Deck 1 Flashcards
(151 cards)
1
Q
Authority of Agent
A
An agent can bind a principal by acting with either actual or apparent authority.
2
Q
Apparent Authority
A
When the principal holds out the agent as having authority such that a 3rd party reasonably believes the agent has authority.
3
Q
Contract Liability of the Partnership
A
A principal can bound by an agent entering into a contract with either actual or apparent authority. A principal will not be bound if the agent acted with apparent authority and the principal was undisclosed (will be bound if partially disclosed)
4
Q
Dissolution of the Partnership
A
Dissolution of a partnership occurs when one party disassociates from the partnership. After disassociation, the partnership will not be fully dissolved until their affairs are winded up i.e., creditors paid out.
5
Q
Shareholder Derivative Claims
A
When a shareholder brings a suit against the board of directors on behalf of the corporation, not on behalf of themselves individually.The suit must be one in which the corporation could have brought itself, and has harmed the corporation in some way (i.e. loss suffered to corp.’s share value due to misleading statements by directors/officers). Requires shareholder to make a written demand unless it would be futile.
6
Q
General Partnership Formation
A
A general partnership is formed when two people agree to enter into a business for profits with one another. Sharing of profits creates a presumption of partnership.
7
Q
Partner Duty of Loyalty
A
Duty of loyalty is essentially prohibiting self-dealing or acting in their own self-interest. Partners must act in the best interest of the partnership. They must (1) account for any property or benefit derived; (2) not have a conflict of interest; (3) not compete with the partnership
8
Q
Conflict Interest Transactions
A
Partner not liable for self-dealing if (1) the partner fully discloses the information; AND (2) all partners consent to the transaction
9
Q
Piercing the Corporate Veil
A
Referred to as a lawsuit against the shareholders. Only permitted in close corporations and LLCs.
Generally, shareholders, directors, and officers are NOT PERSONALLY LIABLE for the debts and obligations of the corporation. However, a court will pierce the corporate veil and hold the shareholders personally liable when
(1) no separation between shareholders and corporation;
(2) failed to follow corporate formalities;
(3) corp. was inadequately capitalized at inception to cover prospective debts and liabilities; OR
(4) to prevent fraud
10
Q
Diversity Jurisdiction
A
Diversity jurisdiction requires the amount in controversy to exceed $75,000 and complete diversity meaning no plaintiff shares the same domicile as any defendant
11
Q
Federal Question Jurisdiction
A
FQJ is when the claim is brought involving a federal issue or statute
12
Q
Citizenship for Diversity Purposes
A
Citizenship of individuals is determined by their home/domicile. Citizenship of corporations is determined by their place of incorporation and their principal place of business
13
Q
Venue
A
Venue is proper where (1) one of the defendants resides if all of the defendants reside in the same state; (2) a substantial portion of the claim occurred; or (3) a substantial portion of the property is located; OR Bonus one (4) if none of the above apply, then where any D is subject to PJ.
14
Q
Personal Jurisdiction
A
Personal jurisdiction can be attained by serving the person within the state, the defendant being domiciled in the state, or if the D consents or waives PJ
15
Q
Supplemental Jurisdiction
A
Supplemental Jurisdiction occurs when a court doesn’t ordinarily have jurisdiction over the additional claim, but they can assert jurisdiction if the claim arises out of the same common nucleus of operative fact.
16
Q
Specific Jurisdiction
A
Specific jurisdiction is when the court has jurisdiction over the defendant because the cause of action arises out of his conduct in the state
17
Q
Motion for Summary Judgment
A
Motion for SJ must be granted when the movant shows that there is no question of material fact and therefore is entitled to judgment as a matter of law
18
Q
Change of Venue
A
Venue can be changed for multiple reasons. If venue is improper the case can be dismissed or moved to a proper venue in the interests of justice. If venue is proper, the case can be moved to another venue as long as the case could’ve been brought in that court originally i.e., they have jurisdiction AND the transfer is needed for the convenience of parties and witnesses + interests of justice.
19
Q
Removal
A
Removal to federal court is appropriate where the federal court has subject matter jurisdiction; if the Ds all agree; and NO D is a resident of the original forum state (if case is DJ); AND removal must be sought within 30 days of service or initial pleading
20
Q
Issue Preclusion/Collateral Estoppel
A
Issue Preclusion. Precludes a third party from bringing a claim on an issue that previously reached a final judgment. Can be brought if (1) valid final judgment; (2) issue is identical; (3) issue was actually litigated, and essential in prior action; and (4) the party had a full and fair opportunity to litigate the issue in initial action
21
Q
Erie Doctrine
A
The Erie doctrine provides that when a case is in federal court and there is a conflict between state and federal laws, the court will apply state substantive law and federal procedural law
22
Q
Choice of Law Approaches
A
Vested Rights ApproachMost Significant Relationships ApproachInterest Analysis Approach
23
Q
Vested Rights Approach
A
The law of the state where the transaction or event occurred is applied.For a tort action: The applicable law is that of the place of the wrong or injury.
24
Q
Most Significant Relationship Approach
A
the laws of the state having the most significant relationship to the transaction and the parties will apply
25
Interest Analysis Approach
Weighs the interests of the states involved; (1) examines the connections that each state has to the parties and the events of the litigation; (2) the differences between the laws; (3) policy interests; and the law applied to the facts
26
Res Judicata/Claim Preclusion
Claim Preclusion. Precludes the parties in an action from subsequently re-litigating any claim that was or could have been raised in that action. Four Elements: (1) identical parties; (2) final judgment on the merits; (3) arises out of same T/O; and (4) judgment made in court of competent jurisdiction
27
Express Choice of Law Clause in Contract
Express CoL clauses in Ks will be strictly construed as long as they were actually agreed upon and the law chosen actually has something to do with the contractIf a state has some connection with the contract;The contract has not been entered into under fraud, duress, or mistake; ANDThe choice of law isn’t contrary to a substantial policy interest of another state that has more of a significant interest in the matter.
28
What factors will a court consider for a Contract Action under the Most Significant Relationship Approach?
The place of contracting;The place of negotiation of the contract;The place of performance;The location of the subject matter of the contract; ANDThe domicile, residence, nationality, place of incorporation, and place of business of the parties. *Factors are weighed according to relevance.
29
What factors will a court consider for a Tort Action under the Most Significant Relationship Approach?
Where the injury occurred;Where the conduct causing the injury occurred;The domicile, residence, incorporation, and place of business of the parties; ANDWhere the relationship between the parties is centered.The laws of the state having the most significant relationship to the occurrence and the parties will govern the action.
30
When is a judgment entitled to full faith and credit?
JOF (Jurisdiction, On the merits, Final)When:The rendering court had jurisdiction (personal & subject matter);The case was decided on the merits; ANDThe Judgment was final.
31
State Action Requirement
When alleging a constitutional violation, a plaintiff MUST show that the violation is attributable to government action (also known as “state action”), which applies to ALL levels of local, state, and federal government.
32
When is private conduct considered state action?
Courts will find “state action” for private conduct when the conduct involves either: (a) a traditional public function – powers traditionally and exclusively reserved to the government; OR (b) when significant government involvement exists to authorize, encourage, or facilitate private conduct that is unconstitutional (i.e. government enforcement of certain private contracts, entanglement or joint action between a state and private actor, and encouragement of private discrimination).
33
State Sovereign Immunity
No individual can sue their state or another without the states consent to waive or approved by congress
34
Dormant Commerce Clause
Congress has power to regulate interstate commerce, which means the states can't make regulations that discriminate against or unduly burden interstate commerce OR that regulate wholly out of state activities.
If it violates any of those 3, can still be permitted, if
1. Market participant
2. Approved by Congress
35
14th Amendment Equal Protection
The Fourteenth Amendment's Equal Protection Clause requires states to practice equal protection. Equal protection forces a state to govern impartially—not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective.
36
1st Amendment Free Speech
Not all types of speech are protected under the 1st amendment. Content-based restrictions are subject to strict scrutiny (narrowly tailored to achieve compelling interest; least restrictive means).
37
Time, Place, & Manner Restrictions
Applies when the regulation is content-neutral. Congress MAY regulate time, place, and manner of content neutral speech. Subject to intermediate scrutiny (narrowly tailored for significant interest AND leaves open alternative channels of communication)
38
Unprotected Speech
Certain types of speech are unprotected or have limited protections; (1) fighting words; (2) true threats; (3) obscenities; and (4) incitement of imminent lawless action AND commercial speech has limited protection
39
Commerce Power
Congress may regulate interstate commerce via the (1) channels; (2) people and instrumentalities; and (3) economic activities that have a substantial effect on it
Congress may also regulate intrastate activity if there is in aggregate a substantial effect on interstate commerce, and there is a rational basis for the regulation
40
Takings Clause (Eminent Domain)
The government may not take private property for public use unless it provides JUST COMPENSATION. Public use is broadly defined, just needs to be rationally related to a conceivable public purpose.
Can be regulatory (i.e., laws deprive owner of all economically viable use; or Penn Central Taking) or possessory taking (i.e., physical taking or occupation)
41
Penn Central Taking
The three Penn Central factors:
(1) the economic impact of the regulation on the claimant;
(2) the extent of interference with distinct investment-backed expectations (the owner’s primary expectation of use for the property); AND
(3) the character of the governmental action
42
Common Law v. UCC
UCC governs all sales of movable goods, Common Law governs services and everything else pretty much
43
Contract Requirements
Offer
Acceptance
Consideration
44
Expectation Damages
The general measure of damages for a breach of contract are expectation damages. Expectation damages arise directly from the breach, and are an attempt to put the non-breaching party in the same position it would have been in but for the breach.
To recover, the damages must be:
(1) caused by the defendant (actual cause);
(2) foreseeable (proximate cause);
(3) certain (damages cannot be speculative); AND
(4) unavoidable (the plaintiff must take reasonable steps to mitigate his losses)
45
Termination of an Offer
An offer can be terminated at any point prior to acceptance. Unless, it is an option contrqct which makes the offer irrevocable.
46
What is an Offer?
A manifestation of intent to contract along with reasonably specific terms
47
What terms are required
Terms must be able to be ascertained to a reasonable degree of certainty. For sale of goods, the only essential term is the quantity term.
48
What is an Acceptance?
Manifestation of assent to the terms of the offer. For bilateral K, the start of performance manifests assent. For uniliateral K, completion of performance is the acceptance.
49
Contract Modification
Under the UCC, contracts can be modified so long as they are made in good faith. Under CL, a modification must be supported by additional consideration bc of the pre-existing duty rule.
50
Mirror Image Rule & UCC 2-207
The mirror image rule holds that an acceptance must exactly mirror the offer, adding additional terms constitutes a counter-offer.
The UCC does not have a mirror image rule, additional terms can be added, if; (1) both parties are merchants; (2) not a material change; (3) offer does not expressly limit acceptance to the exact terms of the offer; and (4) the offeree did not expressly object to the terms prior.
51
Unilateral Contract
An express offer that payment is made only upon the other party's performance. Offeror would need to revoke before performance begins
52
Bilateral Contract
A contract in which both parties exchange promises to perform
53
Merchant's Firm Offer
When a merchant offers to buy or sell goods in a signed writing that gives assurances that the offer will be held open. If no specific time frame is stated in the offer, a merchant's firm offer will remain open for a reasonable time (but in no event may such period exceed three months).
54
Merchant's Confirmatory Memo
Not an offer, just a way to satisfy SoF. The confirmatory memo rule states that if one party, within a reasonable time after an oral agreement has been made, sends to the other party a written confirmation of the understanding that is sufficient under the Statute of Frauds to bind the sender, it will also bind the recipient if: (i) he has reason to know of the confirmation's contents; and (ii) he does not object to it in writing within 10 days of receipt.
55
Anticipatory Repudiation
Occurs when one party expresses clearly and unambiguously that they are unable to, or are not going to perform. If it is not clear, then it is not a repudiation. However, if the other party has doubts, then they can request adequate assurances.
56
Non-Repudiating Party's Rights
When an anticipatory repudiation occurs, the non-breaching party may do any of the following:
(a) treat the contract as repudiated and sue for damages;
(b) treat the contract as discharged;
(c) wait until performance is due and sue when performance does not occur; OR
(d) urge the party to perform.
57
Mental State Requirements for Crimes
The mens rea requirement for criminal offenses.
general intent (awareness of acting a certain way),
specific intent (intent or desire to engage in the conduct or cause a result),
malice (reckless disregard of a known risk of harm), or
strict liability (no mental state is required, merely that the act occurs).
58
Miranda Analysis
Miranda rights attach when the suspect is under custodial arrest. Under custodial arrest when a person reasonably believes they are not free to leave. Under interrogation when the officer knew or should've known that their conduct was likely to elicit an incriminating response
59
4th Amendment Searches
Warrantless searches are presumptively unreasonable, subject to exceptions. To have standing, the challenger must have a reasonable expectation of privacy regarding the item or place searched. Courts have held that individuals have a reasonable expectation of privacy in that of which they own or possess. T
60
What does an arrest need to be proper?
For an arrest to be proper, the police officer MUST have probable cause. Probable cause arises when the police officer (1) has trustworthy facts or knowledge, (2) sufficient to warrant a reasonable person to believe, (3) that the person committed a crime.
61
Larceny
Larceny is the (1) trespassory taking – taking with no belief of a legal right, (2) and carrying away, (3) of the personal property of another, (4) with the intent to permanently deprive the owner of the property.
The intent to permanently deprive MUST exist at the time of the taking
62
Larceny by Trick
when one obtains possession (not title) of the personal property of another by trick or deception.
63
False Pretenses
Occurs when one (1) obtains title, (2) to personal property of another, (3) through a known false statement of material fact, (4) with intent to defraud.
An opinion or commercial puffery is generally NOT considered to be false pretenses
64
Embezzlement
(1) the fraudulent or wrongful, (2) conversion, (3) of personal property of another, (4) by a person with lawful possession of the property. Intent to permanently deprive the lawful owner of the property is required.
65
Common Law Murder
CL Murder is depraved heart murder with malice aforethought. Malice aforethought is shown by (1) intent to kill; (2) intent to inflict great bodily harm; (3) or a reckless disregard of an extreme risk of human life; or (4) intent to commit an inherently dangerous felony
66
Voluntary Manslaughter
Reduction from murder when there was adequate provocation, and no cooling down period.
67
Involuntary Manslaughter
Unintentional killing committed; (1) recklessly; (2) misdemeanor-murder; or (3) during non-dangerous felony
68
1st Degree Murder
Willful, deliberate, and premeditated
69
2nd Degree Murder
Unlawful killing with malice aforethought
70
Felony Murder Rule
Murder that occurs during the commission of an inherently dangerous felony
71
Hearsay
Out of court statement offered to prove the truth of the matter asserted
72
Non-Hearsay
Offered to prove something other than the truth of the statement, such as (1) verbal acts of independent significance; (2) statements offered to show the effect on the listener; (3) prior inconsistent statement used to impeach; and (4) circumstantial evidence of declarant's SoM
73
Evidential Relevance
Evidence that has any tendency to make the existence of any fact of consequence more or less probable
74
Character Evidence
Generally, not permitted in civil cases. Can be offered in a civil case if it is directly related to the trait in question, or in criminal cases only if initiated by the defendant
75
MIMIC Evidence
Motive; Intent; Absence of Mistake, Identity, Common Scheme
76
Hearsay - Unavailability Requirement
Certain exceptions require the declarant to be unavilable; (1) dying declaration; (2) statements against interest; (3) prior testimony if the other party had a chance to cross; (4) statements of personal or family history
77
Present Sense Impression
Statement made by the declarant about an event while observing the event or immediately after
78
Excited Utterance
Statement made relating to a startling event or condition, made while under the stress or excitement of the event
79
Medical Diagnosis or Treatment
Statement made for the purpose of receiving diagnosis or treatment that describes medical history or symptoms
80
Impeachment
When a witness's credibility and accuracy of their testimony are questioned or attacked.
7 ways to impeach BBCCPRS
1. Bad Acts
2. Bias
3. Conviction of Crime (less than 10 years ago)
4. Contradiction
5. Prior inconsistent statement
6. Reputation or opinion for untruthfulness
7. Sensory Deficiencies
81
Property Division at Divorce
Equitably distributed. Marital property vs. Community property vs. separate property. Separate property goes to who it belonged to originally, community property is split evenly.
82
Best Interests of Child
Great discretion given to the court.
Custody of the child is determined by determining the best interests of the child in the totality of the circumstances.
Will consider the following
1. wishes of parents;
2. wishes of child;
3. age, financial well-being, and health of parents;
4. the existence of new people in each parent’s life and who they are;
5. the effect custody will have on the child’s ability to foster relationships with extended family;
6. history of domestic violence by either party;
7. stability of child’s home and school environments; and
8. anything else that the court believes will be equitable to evaluate.
83
Premarital Contracts
Enforceable so long as they are
1. fair,
2. voluntary,
3. in writing and signed, and
4. there was a full disclosure of assets.
CANNOT include provision regarding child custody
84
Marital Action Jurisdiction
Divorces can occur in jurisdictions other than the one in which the marriage occurred. However, another state cannot modify spousal or child support unless it has jurisdiction over both parents.
85
Common Law Marriage
(1) cohabitation; (2) holding selves out as being married; (3) intent; (4) capacity. If occurs in a state that permits CL marriage, another state will have to give full faith and credit to marriage.
86
Modification of Child Support
Can only be modified in situations where there has been a substantial change in circumstances. Some states won't allow modification if the change was voluntary. Cannot be retroactively modified.
87
Giving up Child for Adoption
Generally, the consent of BOTH parents is required to place a child up for adoption. However, where the child is nonmarital, consent of the biological father is only required when he has assumed parental responsibility.
88
Modification of Child Custody
Only modified if there has been a substantial change in circumstances, typically the original court retains jurisdiction over any modification.
89
Awarding Spousal Support (Alimony)
Court's have SIGNIFICANT DISCRETION in deciding based on the totality of the circumstances.
Can be permanent, temporary, or lump sum.
Considerations are
1. Parties resources and needs
2. Age, physical condition, etc.
3. Couples standard of living
4. Length of the marriage
5. Ability of payor spouse support the recipient and still support themselves
90
Child Support Calculation
```
Bio parent is legally responsible for supporting the child.
Will take into consideration the
Childs needs or special needs,
the number of children and their ages,
the non-custodial parents income, etc.
```
91
Establishing Paternity
Paternity may be established by any of the following methods:
(1) a birth certificate;
(2) legal presumptions;
(3) when unmarried parents voluntarily sign an acknowledgement of paternity;
(4) an unmarried biological father’s successful challenge of a presumption;
(5) a paternity suit; and
(6) parent by estoppel
In most jurisdictions, there is a presumption that a child born during marriage is considered a marital child and is the child of the husband. This presumption can be rebutted by proof of the husband’s infertility or his lack of access to his wife.
92
Paternity by Estoppel
Man who is not the father held himself out as the father and paid support, is then estopped from denying paternity
93
Deed Types
General Warranty Deed = provides all covenants, protects purchasers against any defects in title whether they occurred before or after possession by the conveyer.
Special Warranty Deed = provides all covenants, protects purchaser only against any defects that occurred after conveyor possessed the property.
Quitclaim Deed - As is deed, contains no covenants
94
Recording Statutes
Race - first to record;
Notice - subsequent BFP w/o notice prevails;
Race-Notice - subsequent BFP only prevails if he records first
95
Leasehold Interests
Tenancy for Years - lasts for fixed period of time and automatically terminates upon that period of time ending.
Tenancy at will - terminable at any point by either party, requires notice and a reasonable time to leave the premises
Periodic Tenancy - lease tenancy, month to month, week to week, etc. If the tenancy is for months then you need to give one-month notice before termination, if it is for year-to-year then you need to give 6 months notice.
96
Assignments
An assignment occurs when a person transfers the entire remainder of their lease to another person. Presumptively valid unless otherwise prohibited. Assignor is still liable even after assigning interest.
97
Abandonment
When a tenant abandons their lease, leaves the premises, no notice, stops paying rent, etc.
98
Duty to Mitigate
At common law, a landlord had NO duty to mitigate his damages.
However, most states now impose a duty on a landlord to take reasonable steps to mitigate his losses (i.e. attempting to lease the property to another tenant).
99
Implied Warranty Fitness/Habitability
Every lease contains this warranty. Ensures that the property is reasonable suitable for human needs. If this warranty is breached, the tenant can (1) move out and terminate; (2) withhold or reduce the rent; (3) repair the issue and deduct from rent; (4) remain on premises and sue
100
Adverse Possession
1. Open and notorious 2. Hostile 3. Continuous 4. Exclusive
101
Shelter Rule
A person is sheltered by the BFPs protections of the person who transferred the property to them, even if they themselves are not BFPs
102
Elements of Negligence
Duty; Breach; Causation (in fact and proximate)
103
Respondeat Superior
A principal is liable for the torts of their agent if they are performed in the scope of their employment or if only on a minor detour from the employment.
104
Reasonable Person Standard
Duty of care owed to everyone, a reasonable person would have acted under similar circumstances
105
Strict Liability
Liability for a tort when a defendant is liable for committing an action, regardless of what his/her intent or mental state was when committing the action.
For inherently dangerous acts and dangerous animals
106
Negligence Per Se
Under the doctrine of negligence per se, a statute may be used to substitute the duty of care.To use negligence per se, P must show: (1) that the statute’s purpose is to prevent the type of harm that P has suffered; AND (2) that P is in the class of persons the statute seeks to protect
107
Actual and Proximate Cause
Actual cause is But-For cause. Proximate cause is essentially fairness, whether or not the harm was foreseeable from the breach
108
Eggshell Plaintiff Rule
Take the plaintiff as they come, meaning if you injure someone via tort you are liable for the full extent of their injuries even if they are more severely injured than a normal person would have been under the circumstances
109
Defective Products
A claim for strict products liability requires the plaintiff to show:
(1) the product was defective when it left the hands of the manufacturer or seller;
(2) the product was not altered when it reached the plaintiff;
(3) the product caused an injury to plaintiff when it was being used in an intended or unintended foreseeable use; AND
(4) the defendant is a merchant
110
Comparative Negligence
A tort rule for allocating damages when both parties are at least somewhat at fault. In a situation where both the plaintiff and the defendant were negligent, the jury allocates fault, usually as a percentage (for example, a jury might find that the plaintiff was 30% at fault and the defendant was 70% at fault).
111
Devises to Classes
```
The class generally closes when at least one member is entitled to distribution.
Needs to be given some sort of legal specificity i.e., to my friends, will lapse
```
112
Creation of Valid Trusts
Requires a definitive beneficiary; a settlor with capacity; intent to trust; trust res; trustee; valid trust purpose; compliance with formalities
113
Judicial Modification of Trusts
A judge will modify a trust; if the settlor is dead and all the beneficiaries agree and it would not betray the trust purpose
114
Lapsed Legacies
A gift will lapse if it the beneficiary pre-deceased the testator, the gift will then go to the residuary or pass via intestacy.
Unless, there's an anti-lapse statute provides that where a beneficiary under a will predeceases the testator, the gift will vest in the issue of that predeceased beneficiary if:
(1) the predeceased beneficiary is a specified descendant of the testator (specified by statute); AND
(2) the beneficiary leaves issue who survive the testator.
115
Pour-Over Will
A pour-over provision in a will gifts property to a previously established trust. The property is distributed according to the terms of the trust.
116
RAP
No interest in land is good unless it must vest, if at all, no later than 21 years after the measuring life comes into existence.
117
Scope of Article 9
Article 9 covers all transactions involving a security interest attached to a piece of collateral
118
Attachment of security Interest
Protects interest against Debtor
PIG - Possessory interest to the debtor, interest is created, and giving value to the creditor.
Interest is created by a signed security agreement (a writing describing the collateral signed by the debtor); or by taking possession of the collateral
119
Perfection of Security Interest
FAT - Perfection occurs by one of the 3 (1) Filing a financing statement with the SoS; (2) Automatic Perfection (PMSI in consumer goods) ; or (3) creditor taking possession
Protects interest against 3rd parties. Financing statement must reasonable describe the collateral and provide the names of the debtor and the creditor
120
PMSI
An interest created when the creditor provides the collateral on credit and takes a security interest in that collateral
121
Perfected v. Unperfected Interest
Perfected interest takes priority over unperfected interest. PMSIs in consumer goods take over perfected and unperfected interests
122
Multiple Perfected Creditors and Priority
First in time, first in right applies. Which means the first creditor to perfect has priority
123
Buyers in Ordinary Course of Business (Security Interests)
Buyers in the ordinary course of business take free of a security interest created by the seller.
Thus, if a person entrusts goods to a merchant who deals in goods of that kind, the merchant has power to transfer title to a buyer in the ordinary course of business (even though the merchant seller did not have title to the goods).
124
Types of Collateral
Consumer Goods - goods used for personal use;
Inventory - goods held for sale or lease and supplies used up in business;
Equipment - any physical goods other than consumer goods, like farm equipment;
Accounts - a right to payment;
Deposit accounts - a bank account
125
Strict Scrutiny
Applies to fundamental rights and discrimination based on race or ethnicity and alienage.
Government must prove that the law is narrowly tailored (necessary) to achieve a compelling governmental interest.
126
Intermediate Scrutiny
Applies to classifications of gender and illegitimacy.
| Gov. Must prove that the law is substantially related to an important governmental interest.
127
Rational Basis Test
Applies to every other classification - wealth, age, education, etc.
Plaintiff must prove that the law is not rationally related to any legitimate government interest.
128
Business Judgment Rule
Court will uphold decision of BoD as long as they are made
(1) in good faith
(2) with the care of a reasonably prudent person AND
(3) with the reasonable belief that the decision is in the best interests of the business
129
BoD Duty of Care
Duty of care includes
(1) take reasonable steps to monitor the corporations management;
(2) proposals are in corps best interest;
(3) disclose material information to the board; AND
(4) duty to make reasonably informed decisions - officers may rely on info from others whom they reasonably believe are reliable
130
Duty of Loyalty arises in 3 ways BCC
Both sides of transaction - director has material interest in the contract
Competes with corporation
Corporate opportunity
131
Defenses to Director's Breach of Duty of Loyalty
1. Approval by disinterested directors if all relevant info is disclosed
2. Approval by disinterested shareholders. or
3. If transaction is judged to be fair at the time
132
Strict/Classic Per Stirpes
Divides estate into shares at child generation even if there are no surviving children
133
Per Capita with Representation
Divides at first level where there are live takers
134
Per Capita at Each Generation
Divides at 1st Generation with live takers, BUT shares of predeceased takers shares are pooled and divided equally at next level.
135
Mental Capacity for Wills
Testator is presumed to have capacity, contestant must rebut this presumption.
Testator has MC if:
(1) T knows the nature and extent of their property
(2) the persons who are the natural object of their bounty
(3) the nature of the instrument they are signing
(4) the disposition being made in the will
136
Undue Influence in Wills
```
When the wrongdoer exercises such influence over the testator that it overcomes their free will and causes them to make a gift they otherwise would not have.
Contestant must show SODA
(1) Susceptibility
(2) Opportunity by influencer
(3) Disposition of influencer
(4) Appears to be a product of UD
```
Most courts invalidate only portions that were affected by the UD
137
Impeachment by Bad Acts
Questioning about acts that are probative of truthfulness is permitted, but EE is NOT permitted
138
Impeachment by Bias
W must be confronted while on stand, and EE can be used once W is asked about the bias
139
Impeachment by Conviction
Dishonest crimes are admissible unless they occurred over 10 years ago
If W is a criminal D then the prior convictions only admissible if probative value substantially outweighs prejudice.
140
Impeachment by Contradiction
If W made a mistake in their testimony or lied in their direct examination, she may be impeached by contradiction. EE permissible if they do not admit to mistake.
141
Impeachment by Prior Inconsistent Statement
A prior inconsistent statement is ordinarily admissible for the purpose of impeaching the credibility of a witness.
Extrinsic evidence of the prior statement, such as the written statement itself, may be admitted when the witness has been given an opportunity to explain or deny the statement.
Can be introduced as substantive evidence and not hearsay if made under oath
142
Impeachment by Reputation for Untruthfulness
New witness cannot testify to specific events of untruthfulness, only their general reputation of this.
143
Impeachment by Sensory Deficiency
Can question Ws ability to observe, remember, perceive etc. My Cousin Vinny Glasses Impeachment
144
Premises Liability - Undiscovered Trespasser
Not owed ANY duty of care
145
Premises Liability - Discovered Trespasser
Duty to warn or make safe any known, unreasonably dangerous artificial conditions
146
Premises Liability - Licensee
Licensee = social guest
Duty to warn or make safe ALL concealed conditions that the landowner knows of or has reason to know of
147
Premises Liability - Invitee
Invitee = person on property to convey economic benefit
duty to warn or make safe of all dangers the landowner knows or should know of.
Also a duty to reasonably inspect premises.
148
Discretionary Trust
Trustee has discretion to decide when to make distributions of the principal.
149
Support Trust
Trustee must pay whatever is necessary for the beneficiary's support
150
Spendthrift Trust
A spendthrift trust is a trust designed so that the beneficiary is unable to sell or give away her equitable interest in the trust property. The trustee is in control of the managing the property. Thus, the beneficiary of the trust is not in control of the property and her creditors cannot reach those assets.
151
Division of Marital Property
Marital property is split equitably based on (1) income, property, liabilities of parties; (2) duration of marriage; (3) obligations from previous marriage; (4) lifestyle they've grown accustomed to; and (5) contributions made by each spouse including homemaking
