Feb ’21 Flashcards
D was entrapped where:
-The criminal design originated with law enforcement officers, and
-The defendant was not predisposed to commit the crime prior to contact by the government.
The prosecution may use prior crimes to show predisposition, but only if they are:
-close in time,
-similar, and
-such that the probative value outweighs the prejudice.
Possession and distribution of a drug requires that D knew…
…the character of the substance possessed and distributed.
An accommodation defense does not result in ___ but rather in ___.
Acquittal; mitigation of the sentence.
Must prove motivation was to accommodate another.
Opening an unlocked door ___ sufficient for a “breaking.”
Is
Statutory burglary does not require…
A breaking if it was done at night.
Can a court overrule a criminal defendant’s objection to a joint trial?
Yes. It is within the court’s discretion.
The main inquiry is whether the objecting party would be prejudiced, e.g. by unrelated crimes of a codefendant.
How can a seller create an express warranty without using that language or even intending to?
Where a seller makes an affirmation of fact or promise that relates to the goods and becomes part of the basis of the bargain, it creates an express warranty that the goods will conform to that affirmation or promise.
Same for descriptions. Not for opinions.
When does an implied warranty of fitness for a particular purpose exist?
Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified an implied warranty that the goods shall be fit for such purpose.
When does an implied warranty of merchantability exist?
Goods purchased from a merchant are implicitly warranted to be fit for their ordinary purpose so as to pass without objection in the trade.
A merchant is a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.
Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like…
…”as is,” “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty.
Revocation of acceptance requires that:
-the nonconformity substantially impairs the value of the goods;
-acceptance was reasonably induced by the difficulty of discovering the nonconformity before acceptance, or by the seller’s assurance to cure;
-the buyer gave notice of revocation within a reasonable time after discovering the nonconformity and before any substantial change in condition of the goods not caused by their own defects.
What is the measure of damages for breach of express warranty discovered after acceptance?
Buyer has a choice:
-revoke and refund plus incidental; or
-cost of repair plus incidental.
A lawyer shall not act as an advocate in an adversarial proceeding in which the lawyer is likely to be a…
…necessary witness.
Two persons can enter into a binding contract not to revoke or amend their wills, but the agreement must be…
…explicit and will not be inferred simply from execution of reciprocal wills.
Proof of the contractual nature of this agreement between testators must be clear and satisfactory.
The proof could be in the form of an express statement in the Wills, testimony by witnesses as to “admissions” by the testators, or circumstances that imply an agreement.
Enforcement of an oral contact against someone now deceased requires…
…corroboration from a source other than the party seeking enforcement and not in their control.
The two requirements for finding that a document is a testamentary instrument are…
…capacity and testamentary intent.
Testamentary intent entails reference to property, persons, and death and a desire that the document itself effect the transfer of property to persons at death.
At least some evidence of such intent must appear on the face of the Will.
[Feb. ’15:] The elements of capacity include showing that the testator had, at time of execution, “the mental capacity to (a) know the nature of his property, (b) the natural objects of his bounty (his heirs), (c) be capable of forming an orderly plan of disposition and (d) understand the disposition made by the will.”
For a testamentary instrument to serve as a will it must also be…
…valid, i.e., properly executed.
