1L All Cards to Learn Flashcards

Question

Avoidable Consequence Rule (Rule) [Remedies]

Answer 1

Plaintiff must use ordinary care to mitigate his damages. Plaintiff's recovery may be reduced for failure to mitigate damages.

Answer 2

1. intentional 2. harmful or offsensive 3. touching of another person Fleming - without consent or privilege a. trivial touching suffice b. instrumentality suffice c. beware - trespass to chattel if touching of clothing d. awareness not required e. beware of assault

Answer 3

RULE SPLIT - if jurisdiction not listed, analyze both! Common Law 1. Breaking and entering 2. of the dwelling house of another 3. in the nighttime 4. with the intent to commit a felony therein Statutory Burglary 1. An unlawful entry 2. into a structure or vehicle 3. with the intent to commit a felony or theft (including petty theft) once inside

Answer 4

QTIPS Quantity Time of Performance Identification of Parties Price Subject of the Contract

Answer 5

Rule: Additional terms included in a separate agreement are enforceable if they do not contradict any express provision of the main agreement, and might naturally be made as a separate agreement between the parties.

Answer 6

D may not show at trail that P received financial aid from other sources to help meet any expenses caused by D's negligence

Answer 7

External knowledge that is used by others and which leads them to believe that the statement referred to the plaintiff. No cause of action unless the plaintiff can establish that the defamation was reasonably understood to apply to the plaintiff. Colloquium is used by plaintiff to show there's sufficient external knowledge to show others understood he was the person referred to.

Answer 8

Apportions negligence of plaintiff and defendant based on blameworthiness. Pure Comparative jurisdictions (most common): - Plaintiff will recover some damages, no matter how great his own negligence was. Partial Comparative jurisdictions, plaintiff will not recover if his own negligence equals or exceeds the defendant's.

Answer 9

Both general and special damages awarded to non-breaching party to place them in the same position that he would have been in had the contract been performed.

Answer 10

RULE SPLIT - Analyze both Tortfeasors consist of two or more persons who are 1. Not acting in concert 2. Acts combine to produce a single indivisible injury to the plaintiff. Not vicariously liable for each other's torts - but apportioned by fault. can use the but for test as proof of causation. A majority of jurisdictions will apportion damages by using a comparative fault system. A minority of jurisdictions joint and several liability is applied in a pure form, making each tortfeasor liable for the full amount.

Answer 11

Parties are bound to render performance at the same time.

Answer 12

An Event must occur before a duty to perform will arise.

Answer 13

An event where, by agreement of the parties, operates to terminate a duty of performance after it has arisen

Answer 14

Agreement (by implied acts) between two or more parties with intent to commit a crime Majority view: Conspiracy requires an overt act. Minority view, federal view: overt act is not required, just the agreement. Does not merge with completed offense, except Wharton's Rule. Abandonment only a defense if completely, voluntary, and the thwarts the target crime. Withdrawal: Majority: Withdrawal is not a defense. (Similar to Solicitation) Minority/MPC: Only complete and voluntary abandonment, timely and effectively communicated to all conspirators. Feigned Agreement / Undercover Cop If one of two parties is undercover or feigned agreement, the other party cannot be charged. Minority/MPC says unilateral agreement can be held liable.

Answer 15

Presence legally imputed although not physically present situated to give assistance - for example a getaway car driver

Answer 16

A claim by one concurrent tortfeasor against another concurrent tortfeasor, requesting reimbursement of the other's proportional share of a court judgment. Comment: Where plaintiff should only pay Partial, compared to Indemnity which makes Defendant pay all. *Used after joint and several liability has been found and one defendant has had to pay the plaintiff more than his pro rata share of the damages.

Answer 17

Under the minority doctrine of contributory negligence, the plaintiff's failure to exercise reasonable care for his own safety is a complete bar from recovery for the defendant's negligent action.

Answer 18

1. intentional 2. dominion and control of a chattel 3. possessed by another 4. substantial interference with possessory rights Essentially - Destroyed or Gone. Plaintiff will receive full value of chattel to buy a replacement... Fleming a. may have multiple conversions of same object b. D buys/receives stolen good, liability as innocent converters even if done in good faith c. Remedies (1) D pays full market value as if forced sale; (2) Replevin; (3) Detinue

Answer 19

A counteroffer is an implied rejection of the original offer. It is, in effect, a new offer available for acceptance. 1. implied rejection or original offer 2. new offer for potential acceptance **changes the role of offeror and offeree for analysis/IRAC/exam** Questions or comments on price does not make a counteroffer.

Answer 20

1. pattern of previous conduct under current contract 2. more than one performance required under contract 3. at least one performance has been completed with no objection

Answer 21

A promise to act or to refrain from acting that is not dependent upon the other party's acts nor upon other events.

Answer 22

When a seller fails to deliver or repudiates a contract, the buyer may cancel the contract and cover by seeking the reasonable purchase of other goods in good faith, without unreasonable delay.

Answer 23

Defendant acted in accordance with Plaintiff's informed and voluntary assent, whether expressed or implied is not liable for the resulting harm so long as D had legal capacity. (Clancy) 1. informed 2. voluntary 3. express or implied assent 4. legal capacity Fleming a. Ineffective if (1) scope of consent exceeded; (2) obtained by duress/fraud/mistake; (3) illegal act

Answer 24

Public authority: a person under public authority may commit an otherwise criminal act if done under legal process or otherwise authorized by law. Domestic Authority: A parent or caregiver may use reasonable, non-deadly force on a child or other charge, when it is reasonably necessary for the child's welfare.

Answer 25

A person may commit an otherwise tortious (or criminal) act in an emergency situation to protect himself or others from a threatened injury to person or property. May act on appearances. A reasonable mistake is permitted. Cannot be an emergency of Defendant's own creation. Public necessity - for the good of the community/others, and will not owe for damages. Private necessity - for personal safety, or chattel safety, and will owe for damages.

Answer 26

RULE SPLIT - If jurisdiction not listed, argue both A person who reasonably believes another to be threatened with immediate bodily harm may use whatever degree of force is apparently necessary to protect the personal safety of the other person Step in Shoes Jurisdiction -- D can use no more force than the person they are defending. D steps into shoes of person defended. If the other has no right to self defense, neither does our Defendant. 1. defendant claims the defense of others 2. person defended was not the aggressor 3. person defended was entitled to use self-defense Reasonable Appearances Jurisdiction -- defending another in good faith and in ignorance of the fact is justified when acting upon reasonable appearances. 1. defendant claims defense of others 2. defendant acted in good faith 3. objectively reasonable ignorance of fact that person defended was aggressor

Answer 27

A person, whether a police officer or a private person, may use reasonable force to prevent the commission of a crime which is apparently being attempted in his or her presence.

Answer 28

A person may use reasonable force that is not likely to cause death or serious bodily harm to protect his or her possession of real or personal property against an apparent trespasser.

Answer 29

Mnemonic: Pammi Said Fu 1. Parol Evidence Rule 2. Adhesion Contracts 3. Mistake 4. Misrepresentation (Neg) 5. Incapacity (Legal/Mental) 6. Statute of Frauds 7. Ambiguity 8. Illegality 9. Duress 10. Fraud 11. Unconscionability

Answer 30

1. Contributory negligence 2. Comparative negligence 3. Last clear chance (LCC) 4. Assumption of the risk

Answer 31

(i) Compliance would create a greater risk of harm (ii) The defendant was incapacitated (iii) The defendant was unaware of the factual circumstances that made the statute applicable

Answer 32

Generally, there are no defenses to strict liability. In some jurisdictions, comparative and contributory negligence might apply. ie, if someone opened the cage (or entered the tiger cage), then they should be liable for their own stupidity. Alternatively, Assumption of Risk.

Answer 33

RULE SPLIT - if jurisdiction not listed, analyze both! Rule: A person who reasonably believes himself to be threatened with immediate bodily harm may use whatever degree of force is apparently necessary to protect himself. Majority rule: If the attack is with deadly force, then the one attacked may defense with deadly force if deemed reasonable. Minority rule: The one attacked must retreat if there is a safe means of doing so, unless the victim is in his castle. Reasonability: - one cannot support a claim of self defense by a self-generated necessity to kill; - defense only available to those free from fault in the difficulty - mere words do not constitute provocation or aggression.

Answer 34

1. transfer of a contractual obligation 2. by the obligor/delegator to a third party 3. made after formation DIANE --- D - Define Delegation - Did Best make a delegation to Sally Beauty Supply? I - Is the duty delegable? Not delegable if results in substantial change in performance, or duties are too personal, or contract prohibits. A - Assumption of Duties - the person delegated to must agree to perform the duties (can't force someone) - express: delegatee expressly agrees; implied: delegatee accepts and received benefits N - Is there a Novation? (New contract, create a new duty, req's all three parties to agree) E - Effect. If there was a novation, the delegator is no longer liable at all, and has been replaced by the delegatee. Otherwise, original party is secondarily liable for non-performance of duties.

Answer 35

(1) risky act creating high risk of death (2) act has no social value (3) intent to act (not intent to kill) (4) subjectively aware of the risk but disregarded (5) not justified, excused or mitigated

Answer 36

Merger Substitute Contract Modification Amendment & Restatement Novation Accord & Satisfaction Rescission Release Waiver Condition Subsequent Impossibility of Performance Frustration of Purpose Commercial or Economic Impossibility Supervening Illegality Failure of Consideration Defenses to Formation (SWAP DIVE)

Answer 37

Disparagement, or trade libel, is the publication of an untrue or misleading statement about another's business or product in an attempt to influence a person not to deal with the business. Must be a pecuniary lost/damage to the business. No pain/suffering/emotional damages. (Defamation is a personal reputation, Disparagement is a financial interest)

Answer 38

1. bilateral contract 2. performance divided into two or more separate units (time or subject matter) 3 through agreement of both parties Owes for the part(s) they received.

Answer 39

Criminal Law: May commit an otherwise criminal act if his act was the result of a reasonable fear of imminent death or serious bodily harm, and fear was induced by a threat made by a third person. Will not apply to intentional killing of another. -- Contracts: one party uses coercion which is subjectively great enough to overcome the free-will of another, thereby inducing the other to enter or modify a contract, the contract or modification may be set aside. Shotgun wedding example...

Answer 40

A party will be freed from an obligation to perform even in situations where performance has not become totally impossible, yet unanticipated difficulties have made performance vastly different than that intended by the parties.

Answer 41

1. fraudulent taking 2. of personal property of another 3. by one whom possession has been entrusted conversion/transfer of apparent ownership + fraudulent intent = embezzlement

Answer 42

Exempts a person from the ordinary standard of care, if that person acted instinctively to meet a sudden and urgent need for aid.

Answer 43

A person may not be convicted of a crime if a law enforcement officer (or an agent of an officer) solicited, induced or encouraged the person to commit the crime and if the person would not otherwise have committed it.

Answer 44

A party who has taken unfair advantage of another, by using false statements or conduct to induce the other person to act or promise to act, is barred from asserting a failure of condition against that other person. Elements: - false representation or concealment of material facts - intentional or negligently made - with intent to induce reliance - reasonable and detrimental reliance by the other party - prejudice or harm will result unless the claim of estoppel succeeds

Answer 45

A provision intended to remove liability from one or more of the contracting parties that may result from certain acts of events.

Answer 46

Where possible, the court will award compensatory damages according to the calculations of what the plaintiff expected to receive from performance of the contract... ... to place the non-breaching party in the economic opsition it would have enjoyed if the contract had been performed as agreed.

Answer 47

Majority - Same as Blackmail 1. obtaining property of another 2. coercion by any person 3. threat of future illegal act Minority re: Extortion / Blackmail In a few states, Extortion applies to officials/color of law, while blackmail applies to all persons. Minority - In some states, extortion only applies to one acting in an official capacity or color of office while blackmail applies to all people.

Answer 48

Subject matter of the consideration ceases to exist or becomes worthless even though valid consideration was present at contract formation..

Answer 49

1. intentional 2. confinement of another person Fleming physical or psychological confinement within fixed boundaries for any period of time without consent or privilege a. Words alone sufficient b. time period immaterial c. P has no reasonable means to way out of confinement but no duty to seek unreasonable means to escape. d. threat of future confinement insufficient e. awareness theories: (1) P must be aware of confinement or (2) If P not aware, P must be damaged to recover (Restatement).

Answer 50

An invasion of privacy through the publication to the public of offensive, untruthful or misleading information about the plaintiff. -Not recognized by some states and in these states, the plaintiff must prove defamation to recover damages. California: false statement is defamation. a false implication is false light.

Answer 51

Parent who furnishes vehicle for customary convenience, assumes liability for the tortious acts committed by those person when the car is driven for a family purpose. 1. parent owes duty to those injured by family members using vehicle 2. vehicle is used for family purpose

Answer 52

1. death occurs during attempt or commission of serious felony **2. death is causally related to that serious felony ** -- BARRM/KSS Bar Room Kiss (burglary, arson, rape, robbery, mayhem, kidnapping, sodomy, sexual molestation) 3. the target felony is not a lesser included offense of the homicide (must be a collateral felony) Then D can be charged with first degree murder under the Felony Murder Rule. -- Common law Felony Murder Rule applies to unintended deaths, including killed by a non-felon (otherwise, you'd already charge them with murder.) -- Most statute jurisdictions: Any innocent is killed during commission of the felony -- Minority statute jurisdictions: Only if an innocent is killed by a felon -- Defense to the underlying felony is also a defense to the Felony Murder charge. -- Vicarious liability makes all felons liable for a death caused by co-felon. -- Proximate cause: the felony must be the proximate cause of the homicide (ie, foreseeable result of the felony, not during prep, and not when they're in the 'zone of safety' after the crime.)

Answer 53

Murder by poison; lying in wait; torture; or murder done with any other willfully, deliberately and with premeditation; or murder that results from a death that occurred during the commission of a dangerous felony (Felony-Murder Rule) Rule 1. poison, 2. lying in wait, 3. torture, or 4. done willfully, deliberately and with premeditation, or 5. murder that results from a death during the commission of a felony . (Torture is inflicting great bodily pain for the purpose of revenge, extortion, persuasion, or sadism)

Answer 54

1. making a false document or material altercation 2. of any writing of legal significance 3. with the intent to defraud

Answer 55

i. intentional false statement - relied upon by the other party ii. Misleading by half-truth or concealing the truth, or a duty to disclose but fails to disclose a material fact. Contract shall be voidable by the affected party.

Answer 56

FROLIC: major departure from the scope of employment, acting on his own & for his own benefit DETOUR: minor departure from the scope of employment Going to or from home/work - not in the scope of employment, unless being paid 'on the clock'

Answer 57

Even though performance is still possible, a party to a contract will be discharged from an obligation to perform when an unanticipated event occurs after formation of the contract, where the result is the main purpose in making the contract is so frustrated that any benefit to be received is now totally destroyed or materially impaired. 1. performance still possible, but 2. unanticipated event after formation 3. main purpose is frustrated 4. no longer a benefit of having a contract 5. the party will be discharged from duty

Answer 58

General damages are those the law presumes naturally flow from the breach of contract. They are awarded to protect P's benefit of the bargain. - Difference between contract & market prices - Difference between value of the goods as delivered vs warranted - Interest on money that has been wrongfully withheld - Lost profits (Confusion alert: In torts, General damages are pain and suffering, and uses Special Damages for natural flow of damages.)

Answer 59

General Damages are non-pecuniary and are presumed by the law to be incurred upon the commission of the court. Need not be specifically claimed and proved. Examples: Pain, Suffering, Inconvenience.

Answer 60

Everyone owes a duty to exercise due care not to subject others to unreasonable risks of harm. --- Make the rule resemble that a reasonable person in a similar circumstances would do. IE, a driver in a car owes a duty not to collide with other drivers.

Answer 61

Under common law, purposeful commission of a prohibited act is sufficient to establish intent to commit the crime. Intent is inferred for example battery and rape. [battery, rape, arson, manslaughter (involuntary), murder (2), kidnapping, false imprisonment]

Answer 62

A promise to answer for the debt, default, or miscarriage of another

Answer 63

SWAP DIVE --- S - Substantial performance W - Waiver A - Anticipatory repudiation P - Prevention D - Divisibility I - Impossibility of performance V - Voluntary disablement (prospective inability to perform) E - Equitable Estoppel

Answer 64

Murder can be reduced to voluntary manslaughter if D can prove all of these: 1) adequate provocation to lead a reasonable person to lose normal self-control (gender/orientation not reasonable) 2) D actually lost self-control (subjective test) 3) not enough time for D to cool off between the provocation and the murder (taken from the most recent incident, not the 'biggest') e.g.: The reasonable person would have lost their cool. THIS defendant lost their cool, and there was no cool down time.

Answer 65

If the contract's subject matter is illegal, the contract will be unenforceable.

Answer 66

An illusory promise is an expression which resembles promissory terms, but in actuality imposes no obligation upon the party making it. Not actually being bound to do anything; no detriment.

Answer 67

A contract inferred by the law because the circumstances make it reasonable to assume that a contract exists even though a contract is never manifested by words. e.g.: Placing grocery items on checkout, then paying.

Answer 68

Under the UCC (2-315), if a merchant of goods with good reason to know of the buyer's special purposes for the goods, then the goods must be suitable for that purpose.

Answer 69

Under the UCC (2-314), goods sold by a merchant must be fit for the ordinary purpose for which such goods are used.

Answer 70

Under the UCC (3-212), a merchant warrants he has title to the goods, has the right to sell them, and the goods are free from liens or other encumbrances of which the buyer is not aware.

Answer 71

Legal impossibility is a good defense. Exists when acts D intends to commit are not a crime in the jurisdiction. Factual impossibility is NOT a good defense. Exists when the acts D intended to commit would be a crime, if the facts were as D believed them to be. (attempt still attaches) A shoots B, intending to Kill B. B is already dead. Legally impossible, factually impossible, but A is still guilty of attempted murder. Arson requires attempt to burn down another's house. Burning down his own house is attempted arson. A intends to buy stolen property, but it's not actually stolen. A is still guilty of attempt.

Answer 72

A party will be freed from an obligation to perform when neither from his act nor from his neglect and prior to being in default, it becomes impossible for said party to perform.

Answer 73

A legally immature or mentally incapacitated person has the power to disaffirm a contract by manifesting to the other party an unwillingness to continue to be bound by the contract. Remedy: Deduct the value of the usage for the time (the benefit received by minor), or the value of the depreciation (the adult's loss).

Answer 74

One who was not party to the contract, and not specifically intended to benefit as a donee or a creditor under the contract has no right to sue.

Answer 75

The shifting of the liability from a defendant who is only secondarily or vicariously liable to the party who is primarily liable. Note: Where it applies, indemnification allows the secondarily or vicariously liable defendant who has paid a court judgment to obtain full reimbursement from the party who is primarily liable. *Some jurisdictions (California) have adopted a rule of partial indemnity on the basis of relative fault of the parties. Instead of differentiating Contribution and Indemnity, CA just calls it Indemnity.

Answer 76

One hired to undertake a specific project, left free to do the assigned work and choose their method to accomplish it. Rule: No employer/employee relationship for independent contractors, so no vicarious liability.

Answer 77

MRS BARK Murder, Robbery, Burglary, Arson, Rape, Kidnapping (common law) also mayhem, forcible sodomy

Answer 78

Equitable remedy with the court telling someone to do something or don't do something. Must demonstrate: - suffered an irreparable injury; - remedies available at law are inadequate - balancing the hardships between the two, a remedy is warranted - the public interest would not be disserved by a permanent injunction.

Answer 79

1. delivery is made in separate lots 2. each lot may be accepted or rejected e.g.: we'll deliver four bags a month over the next year. - can accept each monthly shipment, if it meets the requirements.

Answer 80

.1. one whose benefit was contemplated by the original parties to the contract 2. must be an intended beneficiary to have standing to sue

Answer 81

Rule: If a person causes events to come about which obtain the desired results (ie, murder), then that person's actions are still the proximate cause of the result even if an intervening act was independent and unforeseeable. Concurrence between mens rea and result (a murder) can be substituted for mens rea and actus reus, if the crime is one which requires a particular result. Example: Professor Mary's poison in the fridge, given by son (independent intervening act) that caused death of husband.

Answer 82

An intended beneficiary is a third-party who the original parties intended would receive the benefit of the promisor's performance.

Answer 83

1. intentional 2. causing another severe emotional or mental distress 3. extreme and outrageous conduct

Answer 84

Requires the presence of a contract between the plaintiff and a third-party; an intention inducement to breach that contract by the defendant; and a result of damages to the plaintiff.

Answer 85

Plaintiff must prove a current or potential business relationship about which the defendant had knowledge; the defendant intentionally disrupted that relationship, and resulting economic harm to the plaintiff --- Different in that there is no contract required to prevail.

Answer 86

Interference with Economic Relationship is a broad cause of action alleging an intentional interference with one's business relationships. To prevail, the plaintiff must prove 1. that the defendant intentionally and unlawfully interfered 2. with the plaintiff's business or enterprise, 3. and that the defendant's act resulted in commercial or economic harm to the plaintiff. Included are interferences with contractual relationships, expected commercial relationships, and intimidation of employees, clients, etc.

Answer 87

The intentional and unreasonable interference with the plaintiff's private affairs or an invasion of a location in which the plaintiff has a reasonable expectation of privacy.

Answer 88

Under the defense of involuntary intoxication, if a person is unintentionally intoxicated on alcohol or drugs as a result of force, fraud, medical prescription, reasonable mistake, allergic reaction, or the like, then his or her actions are excused to the same extent as they would be if those actions were the result of a mental disorder. when D involuntarily (forced to consume) or unknowingly (didn't know substance was intoxicating) an intoxicating substance. Involuntary intoxication is a defense to all crimes if intoxication renders the defendant insane under the applicable test. Minority - recognizes a diminished defense where evidence of D's mental defect while insufficient for insanity, is admissible to prove that D did not have or could not have formed the intent required for the crime.

Answer 89

A Homicide, committed without malice, but under circumstances: a. gross negligence (I just made a mistake) b. commission of a crime not covered under Felony Murder Rule (this is the misdemeanor manslaughter rule)

Answer 90

Imposed upon 1. Joint and concurrent tortfeasors. 2. NOT successive tortfeasors. Each is responsible for the full amount of the plaintiff's injury and the full amount of a related court judgment. Judgments for the full amount may be obtained against any of the tortfeasors. *Plaintiff is not entitled to recover more than the total judgment. *Satisfaction from one tortfeasor will discharge the liability of the others to the plaintiff. Summers v. Tice

Answer 91

Two or more people joint together to committing a tort then vicarious liability is imposed.

Answer 92

Joint ventures share the benefits of the venture, and share the liability as well.

Answer 93

movement of a person against his will from one place to another. CL - out of country modern - out of jurisdiction modern - asportation of victim anywhere

Answer 94

trespassory taking carrying away personal property of another with intent to permanently deprive the owner -- even a mistake of who the owner is, deprives the owner. ie, taking the wrong umbrella. Modern: several types of larceny may be combined Issues - returning is not a defense; you can steal stolen property; attempted larceny is not a good choice

Answer 95

Form of larceny in which: 1. the taking of the personal property of another 2. was done with the owners consent 3. however, the consent was obtained by deceit or fraud lie + possession = larceny by trick

Answer 96

Limits the contributory negligence defense so that even if the plaintiff was contributorily negligent, he will be permitted to recover if the defendant 1. Had a superior opportunity to avoid the accident and failed to do so. 2. Defendant could have avoided the accident through the exercise of due care, *Plaintiff's contributory negligence will not bar his recovery from the defendant.

Answer 97

Libel is written or published defamation. Slander is oral defamation false statement defamatory published intentionally or negligently to third person understood by third person it applied to the plaintiff caused damages to plaintiff [retraction demanded and refused]

Answer 98

Innocent on its face but libelous / slanderous when considered with other factors (implying that someone cheated on their partner). In some jurisdictions requires proof of special damages, and not in others. Example talking about a woman being pregnant but becomes defamation if the woman is a nun.

Answer 99

1. agreed to in a contract 2. sole remedy where valid 3. must not be punitive, as proved by showing: --- a. damages would have been difficult to ascertain at creation of contract --- b. amount is a reasonable forecast of damage

Answer 100

1. Majority requires complete loss of companionship and intercourse between husband and wife 2. Minority extends recovery to loss of a relationship to a dead child...

Answer 101

A lost volume seller does not recover the profit lost by selling the good anyways because the seller would have sold a second item. ie, a car dealer selling two cars vs a broken contract and only selling one. The loss is the entire sale, not the difference of the next car.

Answer 102

Acceptance is valid when sent - if acceptance was sent before revocation is received misc: Mailbox rule does not apply to options, options are accepted when received.

Answer 103

The mens rea required for murder exists if any one of these four exists: 1) Intent to kill (words, evidence, or deadly weapon doctrine) 2) Intent to cause serious bodily harm 3) wanton and willful disregard of human life (depraved or malignant heart) 4) Felony Murder Rule: Homicide committed during the perpetration of an inherently dangerous felony (eg, Battery) In IRAC, evaluate all them!

Answer 104

Cause of action against a defendant who previously filed criminal or civil proceedings against the plaintiff without probable cause and with malice. The original proceeding must have ended in favor of the plaintiff now suing for malicious prosecution. Damages compensate for the damages caused by the defendant's tortious act. (ie, couldn't get employment due to the prosecution).

Answer 105

Material breach ends the transaction and the plaintiff may sue for damages. Minor breach creates a cause of action for damages, but the contract remains in effect.

Answer 106

Mayhem is the malicious maiming or disfiguring of another. 1. malicious 2. maiming or disfiguring

Answer 107

A situation where one contract supersedes or incorporates another.

Answer 108

When all elements of one crime are included within the elements of another crime, the lesser crime merges with the greater crime. Defendant cannot be convicted of both. Also applies to solicitation and attempt, to prevent a person from being convicted of either of those and the completed crime. Example: larceny merges with robbery, battery merges with homicide

Answer 109

Common law - an acceptance must match the terms of the offer. If the acceptance contains additional or different terms, is is a COUNTER OFFER not an acceptance. Modernly - under UCC -an acceptance may exist if the difference in terms in only minor

Answer 110

Plaintiff must prove the defendant made - made a false statement of material fact - intent to induce the plaintiff's reliance - plaintiff justifiably relied - causing the plaintiff damage. Negligently: defendant breached his duty to exercise due care in acquiring and transmitting information Intentionally: false statement was made with scienter (knowledge) it was false

Answer 111

Expectation damages, essentially. --- Special damages for misrepresentation are calculated by considering the value received by the plaintiff as compared to the value that the defendant stated the plaintiff would receive. --- Compares actual value vs what the defendant stated the value was.

Answer 112

Reliance damages, essentially. --- Out of Pocket damages are usually considered to be the same thing as special damages since they are pecuniary in nature. However, in an action for misrepresentation, out-of-pocket damages are calculated by comparing the difference between what the plaintiff paid, to the value of what the plaintiff received. --- Usually considered special damages Calculated by comparing value plaintiff paid vs what the plaintiff received.

Answer 113

Both parties had a mistaken belief about the contents/effects of a writing or facts - at the formation. ---------------------------------------------- Must show both parties had: - mistake of a basic assumption - mistake had a major effect on the fairness of the deal - mistake was not allocated to the plaintiff For unilateral mistakes, must also show any one of these: - enforcement would be unconscionable - other party had reason to know of the mistake - other party caused the mistake

Answer 114

A mistake of fact will disprove a criminal charge if it is honestly entertained, based upon reasonable grounds and is of such a nature that if the facts had been what I thougth they were, would have been lawful. Example: Officer, I thought the speed limit was 40? Yes, it is - but you were doing 55 (Broken speedometer)

Answer 115

Subsequent agreement entered into for consideration for purposes of modifying prior written contract. (Only modifies/amends, does not replace). The Parol Evidence issue does not apply.

Answer 116

Generally, prior moral obligation is not valid consideration to make an enforceable agreement, unless: Promissor has received something of value and promised to pay later. Example where it would be held: ie, son taking care of elderly mother and mother promises to give son the house. A promise to pay a debt barred by the statute of limitations or promise to pay debts discharged in bankruptcy.

Answer 117

IRAC each of these for a Murder The Homicide - the killing of one human being by another human being. The Actual Cause ('but for/Substantial Cause) Proximate Cause - close enough to hold The Murder - homicide with malice aforethought - intent to kill, or intent to cause serious bodily harm - or a wanton and willful disregard of human life - or an intent to commit a dangerous felony The Degree - was there deliberation and premeditation? (poison, torture, lying in wait), - was there a felony murder rule (during the attempt/commission of serious felony; causally related to THAT felony; is not the lesser included offense) - All other murders are Second Degree Murders Any Defenses? - TBD Any mitigations to a lesser charge? - TBD

Answer 118

Mutual agreement by parties to terminate their contract before any performance has been made. a. Requires new consideration: rights given up under original contract b. Detrimental reliance will suffice if consideration lacking b. Oral sufficient unless rescission would result in c. a transfer within Statute of Frauds

Answer 119

Duty and breach are proved when a defendant violates a safety statute which was intended to protect the class of people to which the plaintiff belongs from the kind of injury the defendant caused. i. a safety statute ii. is violated by the defendant, and iii. the statute's purpose is to protect a class of people which the plaintiff belongs iv. from the kind of injury the defendant caused.

Answer 120

Damages given by the court to a non-breaching party who has suffered no damages or unabel to prove damages but has been wronged and is entitled to a judgment

Answer 121

Under the landmark English case of Rylands v. Fletcher, one who brings something onto his land which is non-natural and likely to cause injury if it escapes, is strictly liable for all damages resulting from an escape. See: Rylands v Fletcher, 1866, artificial dam flooded mines.

Answer 122

A novation is a new contract that causes an immediate discharge of a preexisting contractual duty and requires replacement of a contracting party with a new party who neither owed the previous duty nor was entitled to its performance. Different from a combined assignment & delegation, because here one of the parties is discharged from his duties to perform.

Answer 123

Private Nuisance: An act by defendant which unreasonably interferes with plaintiff's use or enjoyment of his or her property. Typically, by non-trespassory invasion that he cannot be reasonably expected to bear without compensation. if a nuisance exists, liability extends only if: - intentionally interfered with plaintiff's use and enjoyment - conduct was negligent - engaged in strict liability activities Public Nuisance: Defendant's interference with the public's enjoyment or use of public property. Recovery for a private party is based on a showing of special harm, unique from that of the general public.---Interference with a right held in common by the general public -- public parks/facilities, or health or safety, convenience, etc.Normally enforced only by public authorities, unless a private tort action is allowed to enforce the public's rights. --- Chemicals or pollution, smoke Planes flying 15' off the ground Use and enjoyment is supplemented by zoning and land-use statutes...

Answer 124

obtaining title to another's property through false representations of fact intent to defraud lie + title = false pretenses Title must pass. Money is its own title. Contrast to abandoned, lost/found/ and mislaid property.

Answer 125

An offer is an outward manifestation of present contractual intent with certain and definite terms communicated to the offeree.

Answer 126

A purchased right wherein the promisor for consideration agrees to make the offer irrevocable for a period of time. Memorize:1. Common law - irrevocable due to purchase of an option2. UCC - irrevocable because either:(a) one party has paid for an option or;(b) a merchant signed an offer stating it would remain open --- contract within a contract - part of a bigger contract to make the offer irrevocable for a period of time in exchange for consideration. e.g.: Choose Now, or Pay $100 for five days to decide. misc: day 1 starts the day the offeree receives the offer. misc: Mailbox rule does not apply to acceptance of options, valid when received

Answer 127

a contract in which the buyer agrees to buy all of the goods or services that the seller can produce over a specified period of time. i. Buyer agrees to buy all ii. the supplier can make iii. within reasonable limits of original expectations

Answer 128

Cardozo Rule: A defendant owes a duty only to those who could foreseeably (zone of danger) be endangered by the defendant's negligent act. No duty is owed to a plaintiff who is in a position of apparent safety when the defendant commits a negligent act. Said shorter: duty owed to foreseeable plaintiffs in the zone of danger only bring up Palsgraf when plaintiff was in a zone of safety.

Answer 129

Parents are not per se vicariouysly liable for the tortious acts of their children, unless there is negligent supervision.

Answer 130

1. Is one party trying to introduce evidence of prior or contemporaneous agreements that are not contained in a fully integrated written contract? 2. Is the written contract fully integrated? 3. Do the additional terms contradict or supplement the written agreement? 4. If it is a UCC contract, is the evidence proof of course of performance, course of dealing, or trade usage? 5. Could the terms be considered a separate, distinct collateral agreement

Answer 131

Proof of Lack of Formation (lack of consideration, fraud, duress, mistake, ambiguity) Proof of a Condition Precedent A Modification or Naturally omitted terms which were part of a collateral agreement or supported by separate consideration. b. Establish collateral agreements d. Separate consideration e. Naturally omitted terms g. Course of performance, course of dealing, and usage

Answer 132

Rule: Under the common law Parol Evidence Rule, if the parties have entered into a completely integrated contract, no evidence of a prior or contemporaneous agreement can be introduced to change the terms of the written contract. Under UCC, court must find the parties intended the writing to be the final agreement before extrinsic evidence will be excluded. It may also be explained by the course of performance, course of dealing, or usage of trade. Completely Integrated Contract, or a merger clause that says the written agreement is the entire agreement.

Answer 133

Co-conspirators are guilty of each other's crimes if (1) in furtherance of target crime AND (2) natural and foreseeable consequence of target crime.

Answer 134

A child, if born alive, may bring a cause of action for injury which occurred prior to birth. At common law, pre-natal injuries could not be the basis of a suit by a child against a tortfeasor.

Answer 135

One party makes it impossible for the other party to perform. Where either party wrongfully prevents or hinders the occurrence or happening of the condition a. Wrongful - conduct which increases the risk that the condition will not be satisfied. (ex: lack of best efforts) *b. Beware of Breach of Implied in Fact Condition

Answer 136

Only the parties named in a contract have privity, and while a third-party may benefit, they may not sue to enforce a contract if they lack privity.

Answer 137

Rule * Substitute for consideration * Foreseeable and reasonable detrimental reliance * upon a gratuitous promise Why? * Necessary in order to avoid injustice Explanation: A doctrine which provides a substitute for the element of consideration under certain circumstances involving foreseeable detrimental reliance upon a gratuitous promise, where a remedy against the non-performing promisor may be necessary in order to avoid injustice in the particular case.

Answer 138

Recommended Rule: Proximate cause is an act which, in a natural and continuous sequence of events, unbroken by unforeseeable, independent, intervening acts, causes injury to the plaintiff, without which the injury would not have occurred. Criminal Law version: The actual cause of harm is also the proximate cause IF the act is closely connected enough to the resulting harm that it is fair to hold the Defendant responsible for causing the harm. --- Proximate cause is an act which a. in a natural and continuous sequence of events b. unbroken by ....1) unforeseeable, ...2) independent, ...3) intervening acts c. causes injury to the plaintiff without which the injury would not have occurred. ---- Said differently: An actual cause of harm is the proximate cause of that harm if the act occurs in a natural and continuous sequence of events, unbroken by unforeseeable, independent intervening acts and results in the harm. ---- IF NO INTERVENING ACT, THE ACTUAL CAUSE IS THE PROXIMATE CAUSE - DIRECT CAUSATION. IF THERE ARE INTERVENING ACTS: - dependent act with a foreseeable cause - or an independent act with a highly foreseeable result

Answer 139

Publication of information about the plaintiff which is not a matter of public concern, in a way which is highly offensive to a reasonable person.

Answer 140

Under a qualified privilege, the defendant has immunity from liability for defamation if he is acting for the following socially desirable purposes: 1) reporting public proceedings, (ie, mistake in news) 2) fair comment privilege, (opinion in good faith 'this art is trash') 3) interest of defendant, ('do business with me instead!') 4) interested of others (warning an employer) 5) common interest (business dealings with common pecuniary interest) 6) reporting a crime, when nothing wrong happened A qualified immunity can be lost if the statement was irrelevant, made with malice, with a bad faith belief, or if it was excessively publicized.

Answer 141

An equitable remedy allowing the plaintiff to recover a benefit that was conferred upon the defendant, despite the absence of a contract. Usually because of a special relationship, or unjust enrichment if allowed to retain the benefit.

Answer 142

Best rule: Under common law, rape is sexual intercourse with a woman without her consent; however, in many jurisdictions, rape includes sexual intercourse with any person without consent. The elements of rape are: a) Sexual intercourse with a woman b) Without consent c) Force or threat --- Note: A woman can't be charged with rape, but can be an accomplice. Note: Drunk or Unconscious or mentally ill not capable of consent. Modernly: gender neutral (not only against females); evidence of force not usually required. No marital exemption. Rape Shield laws prevent evidence of prior sexual conduct. Degrees of rape now.

Answer 143

A person may use reasonable force to re-enter real property only if the taking of the property was tortious or wrongful, and the re-entering party is entitled to immediate possession. Ordinarily, a demand must be made for the occupier to vacate unless such a demand would be a total exercise in futility. ONLY force not likely to cause death or serious bodily harm. 1. D real property taken was wrongful or tortious 2. D made demand for property vacated (unless futile) 3. D acts to retake possession 4. degree of force is (a) objectively reasonable and (b) not life threatening.

Answer 144

1. Acquisition of stolen property 2. with knowledge at the time of receipt 3. that it was stolen 4. when done with intent to deprive owner of his property

Answer 145

a court may rewrite contract to express true intentions of parties

Answer 146

A rejection is a manifestation by the offeree that they do not intend to accept the offer. Effective upon receipt by the offeror.

Answer 147

A complete discharge of contractual obligations and is given under seal or by valid agreement supported by consideration.

Answer 148

When the expectancy is too speculative or cannot be calculated, the court may award damages on a calculation of what the plaintiff expended in reliance on the contract... ... to place the non-breaching party in the economic position it was in before the contract was formed. If the defendants only obligation is to pay a sum of money, reliance is almost always limited to the contract price.

Answer 149

a contract in which the seller agrees to supply all of the goods or services that the buyer needs over a specified period of time. As consideration for the seller's promise, the buyer agrees to obtain these goods or services exclusively from the seller. i. Seller agrees to supply ii. Buyer agrees to get exclusively what they need

Answer 150

Rule to memorize: Plaintiff must prove the following: 1. The defendant was in complete control of the instrument that caused the harm -- eg, boadle's flour barrel, st francis hotel chair 2. The plaintiff is not guilty of contributory negligence 3. The defendant is in a better position to explain what happened (and plaintiff must explain why that is) -- eg, it was boadle's shop and only boadle's employees in the shop... 4. Injuries of this type do not normally occur absent such negligence -- eg, barrels of flour do not usually fall from the sky... The occurrence itself speaks of negligence. --------------------- When to use the rule: when the plaintiff in proving the element of breach of duty when the plaintiff is unable to establish by other evidence that the defendant acted unreasonably.

Answer 151

An equitable remedy with prevents unjust enrichment by cancelling the contract and restoring the parties to their pre-contractual positions. Usually for fraud, undue influence, duress, mistake, or substantial breach.

Answer 152

Applies in employment situations to hold the employer vicariously liable for his employee's torts which are committed within the scope of employment. (intent to further his employer's business) -The literal translation is let the superior answer.

Answer 153

A repudiation of the contract occurs when a party who received a justified written demand for adequate assurances fails to respond within a reasonable time not to exceed 30 days.

Answer 154

May be awarded as a legal OR equitable remedy, to prevent unjust enrichment to the defendant. (as opposed to a loss by the plaintiff) legal remedy is a calculation of value defendant received by plaintiff's performance. (windfall profit for lying about value of painting) equitable remedy is a return of the thing wrongfully obtained (return of the painting itself, not the value of it...)

Answer 155

Rule: Revocation results from the canceling or otherwise voiding an offer by an offeror unless any of these: 1) unilateral acceptance: the offer was for a unilateral contract and the offeree has already begun performance, or 2) the offer was a firm offer, or 3) the offeree detrimentally relied on the offer. Effective: 1. Majority - revocation effective on receipt 2. Minority - effective when sent

Answer 156

Memorize: - If reasonable grounds for insecurity about forthcoming performance, the insecure party can demand adequate assurances of due performance. Must be in writing, and party can suspend his own performance until rec'ving adequate assurances. IRAC Note: Analyze the Response to Demand after to apply anticipatory repudiation. --------------------------- UCC 2-609 A contract for sale imposes a requirement that each party's expectation of receiving performance will not be impaired reasonable grounds must arise after formation - something happened to make the deal possibly breached. Not a funny feeling, but facts. adequate assurances for merchants - determined according to commercial standards. adequate assurances under common law - must be reasonable and not exceed contractual requirements. Demand that exceeds contractual requirements may be a repudiation. failure to provide assurance is a repudiation - must provide assurance within a reasonable time not exceeding 30 days.

Answer 157

tumultuous breach of peace by three or more persons acting together to commit a crime by open force or to carry out any common enterprise.

Answer 158

1. Larceny from the person of another 2. by use of violence, force, intimidation or threat of immediate harm

Answer 159

Rule: movement of unlawful assemblers to carry out the common design A common law and public order criminal offence which has gone beyond an unlawful assembly in that some action has been taken towards either the crime intended or the disturbance of the peace.

Answer 160

Summary: Modern view is that land occupier owes duty to act as a reasonable person regardless of label (invitee, licensee, trespasser). Under Rowland v. Christian, the court eliminated the distinction between business invitee, licensee, and trespasser, and found that the land occupier owes a duty to act as a reasonable man for the purposes of rendering the occupied property safe for others.

Answer 161

Employee was acting with an intent to further his employer's business interests, even if the employee acted indirectly or unwisely, and even if the employer forbade the employee from such an act. Going to or from home/work - not in the scope of employment, unless being paid 'on the clock'

Answer 162

All other murders that are not first-degree murder.

Answer 163

A businessperson has a limited privilege in some jurisdictions to detain a suspected thief, e.g., shoplifter or embezzling employee, to investigate the shopkeeper's claim to the goods, 1. For a reasonable period of time 2. It may be determined that no wrongful taking has been committed.

Answer 164

A statement that is very damaging to the plaintiff's reputation, such as accusing them of a CLUB: crime, loathsome disease, unchastity, or bad business practices. Mnemonic: CLUB Crime Loathsome disease Unchastity Bad business practices Does not require proving special damages or pecuniary losses before claiming general (pain and suffering) damages, like ordinary slander.

Answer 165

Mnemonic: U-CACI Urging, counseling, advising, commanding, or inciting (U-CACI) Another to commit a crime With intent that person solicited commit that crime. Solicited person need not accept If person solicited: - commits crime, both also liable for crime - sufficient for attempt, both also liable for attempt - agrees to crime, but does not commit for attempt, both can also be liable for conspiracy Defense: Renunciation / Prevention such as persuading person solicited to not commit crime. Withdrawal (saying no, don't do it) will avoid accomplice liability, but will still get solicitation charge.

Answer 166

A person who embarks upon the performance of services for another, whether gratuitously or for consideration, is 1. Under a duty to render those services with due care. 2. No duty to complete the performance of the services unless abandonment of such performance would prejudice the other party's position. Generally speaking, liability can only be imposed for reckless or wanton misconduct.

Answer 167

Person serving alcoholic beverages to one intoxicated is generally not liable for damages done by intoxicated person unless there is statute stating otherwise. In DRAM SHOP ACT jurisdictions, a person serving alcohol to an intoxicated person can be held liable for the foreseeable damages caused by the intoxicated person. 1. no duty of server owed to intoxicated person 2. exception - under DRAM SHOP ACTS - server owes duty of care to those injured by one who is intoxicated

Answer 168

Rule: Inspect & Correct: Reasonably inspect & repair those dangerous conditions. Land occupier owes duty of care to invitee to (a) reasonably inspect land and (b) repair dangerous conditions. Business Invitee: person has expressed or implied permission to enter business to do business with land occupier Public invitee: person enters property for the purpose the property is held open to the public, ie a park or trail, not for a business purpose. Public employees acting within the scope of official duties are in the category of public invitees. (firefighter, pizza delivery)

Answer 169

Rule: Warn or repair: Duty of ordinary care including either: 1) Warning licensees of known dangerous conditions, unless they are obvious or already known to the licensee, or 2) Repairing dangerous conditions to make the property safe. Licensee: person entering property with express or implied permission of the land occupier, not for doing business.

Answer 170

Rule: Inspect & Correct: Reasonably inspect & repair those dangerous conditions. Duty to passerby or occupants of adjoining premises. Land occupier owes duty to those outside property (passerby and occupants of adjoining premises) to maintain premises by (1) inspecting for defects and (2) repair defects that should have discovered reasonable inspection

Answer 171

The land occupier generally owes no duty of care to the trespasser unless: 1. Constant trespasser upon a limited area -- whose presence is known or should be known, should warn of artificial condition unless obvious 2. A child to whom the Attractive Nuisance Doctrine applies.

Answer 172

Traditional Rule: Land occupier owed no duty to others for the care of natural conditions on the occupied property. Modernly: A duty of reasonable care as to natural conditions, at least in those situations where the condition is known to the landowner.

Answer 173

A driver, in the absence of a statute otherwise, owes to persons riding in the vehicle a duty of driving with due care. Some jurisdictions have statutes that guests cannot recover from the owner or operator unless the operator is guilty of willful misconduct, recklessness, or intoxication.

Answer 174

In addition to the negligent driver, some statutes impose liability on the owner for the tortious acts committed when intentionally furnishing the vehicle.

Answer 175

A professional is held to a higher standard of care when working in his profession.

Answer 176

A mandatory injunction to compel a party to carry out the terms of a contract. --- Charles Atlas Earns Much Cash Delivering Elephants --- C - Contract valid? A - Adequacy of legal remedy? (lively mice find mice darn nice) E - Enforceability of degree - can the court enforce specific performance? M - Mutuality of remedy - modernly not applied, but performance must be possible by both sides C - Conditions - has plaintiff performed his duties, or been excused? D - Defenses - Plaintiff must have clean hands E - Equitable Conversion - both sides have an equitable interest in what ought to be done.

Answer 177

Under the Statute of Frauds, a contract involving must be signed by the party being charged with breach. If there is no written contract, a memorandum acknowledging the agreement will suffice. Relevant Elements: Contracts for the Sale of Real Property Goods more than $500 Contracts that cannot be completed within a year Agreements to cover Debt or Default Marriage Hand picture: 1 finger - 1 year 2 fingers - DD, Debt or Default 3rd Finger - Ring finger - marriage in exchange for... 4 fingers - 4 corners of a property 5 fingers - sale of goods $500+

Answer 178

A contract is exempt from the Statute of Frauds (a signed writing is not required) when: a. Sufficient memo of agreement is available (ie, Payslip in Elizabeth Arden) b. part performance has occurred, but may only be enforceable to the completed performance. c. Promissory Estoppel applies. d. the K involves debt or default, but the main purpose of the contract was a different purpose e. K can't be performed in 1 year, but one party has already performed. f. Under UCC, - 1) sales confirmation signed by sender, and not objected to in 10 days; or - 2) special manufacturing (ie, wedding dress) and seller has made a substantial beginning; or - 3) party against whom enforcement is sought admits in court a contract was made, but contract is not enforceable beyond the quantity of goods admitted; or - 4) payment has been made, but K is not enforceable beyond the payment; or - 5) goods received and accepted, then K is not enforceable beyond the quantity of goods received and accepted.

Answer 179

If not otherwise specified, the statute of limitations for personal injury is two years, and it begins to run at the time of injury or discovery of the injury.

Answer 180

sexual intercourse; female under age of consent; with her consent; is a Strict liability crime...

Answer 181

Rule: Liability without fault where the defendant has not acted negligently or unreasonably under the circumstances. For example, Nuclear Power Plants, Explosives, etc.

Answer 182

Plaintiff who has failed to perform a constructive condition in some minor or immaterial respect may nevertheless recover on the contract if: 1) the defendant got substantially what he bargained for 2) the defendant can be reimbursed for what he did not receive 3) there will be a great hardship on the plaintiff if he is denied recovery under the contract; and 4) the deviation was not willful.

Answer 183

A tortfeasor whose negligence follows an initial injury and adds to, or aggravates, the existing injury. Under the rules of proximate causation, if the second tortfeasor's negligent act did not break the chain of causation set in motion by the first tortfeasor, then the 1. First tortfeasor can be held liable for both acts. 2. If the second tortfeasor's negligent act did break the chain of proximate causation, the first tortfeasor can only be held liable for his own negligence.

Answer 184

Intervening act sufficient to prevent determination that D's negligent act was the proximate cause of P's injury. Breaks chain of causation eliminating liability

Answer 185

After formation of a contract, the purpose for which the contract was created has become illegal, and discharges the duty to perform.

Answer 186

Survival statutes allow a decedent's pre-existing cause of action against another to continue after the death of the parties originally involved. Interred with the Bones: At common law, the death of either party to a lawsuit prior to judgment for whatever reason, terminated all tort causes of action, except in the case of torts involving personal property.

Answer 187

Rule: A defendant is liable for a plaintiff's unforeseeable and uncommon reactions to the defendant's act. Quick summary: Defendant takes his plaintiff as he finds him. The defendant will be liable even where his act produces an unforeseeable result if that result is due to the plaintiff's uncommon reaction or physical defect. -An exception to the general rule that an unforeseeable result of the defendant's act may break the chain of causation and negate liability.

Answer 188

A contract which performance by the promisor will benefit a third party.

Answer 189

I. D Define (a contract which performance...) 2. P Privity 3. I: Intent to Benefit 4. C: Classification (Creditor Beneficiary or Donee Beneficiary) -- donee: promisee's intent was to make a gift -- creditor: promisee's intent was to discharge a debt or duty owed by the promisee to the 3rd party 5. V: Yesting 6. D: Divide if necessary (Promisee v Promisor; Beneficiary v Promisor; Beneficiary v Promisee on original debt)

Answer 190

1. conscious desire to produce result or 2. knowledge that result will occur or 3. knowledge that result is substantially certain to occur

Answer 191

Applicable when a defendant, while in the process of committing a tort against one person, unintentionally harms a third person or commits a different tort. In such a case, the defendant's wrongful intent is transferred to include the unintended victim or tortious act.

Answer 192

1) Entry upon the real property in possession of another 2) Under a conferred legal right, and 3) The subsequent abusing of that conferred legal right. ie, invited to a friend's house, but then steal something... going into a part of a store that isn't open to the public

Answer 193

Intentional interference with a person's use or possession of a chattel.

Answer 194

1. intentional 2. entry upon real property 3. in possession of another Fleming - without consent or privilege a. D intends to enter land is sufficient (Restatement 2 158). Irrespective of harm to legally protected interest, D is liable if intentionally (a) enters the land or causes a thing or third person to do so; (b) remains on the land or (c) fails to remove a thing which he has a duty to move. b. Trespass includes intrusions upon, beneath and above the surface of the earth. c. Mistaken belief of land ownership or consent no defense. d. P has actual possession or right to immediate possession. (beware of leasehold as the lessee has actual possession) e. Negligent trespass and requirement for damages (R2 165) One who recklessly or negligently, or as a result of an abnormally dangerous activity enters land in possession of another or causes a thing or third person so to enter is subject to liability for trespass. f. accidental intrustion, unintentional and non-negligent do not create liability

Answer 195

Contract for sale of goods may be made in any manner sufficient to show agreement 1. any manner which shows agreement or contract 2. moment of formation may be undetermined Will not fail for indefiniteness, but will not be enforced beyond quantity. See UCC 2-204. Quantity and Parties must be defined for gap fillers to be used.

Answer 196

non-conforming goods are tendered and rejected, seller may notify the buyer that he intends to rectify the problem as long as the time for performance has not passed.

Answer 197

Evaluate two issues. Issue #1 Was there even a contract? (Are the two sides disputing? In Brown v Hercules, both sides agree they had a contract) - who gave the offer, - who gave the acceptance... Issue #2 If so, what terms are governing

Answer 198

UCC �2-207(1) [Heavily Tested] Acceptance with different terms is still acceptance with new terms unless acceptance is expressly made conditional. Additional terms become part of the contract unless: i. offer expressly limits acceptance to original terms; ii. additional terms constitute a material alteration; iii. objection to the additional terms has already been given or given within a reasonable time after receipt. Different terms do not generally become part of the contract even if not a material alteration. Three rules, depending on jurisdiction: Knockout rule: different terms are knocked out, and gap fillers are used to fill them in terms. First Shot rule: different terms originally in the offer remain. Last Shot rule: different terms are treated as a proposal and remain if followed by performance.

Answer 199

UCC �2-207(2) [Heavily Tested] Acceptance with different terms is still acceptance with new terms unless acceptance is expressly made conditional. If additional or different terms are included in an acceptance between non-merchants The terms are merely a proposal Unless acceptance is expressly conditional on assent to the additional or different terms, in which case they become a counteroffer.

Answer 200

Rule: A contact with a provision that no fair and honest person would make and no person in the right mind would accept. Results in oppression or unfair surprise. Tips: - may apply when no other defensive doctrines are available, but the agreement still shocks the conscience or unfair - unconscionability well established under UCC 2-302 and Restatement �208.

Answer 201

A person who is unconscious, for instance, someone who is sleep walking, lacks the capacity to commit a crime.

Answer 202

A unilateral offer is one in which the offeror bargains for a performance rather than for a promise. * Promise that must be accepted by giving the performance specified * Promise to perform does not constitute an acceptance in such a case. Acceptance: Acceptance of the offer is made through performing the required act. Revocation: The offeror may not revoke for the time stated in the offer or if no time is stated in the offer, then for a reasonable length of time if the offeree begins performance.

Answer 203

customarily observed practice or method within a trade, vocation, or locale

Answer 204

1. Use of a forged instrument 2. knowing that it is forged 3. with the intent to defraud

Answer 205

The owner of a vehicle may be held vicariously liable for the acts of the driver of the vehicle.

Answer 206

The original parties can defeat or alter the beneficiary's rights up until the time the beneficiary's rights have vested. Majority rule: an intended beneficiary vest when he learns of the existence of the contract and assented to it. Minority rule: an intended beneficiary vest when he detrimentally relied on the contract.

Answer 207

a form of anticipatory breach in which a party's voluntary conduct makes it so he cannot perform his own conditions. a. Duty becomes present and absolute (breach of contract) b. Non-repudiating party may sue without tendering performance c. Example (selling an auto which is the subject of the contract to another party) d. Retraction: I) Majority: Not permitted unlike anticipatory repudiation 2) Minority: Permitted unless detrimental reliance exists

Answer 208

a defendant who is intentionally intoxicated will be excused for his or her actions only if the intoxication has developed into a permanent mental disorder. However, voluntary intoxication may mitigate the degree or severity of the crime or charge if, due to the intoxication, the requisite criminal intent is lacking.

Answer 209

A killing that would otherwise be murder but that was committed in response to adequate provocation is voluntary manslaughter. The elements of voluntary manslaughter are: a) Reasonable provocation b) The defendant was actually provoked c) Absence of adequate cooling period d) No actual cooling off Mitigating Circumstances: - Heat of Passion - Imperfect Self-Defense - Mistaken Justification - Coercion - Diminished Capacity -- IRAC Usage: Used as a mitigation after establishing murder

Answer 210

1. voluntary relinquishment 2. to assert known right to claim non-performance 3. effected by express agreement or conduct

Answer 211

A covenant in which one party attests to certain facts. Express Warranty: Written or verbally stated Implied Warranty: Obligation imposed even if no promise has been made. (ie, cruise boat contract - implied the boat will float)

Answer 212

Conspiracy requires more participants than are necessary to accomplish the illegal goal. For example, Receiving stolen property or sale of illegal drugs requires 3+ participants. Another example, dueling naturally involves 2 people. Needs 3 people to have a conspiracy to duel.

Answer 213

Common Law (Majority): Defendant effectively and timely communicate to all other parties the withdrawal MPC: The defendant must prevent the commission of the crime ie, Notify the police is effective, under common-law can repudiate or neutralize assistance.;;;;

1L All Cards to Learn Flashcards

(237 cards)