus: under the RMBCA, bylaws may not contain…

Answer 85

The governing documents of a Corp
1. Corp name
2. # of shares Corp is authorized
3. Address of registered office
4. Name & address of each incorporator

Rules and regulations adopted by the BOD that govern the internal operations and management of a Corp.

Bonus: Under the RMBCA, bylaws may not contain provisions that are inconsistent with the Articles or a law of that jx

Question 86

Shareholder has a right to inspect records if… (2)

Answer 86

Proper purposes related to SH interest and 5D notice

Question 87

A direct action is…
A derivative action is…
+ standing req (2)
+procedure (2)

Answer 87

A suit for injury/breach of a duty OWED TO A SH (must be actual injury to HIM & not simply injury suffered by Corp) ***rare
A suit by SH on behalf of the corp for breach of fiduciary
Standing-
1. P must have been a SH @ time of the wrong AND time action was filed AND cont as a SH during lit AND Must fairly & accurately rep corp interests
Pro- serve written demand on board unless futile (don’t forget about business judgment rule)
STRATEGY:
1. Whether a breach has occurred
2. ID SH remedy

Question 88

Business Judgment Rule + effect on liability.

Answer 88

Rebuttable presumption that directors/other corporate officers acted within the BIOTCorp if acted in GOOD FAITH and same care that an ORDINARY PRUDENT OFFICER in a like position would exercise under similar circumstances.
Result = insulated from breaching the duty of care

Question 89

A quorum exists when…

Answer 89

A majority of directors in office are present (at time of vote)
*will be valid unless articles say otherwise

Question 90

In a prtnrship, how will a transferee become a partner?

Answer 90

All partners consent

Question 91

How is the agency relationship structured in a prtnrship?

Answer 91

A partner is an agent of the prtnrship and May contractually bind the prtnrship when the partner acts with actual or apparent authority (for business purposes)

Question 92

How does a partnership convert into an LLP? (2)

Answer 92

Approval by all partners and file a statement of qualification with the state

Question 93

an ultra vires act is _________
3 possible consequences?

Answer 93

Act beyond the scope of the specific corp’s purpose (usually found in articles)
Consequences include a SH suit, a Corp suit (directly on an officer) or state action to dissolve

Question 94

to cleanse a director’s self-dealing/COI, he may use the safe harbor R, which requires…..(2)

Answer 94

1. remaining FAIR TO THE CORP given the circumstances
2. Received approval after disclosing material facts by either a majority of the disinterested SH or BOD

Question 95

A def may be found liable for strict liability if (3 general elements)

Answer 95

1. FSB high risk of sig physical harm
2. Even w/ RSB care
3. Activity not commonly engaged in

Question 96

A codicil is.. (def + effect related to date)
A Holographic will is… (def + 3 req.s)

Answer 96

An amendment, modification or alteration to a previously existing will. When a codicil is validly executed, the OG Will is treated as republished and deemed to have been executed on the date the codicil was executed.
A holographic will is an unwitnessed handwritten will. These are not recognized in all states. If recognized, they will revoke a prior valid will.
Req.= T’s handwriting, SIGNED, and show intent to make a will (not say, simply a LTR that expresses intent to amend a will).

Question 97

COL to determine will validity CL vs UPC

Answer 97

CL- T’s domicile @ time of death

UPC- where will was executed OR T is domiciled at time of death

Question 98

An Agent is________ in order to________
+ 3 req.’s

Answer 98

A person or entity that acts on behalf of another (or a principal) to create a fiduciary relationship.

Bonus 3 requirements: need assent (formal or informal agreement), benefit of the P, and control of P to A

Question 99

Vicarious liability may STILL be found in Emp-IC relationships for these 3 situations

Answer 99

1. Inherently dangerous/hazardous activity
2. Nondelegable duty (care)
3. Implied apparent auth w/ rsb reliance
   **P be liable if neg training/hiring

Question 100

Generally, property is partnership property if…..
Property acquired solely in the name of a partner is presumed to be separate property (even if used for prtnrshp purposes) if… (2)

Answer 100

If acquires in the name of the partnership
1. He avoids using prtnrshp assets to acquire the property
2. And no written title instrument references the prtnrshp

Question 101

a parter breaches the duty of care in these 3 situations

Answer 101

a) grossly negligence/ or reckless conduct;
(b) intentional misconduct; OR
(c) a knowing violation
of law.

Question 102

An LLC is _______________
It is formed when________________ and __________________.

Answer 102

An LLC is a business entity that relieves its owners of personal liability for debts and obligations of the company.
It is formed by by filing a signed certificate w/ sec of state and the company has at least 1 member.

Question 103

Member-managed vs manager- managed LLC
+ presumption
+requirement for member managed

Answer 103

Manager-managed is when the LLC is run by an elected group of managers, who manage the company similar to a BOD.
Presumption = member managed
*The Operating Agreement must state that the LLC is manager-managed

Question 104

________________ will liable for a pre-incorporation K where the K was subsequently adopted by the Corp? Unless (2)

Answer 104

BOTH the Corp AND the promoter (unless novation or K specifically absolves promoter)

Question 105

Implied adoption of a pre-incorporation K occurs when

Answer 105

The Corp has reason to know or knows the material terms of the K and accepts a benefit from the K

Question 106

3 requirements for a De Facto Corp
+standing requirement

Answer 106

1. GOOD FAITH ATTEMPT to incorporate
2. Otherwise eligible to incorporate
3. TOOK ACTION indicating that it considered itself a Corp
   ***only a person who was unaware that Corp was not properly formed may assert

Question 107

Piercing the veil occurs when….
4 situations where a court will Pierce the Corporate Veil (+LLC caveat).
Once the corp veil is pierced, _____________________ unless_____________.

Answer 107

A ct is able reach into the personal liability of SHs apart from its limited liability
1. ALTER-EGO / noseparation btwn Corp and SHs
2. SH failed to follow corporate formalities
3. INADEQUATE CAPITALIZATION of the Corp at its inception to cover debts/liabilities
4. Preventing FRAUD/ILLEGALITY
***all applies to LLCs except #3
Once the corp veil is pierced, all persons composing the corp (SH) maybe personally liable unless not involved in active management

Question 108

Authorized shares are___________. Found where?

Answer 108

The maximum # of shares a corp MAY ISSUE, as set in the articles.

Question 109

In order to increase the # of shares to be issued, a corp must…. (3)

Answer 109

1. Amend the articles
2. Changes must be adopted by the BOD
3. Changes must be approved by a majority of SHs

Question 110

Outstanding shares are (def)
Under the RMBCA each outstanding share is entitled to ___________ unless _____________

Answer 110

The total # of shares issued by the Corp and held by the SHs.
Under the RMBCA (revised model bus Corp act), each outstanding share is entitled to ONE VOTE unless provided in Articles

Question 111

Which shareholders are entitled to vote?

Answer 111

SH registered on the record date

Question 112

RMBCA, Record date cannot be fixed more than ___ days before SH meeting.

If not fixed at all, default = ?

Answer 112

70

Default = day before the first notice is delivered to SH

Question 113

A valid proxy SH must be ___________ or ______________.

Answer 113

Signed on an APPOINTMENT FORM or an ELECTRONIC TRANSMISSION.

Question 114

A proxy SH must be accepted if

Answer 114

On its face there is no rsb grounds to deny its genuineness and authenticity

Question 115

A proxy Is only valid for ________ months, unless proxy form provides otherwise.

Answer 115

11

Question 116

Revocability of proxy agreements +even if_____________
+unless ________ AND ____________

Answer 116

Proxy agreements are freely revocable by the SH, even if proxy states that its irrevocable.
**unless proxy expressly states and it is coupled with an interest/right

Question 117

A special meeting is __________
Proper notice to Shareholders for a SPECIAL MEETING = more than ____ but less than ___ and must include________

Answer 117

A special meeting is reserved for business involving fundamental changes that require SH approval. Notice must be more than 10D but less than 60D to all SH eligible to vote AND include full description of the purpose of the meeting.

Question 118

2 ways to waive notice of a special meeting

Answer 118

Delivering a signed writing to the Corp OR attending the meeting without objecting at the beginning of the meeting

Question 119

5 requirements for SH to have the right to inspect and copy corp’s accounting records

Answer 119

1. Inspection made during regular business hours
2. 5D written notice
3. Written notice describes w/ rsb particularity
4. Good faith / proper purpose
5. Records are directly connected with that purpose
   ***note that certain records may be inspected without purpose (articles, bylaws, annual reports, meeting minutes, BOD resolutions, communication to SH)

Question 120

Under the RMBCA, unless the articles state otherwise, the BOD may hold regular meetings with _____ days notice and special meetings with ______ days notice.
Special notice requirements =?

Answer 120

0 and 2

Date , time & place only

Question 121

A secretary of a Corp normally has the authority to ___________________

Answer 121

Maintain and authenticate records of the Corp

Question 122

Restrictions on the transfer of shares of the Corp must be _____________.
An absolute restraint will be _________.

Answer 122

Rsb
Invalid

Question 123

2 requirements of the fiduciary duty of loyalty

Answer 123

1. Director must act in the best interests of the corp
2. And without personal COI

Question 124

3 situations of a corporate COI

Answer 124

1. Director/officer or a family member is a PARTY to the transaction
2. ^^ beneficial interest / close link that would affect judgment
3. Or is involved w/ another entity conducting business w/ the corp

Question 125

Generally SHs do not owe fiduciary duties to fellow SHs (T/F)
Unless the SH is a ____________
Also- what even is a close-corp? (2 requirements

Answer 125

Controlling SH
Close Corp= not public ally traded & small # of SH

Question 126

4 requirements for a SH to bring a derivative action
+ timing of suit caveat +unless (2)

Answer 126

1. Is a SH @ time of act (or via law)
2. Must be a SH thru to judgment
3. Must fairly & adequately rep corp interests
4. And must make a WRITTEN DEMAND upon Corp to take action
   **suit cannot be commenced until 90D after Demand unless Corp rejects or irreparable harm

Question 127

If a majority of the BOD’s qualified directors have determined in good faith, after conducting a reasonable inquiry that the derivative proceeding is not in the best interest of the Corp., the Court _________ __________

Answer 127

MUST dismiss

Question 128

To prevail on a 10b-5 Securities claim, P must show (4 requirements)
+ standing

Answer 128

1. D used interstate commerce to engage in a fraudulent scheme
2. RELIED on to purchase/sell security
3. Acted w/ scienter (K/SHK)
4. Caused damage
   P must be SEC or connected to trans

Question 129

A short form merger occurs when…
+ voting rule

Answer 129

A parent corp merges w/ it’s own subsidiary. If the parent owns at least 90% of the sub’s voting shares, only the BOD has to approve merger

Question 130

A def May Remove an action from _______ to ___________ if … (3 req.)

Answer 130

A def May remove an action from state ct to the fed ct for the dist ct which the state ct action is pending if 1. if the case could have originally been brought in fed ct (SMJ + COMPLETE DIV)
2. All Def’s consent
3. Def seeks removal w/in 30D (up to 1 year) of receipt/service of initial PL or summons (whichever shorter)

Question 131

Procedure for a Def to Remove requires (4 parts)

Answer 131

A NOR in fed ct district where the state action is pending. The Notice must state the basis for removal and include COPIES of docs filed in state ct. serve Notice on all parties & file. Removal = automatic.

Question 132

PJx refers to…
COL R?
To exert PJx over a Def…

Answer 132

The CT’s ability to exercise judicial power over the person or property involved in the case or controversy before it. A fed ct will analyze PJx as if it were a state ct in that jx.
There must be either general jx or specific jx for the def.
General = @ home
Specific = refers to D’s contacts w/ in forum state (purposeful availment to be hauled into ct) + Con requirements of DP ( does not offend the traditional notions of fair play and Justice- fair & rsb)

Question 133

A party may be sanctioned for failing to preserve ESI if…. (3)

Answer 133

1. The ESI should have been preserved in the anticipation of lit
2. P failed to take rsb steps to preserve
3. And it cannot be restored or replaced thru add’tl disc

Question 134

JMOL- deadline?
Standard? (2)
+2 situations when a judge can reverse a denial

Answer 134

Any time before case submitted to jury
- non-movant has been fully heard on issue and ct finds that no rsb jury would have found a legal basis
-only if factual finding not supported by sub evi or legal finding not supported by facts

Question 135

COL: vested rights vs MSR vs Gov’t Interest (+true conflict caveat)

Answer 135

Vested rights- apply law of the state in which the trans or event occurred

MSR- (R) weigh factors to determine MSR to trans & parties

Gov’t Int- weighs states int/connections that were involved (considers legal differences, policies, circumstance, etc). True conflict? Apply forum

Question 136

In a will, a decedent may designate a particular state’s law to be applied for matters of ___________________, but the _____________ and ___________ of a will is always determined by situs

Answer 136

Construction
Validity and effect

Question 137

Under the Uniform Interstate Family Support Act (UIDSA), state courts MUST _____________ as long as ____________

Answer 137

Must give FF&C to enforce child support awards when issuing ct had jx

Question 138

A taking is deemed for PUBLIC USE if…. ____________________. Just compensation is measured by ___________________.

Answer 138

RSB belief that it will benefit the public.
The FMV of the property at the time of the taking (DNI relocation $)

Question 139

A Regulatory Taking is…
3 Penn Central factors

Answer 139

owhen governmental regulations limit the use of private property to such a degree that the landowner is effectively deprived of all economically reasonable use or value of their property.
1. Impact on private interest
2. Extent of interference with distinct investment backed expectations
3. And character of govt action

Question 140

Under the PRIV & IMM CL of Art IV, states may not ___________________ concerning ___________ or _____________
+ however states may pass discrim law against non-residents if _______ and ____________.
Protection does not extent to __________ or ___________

Answer 140

Intentionally discriminate against non-residents concerning civil liberties or important economic activities (relating to livelihood)
*must have a substantial reason for treatment and law must be related to that reason
Note: DNI 👽 or corps

Question 141

Law that discriminate against a non-resident in violation of the PRIV & IMM CL will be upheld if (2)
Note: DNI 👽 or corps

Answer 141

There is a sub reason for the differential treatment and the discriminatory law has a substantial relationship to that reason

Question 142

UCC Rule:
Art 2 of the UCC governs Ks for the sale of goods. Goods are defined as ___________, including _________ and ___________.

Answer 142

All things that are movable at the time of ID to the K, including crops and animals

Question 143

An offer is…
A person makes an offer when…

Answer 143

An objective MANIFESTATION of intent to enter into an agreement with DEFINITE TERMS that creates a power of acceptance in the offeree.
A person makes an offer when they COMMUNICATE to an identifiable offeree a statement of willingness to enter into a bargain

Question 144

2 elements of an Implied-in-Fact K

Answer 144

1. Conduct is intentional
2. And each P K/SHK the other P would interpret the conduct as an agreement to enter a K

Question 145

Consideration is

Answer 145

A bargained for exchange of a benefit to the promisor or a detriment to the promisee

Question 146

Misrepresentation generally arises if ___________________
However, nondisclosure will subject a Def to liability if_____________
A misrepresentation is material if it would ___________________

Answer 146

Misrep arises when a Def ACTIVELY misreps a material fact.
No disclosure will subject liability if Def had a DUTY TO DISCLOSE.
Material = Likely induce a rsb person to agree

Question 147

4 requirements to RLY satisfy SOF

Answer 147

1. Signed by (or on behalf of) P to be charged
2. Rsbly ID subject matter of K
3. Indicate a K has been made
4. And state essential terms

Question 148

Rights will vest so that an 3rd P intended B may enforce K rights when… (3 situations)

Answer 148

1. Manifesting assent
2. Detrimental reliance
3. Bringing suit

Question 149

CL expectation damages rule
+bonus recovery elements (4)

Answer 149

The general measure of damages for a BOC are expectation damages. ED ARISE DIRECTLY from the breach and are an attempt to put the non-breaching P in the SAME POSITION but for the breach.
To recover, must be ACTUALLY caused, FSB and in an amount CERTAIN as well as UNAVOIDABLE (rsb steps to mitigate)

Question 150

Instead of expectation damages, a court may award Restitution, which is available to prevent _____________ and measured by_____________________.

Answer 150

Prevent unjust enrichment

Measured by the value of the benefit conferred

Question 151

A superseding intervening cause is… (2 parts)

Answer 151

A 3rd P’s unfsb act that breaks the chain of causation, generally cutting off a Def’s liability

Question 152

3 elements of Voluntary Manslaughter

Answer 152

1. Def was provoked (sudden and intense passion that caused a loss of self control)
2. In a situation where a RSB person would have been provoked
3. No time to cool off

Question 153

Larceny is the… (3)

Answer 153

Trespassing taking and carrying away of the personal property of another with the intent to permanently deprive the owner at the time of the taking

Question 154

A person is guilty of solicitation if…
A person is guilty of attempt if…
A person is guilty of conspiracy if…

Answer 154

Upon requesting encouraging or enticing another person to commit a crime With the specific intent that the crime be committed.
Took an overt act, beyond mere preparation, w/ the specific intent to commit the crime.
An intended agreement btwn 2 or more ppl to pursue an unlawful objective with an overt act in furtherance

Question 155

M’Naghten vs MPC vs II vs Durham
+ standard? Maj & min

Answer 155

MN- Def had a mental disease that resulted in him being unable to appreciate the wrongfulness or understand the nature and quality of his acts
MPC- Def had a mental disease that resulted in his inability to appreciate the criminality of his conduct or conform actions to the law
II- mental illness made him unable to control actions or conform to the law
Durham- but-for
Standard = most states preponderance (min = BARD)

Question 156

The use of deadly force is justified when… (2)

Answer 156

belief of threat to one’s life was RSB and the deadly force was nec to defend against the danger

Question 157

3 elements of a valid search warrant

Answer 157

1. PC (reliable info that evidences a crime or items to be seized at a particular location)
2. Description of particular place to be searched
3. By a neutral and detached magistrate

Question 158

4 situations of exigency circumstances exception to warrant requirement

Answer 158

Evidence would disappear
Evidence would be destroyed
Hot pursuit + plain view
Emergency aid

Question 159

The automobile exception allows _____________ as long as there is ______ and _______________

Answer 159

Police to search the entire vehicle- even containers as long as there is PC and RSB probability that crime could be in those containers

Question 160

Exclusionary R + 4 exceptions

Answer 160

Under the ER, evidence obtained in violation of a Def’s 4th, 5th or 6th A, including all derivative evidence, is inadmissible under the FOTPT Doctrine.
Exc- independent source, inevitable discovery, attenuation (passage of time or intervening event), or reliance in good faith on defective warrant

Question 161

To be admissible, evidence must be relevant. Evi is relevant if (2)

Answer 161

It has a TENDENCY to make a fact more or less probable than it would be w/o the evi
And the fact is OF CONSEQUENCE in determining the action

Question 162

Evi is prejudicial when… (2)

Answer 162

It is UNNECESSARY and might cause the jury to improperly sympathize or dislike a P

Question 163

Under the Best Evi R, …
(Main R plus 5 exceptions)

Answer 163

The original writing, recording or photo is required in order to prove its content UNLESS
reliable duplicate - like photocopy
All originals = lost or destroyed good F
Original can’t be obtained thru judicial process , not produced after proper notice on P in control, OR not closely related to a controlling issue

Question 164

Evi of prior bad acts may be admissible for other relevant non-propensity purposes (motive, ID, mistake, accident, intent, common plan, opportunity, prep). To offer, must show (2)

Answer 164

By a preponderance of the evi that prior act was committed and that it’s probative value substantially outweighs the dangers of unfair prejudice

Question 165

Judicial notice is when… (3 parts)
+ jury instructions regarding acceptance (civil vs criminal)

Answer 165

The court takes note of an indisputable fact that is COMMONLY KNOWN in the community or readily capable of verification and cannot rsbly be questioned.
In a CIVIL case, judge instructs jury to accept as CONCLUSIVE. CRIMINAL- jury MAY OR MAY NOT ACCEPT fact as conclusive

Question 166

A present sense impression is..

Answer 166

An exception to the hearsay R that describes an event made by the Declarant while observing the event or immediately after. This includes a few mins after the event.

Question 167

An excited utterance is

Answer 167

An exception to the hearsay R that is a statement relating to a startling event made while the Declarant was under the stress of excitement that the event caused. Slight delay btwn event & statement = ok

Question 168

Business records are admissible as a hearsay exception if… (6)

Answer 168

It is a record of events, conditions or opinions
Kept in the reg course of business
Made at or near the time of the matter describes
Made by a person with knowledge of the matter in the regular practice of the business to keep such a record and the opponent cannot show the record was made under circumstances indicating a lack of trustworthiness

Question 169

Dying declarations may be admissible as a hearsay exception in these cases _____________ OR ______________.
Requirements : (3)

Answer 169

Civil or criminal homicide .
To be admissible, Declarant must be unavailable, statement made under sense of impending death and statement was about the circumstances or cause of impending death

Question 170

A Declarant is deemed unavailable as a witness if…. (5 different ways)

Answer 170

Exempted due to privilege,
refuses to testify despite ct order,
Testifies that he does not remember
Cannot be present due to death/ill
Is beyond reach of subpoena DESPITE RSB MEANS

Question 171

Statements against interest may be used as a hearsay exception only when ________________.
Criminal case caveat =

Answer 171

Declarant = unavailable
Crim case needs corroborating circumstance that indicates trustworthiness

Question 172

Aty WPD protects ________________ UNLESS (2)

Answer 172

All materials prepared by an aty or his agents in anticipation of lit UNELSS P can show SUBSTANTIAL NEED and substantial equivalent cannot be obtained w/o undue hardship

Question 173

Premarital Agreements are ______________. Parties may agree to ________________, including ______________ unless_______________ or ______________.
COL R : use ____________and ________
Requirements include (3)

Answer 173

Premarital agreement are Ks that generally provide for distribution of assets upon divorce or death. Parties may draft out any matter including personal rights and obligations unless violation of PUBLIC POLICY or CRIMINAL LAW.
*no binding agreements on 3rdP or child support provisions
(COL: Generally, use the state where parties executed K and regarding ENFORCEABILITY use the most significant relationship.)
Req.’s = IW, voluntary, & Full & fair disclosure , fair & rsb terms
Vol= ask if any Fraud, duress or coercion
*insistence on signing alone? Still vol

Question 174

Conditional Relevance exists when…

Answer 174

Neither piece of evidence is relevant on its own, but taken together would be relevant to an allegation or defense

Question 175

A court will permit a custodial parent to relocate if the relocation is.. (2)

Answer 175

In good faith and in the BIOTC

Question 176

An Unmarried biological father’s right to a relationship with his child is protected under the _____________ CL , ONLY IF… (2)

Answer 176

DP
Only if he has assumed parental responsibilities and established a substantial parent-child relationship

Question 177

4 unities req.’d for a JOINT TENANCY

Answer 177

Time, title, interest (equal), possession (rights)

Question 178

5 req.’s for a Constructive Eviction

Answer 178

1. LL breached a duty to T
2. LL’s breach caused sub loss of use & enjoyment
3. T provided notice to LL
4. LL failed to remedy w/ in RSB time
5. & T vacated

Question 179

An assignment occurs when a T… Def?
The assignee is liable to ______ for ________ b/c__________.
The assignor is liable to __________ for ___________b/c _____________.

Answer 179

An assignment occurs when a tenant (the assignor) transfers
ALL of his remaining interest in a lease to a third-party (the assignee). The assignee is liable to the landlord for rent and all other covenants that run with the land because privity of estate arises between the assignee and the LL. The assignor also remains liable to LL for any rent not paid by the assignee because privity of contract continues to exist with the landlord.

Question 180

A surrender is…. (LL/T)
If LL accepts…
If LL does not accept…

Answer 180

An offer from the T to END A LEASE EARLY
If LL accepts, the T’s duty to pay rent ends
If LL does not accept, the T is deemed to have abandoned the lease & is liable for damages

Question 181

A real covenant is a….
It differs from an equitable servitude in that…

Answer 181

A non-possessory interest in land that obligates the holder to either do something or refrain from doing something on the land.
=/= ES in that the remedy is damages as opposed to injunctive relief

Question 182

To enforce the BENEFIT of a covenant, there must be….(4)

Answer 182

Writing
Intent to run
Vertical privity (successor holds entire interest)
AND T&C the land (makes more useful/valuable to benefited P)

Question 183

To enforce the BURDEN of a covenant… (6)

Answer 183

Writing (SOF compliant)
Intent covenant runs w/ land
Vertical privity (entire int)
Horizontal privity (2 Ps shared the int apart from covenant)
T&C the land
NOTICE

Question 184

An easement in gross….

An easement appurtenant… (2 + pass to subsequent owner caveat)

Answer 184

An easement in gross benefits a SPECIFIC owner’s enjoyment and DOES NOT run the land

An easement appurtenant benefits the land itself and IS ENFORCEABLE as long as NOTICE

Question 185

3 req.’s to form an easement

Answer 185

1. Signed IW by Grantor (SOF comply)
2. ID land + Ps
3. INTENT for the grantor to convey the easement

Question 186

5 req.’s to establish an easement by Implication

Answer 186

1. Single tract of land divided by common owner
2. Pre-existing use established prior to division
3. Continuous & open to establish permanency
4. Use affects value of the land
5. Such use is rsbly nec for Owner’s use & enjoyment

Question 187

The home builder’s implied warranty protects ___________ against _____________ and warrants ____________

Answer 187

A purchaser of a newly constructed home against latent/hidden defects and warrants that the building is safe/ fit for human habitation
**successors have standing!

Question 188

A BFP is…. (2)

Answer 188

A person who pays valuable consideration for real property and takes without notice of a prior conveyance

Question 189

A purchase money mortgage is used…
+ has priority over ______ unless..

Answer 189

By the buyer to purchase real property from the lender who secures a mortgage on the property.
Holder has priority over all claims/mortgages (both before & after) unless defeated by a recording statute

Question 190

A future advance mortgage is…
What amount?
What usual type of loan?

Answer 190

a loan in which the lender may provide future payments under the original loan.
Lender secured a mortgage for the ENTIRE AMOUNT.
**usually construction loans

Question 191

A trust deed is (same def as mortgage) EXCEPT it involves…

Answer 191

Is a security int in real property intended to be collateral for repayment of a loan except it involves a third P trustee who holds title until the loan is paid off

Question 192

An account is _________ for (8)

Answer 192

right to payment of a monetary obligation for
(1) property that has been or is to be sold, leased, or otherwise disposed of; (2) services rendered;
(3) a policy of insurance issued;
(4) a secondary obligation incurred;
(5) energy provided;
(6) the use or hire of a vessel under a charter or other contract,
(7) a debt arising out of the use of a credit card; OR
(8) winnings in a lottery or other game of chance sponsored by a State.

Question 193

3 different ways to perfect a deposit account

Answer 193

Sec’d P = bank where deposit account is maintained
the debtor, secured party, and bank have agreed in an authenticated record that the bank will comply with the secured party’s instructions for deposits without further consent by the debtor, OR
the secured party becomes the bank’s customer with respect to the deposit
account.

Question 194

A Possessory Lien is…
Has priority over over sec int unless
Prime ex?

Answer 194

A possessory lien is an interest (other than a sec int that:
1. secures payment/performance of an obligation for services or materials furnished by a person in the OCOB;
2. is created by statute or rule of law in favor of the person; AND
3. whose effectiveness depends on the person’s possession of the goods.

possessory lien on goods has priority over a security interest in the goods UNLESS EXPRESS STATUTE

Ex. mechanic’s lien

Question 195

Judgment lien creditors VS perfected Sec’d P ?

Answer 195

lien creditor will prevail if interest arose BEFORE the conflicting sec int was perfected

Question 196

Accessions are…
Interest R related to perf?

Answer 196

goods that are physically united with other goods, but continue to retain their separate identity.
Remains separate even if perfected at the time of the goods being United

Question 197

After default, secured party that disposes of collateral MUST_____
+ liability R

Answer 197

send an authenticated notification of the disposition to the debtor and any secondary obligor. The secured party is liable for damages for failing to provide notice, even if the debtor had actual knowledge of the disposition.

Question 198

The disposition of collateral at a FCL transfers _________ and discharges _________ and ____________
*bonus takes free R

Answer 198

1. Transfers all of the debtor’s rights in the collateral to a transferee for value
2. Discharges the sec int
3. And discharges subordinate int
   *a transferee that acts in GOOD FAITH takes free of the rights of the debtor EVEN IF sec’d P fails to comply w/ disposition Rs

Question 199

Every aspect of a disposition of collateral, including method, manner, time & place must be____________
*courts will consider ___________

Answer 199

COMMERCIALLY RSB
Cts will consider all facts & circumstances (advertising, normal practices / trade, length of time, $$)

Question 200

A sec’d P may re-purchase the collateral… (3 different ways)

Answer 200

1. Upon agreement
2. Public sale
3. Private sale ONLY IF collateral is of a kind that is customarily sold on a recognized market/subject of widely distributed standard price quotes

Question 201

A sec’d P’s liability for failure to comply with the applicable rules is generally limited to ___________ damages.
+ court involvement as last result?

Answer 201

Actual damages (and possibly $500 in statutory damages for specific provisions)
Ct may restrain collection, enforcement or sale if sec’d P is not proceeding w/ Rules

Question 202

Redemption Rule:
A debtor has the right to ___________ if he ____________ and _________ .
Debtor May redeem at any time before… (3)

Answer 202

Reclaim property held by the sec’d P if he fulfills all obligations sec’d by the collateral and pay rsb expenses/aty fees
*collection of the collateral,
Disposition (or K for disposition),
Or sec’d P has accepted collateral in satisfaction of obligation

Question 203

RSB person standard Rule (3 parts)
“Every person owes__________”
“A RSB person takes __________ measures to avoid __________”
“This duty is owed to ___________”

Answer 203

Every person owes a duty to act as a RSB prudent person would act under like circumstances. A RSB prudent person takes APPROPRIATE MEASURES to avoid FSB RISKS.
This duty of care is owed to all FSB plaintiffs.

Question 204

_______________ are held to the standard of an average member of that professional in the community, whereas ________________ are held to national standards

Answer 204

Professionals
Medical doctors

Question 205

LL liability modern rule
Vs traditional

Answer 205

rsb care TO ALL to take appropriate measures to avoid FSB risk
Traditional - determines by type of person.
Unknown/undiscovered trespasser- no duty
Known/anticipated trespasser- rsb care to warn OR make safe known dangerous art conditions
Licenseersb care to warn or make safe known dangerous conditions
Invitee- same ^^plus RSB INSPECTION for hidden dangers & make safe

Question 206

Under the doctrine of neg per se…
If neg per se applies, the duty and breach elements are established when _______. Ptf need only prove _________.
For Def to be liable, ptf must show (2)
Two exceptions = _____ and ______.

Answer 206

a statute may be used to substitute the duty of care.
If neg per se applies, the duty and breach elements are established when the defendant breaches the statute.
Ptf need only prove CAUSATION & DAMAGES
PTF must show:
(1) statute’s purpose is to prevent the TYPE OF HARM ptf has suffered
AND (2) ptf is in the CLASS OF PERSONS statute seeks to protect.
Exceptions: compliance = more dangerous than the violation of it AND compliance = impossible.

Question 207

Res Ipsa is a doctrine that may be used when ______________.
To be applicable, a ptf must show (3)

Answer 207

the breach element of negligence is very difficult to prove.
To be applicable, ptf must show in the absence of causation:
(1) that her injury is of a sort that typically does not occur in the absence of negligence
(2) the thing/object which caused her injury was in the defendant’s exclusive control; AND
(3) the negligence is within the scope of duty defendant owed to plaintiff.
*Most jxs also require that the ptf NOT cause/contribute

Question 208

An intervening cause is…

Answer 208

An act that occurs after the Def’s breach that contributes to the harm

Question 209

An employee acts within the scope of employment when _____________ or _____________.

Answer 209

performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control / general nature of what’s authorized

Question 210

3 ways an employee’s intentional torts will be within the scope of employment

Answer 210

Specifically authorized
Employee was driven by a desire to serve the employer
Or was the result of naturally occurring friction from type of employment

Question 211

Even if respondent superior would be inapplicable, an employer may still be found liable in situations like (4)

Answer 211

1. Employee intended the conduct
2. Employee was neg/reckless in hiring, training, supervising
3. Non-delegable duty +SR
4. Or employee had apparent authority + 3rdP rsbly relied on

Question 212

3 situations where a principal will be held vicariously liable for torts of an independent contractor

Answer 212

1. Inherently hazardous activity
2. Duty owed by principal = nondeleg
3. Or estoppel where P holds IC out as agent to 3rdP & 3rdP rsbly relied on and then suffered harm as a result of IC’s lack of care/skill

Question 213

The doctrine of alternative liability allows __________________ if _________________ but ______________

Answer 213

A jury to find all Defs liable if multiple Defs are neg but it is unclear which one caused the Ptf’s injuries

Question 214

The doctrine of market joint venture allows _________________ if ______________ and ________________

Answer 214

The neg of one Def to be imputed to the others if multiple Def’s were engaged in a COMMON PRACTICE AND have agreed to engage in tort conduct

Question 215

4 elements of Defamation

Answer 215

1. Defamatory statement- false statement that harms another’s rep
2. Of and concerning Ptf
3. Publication to a 3rdP
4. And damages
   ** don’t forget that if the Def has a qualified privilege (bearing a relationship to a public/private int— like employer’s vouching for former employees) then Ptf must show malice where Def knew it was false or had a reckless disregard — rsb belief of truth will defeat the defamation claim

Question 216

A trust is…
A valid trust req.’s… (7)

Answer 216

A bifurcated legal instrument that separates legal title of property and equitable title to use for the benefit of another. ORAL TRUSTS ARE OK
1. Definitive B (even if future)
2. Settlor w/ capacity
3. Intent to create a trust
4. Trustee
5. Valid purpose
6. Trust property (present res)
7. Compliance w/ state formalities

Question 217

Percatory language in a trust or will are…

Answer 217

Words that merely express a settlor’s desire regarding the disposition of his or her property that do not create a legal obligation to act in accordance

Question 218

Trust revocability: majority view vs UTC

Answer 218

Majority- irrevocable by default
UTC- revocable unless stated otherwise

Question 219

Two situations that will cause a trust to be illusory

Answer 219

Settlor retains a right of withdrawal or names himself as sole trustee

Question 220

A discretionary trust occurs when…
Requires?

Answer 220

A trustee has absolute discretion and pwr to determine when and how much trust property is distributed to the Bs of the trust.
Requires Trustee’s good faith

Question 221

A support trust is….

Answer 221

A trust that contains a provision directing T to pay B as much income and principal as necessary for B’s support

Question 222

Cy pres only applies to….
It is an equitable doctrine that courts will use to modify….
Primary indication?

Answer 222

General charitable intent trusts or bequests.
Cts will modify the trust or will to be consistent with the settlor or Testator’s intent if the purpose becomes frustrated.
Primary indication = absence of a reverter (substitution B) CL

Question 223

A spendthrift provision is…
It is only valid if….
5 exceptions =?

Answer 223

A provision that prevents the transfer of a B’s interest which generally has the effect of prohibiting creditors from collecting on the trust assets.
Only valid if it restrains both voluntary and involuntary transfers.
Exceptions (when a creditor CAN reach B’s income) = creditor for necessities, child support/maintenance, when settlor is a B and is attempting to protect his own assets from a creditor, state/fed govt claims, revocable trust, or judgment creditor that provided services for protection of B’s trust interest

Question 224

Trust modification majority view vs minority.
Procedure for amendments?

Answer 224

Majority- must have expressly reserved the pwr to modify or revoke
Minority- settlor is free to modify or revoke w/o express language.
**amendments must be signed and in writing

Question 225

The trust equitable deviation doctrine may be applied if…

Answer 225

A ct finds that Continuing a trust on its existing terms would be impractical or wasteful (often due to circumstances not anticipated by Settlor)

Question 226

Conditions in a will/trust that prohibit marriage or require divorce are void as against public policy. However two exceptions =

Answer 226

1. Restraint on remarriage (tied to surviving spouse interest)
2. Intended purpose is to take care of daily necessities until they obtain other support

Question 227

A transaction entered by the trustee for the trustee’s OWN BENEFIT= ___________________ and therefore _________ whereas transactions involving trust property entered into w/ persons close to trustee = _______________.

Answer 227

Automatically presumed COI and therefore void .
Rebuttable presumption if Trustee shows no conflict

Question 228

A general pwr of appointment is…
Will only be valid if… (2)

Answer 228

When a testator/settlor gives another person the pwr to decide where and to whom the gifted property will go without any restrictions/conditions.
**will only be valid if instrument is valid under state law & clear intent for the pwr to be authorized

Question 229

A will is signed within the testator’s presence if…
Majority vs UPC

Answer 229

Maj- if it’s signed w/ in the testator’s LINE OF SIGHT
UPC- if it’s signed w/ in range of testator’s senses

Question 230

(Wills) Acts of independent significance are _____________ and are used by cts to ______________.

Answer 230

Are acts with significance outside of the Will making process and are used by cts to fill in any gaps in the will.

Question 231

A will is revoked by a PHYSICAL ACT if________________ and ______________.
Simple words of cancellation CL vs UPC

Answer 231

The testator INTENDED to revoke the will and the will is then burned, torn or otherwise destroyed or cancelled.
Simple words of cancellation must be come into physical contact w/ words of will (ex. Written over) CL but no physical contact necessary for UPC

Question 232

The doctrine of dependent relevant revocation cancels…

Answer 232

A previous revocation that was made under a mistaken believe of law or fact.
**always consider intent

Question 233

Revocation of Will occurs when…
Revival occurs when… +
CL vs UPC

Answer 233

The T burns, tears or otherwise cancels the will with intent
CL- earlier will will be auto revived if subsequent will revoked
UPC- use intent

Question 234

Gift satisfaction CL vs UPC

Answer 234

CL satisfaction = advancement
UPC satisfaction = no advancement unless the Will indicates or otherwise indicated in writing that gift/value will be deducted

Question 235

An anti-lapse statute provides that __________________ if _______________ AND ____________________

Answer 235

Where a B under a will predeceases the Testator, the gift will vest in the ISSUE of the predeceased B if the predeceased B is a specified BLOOD RELATIVE and the B leaves issue who survive T

Question 236

Ademption by extinction will occur if ______________ or _____________.
If T did not intend the gift to fail, B may be entitled to either _______________ or ________________.

Answer 236

A specific gift cannot be identified at the time of T’s death OR T no longer owns it at the time of death.
***property T acquired as a replacement OR a monetary devise equal to the value of the specific gift

Question 237

Abatement occurs when…..

Answer 237

Some gifts will not take into effect so that creditors claims may be satisfied (creditors have priority over Bs)

Question 238

3 req.’s for an effective disclaimer of a gift
+ bonus CL vs UPC timing req.

Answer 238

1. In writing by disclaimer
2. Describe the interest/pwr disclaimed
3. Delivered/filed
   **CL w/ in rsb time (~9m) UPC any valid time

Question 239

To have testamentary capacity to execute a will, T must _________(4)

Answer 239

Be over 18
Understand the nature of the act
Understand nature of property
Understand the natural objects of his bounty (friends/family)

Question 240

A prima facie showing of undue influence occurs when… (4)

Answer 240

1. T had a weakness that made him susceptible to influence
2. Wrongdoer had ACCESS to influence T
3. Wrongdoer ACTIVELY PARTICIPATED IN WILL
4. Unexpected result

Question 241

3 ways a person has standing to challenge a will

Answer 241

Is a B, SHOULD be a B, or would financially benefit if decedent died w/o a will

Question 242

4 situations where a no-contest CL in a will will not apply

Answer 242

1. Alleging fraud/revocation + good faith
2. Contest is on behalf of minor/incompetent
3. Alleging lack of jx
4. Interpreting will terms

Question 243

Standard of proof to show a mistake in a will

Answer 243

Clear and convincing

Question 244

Judicial review is…

Answer 244

The SC’s power to declare action from a branch of govt or a state’s highest court unconstitutional

Question 245

Interstate commerce includes (3)

Answer 245

Channels, instrumentalities and any activity (even non-economic) that substantially AFFECTS interstate commerce
*if economic in nature, sub effect presumed

Question 246

Under the Taxing Pwr, Congress has the pwr to…. (3 parts)

Answer 246

Lay and collect taxes, duties, imposts and excises. They must be GEOGRAPHICALLY UNIFORM throughout the states and all taxes must be RSBly related to revenue.

Question 247

The First Amendment generally prohibits ____________ unless _________ can show__________________

Answer 247

The first amendment generally prohibits the government from restricting the content of speech unless the govt can prove that the restriction is necessary to achieve a compelling govt int

Question 248

Under the Spending Pwr, Congress has the pwr to_____________.
+5 limitations

Answer 248

Spend for the common defense and general welfare of the US.
Must be for general welfare, unambiguous, related to a fed int a particular natl project/program, no unconstitutional activity, and conditions cannot be so coercive that pressure turns to compulsion

Question 249

PDP pertains to….
In analyzing a PDP claim (2 steps)
Deprivation of liberty occurs when…
Deprivation of property occurs when..
A liberty deprivation involves _______
A property deprivation involves _____

Answer 249

PDP pertains to the process an individuals is guaranteed after a deprivation of life, liberty or property (14thA apply to states & 5thA apply to fed).
1. Whether a DP violation has occurs
2. What, if any, process is due
*liberty- govt deprives individual of freedom provided by Con
*property- govt deprives individual of an unfulfilled entitlement

Question 250

Elements of impracticability (3)
+UCC caveat?

Answer 250

UNFSB event
where non occurrence of the event was a basic assumption of which the K was made
and the P seeking discharge not at fault
*UCC seller MUST NOTIFY BUYER

Question 251

Acceptance is…

Answer 251

The unequivocal manifestation of assent to the terms of an offer made in a manner invited by the offeror, or else any manner rsb

Question 252

An option contract is…. (2 parts)
*CL caveat?
*mailbox rule caveat?

Answer 252

An option contract is a contract that keeps an offer open for a period of time. Such a promise limits the offeror’s pwr to revoke the offer until after the period has ended, while also preserving the offeree’s pwr to accept.
CL- separate consideration needed
The mailbox R does not apply to options

Question 253

A firm offer is… in which…. (3 req.’s)
A merchant for firm offer UCC purposes is _________ or __________
Consideration caveat?

Answer 253

A firm offer is a type of irrevocable offer under the UCC, in which an offer to buy or sell goods will be irrevocable if the offeror is a merchant, there is an assurance that the offer is to remain open, and the assurance is signed IW by the merchant offeror (separate writing if prepared by offeree)
A merchant for UCC firm offer purposes is described as one who regularly deals in goods of that type OR a businessperson when the transaction concerns a commercial nature.
*no consideration req.

Question 254

The doctrine of promissory estoppel will allow __________ if ______________ as long as ________________.

Answer 254

Will allow an offer to be irrevocable if the offeree RSB and detrimentally relied on the offeror’s promise prior to acceptance as long as it was RSB FSB that such detrimental reliance would occur.

Question 255

The PER bars….

Answer 255

Extrinsic evidence of prior or contemporaneous agreements when a K is a final and complete agreement btw the parties.
**remember that evi May still be introduced to determine ambiguity if the parties attached different meanings. Ex. “Daily use”

Question 256

Anticipatory repudiation occurs when _____________ OR creates _____________.
Timing req.?

Answer 256

There is an unequivocal and clear statement that a party refuses to perform or creates rsb grounds for insecurity about his ability or willingness to perform his obligations under a K.
*only before time of perf is due.

OR- When a party has clearly and equivocally has stated (before the K is due) that he will not perform, he has repudiated. the other party may then treat as a breach and sue immediately or wait until perf = due

Question 257

A party who has repudiated May retract as long as the non-repudiating party… (3) unless… (3)

Answer 257

As long as the nonrepudiating party has not accepted the repudiation, acted in reliance or sued UNLESS other party has cancelled, materially changed their position in reliance, or otherwise indicated he considers it to be final.

Question 258

A def may be guilty of robbery upon….

Answer 258

Committing a larceny from a victim’s person or presence through force or intimidation

Question 259

When an A acts on behalf of a P and… P’s ID is disclosed = what kind of K liability?
Partially disclosed?
P remains undisclosed?

Answer 259

Both 3rd P & P = K parties
P = party unless A & 3rd P agree otherwise
A = Party to K

Question 260

Two considerations to determine partnership formation are….

Answer 260

Sharing of profits (primary) and exercise of control over the business (secondary)

*NOT common property/partial ownership

Question 261

Aggregation R (and it’s relationship to supp jx)

Answer 261

Aggregation: A single P can “aggregate” all of her claims against a single D for purposes of satisfying the $75,000 standard.
If one P meets the standard, Supplementary Jurisdiction may well let other parties with claims for less than $75,000 have their claims heard, too. But if no P has claim(s) of more than $75,000 against any D, as a general rule plaintiffs may not aggregate their claims to meet the amount.

Question 262

A party may, w/ in ______ days, remand a case back to _________ by __________
+primary scenario?

Answer 262

Upon a defective removal, a party may within 30D of the NORemoval, remand a case back to state ct by filing a MOTION TO REMAND.
- usually in DIV where Def = citizen of forum state

Question 263

Standard for govt restriction on speech that is content neutral (name + definition)

Answer 263

Int scrutiny - narrowly tailored to achieve an important govt interest that leaves open alt channels of communication

Question 264

Negligence Rule

Answer 264

To prevail in a negligence action, the Ptf must show, the def owed a duty of care, the def breached that duty, that the breach directly and proximately caused the harm, and actual damages suffered. Negligence requires an objective standard, which compares the Def’s behavior to that of a rsb person.

Question 265

For a law to pass strict scrutiny… (3 parts)

For a law to pass intermediate scrutiny…

Answer 265

The govt must show that it is necessary to achieve a compelling govt interest. Additionally, the govt must show there are no less restrictive means of achieving its goal

Govt must show that the regulation is substantially related to an important govt int.
1. Govt must have an exceedingly persuasive justification
2. Genuine int (not simply for lit)
3. Govt may not rely on overbroad generalizations

Question 266

Hearsay Rule (2 parts)

Answer 266

Hearsay is an out of court statement by a Declarant offered to prove the truth of the matter asserted. Hearsay evidence is inadmissible unless it fails within an exception or exemption to the rule.

Question 267

A corporation is… (def) and generally has ____________(5)
A Corp is formed when…
The articles must include (4)
A de jure corp is __________

Answer 267

A legal business entity that is separate from its owners and generally has centralized management, limited liability, transferability, continuity and personhood.
A Corp is formed when the articles of incorporation are filed with the state.
Articles must include Corp name, authorized shares, name & address of each incorporator, registered office & agent.
A de jure corp is a corp formed in accordance with all state legal formalities

Question 268

Indemnification occurs when

Answer 268

The P can fully recover against the A for damages paid to the Ptf when the paying Def was not at fault in causing Ptf’s injuries.

Question 269

Consignments are _______________
3 req.s to protect interest

Answer 269

Transactions where an owner of goods delivers goods to a merchant (consignee) for the purpose of sale.
1. Goods are over 1K
2. Consignor did not use the goods as consumer goods
3. And the consignee merchant deals in goods of that kind (isn’t deliverer, auctioneer)

Question 270

For perfection against real property, fixtures require _______________ to have priority over an interest in real property

Answer 270

Filing a fixture filing where the mortgage would be recorded.
**otherwise, recording of the real property interest will prevail

Question 271

A buyer will prevail against an unperfected sec’d P if (3)
A buyer will prevail against a sec’d int if (2)

Shelter R?

Answer 271

The buyer has given value, received delivery, and HAD NO KNOWLEDGE OF A CONFLICTING SEC INT

Buyer is a BICOB (buyers in the ordinary course from a seller in the business of selling goods of that kind) AND HAD NO KNOWLEDGE of the CONFLICTING Sec Int

Shelter R allows a buyer who purchases CONSUMER GOODS subject to a PMSI from a previous buyer will take free if no knowledge, for value and before a financing statement was filed COVERING the goods

Question 272

Intestate succession def + arises in scenarios such as (3)
Added rule for “when Dec’s estate does not pass to her surviving spouse…..”

Answer 272

Intestate succession is the state procedure that distributes a decedent’s assets that are not disposed of by will.
Arises when Dec dies w/o a will
When Dec’s Will does not dispose of all her property
And if Dec’s Will is denied by probate
When Dec’s estate does not pass to her surviving spouse, it will pass to her heirs through the state’s intestate laws (which vary).

Question 273

Inheritance rights rule for
Stepchildren/foster children
No marital children
Posthumous children

Answer 273

None
All states permit inheritance from the mother but require established paternity to inherit from father is req
Posthumous- will inherit as if they were born as long as in gestation

Question 274

Simultaneous death rule (intestacy)
What are the two approaches? (+def)

Answer 274

One cannot take as an heir or B unless she survives the Dec
2 approaches= Uniform Simultaneous Death Act: will treat as if hear/B died before Dec unless sufficient evi Dec died first
120 hour R: heir/B is only treated as having survived Dec upon clear evidence that she survives by 120 hours (5 days)

Question 275

A will is….
To be valid, a will requires (3)
An attestation CL is…
Witness Beneficiary R?

Answer 275

A will is an instrument that directs the disposition of a Testator’s property upon death. It does not have legal effect until T’s death.
1. signed IW by T
2. T IN CAPACITY (of age and sound mind w/ present intent to execute a will)
3. In presence of at least 2 DISINTERESTED Ws (who have seen T sign the will and must sign in T’s presence w/ in rsb time)
An attestation CL is a CL included btwn T & W’s signatures that set forth the above requirements and that were satisfied
WBR- most states, will is still valid but gift is void (unless there were still 2 other disinterested witnesses)

Question 276

Integration may allow _____________ if ___________ and ______________ (wills)
Incorporation by reference May allow ____________

Answer 276

A separate document May become part of the will if the doc was physically present at the time of Will execution and the testator intended the doc to be part of the will.
Document extrinsic to the will to supplement terms of the Will if there was intent to incorporate, sufficiently described in the will, and was in existence at time of Will execution

Question 277

3 requirements to show undue influence (wills)
*presumption caveat?

Answer 277

1. Influence was exerted on T
2. T’s mind and free will overpowered
3. T’s Will would not have been executed absent the influence
   ***presumption of undue influence if special relationship

Question 278

An LLC May dissolve upon the occurrence of various events, including (4)

Answer 278

Consent of all members
Passage of 90D w/o members
Ct order
Specific event in the operating agreement

Question 279

Under the Erie Doctrine…. including ___________
Once the applicable state law is determined….
When no controlling state case law is available….
ALWAYS AVOID _________

Answer 279

Under the Erie doctrine, a fed ct sitting in DIV must apply it’s own procedural law and apply the states substantive law, including that state’s COL rules.
Once the applicable state law is determined, the fed ct must apply that law as the state would. When no controlling state case law is available to the fed ct for guidance, the ct must predict how the state’s highest court would rule on the issue.
ALWAYS AVOID FORUM SHOPPING

Question 280

A trustee is in…
What is the No Further Inquiry R?

Answer 280

A trustee is in a fid relationship with the B’s of the trust. Thus they have several duties, such as the duty of care (invest as a rsb prudent investor portfolio as a whole) and duty of loyalty (no self dealing) cts follow the NO FURTHER INQUIRY RULE regarding trustees self dealing meaning they will not inquire into fairness and will only determine amount of damages.
Ordinary expenses allocated to income and extrodinady to principal.

Question 281

Under the UTC, (regarding revocability)
• An intervivos trust is….
• A revocable trust is…
• An irrevocable trust may only be revoked if…

Answer 281

Under the UTC, an intervivos trust is presumed revocable, unless the instrument states otherwise. If a trust is revocable, a settlor may terminate the trust at any time. If a trust is irrevocable, the trust may only be terminated if all Bs are in existence and agree (and if a settlor has died, the trust purpose must have been completed).

Question 282

A pour over Will…

What makes them valid?

Answer 282

A pour over Will funds a trust with a testator’s property upon T’s death. They are valid if the trust is ID’d in the will and the terms are incorporated in a writing that is executed before or concurrently with the execution with the will.

Question 283

A discretionary trust is…

Answer 283

A discretionary trust is a trust where the trustee has discretion when to make distributions to the Bs. Bs and/or creditors cannot demand any disbursements (unless child support or maintenance)

Question 284

A support trust is…

Answer 284

A support trust is when the trustee must pay what is necessary for the B’s support

Question 285

A charitable trust is…

Answer 285

Charitable trust is for a number of individuals for a specific purpose

Question 286

An assignment is….
A delegation is….
In general, duties are delegable unless ______________

Answer 286

A transfer of one’s rights under a K
A transfer of one’s duties under a K
Duties are delegable unless the obligee has a substantial interest in having the delegator perform

Question 287

Withdrawal from a partnership will be considered wrongful if ______________ or ________________ or ___________.
After such wrongful dissolution, remaining partners MAY express a will to wind up within ______ days

Answer 287

If the partner withdraws prior to the fulfillment of the specific purpose (unless within 90D of another wrongful withdraw) OR has BREACHED an express provision of the partnership agreement OR partner goes bankrupt.
90D

Question 288

Under the RMBCA, the Articles may be amended at anytime if…. (3)
UNLESS ______________ and ______________

Answer 288

1. Adoption by the BOD
2. Notice to SHs for Special meeting (including purpose)
3. And adoption by SH majority vote
   UNLESS only minor amendment OR Corp has not issued shares yet

Question 289

Prelim- inj vs TRO

Answer 289

Prelim inj maintain the status quo pending the outcome of an action to prevent IRREPARABLE HARM to a P. Need Notice to AP, a showing of likelihood to succeed on the merits, irreparable harm, bond post, inj is in BIOTPublic.
TRO is an emergency remedy before prelim issued. Need SPECIFIC FACTS that show immediate & irreparable injury AND cert IW of efforts to give notice to AP (or otherwise why notice is futile) 14D exp

Question 290

Mootness refers to…
Ripeness refers to…

Answer 290

Instances where the dispute has ended or resolved before review (or capable of being repeated yet escaping review)
Ripeness refers to a case that is ready to be litigated in terms of there existing actual harm or immediate threat of harm

Question 291

6 presidential powers

Answer 291

Faithfully execute the law, appoint ambassadors (and other high level officers), appoint inferior officers when such power is granted by Congress, remove cabinet level appointees, pardon fed crimes (no crimes that lead to impeachment) and act as Commander in Chief to control troops
**also shares treaty pwr w/ Congress

Question 292

Congress has the power to delegate legislative power as long as ____________ and ______________

Answer 292

Delegable under the Constitution (no impeachment/declare war) AND Congress provides rsb intelligible standards to guide delegation

Question 293

Substantive DP refers to…

Answer 293

The process that is due upon the gov’t’s interference with a citizen’s fundamental rights

Question 294

The Free Exercise CL protects…
Test =?
Religious beliefs will be protected as long as

Answer 294

The govt from interfering with the exercise of religion.
Test = SS
Genuine and sincere

Question 295

The Best Evidence Rule requires…

Answer 295

The production of the original document when attempting to prove the contents of the document

Question 296

General Preemption R: (A state has a right…) unless ____________ or __________

Answer 296

A state has a right, under its police pwr, to enact legislation for the health, safety and welfare of its citizens unless such legislation is reserved for the fed govt or preempted by fed legislation

Question 297

A PMSI arises when___________ or ________________

Answer 297

A secured party gave value to the debtor and the debtor used the value to incur an obligation that enabled the debtor to acquire goods; or
A secured party sold goods to the debtor, and the debtor incurred an obligation to pay the secured party all or part of the purchase price

Question 298

Strict Products Liability elements (3)

Answer 298

1. Product = defective (in manufacture, design, or failure to warn—inadequate instructions/warnings)
2. Defect existed at time product left D’s control; and
3. Defect caused harm to any FSB user (P) when product used in intended way
   ** product defective when it’s unreasonably dangerous
   **misuse may STILL be FSB

Question 299

A non-party has the right to intervene in an action when, (3)

Answer 299

A nonparty has the right to intervene in an action when, upon timely motion, (1) the nonparty has an interest in the subject matter of the action; (2) the disposition of the action may impair the nonparty’s interests; and (3) the nonparty’s interest is not adequately represented by existing parties.

Question 300

Required Joinder Rule (4 parts)

Answer 300

A person is deemed a Necessary P if subject to service of process & SMJ is kept in tact and
1. The person has an indisposable interest relating to the subject of the action
2. failure to join would cause additional litigation for the existing parties
3. AND the court cannot accord complete relief among existing parties

Question 301

CL murder definition

Answer 301

The unlawful killing, that is neither justifiable nor excusable, with malice aforethought

Question 302

Def hires hitman and hitman successful- crimes can be convicted of?
Crimes can be convicted if unsuccessful?

Answer 302

Solicitation, conspiracy and murder (co-conspirator liability all crimes in furtherance)
conspiracy and attempt

Question 303

The RAP states that

Answer 303

A B’s interest must vest, if at all, within 21 years of a life in being
*includes trusts ALA not charitable

Question 304

Impleader R

Answer 304

Under impleader, a defendant may serve a third-party claim only on a nonparty
“who is or may be liable to it for all or part of the claim against it.” This means that the basis of the claim must be derivative liability (e.g., indemnification or contribution).

Question 305

Conversion
(Def + Damage amount)
Intent standard?

Answer 305

A def will be liable for conversion upon a serious intentional interference that deprives the Ptf of use of her chattel

Damages = FMV @ time of conversion

Def must only intend to act to interfere - intent to cause damage unnec (mistake is no defense). But accidental damage is not conversion if Def had permission

Question 306

A person may use deadly force to defend herself upon… (2)

Answer 306

1. a reasonable belief that she is threatened with imminent death or serious bodily harm
2. She uses no greater force than reasonably necessary to avoid danger

Question 307

A partnership is…

Answer 307

An association of two or more persons to carry out a for profit business as co-owners

Question 308

A non-marital child may inherit from his or her father ALA __________________ (through means such as…)

Answer 308

Paternity can be established (through means such as a judicial decree, being named on the birth cert., other form of acknowledgement, blood test or medical testimony, resemblance in some states)
**time limits on filing for paternity to be awarded support = uncon. (unless substantially related to govt int such as preventing fraud)

Question 309

Service of Process Rule
Individual? (3)
Vs Business?

Answer 309

Individual - Service process may occur according to the law of the state of service, or according to the state in which the federal court sits, or by personal service USUAL PLACE OF ABODE with someone of suitable age/discretion or to an agent auth by law

Business - similarly, according to the law of the state of service or the state where the fed ct sits, OR by delivering the summons and complaint to an officer or agent authorized by law

Question 310

Promissory estoppel rule (def + 3 elements)

Answer 310

Promissory estoppel is a legal doctrine within that prevents a P from withdrawing a promise when a 2nd P has reasonably relied on that promise to their detriment.
Need: 1. clear and unambiguous promise by the def
2. rsb and fsb reliance by the ptf on that promise
3. And injury suffered by ptf due to their reliance