DECK E (205-256) Flashcards Preview

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Flashcards in DECK E (205-256) Deck (53):
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DIVIDENDS MAY ONLY BE GIVEN WHERE

  1. BOARD DIRECTS
  2. ALLOWED BY ARTICLES
  3. DOES NOT CAUSE INSOLVENCY

3

PERMANENT SEPARATION OCCURS WHEN

  1. COUPLE PHYSICALLY SEPARATES
  2. AND AT LEAST ONE OF THE SPOUSES INTENDS FOR SEPARATION TO BE PERMANENT

4

COMMUNITY PROPERTY USED TO MAKE PAYMENTS ON SEPARATE PROPERTY -

MARRIAGE OF MOORE FORMULA FOR FINDING COMMUNITY INTEREST

  1. AMOUNT COMMUNITY PAID DOWN PRINCIPAL
  2. DIVIDED BY THE TOTAL LOAN AMOUNT
  3. RESULT IS COMMUNITY'S SHARE 

5

PUTATIVE SPOUSES OCCUR WHEN

  1. MARRIAGE IS VOID OR INVALID
  2. BUT ONE OR BOTH SPOUSES HAVE A GOOD FAITH BELIEF THAT MARRIAGE WAS VALID

6

SPECIAL CLASSIFICATIONS OF ASSETS - PERSONAL INJURY AWARDS  - DAMAGES RECIEVED

  1. DURING MARRIAGE ARE COMMUNITY PROPERTY
  2. BUT ARE ASSIGNED TO INJURED SPOUSE AFTER DIVORCE UNLESS JUSTICE DEMANDS OTHERWISE 
  3. MUST BE USED FOR REIMBURSEMENT TO COMMUNITY WHERE COMMUNITY INCCURED EXPENSE ON BEHALF OF INJURED SPOUSE

7

VALID WILL - INTERESTED WITNESSES TO WILL CREATE REBUTTABLE PRESUMPTION OF 

  1. FRAUD 
  2. MENACE
  3. UNDUE INFLUENCE
  4. DURESS

8

WILL REVOCATION - PRESUMED REVOCATION

  1. WILL LAST KNOWN TO BE IN TESTATOR'S POSSESSION
  2. TESTATOR WAS COMPETENT AT DEATH
  3. WILL OR DUPLICATE CAN'T BE FOUND AFTER DEATH

9

TEMPORARY RESTRAINING ORDER

  1. PRESERVES THE STATUS QUO
  2. FOR A SHORT PERIOD OF TIME
  3. PENDING ISSUANCE OF A PRELIMINARY INJUNCTION

10

VOLUNTARY WASTE

  1. DELIBERATE, DESTRUCTIVE ACT

11

FORMALITY REQUIREMENTS OF DEED

  1. IDENTIFY PARTIES
  2. SIGNED BY GRANTOR
  3. IDENTIFY THE PROPERTY
  4. NO CONSIDERATION REQUIRED

12

ESTOPPEL BY DEED OCCURS WHERE GRANTOR

  1. PURPORTS TO CONVEY AN INTEREST IN A PROPERTY HE DOES NOT HAVE
  2. BUT LATER GAINS A VALID INTEREST IN THE PROPERTY
  3. ESTATE AUTOMATICALLY TRANSFERS TO GRANTEE

13

FEE SIMPLE DEFEASIBLE

  1. CONVEYS AN INTEREST IN REAL PROPERTY
  2. SUBJECT TO LIMITATIONS.

14

VESTING FOR INTEREST IN REAL ESTATE

  1. GRANTS IMMEDIATE RIGHT TO PRESENT OR FUTURE INTEREST IN AN ESTATE

15

TENANCY FOR YEARS

  1. CREATION BY: AGREEMENT WITH A SPECIFIED START AND END DATE, SOF FOR OVER A YEAR
  2. DURATION: ANY PERIOD OF TIME
  3. TERMINATION NOTICE REQUIREMENT: NONE BECASUE LEASE ENDS ON AGREED ON DATE

16

HOLDOVER TENANT IS CREATED BY AFTER LEASE TERMINATION WHERE 

  1. TENANT STILL TENDERS RENT
  2. LANDLORD ACCEPTS RENT 
  3. MOST JX IMPLY PERIODIC TENANCY W/TIME PERIOD OF PREVIOUSLY EXPIRED LEASE

17

AFFIRMATIVE EASEMENT

  1. AFFIRMATIVE EASEMENT ENTITLES EASEMENT HOLDER TO DO SOMETHING ON ANOTHER'S LAND

18

FEDERAL SUBSTITUTE SERVICE REQUIREMENTS

  1. SOMEONE OF SUITABLE AGE AT DEFENDANT'S RESIDENCE WHO RESIDES THERE.
  2. DEFENDANT'S AUTHORIZED AGENT.
  3. ANY METHOD PERMITTED BY STATE LAW.

19

FEDERAL RULE 12(B)(6) - NONWAIVABLE DEFENSES - (CAN BE RAISED ANYTIME BEFORE TRIAL IS CONCLUDED)

  1. FAILURE TO JOIN AN INDISPENSIBLE PARTY
  2. FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED
  3. LACK OF SMJ

20

ERIE DOCTRINE WILL NOT APPLY TO ISSUES OF SUBSTANCE WHERE

  1. THERE IS FEDERAL LAW DIRECTLY ON POINT

21

BALANCE OF INTERESTS TESTS

  1. FEDERAL INTEREST IN HAVING FEDERAL LAW APPLIED IS MEASURED AGAINST STATE LAW INTEREST IN HAVING STATE LAW APPLIED.

22

RULE 26 EXPERT WITNESS DISCLOSURE MUST CONTAIN EXPERT'S 

  1. IDENTITY
  2. QUALIFICATIONS
  3. WRITTEN REPORT

23

PERMISSIVE COUNTERCLAIMS ELEMENTS

  1. ARISING FROM A TRANSACTION OR OCCURENCE DIFFERENT THAN THE ONE GIVING RISE TO PLAINTIFF'S CLAIM
  2. MAY BE RAISED IN PLAINTIFF'S CASE OR IN A SEPERATE MATTER
  3. MUST HAVE AN INDEPENDENT SMJ SOURCE

24

FINAL JUDGMENT RULE - CA

  1. NO APPEAL UNTIL AFTER JUDGMENT ON THE MERITS

25

CONGRESSIONAL POWERS - STATE LAW DIRECTLY DISCRIMINATES AGAINST OUT OF STATE COMMERCE WHERE 

  1. STATE LAW FACIALLY DISCRIMINATES AGAINST OUT OF STATE COMMERCE.

26

ESTABLISHMENT CLAUSE - SECT PREFERENCE INVALID UNLESS

  1. LAW IS NARROWLY TAILORED TO SERVE COMPELLING GOVERNMENT INTEREST (STRICT SCRUTINY STANDARD).

27

CONTENT NEUTRAL SPEECH REGULATIONS STANDARD OF REVIEW

  1. INTERMEDIATE REVIEW

28

EQUAL PROTECTION CLAUSE - CLASSIFICATIONS BURDEN FUNDAMENTAL RIGHTS WHERE THEY AFFECT

  1. PRIVACY 
  2. FIRST AMENDMENT RIGHTS
  3. VOTING RIGHTS
  4. CANDIDACY RIGHTS
  5. INTERSTATE TRAVEL
  6. COURT ACCESS

29

QUESTIONS/STANDARDS FOR DETERMINING FOURTH AMENDMENT EXPECTATION OF PRIVACY

  1. DID THE PERSON HAVE AN ACTUAL, SUBJECTIVE EXPECTATION OF PRIVACY?
  2. DOES SOCIETY RECOGNIZE THIS EXPECTATION AS REASONABLE?

30

SIXTH AMENDMENT RIGHT TO JURY TRIAL HAPPENS WHEN

  1. SERIOUS OFFENSE CHARGED 
  2. WITH POTENTIAL OF OVER SIX MONTHS IMPRISONMENT

31

MERGER OF SOLICITATION

  1. WHEN SOLICITED CRIME IS COMMITTED
  2. SOLICITATION MERGES INTO THE SOLICITED CRIME
  3. SOLICITING DEFENDANT BECOMES VICARIOUSLY LIABLE FOR SOLICITED CRIME
  4. BASED ON ACCOMPLICE LIABILITY.THEORY.

32

LOW LEVEL EMPLOYEE EMBEZZLEMENT

  1. PROPERTY TRESPASSORILY TAKEN BY LOW LEVEL EMPLOYESS ENTRUSTED WITH CUSTODY IS GENERALLY LARCENY
  2. UNLESS PROPERTY WAS GIVEN TO THE EMPLOYEE BY A THIRD PARTY 
  3. BEFORE EMPLOYEE FORMS INTENT TO STEAL
  4. THIS CRIME IS EMBEZZLEMENT. 

33

BURGLARY AND FELONY MURDER

  1. WHERE BURGLARY IS COMMITTED FOR THE SOLE PURPOSE OF ATTACKING THE VICTIM
  2. IT CANNOT SUPPORT A FELONY MURDER CHARGE. 

34

DEFENSE OF VOLUNTARY INTOXICATION

  1. A DEFENDANT MAY RAISE THE DEFENSE OF VOLUNTARY INTOXICATION TO NEGATE SPECIFIC INTENT.

35

STRICT LIABILITY CRIME AND MENS REA - STRICT LIABILITY REQUIRES

  1. NO MENS REA TO COMMIT A CRIME
  2. ONLY COMMISSION OF THE LEGALLY PROSCRIBED ACTUS REUS.

36

DYING DECLARATION DIFFERENCES BETWEEN CEC AND FRE

  1. CEC - ALLOWED IN ALL CASES, BUT DECLARANT MUST BE DEAD
  2. FRE - ONLY HOMICIDE AND CIVIL CASES, ONLY GOOD FAITH BELIEF OF DEATH REQUIRED

37

DIFFERENCE BETWEEN FRE AND CA PRESENT SENSE IMPRESSION

  1. CA - STATEMENT DESCRIBING OR EXPLAINING THE CONDUCT OF DECLARANT (ONLY DECLARANT)
  2. WHILE DECLARANT IS ENGAGED IN THE CONDUCT. 
  3. FRE - STATEMENT DESCRIBING OR EXPLAINING EVENT OR CONDITION
  4. WHILE DECLARANT IS EXPERIENCING EVENT OR CONDITION OR IMMEDIATELY THEREAFTER.

38

WHEN DOES AN OFFER LAPSE AT COMMON LAW?

  1. AN ORAL OFFER GENERALLY LAPSES AT THE END OF THE CONVERSATION
  2. A WRITTEN OFFER GENERALLY LAPSES AT THE DEADLINE IMPLIED BY THE DISPATCH
  3. ABSENT CONTRARY AGREEMENT OR IMPLICATION. 

39

CONTRACTS FOR NECESSITIES OF LIFE AND UNDERAGE PROMISORS

  1. CONTRACTS FOR NECESSITIES OF LIFE ARE ALWAYS LEGALLY BINDING
  2. REGARDLESS OF AGE OF PROMISOR AT THE TIME OF ENTRY INTO THE CONTRACT.

40

DUTY TO COMMUNICATE - ATTORNEY MUST

  1. COMMUNICATE WITH CLIENT
  2. KEEP CLIENT REASONABLY INFORMED ALL OF SIGNFICANT DEVELOPMENTS IN REPRESENTATION 

41

ATTORNEY'S DUTY OF FAIRNESS

TO THIRD PERSONS

  1. AN ATTORNEY HAS A DUTY TO ACT AS FAIR AS REASONABLY POSSIBLE TO THIRD PERSONS

42

MATERIALITY OF STATEMENTS MADE DURING NEGOTIATION

  1. STATEMENTS MADE DURING NEGOTIATIONS ARE NOT STATEMENTS OF MATERIAL FACT
  2. MAKING FALSE STATEMENTS OK

43

LIMITS ON ATTORNEY SERVING ON CLIENT'S BOARD OF DIRECTORS

  1. NO EXPRESS LIMITS ON BOARD SERVICE FOR REPRESENTED CORPORATION
  2. WATCH FOR PROBLEMS WITH DUTIES OF CONFIDENTIALITY AND LOYALTY

44

DUTIES OF WITHDRAWING LAWYER

  1. RETURN CLIENT FILES
  2. RETURN UNEARNED FEES
  3. GIVE OPPOSING COUNSEL NOTICE

45

COLORABLE CLAIM OF INNOCENCE 

  1. SEEMINGLY GENUINE OR LEGALLY VALID CLAIM OF INNOCENCE

46

ASSUMPTION OF RISK - DEFENDANT MAY RAISE DEFENSE TO NEGLIGENCE WHERE

  1. PLAINTIFF DELIBERATELY PUT HIMSELF AT RISK
  2. WITH FULL AWARENESS OF RISK
  3. AND CONSCIOUSLY ACCEPTED THE RISK

47

DEFAMATION - LIABILITY ARISES WHERE DEFENDANT

  1. PUBLISHES A FALSE STATEMENT OF MATERIAL FACT TO A THIRD PARTY, CAUSING DAMAGES TO PLAINTIFF'S REPUTATION

48

COMMON LAW DUTY TO INVITEES

  1. DUTY TO INSPECT
  2. DUTY TO WARN OF DANGERS HIDDEN AND KNOWN

49

WHEN MULTIPLE CAUSES FOR INJURY, MANY JURISDICTIONS USE 

  1. JOINT AND SEVERAL LIABILITY

50

THE LAW WILL TREAT A DE FACTO CORPORATION AS A 

  1. VALID CORPORATION
  2. SHIELDING FROM THIRD PARTY ATTACK
  3. BUT STILL OPEN TO QUO WARRANTO PROCEEDING

51

MBE MISSED - JOINT AND SEVERAL LIABILITY - WHAT CHILD PLAINTIFF MAY RECOVER WHERE ONE OF DEFENDANTS IS PARENT AND NEGLIGENCE OF PARENT NOT IMPUTED TO THE CHILD PLAINTIFF

  1. FULL DAMAGES FROM ANY DEFENDANT INCLUDING PARENT'S LIABILITY

52

CONSEQUENCE OF FRAUD PREVENTING REVOCATION OF WILL

  1. COURT WILL NOT PROBATE THE WILL
  2. PROPERTY GOES TO HEIRS IN A CONSTRUCTIVE TRUST
  3. COURT DECREES HEIRS BENEFICIARIES OF CONSTRUCTIVE TRUST 
  4. WITH DUTIES TO TRANSFER PROPERTY TO INTENDED BENEFICIARIES

53

SUPPORT TRUST - TRUST FUNDS' ACCESIBILTY TO THIRD PARTY CREDITORS

  1. NOT ACCESSIBLE TO 3RD PARTY CREDITORS
  2. WHERE PAYMENT WOULD INTERFERE WITH SUPPORT OF BENEFICIARY