CA Bar Flashcards
(100 cards)
1
Q
Was the contract offer terminated before acceptance?
A
TIRED
Time
Incapacity/Death
Revocation
Express Rejection/counteroffer
Destruction of subject-matter of contract
2
Q
When will consideration not be valid?
A
PANGI
Past consideration
Already owed/pre-existing duty
Nominal
Gift
Illusory - totally in one party’s control, or, SO uncertain as to render void
3
Q
When can parole evidence be accessed?
A
RAISED
remedy (to grant or deny)
ambiguous (to help interpret)
integrated
subsequent modification
exists (is there a valid contract?)
Defence to enforceability
4
Q
What are the challenges to Formation (Defences)?
A
PII DUUMMS
Public Policy
Illegal
Incapacity
Duress
Undue Influence
Unconscionable
Misrep
Mistake
Statute of Frauds (SLY GEM, exception SPAM)
5
Q
Was the contract discharged?
A
FANS RAN
Fully performed
Accord modified original
Novation
Substitute contract replaces
Release
Agree to mutual remission/equal release
Not to sue (covenant)
6
Q
Was performance excused?
A
Impossible
(death, incapacity, destruction, prevention)
Impractical
(will cause extreme injury, loss, expense)
Frustration
(performance will become worthless)
7
Q
What is duress?
A
In duress, a contracting party’s free will is overcome by an improper threat that leaves the party with no reasonable alternative but to agree to the contract.
The threat induces the threatened party’s assent to the contract. Improper threats render the contract voidable, regardless of whether the contract’s terms are fair.
8
Q
What kind of threat constitutes duress?
A
To constitute duress, any threat must also be improper. To be improper, the threat may involve criminal or tortious conduct, criminal prosecution, a bad-faith use of the civil-litigation process, or a breach of the duty of good faith and fair dealing. All of these improper threats render the contract voidable, regardless of whether the contract’s terms are fair.
9
Q
What is undue influence?
A
In undue influence, a contracting party’s free will is overcome not by a threat, but by an especially strong influence exerted by someone else in a confidential relationship with the party.
10
Q
What are three elements required for undue influence?
A
Undue influence requires proof of three elements.
1. a special relationship of trust between the victim and the other party.
2. this special relationship must put the influencer in a dominant position over the victim, such that the influencer has a duty not to act contrary to the victim’s interests.
3. the influencer must abuse his special relationship by unfairly persuading the victim to enter into a contract that is harmful to the victim’s interests.
11
Q
When can a contract modification not require consideration?
A
If a contract is for the sale of goods governed by UCC, then an agreed-upon modification, made in good faith, is enforceable without new consideration.
12
Q
Under the UCC SOF rules what must the written agreement include?
A
the writing must:
(a) furnish a basis to believe that a contract has been made and
(b) specify the quantity of goods.
A contract for the sale of goods subject to the statute of frauds is not enforceable beyond the quantity stated in the writing.
13
Q
What if a contract is subject to the satisfaction of a party?
A
If practicable, a court will interpret such a satisfaction clause in such a way that that the condition is deemed to have occurred, and the party’s performance is due, if a reasonable person in the party’s position would be satisfied.
This interpretation prevents the promised performance of the satisfied party from being illusory, and also acknowledges that the satisfied party has an implied duty of good faith and fair dealing.
14
Q
What can you do if you are unsure if another party will perform the contract?
A
Ask for further assurances IN WRITING.
If the demand is justified, the demanding party may suspend its own performance until it receives adequate assurances.
The other party must then provide adequate assurances within a reasonable time. UCC not to exceed 30 days. Failure to provide adequate assurances within a reasonable time is a repudiation.
15
Q
When must a contract be in writing?
A
SOF requires SLY GEM
Suretyship/guarantees
Land conveyances
Year or more contracts
Goods over $500
Executor promise to pay bills of estate
Marriage
16
Q
What are the exceptions to SOF under C/L?
A
PEP
Partial performance (land)
Estoppel
Performance in full
17
Q
What are the exceptions to SOF under UCC?
A
CAMP
Custom made goods
Acknowledged
Merchant Memo (10 days to refute)
Performance (Paid/goods accepted)
18
Q
What is the rule of convenience in real property?
A
A remainder is the future interest that typically follows a life estate. A remainder may be created in a group, or class, of people - a class gift. Depending on how the class is defined, its membership might change over time. This capacity for change can raise questions about when to close the class, to avoid lingering uncertainties about ownership. Under the rule of convenience, unless a grant shows a contrary intent, a class closes when, for the first time, any class member becomes eligible to receive a distribution. Only persons who are actual class members at that time may participate in the class. Persons who are not yet eligible to join the class may not join it after that point and will not receive a share of the class gift.
19
Q
Under FRE rules how many:
A) depositions?
B) interogatories?
C) requests for production?
A
Without leave from the court, each side in a litigation in federal district court may take
A) no more than 10 depositions.
B) 25 interrogatories, *interrogatories may not be used to seek discovery from persons and organizations that are not parties to the litigation. C) In contrast, a party may serve an unlimited number of requests for production of documents and things, on both parties and nonparties alike.
20
Q
How do you lay the foundation for a layperson as a witness?
A
For a nonexpert witness, a party must show that the witness has personal knowledge of a matter.
A lay witness has personal knowledge IF:
-actually perceived the matter firsthand, through physical senses; OR
- if the witness is testifying about opinions rationally based on personal observation or experience
21
Q
When is a Suspect entitled to legal counsel apropos lineups/showups?
A
The Sixth Amendment right to counsel attaches to critical stages of pretrial proceedings. Therefore, a suspect has a right to counsel during in-person identifications once adversarial proceedings have formally begun, but not beforehand, *even if the suspect has been arrested and is in custody. However, a witness looking at a photo array is not considered a critical stage, meaning that a defendant is not entitled to the assistance of counsel even if the photo-array procedure occurs after the defendant has been formally charged.
22
Q
What are the elements of battery?
A
Battery requires an actor to (1) intentionally (2) cause (3) harmful or offensive physical contact with a victim.
Contact is harmful if it impairs someone’s physical condition or causes physical pain or illness.
The intent requirement is satisfied if the actor acts with either (1) the conscious objective to cause a certain result or (2) substantial certainty that her conduct will cause a certain result.
23
Q
When can the Fed court not exert supplemental jx rules?
A
a court has supplemental jurisdiction over claims outside its original jurisdiction that form part of the same case or controversy as claims within its original jurisdiction. A claim forms part of the same case or controversy as another if the claims arise from the same transaction or occurrence, or if the claims share a common nucleus of operative fact.
However a limit on supplemental jurisdiction in cases based solely on diversity jurisdiction - a court lacks supplemental jurisdiction over claims by persons proposed to be joined as plaintiffs via intervention if those claims would be inconsistent with the requirements for diversity jurisdiction, e.g., if the parties do not have diverse citizenship.
24
Q
Under UCC what happens if the offeree adds additional or different terms?
A
- a contract is formed, unless the acceptance is expressly made conditional on the offeror’s assent to the additional or different terms.
If the acceptance is made conditional on the offeror’s assent to the new or different terms, then the acceptance operates as a counteroffer.
If the acceptance is not made conditional on the offeror’s assent to the new or different terms, and at least one of the parties is not a merchant, then a contract forms and the new terms are treated as proposals for additions to the contract. The new terms become part of the contract only if the offeror expressly agrees to them.
25
when can an accomplice be liable for crimes committed?
when those crimes are a foreseeable and natural consequence of the action
26
What does an accomplice need to do to be able to use withdrawal as a defence?
* the party must undo or nullify any assistance provided before the principal commits the crime.
27
When can you offer character traits in a civil v. criminal trial?
Generally you can't in a civil trial as general character is not reliable evidence to the specific claim. If made an issue by def., that you aren't credible/you are attacked - then you can bring in character evidence, or for impeachment.
You CAN in a criminal trial IF character is an essential part of the crime.
28
What happens in a Jt Tenancy if one owner mortgages the property? (lien theory jx)
In a jurisdiction applying the lien theory of mortgages, a mortgage does not sever a joint tenancy. Rather, the mortgage merely gives the lender a security interest in the mortgaging joint tenant’s interest.
Upon a mortgaging joint tenant’s death, the joint tenant’s interest and any security interest attached to it vanish. The property held in joint tenancy is no longer encumbered by the mortgage.
Instead, the estate of the deceased mortgaging joint tenant is responsible for the remaining mortgage balance.
29
When can a contract be voided for impracticality?
Performance is impracticable if it will cause extreme and unreasonable difficulty, expense, injury, or loss to one of the parties, even if performance is still objectively possible.
The impediment to performance must be severe, and the breaching party must reasonably attempt to overcome any obstacles to performance. If performance is impracticable, then the party’s duties under the contract are discharged, and the party is not required to perform.
If the impracticability is temporary, then the party’s duties are discharged for only so long as the impracticability exists.
30
When are business records (hearsay) inadmissible?
A hearsay record or statement of a public office is admissible if it details the activities of the office or a matter observed by a public official while under a legal duty to report, excluding matters observed by law-enforcement officers if being offered in a criminal case.
Therefore, although police reports are records of matters observed by a public official while under a legal duty to report them, the rule expressly prohibits the introduction of police reports in a criminal case unless they are being offered against the government.
31
When can a Def be convicted of felony murder?
A defendant may be convicted of felony murder if the killing occurred during the commission or attempted commission of a felony. The law imputes malice aforethought to the defendant based on the commission of the underlying felony, regardless of whether the defendant actually harbored malice aforethought.
The majority of jurisdictions limit the felony-murder rule to inherently dangerous felonies. Inherently dangerous felonies are those that, by their nature, pose a high risk of injury or death. These include robbery, burglary, rape, arson, and kidnapping.
32
What are two jx approaches to felony murder by an individual OTHER THAN the Def
Jurisdictions take different approaches to killings committed by individuals other than the defendant.
Under the agency rule, liability for felony murder extends only to killings committed by the defendant or an agent of the defendant, such as a co-felon.
By contrast, under the proximate-cause theory, a felon is responsible for any reasonably foreseeable death, regardless of who caused it. [CALI]
33
What was the Lemon test replaced with?
Establishment Clause challenges should be interpreted in light of historical practices and understandings.
However, that was the extent of the Court's guidance in that decision 2022 Kennedy.
Lemon = a) significant entanglement of church and state; b) secular purpose; and c) doesn't promote/inhibit religion.
34
Can serving a CEO in a jx that is not their "home state" be sufficient personal jx of the State over the Corp?
And what does personal jx normally require?
If a state's long-arm statute applies to a defendant, it must also be consistent with the defendant’s constitutional due-process rights to confer personal jurisdiction.
Due process is satisfied if the defendant has sufficient minimum contacts with the forum state and asserting jurisdiction would not offend traditional notions of fair play and substantial justice, requiring deliberate and purposeful conduct by the defendant in the forum state.
*Cts believe service of Corp prob not enough to est min contacts
35
In a Crim Case, when is character evidence allowed?
character evidence may be admissible if the character trait is pertinent to the trial, and the defendant places it in issue if it is of a type that is pertinent to the defendant’s charges.
Once this type of evidence is introduced, the defendant opens the door, and the prosecution may rebut that evidence.
Additionally, a defendant may introduce character evidence about the victim, if it is of a type that is pertinent to the charges against the defendant. Once introduced, the prosecution may rebut that evidence and also introduce evidence of the same trait in the defendant, if applicable.
36
In a homicide case, when might the prosecution introduce character evidence?
the prosecution may introduce evidence about the victim’s character for peacefulness if the defendant claims self-defense, in order to rebut the defendant’s argument that the victim was the first aggressor.
37
How is commercial speech examined to determine if it is Const?
Commercial speech is a special category of content-based regulation that departs from the usual rule of strict scrutiny. A regulation of commercial speech will be upheld if
(1) the speech concerns lawful activity and is not misleading,
(2) the regulation directly advances a substantial government interest, and
(3) the regulation is not more extensive than necessary to serve that interest.
38
What is the learned treatise evidence rule in court?
A statement in a treatise, periodical, or pamphlet is admissible for the truth of matter asserted if:
(1) the statement is relied on by an expert witness on direct examination or called to the expert’s attention on cross-examination, and
(2) the publication is established as a reliable authority.
If a statement in a learned treatise is admissible, it may be read into evidence, but it may not be admitted as an exhibit. Therefore, the jury may not take the treatise into its deliberations.
39
What needs to be shown to prevent relitigation of an issue?
Collateral Estoppel (issue preclusion, v Res Judicata = claim preclusion)
A party seeking to preclude relitigation of an issue must show:
1) issue is identical to one that was litigated previously,
2) that the prior action ended in a valid and final judgment,
3) that the issue was actually litigated in the prior case,
4) 4) that the issue was necessary to the judgment in the prior case, and
5) that the party against whom preclusion is asserted had a full and fair opportunity to litigate the issue in the prior action.
40
In a negligence claim, can a Pl recover for economic harm?
A negligence plaintiff may always recover to the full extent of physical harm suffered due to the defendant’s negligence, which includes but is not limited to medical expenses.
If a plaintiff’s emotional harm is traceable to physical harm, the plaintiff may recover for both the physical harm and any resulting emotional harm.
Finally, while purely economic harm is generally not recoverable in negligence, a plaintiff may recover for economic harm that is traceable to physical harm.
41
When can silence be deemed acceptance of a contract offer?
An offeree’s silence constitutes acceptance if:
(1) the offeree receives the benefit of offered services
(2) despite the reasonable opportunity to reject the services, and
(3) the offeree has reason to know that the offeror expects compensation for the services.
42
What standard of evidentiary burden is needed to refute an objection to an in-court witness ID not being tainted?
Generally, courts have concluded that, once an opponent objects to the admissibility of particular evidence, the offering party must persuade the trial court that the evidence is admissible.
Most commonly, the offering party in both civil and criminal cases must show the evidence is admissible using a preponderance-of-the-evidence standard.
However, for some preliminary questions of admissibility, particularly in criminal prosecutions, there is a heavier evidentiary burden. In particular, the prosecution has the burden of proving by clear and convincing evidence that an in-court identification of a criminal defendant was not tainted by an unconstitutional out-of-court identification.
43
What is required to launch a derivative SH action against a Corp?
Pl SH needs to have made:
1) a written demand to the corp to take action,
2) and then could commence the suit 90 days later
unless
- the demand is rejected,
-the corp would be irreparably harmed by waiting, or
-the demand would be futile.
44
What happens if you cash a cheque that is for less than the amount owed but says "payment in full" on it?
courts will deem the underlying monetary obligation discharged, even if the check is for less than the outstanding balance, if
(1) the payment-in-full notation is prominent
(2) the obligee cashes the check (whether under protest or not); and (3) the underlying obligation is unliquidated (not reduced to a definite amount), unmatured (not yet due), or subject to a good-faith dispute as to enforceability or amount.
45
What are the three types of errors courts can make in deciding to admit or exclude evidence (even evidence contrary to constitutional rights)?
harmless,
prejudicial, or
plain.
The type of error committed will determine whether the negatively affected party will be entitled to relief on appeal. Harmless error is error that does not adversely affect a party’s substantial right and thus will not warrant reversal of a judgment. An error is harmless if, more likely than not, the jury would have come to the same verdict absent the error.
*this applies even if the evidence admitted was an unconstitutionally coerced admission of guilt
46
What is the criteria to determine a "critical stage" to which 6th amendment rights to counsel arise?
Once charged, entitled to counsel at any critical stage of the proceeding.
Critical stages of prosecution include pretrial procedures that would impair an accused’s defense on the merits if the accused were required to proceed without counsel. A pretrial judicial proceeding is critical if it may influence the outcome of the trial.
A bail hearing or similar proceeding is generally not a critical stage because the determination is limited to whether the accused will be detained or released pending trial. A bail hearing generally does not affect the outcome of the trial.
47
In a strict liability products case, who is liable for selling the product?
In general, strict products liability is imposed if
(1) the actor was a commercial supplier of the defective product,
(2) the product was defective when it left the actor’s control,
(3) there was no significant change in the product’s condition between the time it left the actor’s control and the time it caused the injury, and
(4) the defect actually and proximately caused the injury.
A commercial supplier is one in the business of selling the product that caused the victim’s injury. Commercial suppliers include manufacturers, wholesalers, retailers, or anyone else selling the product on more than a casual basis in the regular course of their businesses.
48
When will a Fed Court not hear a political questions doctrine matter?
The political-question doctrine prevents federal courts from deciding matters committed to the executive or legislative branches by the United States Constitution or those lacking judicially manageable standards, with six factors indicating a political question:
a constitutional commitment to another branch, lack of judicial standards, necessity of policy determinations, risk of disrespecting another branch, need to adhere to prior political decisions, and potential for national embarrassment from inconsistent decisions.
49
Where can a Corp be served in a federal matter?
A plaintiff may serve a summons and complaint on a corporation, partnership, or other unincorporated association in any federal judicial district in which it is present by either
(1) following the laws of the state where the federal district court is located for the suit
(2) or where service is made or
(3) delivering a copy of the summons and the complaint to an officer or authorized agent.
50
Removal rules from State to Fed Court, which State will always be proper for the case to be removed to?
Who CANNOT remove?
If a case is removed from state court to federal court, the proper venue is the federal district and division where the state-court action is pending, regardless of whether the venue would have been proper under the federal-venue statute if the case had been filed in federal court originally.
*If Fed to Fed, or orig filed in Fed, that's when you apply the federal-venue rules looking at fed SMJ, consent, diversity not destroyed.
*Removal only avail to NON-REZ def
51
What does the Second Restatement of Torts mandate for property owners?
a shoddy-construction exception to the general rule that an employer isn't responsible for an independent contractor.
if a possessor of premises hires an independent contractor to perform construction, repair, maintenance, or similar work on a structure on the premises,
and the independent contractor makes the structure unsafe through negligent work.
In these cases, the possessor is liable for injuries that (1) occur after the possessor retakes possession and (2) are attributable to the contractor’s negligent work.
52
At C/L a plaintiff did not have to prove a defamatory statement was false, this was presumed. How did the Courts change this with 1st amendment rights?
USSC has held that the First Amendment’s free-speech protections place heightened burdens of proof on certain defamation plaintiffs and on all plaintiffs challenging certain kinds of defamatory statements.
One of these heightened burdens is proving that a defamatory statement is false. A plaintiff who is a public figure must prove that the challenged statement is false.
A plaintiff (even a private figure) who challenges a defamatory statement that involves a matter of public concern must also prove that the challenged statement is false.
public concern = public health, safety, morals, welfare, and policy, or at least some subset of these elements.
53
When could the Fed Gov't pass a criminal law?
Most criminal laws are passed by the states acting under their inherent police power, which is their authority to pass laws to promote the general health, safety, and welfare of their citizens.
Under the U.S. Constitution, the federal government has limited powers and may not pass laws to promote the general health, safety, and welfare of the nation.
Instead, the federal government may enact criminal laws only if the laws are related to specific constitutional grants of authority as defined by the Constitution, federal statutes, or federal administrative regulations.
54
What level of mens rea is required for attempt?
Attempt is a specific-intent crime. The defendant must have the specific intent to commit the target offense. A defendant who lacks the specific intent to commit the target offense cannot be convicted of attempt to commit the target offense.
Here, the man did not intend to murder the coworker, only to scare him. Because the man did not have the specific intent to commit murder, he cannot be guilty of attempted murder.
*the law does not recognize attempted depraved-heart murder. To be guilty of attempted murder, a defendant must intend to cause the victim’s death.
55
When can a juvenile NOT be sentenced to life without parole?
The Eighth Amendment’s prohibition on cruel and unusual punishment forbids sentencing a juvenile defendant to life without parole for a nonhomicide offense.
56
Does a burglar have to successfully get the property to be charged of burglary?
No - elements of burglary are:
1. B&E (any E that is unlawful, any even without force B)
2. of dwelling
3. of another
4. at night (C/L only)
5. with INTENT to comment felony. Success of the felony N/A
57
What is a defence to False Pretence & Burglary?
That you had a good faith belief that the property was yours
58
What is Arson @ C/L?
1. malicious
2. burning (charring sufficient)
3. of a dwelling
4. of another
59
For unlawful possession, what counts as possession?
A person can:
- actually possess (by exercising immediate dominion and control over an item) or
-constructively possess an item. Constructive possession exists when a person, although not in actual possession, has the right to exercise dominion and control over an item and does not relinquish that right.
60
What is robbery?
Robbery is defined as larceny plus two additional elements. First, the taking of property must be from the person or presence of another. Second, the taking must be accomplished through force or intimidation.
61
What standard is required for analyzing the force/intimidation in Robbery?
*Intimidation is measured by an objective standard. The defendant’s subjective intentions and the victim’s subjective beliefs, although potentially relevant, are not dispositive issues.
62
C/L def of Assault
There are two types of common-law assault.
1. Attempted battery occurs if a defendant attempts but fails to cause an offensive or injurious physical contact.
2. Threatened battery occurs if the defendant puts the victim in reasonable apprehension of an imminent offensive or injurious physical contact, regardless of whether the defendant intends to cause the threatened contact.
63
Larceny by Trick v. False Pretences
Larceny by Trick = Possession
False Pretences = Title
*Not guilty of false pretences if you thought in good faith that it was your property
64
What is embezzlement?
A person commits embezzlement by converting property with which he has been lawfully entrusted.
65
What is an UNCONSTITUTIONAL legislative veto?
An unconstitutional legislative veto is a resolution passed by one or both houses of Congress, without the president's signature, that nullifies or cancels an action taken by the executive branch. A legislative veto enables Congress to exercise control over executive action without bicameralism and presentment.
66
Explain Ripeness
Federal courts generally will decline to adjudicate a speculative dispute over future events that are unlikely to develop, such as a claim based on the vague possibility of general harm or a challenge to a statute that has not yet been enforced.
eg- citizens lobby against nude dancing club pre- city council zoning determination
67
What does the Prez need to take action under the Treaty Clause?
The Treaty Clause authorizes the president, with the advice and consent of two-thirds of the Senate, to enter into a treaty, provided that the treaty does not violate the Constitution.
If Senate doesn't give 2/3 he can pass by Exec Agreement
68
What is the priority of the Federal supremacy clause between various laws?
1. Fed over State
2. Treaty or Exec Agreement over State Laws
3. Treaty equal to Fed Law
4. If Treaty and Fed law contradict, the latest one enacted is the winner
5. Exec Agreement cannot overrule Fed Statute
69
Can Congress limit the USSC's authority?
Congress does not have the power to expand or limit the Supreme Court’s original jurisdiction in any way,
*HOWEVER - Article 3 confers Congress the power to define or limit the Supreme Court’s appellate jurisdiction through legislation.
* subject to such exceptions and regulations as Congress shall make
70
A crim Def has a 6th amendment right to counsel at all "critical stages" after being formally charged. What are examples of NOT critical stages?
anything that would not affect the Def's outcomes in the case
eg- lineups post-charge ARE
bail hearings ARE
PRE-CHARGE lineup, photo ID no right to counsel
71
Who makes a determination about a sentencing factor that might increase potential punishment in a criminal trial?
Any fact, other than the fact of a defendant’s prior criminal conviction, that increases the maximum punishment that a defendant otherwise faces is the functional equivalent of an element of the offense that must be found by a jury beyond a reasonable doubt, even if the legislature has not defined that fact as an element of the charged offense.
* even if that fact is defined as a sentencing factor, rather than an element of the offense.
72
Explain whether conspiracy, attempt and solicitation merge or not
Conspiracy does not merge with the substantive offense.
Attempt does merge
However, solicitation merges with conspiracy.
73
What do you need to do to get out of a Conspiracy you started?
renunciation can be a complete defense to conspiracy. However, renunciation requires that the defendant completely withdraw from the conspiracy and attempt to thwart its success.
withdrawal (changing your mind and stopping action but not renuciating) is not a complete defense to conspiracy. Withdrawal serves only to cut off a conspirator’s liability for subsequent crimes committed by the remaining conspirators.
74
Can a State Tax the Fed Gov't?
The federal government is generally immune from direct state taxation. However, this immunity applies only if the tax will be levied on
(1) the federal government itself or
(2) an agency or entity so closely connected with the federal government that the two cannot be viewed as separate entities.
75
What is the threshold no of units for Fed Fair Housing Act to apply and do any provisions still apply if under that limit?
One specific restriction, forbids advertising any preference or limitation regarding renters or purchasers that is based on a protected characteristic.
WHILE owner-occupied apartment buildings with four or fewer units are largely exempted, such buildings expressly are not exempted from the restrictions on discriminatory or preferential advertising.
76
What is retaliatory eviction?
The doctrine of retaliatory eviction prevents a landlord from evicting or otherwise acting against a tenant in retaliation for the tenant’s protected activity. Activities that are typically protected include complaining about defects or code violations, exercising a remedy under the implied warranty of habitability (IWH), or organizing as part of a tenant’s union.
*The speed of a landlord’s adverse response may suggest that the landlord was acting in retaliation for the tenant’s successful defense, as one factor to examine
77
What is an accession v a fixture?
An accession is the addition of a chattel to some other property such that the chattel retains its separate identity or character.
One traditional definition of fixtures says that a chattel becomes a fixture when it is annexed to the realty with the intent of making it a permanent accession to the realty.
If an accession turns out to be a fixture, then a tenant might not be allowed to remove it.
But "trade fixtures" installed by tenant for biz and then removed with no damage are the right of the tenant
78
When does a deed delivery NOT count as an effective transfer of property?
A person may properly deliver a deed by giving it to a third party with unconditional instructions to pass the deed to the grantee, or to record the deed, upon the grantor’s death.
But delivery does not occur if the grantor reserves the right to retrieve the deed, places conditions on the deed’s transmittal, or otherwise fails to manifest a present intent to convey a property interest.
79
Who does title insurance protect?
An owner’s title-insurance policy protects the owner, as the insured, against title-related problems that fall within the policy’s coverage. A title-insurance policy is personal to the insured. Therefore, when the insured sells the property, the policy does not transfer to the next owner.
If the new owner wants title insurance, she must purchase her own policy.
However, after the insured sells the property, the policy remains in effect to protect the insured against subsequent title-related claims by later owners.
80
What are all avail UCC gap fillers?
Only required term is QUANTITY
1 price - reasonable
2. payment - time/place received
3. delivery - reasonable
4. trade/course of dealing may establish missing K terms
HOWEVER course of dealing cannot contradict an express contractual term!
81
When is a contract illusory?
Contract language that gives a party total discretion over whether to perform or not, or whether to enter a binding commitment or not, renders that contract illusory.
When one party has total discretion over whether to perform at all, there is no consideration and no binding contract.
82
When is Parole Evidence allowed?
When contract isn't fully integrated.
Merger clause helps to determine, but not determinative
Generally: parol-evidence rule renders extrinsic evidence inadmissible to contradict the express terms on which the parties’ writings agree or that are otherwise set forth in a writing intended by the parties as a final expression of their agreement.
Will be interpreted by cirumst more than merger clause
83
What is an Implied in Fact contract?
A court may infer that a contract exists from the parties’ conduct. The terms of such implied-in-fact contracts might include anything upon which the parties’ previous writings or communications agree or upon which their mutual conduct agrees.
(eg - regular course legal advice, client returns will with note asking re: other contract attached...might be implied in fact).
84
In a sale of goods contract, what happens if different or additional terms are in acceptance but not in the offer?
A contract is formed.
In a contract where at least one party is NOT a merchant, additional or different terms in an acceptance are treated as proposals for addition to the contract. Proposals only become part of the contract if the offeror agrees to them.
In a contract in which ALL parties are merchants, any additional terms in an acceptance automatically become part of the contract, (unless an exception applies).
85
In a sale of good contract where both parties are MERCHANTS, what happens if additional/different terms are part of acceptance?
The additional terms become part of the contract automatically UNLESS there is an exception.
The exceptions are:
(1) the offer expressly limits acceptance to the offer’s terms,
(2) the additional terms materially alter those in the offer, or
(3) the offeror objects within a reasonable time.
*If an exception exists, offeror has to agree to extra/difft terms to be valid.
86
Explain Promissory Estoppel
Promissory estoppel enforces promises made without consideration to avoid harm to individuals who have reasonably relied on those promises.
To recover on a claim for promissory estoppel, a promisee must show three elements.
1. the promisee must show that the promisor, when making the promise, should have reasonably expected that the promisee would change his position in reliance on the promise.
2. the promisee must show that he actually changed his position in reliance on the promise.
3. the promisee must show that the change in position was detrimental to the promisee and that injustice may be avoided only by enforcing the promise.
87
When does procedural due process mandate a post-deprivation hearing?
Although in most situations a person is entitled to be heard in some manner before a government deprivation of life, liberty, or property, in limited situations, the government may satisfy due process by providing the opportunity to be heard after the deprivation.
1. is if, under the conventional balancing test, the government interest is so significant as to justify deprivation before a hearing.
2. if a government official deprives someone of LLP in an unauthorized or unforeseeable way. The unpredictability of the deprivation means that the government cannot provide an advance hearing. However, the government in these cases must provide a postdeprivation opportunity to be heard or some other forum, such as a tort suit, for a postdeprivation remedy.
88
If a person with the right to a life estate conveys it to a creditor and then dies, what happens to their interest?
A life estate is alienable inter vivos (i.e., while the life tenant is still living).
However, the life tenant cannot convey any greater estate than she holds.
Thus, a life tenant’s grantee has a life estate pur autre vie for the duration of the transferring life tenant’s life. The creditor's interest would die with the grantor.
89
Define C/L Battery
v
Assault
Battery is defined as
(1) harmful or
(2) offensive
(3) physical contact with another.
Assault is typically defined as either
(1) an attempted battery or
(2) intentionally placing another in reasonable apprehension of an imminent battery.
90
What is Ademption and how did the Uniform Probate Code change the C/L presumption?
Ademption by extinction occurs if a testator sells, gifts, or otherwise transfers specifically devised property before the testator’s death. Under equitable conversion, if the testator enters a contract to sell real property but dies before the closing, then the right to receive the sale proceeds passes as personal property under the will. If the real property was specifically devised, then the devisee receives nothing.
However, the UPC provides for the opposite result: the devisee of specific real property is entitled to any proceeds from the property that remain to be paid as of the testator’s death.
91
Public Nuisance
(and when do you have standing)?
v
Private Nuisance
A claim for public nuisance arises if the actor unreasonably interferes with a property right that the general public holds in common (a public right). A public right involves the public health, safety, comfort, or convenience. eg - obstructing the public highways and polluting a public body of water.
To have standing to sue for public nuisance, a plaintiff need not own any property. *standing requires that the plaintiff have suffered some significant, particularized injury distinct from the harm suffered by the general public. A prime example of such harm is distinct economic harm, for instance, if the public nuisance uniquely interferes with the plaintiff’s livelihood.
Private nuisance generally arises if the actor significantly, unreasonably interferes with the victim’s use and enjoyment of her own real property. Accordingly, standing to sue for private nuisance requires that the victim have some possessory interest in real property affected by the alleged nuisance.
92
When can evidence of a previous charge or conviction of sexual assault be admitted v a Defendant?
Evidence of sexual assault committed previously by a defendant is admissible in criminal or civil cases directly involving sexual assault.
Unlike other character evidence, the jury may consider the defendant’s prior commission of sexual assault as evidence that the defendant has the propensity to commit sexual assault. This evidence of misconduct is admissible even if the defendant did not open the door.
Additionally, the defendant need only have committed the sexual misconduct. The defendant need not have been formally charged or convicted of the act. Courts apply a preponderance-of-the-evidence standard to determine whether prior sexual misconduct is admissible absent a conviction, meaning the evidence will be admitted if it is more likely than not that the defendant committed the act.
93
If you wish to introduce evidence of prior sexual misconduct what must you do first?
If a party intends to introduce evidence of prior sexual misconduct in a civil or criminal case, generally the party must inform the defendant at least 15 days prior to the trial, or later with the court’s permission for good cause. The notice must include witness statements or a summary of the expected testimony.
94
What happens if there is a restrictive covenant and it is being ignored?
If a party seeking to enforce a restrictive covenant has consistently ignored repeated and substantial violations by others, the servitude is unenforceable due to abandonment, which requires violations that undermine the restriction's purpose and make enforcement worthless.
95
What did Erie determine?
Normally btw Fed and State law, Fed law will apply to procedure, if Fed law contravenes, etc.
If it is unclear whether a law is substantive or procedural, federal courts tend to rely upon the Erie analysis, which considers
(1) whether choosing federal or state law determines the outcome;
(2) whether the state law expresses a strong state interest;
(3) whether a countervailing federal policy should overcome state law; and (4) which choice would best serve the twin aims of Erie, namely, discouraging forum shopping and inequitable administration of the laws.
96
What are the requirements for criminal possession and the two kinds?
A person has ACTUAL possession of something if the person
(1) has ACTUAL PHYSICAL CONTROL over the thing and
(2) is aware of this control for long enough to enable the person to terminate the possession.
A person has CONSTRUCTIVE possession of something if the person (1) has the right or POWER TO EXERCISE CONTROL over that thing and
(2) is aware of this control for long enough to enable the person to terminate the possession.
97
What type of witness testify to an ultimate issue?
The FRE abolished this so-called ultimate issue rule. Instead, the FRE take the general position that an opinion on an ultimate issue, whether from a lay witness or an expert witness, is admissible if it is helpful to the trier of fact.
98
If instalment land contract - buyer takes possession, seller keeps deed until all payments made. If buyer forfeits, what are the seller's rights?
Forfeiture allows the seller to keep all of the payments made by the buyer and retake possession of the property. While courts still enforce forfeiture clauses, many jurisdictions have placed statutory and judicial limitations on the use of forfeiture clauses, particularly if the buyer’s payments far exceed the fair rental or sales value of the property.
99
What does the state of mind exception to the hearsay rule cover?
provides an exception for hearsay statements of the declarant’s then-existing state of mind (e.g., motive, intent, or plan) or emotional, sensory, or physical condition (e.g., mental feeling, pain, or health). For a state-of-mind statement to be admissible, the state-of-mind condition had to exist when the statement was made. A statement referring to a declarant’s future intent is also admissible. For example, a declarant’s hearsay statement regarding an intent or plan is admissible to show that the declarant later acted in accordance with that intent or plan.
100
Manslaughter definition?
Homicide caused by adequate provocation which CANNOT BE WORDS ALONE, that does not allow for cool reflection. The reaction is assessed on an objective standard - would another reasonable person have become enraged similarly when looking at the provocation.
