Mixed Rules/Distinctions Flashcards
Why can defenses be raised against assignee?
Any contract defenses can be raised against assignee because he stands in the shoes of the assignor.
When can assignor not assign contract?
Cannot assign if assignment would (1) materially change duties or (2) involve personal judgment and skill.
When can assignor modify contract?
Any time unless the beneficiary’s rights have vested. If they have vested, assignor must have assent.
There is contractual right to set off when:
The contract expressly states.
State the effect of an anti-assignment provision.
It does not invalidate an assignment.
To what does the FRE not apply?
Sentencing hearings.
Is a withdrawn plea admissible?
No. A plea later withdrawn is not admissible in any civil or criminal proceeding.
When is prior identification admissible?
Declarant must testify at trial and be subject to cross examination.
Effect of exercising dominion over goods?
When offeror exercises dominion over goods, he has accepted them unless there is other contrary intent.
Effect of “per our discussion” language in contract:
Reference to document outside of contract means that contract isn’t complete agreement, so parol evidence is not barred.
Prior/contemporaneous statements in contract:
Are always allowed to explain and interpret the contract.
What effect does the parol evidence rule have on collateral agreements?
Parol evidence rule does not bar collateral agreements that are different from the contract at issue.
Describe seller’s right to cure.
The seller has a right to cure, even after failing to deliver perfect tender, if goods are rejected at time of delivery.
Must offeror always comply with offeree’s demand under a requirements or output contract?
No. If the demand is disproportionate, offeror need not comply.
Effect of bankruptcy on anticipatory repudiation:
The act of filing for bankruptcy provides justification to suspend performance.
Effect of continuing to use a known defective product on products liability action:
If plaintiff discovers, knows, or is warned of a product defect and continues to use the product, he assumes the risk.
Vicious watch dog:
Probably a wild animal. Thus, owner is subject to strict liability.
What is the MPC test for insanity?
A person is not criminally responsible if he lacked substantial capacity to appreciate the criminality of his conduct.
What is the effect of “change of heart”” after defendant takes another’s property?
A later change of heart after intention to deprive another of his property does not negate larceny.
Double Jeopardy and different crimes:
It is not a violation of Double Jeopardy to try a defendant separately for different crimes.
Need defendant’s attorney object to preserve plain error?
No. A plain error cannot be waived.
Does government need to disclose identity of CI?
No, if disclosure would endanger the CI.
Is taking fingerprints a search under the 4th Amendment?
No. It is not a “Search.”
When is using a dog near another’s home a “search”?
Using a dog to drug sniff around and near a front door is a search; the cops need PC and a warrant.
What is the burden of proof for affirmative defense in a criminal case?
The defendant must prove affirmative defense by a preponderance of the evidence.
Rule against acquiring incriminating information when defendant has been formally charged:
Police may not deliberately acquire incriminating information from suspect who has been formally charged UNLESS his attorney is present.
Effect of defendant knowing that lost property belongs to another:
If defendant KNOWS property belongs to another and does not return it, he has committed larceny.
Application of necessity to homicide:
Necessity does NOT apply if you are killing someone to avoid your own death.
Aiding/abetting and mere presence:
Mere presence alone is not aiding and abetting.
Is voluntary intoxication a defense to arson?
No.
Limit on search of car for weapons, even if PC:
The PC is limited to the weapon the cop has PC for; cop cannot look inside a wallet to find a weapon because it would not fit there.
When does 6th Amendment right to counsel attach?
As soon as defendant is indicted. It does not need to be invoked.
When does 5th Amendment right to counsel attach?
Before charges are filed. Defendant must invoke it.
When is mistrial permitted?
If defendant does not object, then government may retry him unless there is concern of necessity or justice.
Does a corporation receive a 5th amendment privilege?
No! A corporation is not a citizen.
When is notice by publication allowed?
When names and addresses of purchasers are not available. But a class representative cannot waive notice on behalf of the class.
When is removal improper on the basis of jurisdiction?
When there is no federal question or diversity jurisdiction.
Where must case be heard if admiralty action?
If the action seeks an admiralty remedy, it MUST occur in an admiralty court.
AIC Requirement
Must EXCEED, not merely be equal to $75,000.
What must court do if improper venue?
Federal court MAY transfer where venue is proper if it chooses, but it MAY NOT keep case in improper venue.
If the case is in state court, the court must dismiss it, because the court cannot transfer the case to a different state court.
Fraudulent-Joinder Rule
Defendant cannot remove a case if there is no chance that the plaintiff can establish a COA in state court.
Divorce in federal court:
Federal courts DO NOT have SMJ over divorce actions.
To implead a party:
You must assert that they are or may be liable for some or all of the claim against you.
When is destruction of ESI not sanctionable?
When the deletion does not occur in anticipation of litigation.
Does appellate court have interlocutory jurisdiction over choice of forum decision?
No, because such a decision is reviewable on appeal from final judgment.
When must objection to service be made?
In the motion to dismiss, or it is waived.
What are the elements of “private nuisance”?
(1) conduct that (2) substantially and (3) unreasonably interferes with (4) another’s use and enjoyment of land.
