Essay Writing Workshop Mixed Flashcards

Question

What is undue influence?

Answer 1

Occurs when a party unfairly persuades the other party to assent to a contract Occurs when a party is susceptible to persuasion If a party is a victim of undue influence, it can void the contract

Answer 2

When a party is improperly threatened and has no meaningful choice but to agree to the contract. When the agreement is physically compelled by duress, the contract is void Otherwise, voidable.

Answer 3

When a party does not have capacity to enter into a contract. This is true for minors, mentally ill, and intoxicated people. Minors are still liable for necessities that they contract for (housing or food)

Answer 4

Statute of Frauds Illegality Unconscionability

Answer 5

1. Determine whether SOF applies 2. Determine whether the requirements (written, signed by party to be charged) are met 3. If not met, discuss exceptions (part/full performance, estoppel)

Answer 6

``` Marriage Suretyship Contracts (usually services) that cannot be performed within one year of making Sale of goods (UCC) >= $500 Real Property ```

Answer 7

1. Writing signed by the person to be charged that contains the essential terms of the deal. Does not have to be a formal contract, and multiple writings can be put together. For a UCC $500 sale of goods, the writing need not contain all the terms, but the contract is not enforceable against the party beyond the quantity of goods shown in writing. 2. Signature. A document on company letterhead may be enough to constitute a signed writing as long as that was the intention

Answer 8

1. For contracts that cannot be performed within one year of making: if full performance has occurred 2. For UCC >= $500, (a) if full performance has occurred (the goods have been delivered or paid for) (b) if part performance (part of the purchase price), it will be enforceable to the extent that the money has been paid (c) No writing required if the contract involves specially manufactured goods for the buyer (d) Letter or Memorandum of Confirmation: If both parties are merchants and a party sends a confirmatory letter/memo that meets the SOF and the other party receives it and does not object in writing within 10 days, the contract is enforceable even though the receiving party did not sign 3. Sale of land: part performance. If the contract involves the sale of land, the contract will be enforced if at least two of the following three acts have occured: (a) The purchaser pays part or all of the purchase price (b) The purchaser takes possession of the land (c) The purchaser substantially improves the property 4. Estoppel: If a party reasonably and detrimentally relies on a promise made by the party to be charged, a court may enforce the contract, despite the failure to meet the SOF requirement.

Answer 9

A court will not enforce a contract that is so unfair, no reasonable person would agree to it. Court can refuse to enforce the entire contract, strike the unconscionable portion, or limit the unconscionable terms. 1. Procedural unconscionability: when the bargaining process leading to the formation of the contract is unfair 2. Substantive unconscionability: when the actual terms of the contract are unfair; there must be a significant showing of unfairness to find this.

Answer 10

Both parties must agree to any modification. CL: Modifications must be supported by consideration Watch out for exam facts where a party offers to pay more money to the other party to guarantee completion of the contract on time. This is a preexisting duty, and there is no consideration here, so the modification will not be enforceable. If a party agrees to pay more money in exchange for earlier performance, there will be consideration. SOF: If the modified contract falls within SOF, it must be in writing (unless an exception applies) UCC: Modification does not require additional consideration, as long as it is entered into in good faith by both parties. NOTE: A provision prohibiting oral modification to a sales contract even though the modification would not otherwise fall within the SOF is valid under the UCC

Answer 11

An accord is a new agreement where a party agrees to accept a different performance than what was agreed upon

Answer 12

Satisfaction occurs when the different performance (per the accord) is completed by the other party, which discharges the original contract duties and the accord agreement duties.

Answer 13

Extrinsic evidence of oral or written communications prior to the written contract are generally inadmissible for contradicting the terms of the contract. If the contract is not the final agreement (not an integration) then PER does not apply. If the contract has a "merger" clause, it is likely to be a total integration If the writing contains some of the terms, it is a partial integration, and parol evidence is admissible and the writing may be supplemented by additional terms, as long as they are consistent with the writing (and do not contradict any of the terms).

Answer 14

@UCC AT UCC Timing: does not prohibit evidence of modification or statements made AFTER the written contract Ambiguity and Interpretation: Evidence is admissible to interpret or clarify ambiguity in the contract. Collateral Deal: Evidence of a separate deal is admissible, if it's not part of the written contract. UCC: Evidence of usual performance and dealing between parties is admissible. Condition Precedent: Evidence of a condition precedent to the existence of the contract is admissible.

Answer 15

A party has a duty to substantially perform his part of the contract. If he substantially performs he may recover even though full performance was not rendered. A party who has not substantially performed cannot recover damages on the contract, but he may be able to recover through restitution. A party who fails to substantially perform is in material breach.

Answer 16

There must be "perfect" tender of the goods. The buyer has the right to inspect the goods, and once he accepts them, has an obligation to pay. If a buyer rejects goods as nonconforming, and time still remains to perform under a contract, the seller has a right to cure and tender conforming goods. If a party fails to meet the standard of performance, it will be in breach of contract.

Answer 17

An installment contract is defined as one in which the goods are to be delivered in multiple shipments, and each shipment is to be separately accepted by the buyer. Payment by the buyer is due upon each delivery, unless the price cannot be apporotioned.

Answer 18

If the seller makes a nonconforming tender, or tenders nonconforming goods under one segment, the buyer can reject only if the nonconformity substantially impairs the value of that shipment to the buyer, and cannot be cured. If the seller makes adequate assurances that he can cure the nonconformity, the buyer must accept the shipment.

Answer 19

When there is a nonconforming tender under one segment, the buyer may cancel the entire contract only if the nonconformity substantially impairs the value of the entire contract to the buyer.

Answer 20

An express condition is expressed in the contract itself, "on condition that..." AN implied condition is not written into the contract, or otherwise specifically agreed to by the parties, but it is one that a court may find exists. A condition precedent is a condition that must occur before the other party has an obligation to perform A condition subsequent is a one which, on occurrence, will excuse the duty to perform

Answer 21

Waiver: A party can waive a condition as long as it is not material to the contract. The waiving party would then have a duty to perform Wrongful interference: If a party hinders the other party's performance, and interferes with the occurrence of the condition, the condition will be excused and the wrongful party will have a duty to perform. Estoppel: If a party indicates it will not enforce a condition, and the other party reasonably relies on this, the party will be estopped from later enforcing the condition.

Answer 22

Impracticability: when an unforeseeable event occurs (natural disaster), making performance extremely difficult. The nonoccurrence was a basic assumption at the time of the contract, and the party seeking discharge was not at fault. Impossibility: An unforeseeable event occurs, making it objectively impossible for the party to perform. Frustration of purpose: If an unexpected event arises that destroy the party's purpose for entering the contract, the party will be entitled to rescind the contract

Answer 23

A third-party beneficiary results when parties to a contract intend that the performance by one of the parties is to benefit a third person not party to the contract. An intended beneficiary can enforce the contract, but an incidental beneficiary cannot.

Answer 24

Almost all contract rights can be assigned. Partial assignments are allowed, as is assignment of future or unearned rights. Assignments are NOT allowed when they materially increase the duty or risk of the obligor or materially reduce the obligor's chance of obtaining performance. No formalities or consideration are required. An assignee takes all of the rights at the time of assignment, but these are taken subject to any defenses that could be raised against the assignor.

Answer 25

Generally, obligations can be delegated. Delegation is NOT permitted when the other party to the contract has a substantial interest in having the delegating individual perform (personal services contract involving taste or special skills), or the delegation is prohibited by the contract The delegator is not released from liability, and recovery can be had if the delegatee does not perform, unless the other party to the contract agrees to substitute a new party (this is a novation). Consenting to delegation does not create a novation.

Answer 26

Anticipatory breach occurs when a promisor party indicates that it will not perform prior to the date that performance is due. CL: Clear and unequivocal indication through words or acts that it will not perform. UCC: Unequivocal refusal to perform, or failure to provide adequate assurances within a reasonable time (must not exceed 30 days) of the other party demanding them. Either party can demand assurances if they have reasonable grounds to be insecure about the other party's ability to perform. A failure to provide reasonable assurances can be treated as a repudiation. Nonbreaching party can: (i) treat repudiation as breach and sue, (ii) suspend performance and demand performance; (iii) cancel contract, or (iv) wait for date of performance, and then sue Retraction: promisor party can retract repudiation until/unless the other party acts in reliance, accepts repudiation, or has already filed an action for breach of contract.

Answer 27

When a party has substantially but not fully performed. Nonbreaching party is entitled to pursue remedies, but must still perform under the contract.

Answer 28

``` Expectation Damages Consequential Damages Reliance Damages Incidental Damages Mitigating Damages ```

Answer 29

Damages directly resulting from the breach, intended to put the injured party in the same position as if the contract was performed. Must be foreseeable, and nonbreaching party must be able to prove with reasonable certainty. If expectation damages would result in economic waste, courts may instead award damages equal to diminution in value UNLESS breach is willful.

Answer 30

Consequential damages are reasonably foreseeable damages other than expectation damages related to the breach. Three elements must be met: 1. Foreseeability: damages must be a natural and probable consequence of the breach, or contemplated by parties at the time the contract was formed 2. Causation: plaintiff must show that the damages were caused by the defendant's breach 3. Certainty: Plaintiff must prove the dollar amount with reasonable certainty. If it is too speculative, a court will not award consequential damages.

Answer 31

Damages that the nonbreaching party incurs in reasonable reliance upon the promise that the other party would perform. MUST CHOOSE BETWEEN RELIANCE OR EXPECTATION DAMAGES

Answer 32

Damages that arise when the nonbreaching party is trying to remedy the breach (e.g., in a commercial contract, the cost of finding a replacement seller of goods)

Answer 33

The nonbreaching party has a duty to avoid or mitigate its damages to the extent possible, by seeking replacements/substitutes for goods/services. A failure to mitigate damages will reduce the damages recovered by the nonbreaching party.

Answer 34

Restitution Quasi-Contract Specific Performance

Answer 35

Unjust enrichment (not based on the contract) 1. Nonbreaching party has partially performed, and other party breaches. NB party will seek restitution damages for benefit conferred. Cannot seek restitution if it has performed all of its duties and the only performance due is payment -- in this case, they must seek expectation. Damages based on value of benefit conferred. Reasonable value of what it would cost the breaching party to obtain the benefit from another source 2. Breaching party - if they haven't substantially performed, they're in breach and cannot recover under the contract. They CAN recover restitution if the NB party has benefited, in which case they can recover for benefit conferred minus damages

Answer 36

Implied-in-law contracts occur in certain situations where there is no enforceable contract, or a contract does not exist at all, where a court will award restitution damages anyway on the basis of quasi-contract. * The plaintiff must confer a benefit on the defendant * Plaintiff acted without gratuitous intend (intended to be paid) * Would be unfair to let defendant retain the benefit, because they had an opportunity to decline and did not do so, or the plaintiff had a reasonable excuse for not giving the defendant such an opportunity (e.g. paying for an ambulance called in an emergency).

Answer 37

The NB party can ask a court to order the breaching party to perform. * Must be a valid contract * Terms must be clear enough to allow this * NB party has satisfied any conditions precedent (or they have been excused) so performance is now due * Money damages are inadequate (usually means item(s) involved are unique, like land, pieces of art, antique cars) * Court can enforce and supervise performance (will not grant SP if required to supervise for a long period of time, or difficult to enforce) * Courts will not require service contracts to be required b/c forcing a person to work can rise to the level of indentured servitude under 13A * No defenses exist: court will not grant specific performance if breaching party can assert defense of laches (waited an unreasonably long time, and the delay prejudiced the breaching party), or unclean hands (NB engaged in unethical or immoral acts relating to the contract)

Answer 38

Damages -- market price minus contract price. Can also recover incidental and consequential damages. Cover -- buyer may purchase similar goods elsewhere and recover replacement minus contract price Specific performance for unique goods Under the UCC, if either the tender or the goods are nonconforming, the buyer can accept or reject all or part of the goods.

Answer 39

1. If the time for performance under the contract has not yet elapsed, or 2. the seller had reasonable grounds to believe the buyer would accept despite nonconformity

Answer 40

If a buyer wrongfully rejects a tender of goods, in addition to being entitled to incidental damages a seller can: 1. collect damages (contract price minus market price, together with incidental damages, less any expenses saved as a result of buyer's breach) 2. resell goods 3. recover the price only if seller is unable to sell goods at a reasonable price after a reasonable effort, or circumstances indicate such effort will not yield a sale.

Answer 41

Under the traditional rule, a trust is presumed irrevocable unless expressly stated otherwise. Under UTC, and majority rule, a trust is presumed revocable unless expressly stated to be irrevocable.

Answer 42

A mandatory trust requires the trustee to distribute all trust income. A discretionary trust grants the trustee the power to distribute income at his discretion. The trustee does not abuse that discretion unless he acts dishonestly, or in a way not contemplated by the trust creator.

Answer 43

A trust may fail if all interests thereunder may not vest within the applicable period of perpetuities (usually a life in being plus 21 years). Some jurisdictions take a "wait and see" approach, refraining from invalidating future interests until it is clear they will not vest within the perpetuities period.

Answer 44

Intent -- the settlor must intend (orally, in writing, or by conduct) to make a gift in trust Trust property -- A trust must contain some property (anything is fine) Valid trust purpose -- trust can be created for any purpose, as long as it is not (i) illegal, (ii) restricted by rule of law or statute, or (iii) contrary to public policy (e.g. restraining first marriage) Ascertainable beneficiaries -- must be identifiable, may refer to outside writings or acts

Answer 45

Indefinite class: A trustee can select a beneficiary from an indefinite class ("My friends") unless they must distribute equally to all members of the indefinite class (not valid) Unborn children: Valid, even though beneficiaries are not yet ascertainable when trust is created Class gifts: Trusts for reasonably definite class ("my brothers", "my grandchildren') are valid Charitable trusts -- must not have individual ascertainable beneficiaries

Answer 46

A provision in a will that directs the distribution of property to a trust upon the happening of an event, so that the property passes according to the terms of the trust without the necessity of the will reciting the entire trust. The trust can be executed without the Statute of Wills formalities, and later amendments will apply to the assets.

Answer 47

1. Charitable purpose (benefiting the community at large, or a particular segment of the comunity) 2. Indefinite beneficiaries 3. Not subject to RAP, may continue indefinitely

Answer 48

A court may modify a charitable trust to seek an alternative charitable purpose if the original one becomes illegal, impracticable, or impossible to perform. Specific intent to help one charity? court may not modify trust, and instead will terminate trust and become a resulting trust (an implied trust that is held for the settlor or his/her heirs). General intent? substitute similar charity. Modern approach is to presume general intent, and apply cy pres.

Answer 49

When a trust fails in some way, or when there is an incomplete disposition of trust property, a court can create a resulting trust requiring the holder of the property to return it to the settlor or the settlor's estate.

Answer 50

Income beneficiaries receive income from the trust Remainder beneficiaries are entitled to the trust principal upon termination of the trust Creditors may reach trust principal or income only when such amounts become payable to the beneficiary, or are subject to his demand

Answer 51

Yes, it can be sold or used as collateral for a loan unless a statute or trust instrument limits the right.

Answer 52

A support trust directs the trustee to pay income or principal as necessary to support the trust beneficiary. Creditors cannot reach the assets of a support trust, except to the extent that a provider of a necessity to the beneficiary can be paid directly by the trustee.

Answer 53

Under a mandatory trust, the trustee has no discretion, and the trust governs when the property is to be distributed. Under a discretionary trust, the trustee is given complete discretion, and if exercised, then the creditors have the same rights as the beneficiary, unless a spendthrift restriction exists. The beneficiary of a fully discretionary trust lacks standing to challenge the actions or inactions of the trustee unless there is a clear abuse of discretion.

Answer 54

A trust that expressly restricts the beneficiary's power to voluntarily or involuntarily transfer his or her equitable interest (this is a spendthrift clause). Creditors usually cannot reach the trust interest, unless money is owed for child/spousal support, for basic necessities, or tax lien holders.

Answer 55

A settlor can modify or amend a revocable trust. For irrevocable trusts, modification, amendment, and termination can occur only with the consent of all beneficiaries, and only if the proposed change will not interfere with a primary purpose of the trust.

Answer 56

A trust terminates automatically when the purpose has been accomplished. A trust may also terminate if the settlor is deceased/has no remaining interest, and all the beneficiaries (income and remainder) consent. However, a trustee can block a premature trust termination by the beneficiaries if the trust is shown to have an unfulfilled material purpose. The most common example of a trust that has an unfulfilled material purpose is one in which the settlor provided for successive interests, in which case the present and future beneficiaries must agree in order for the trust to be terminated prematurely.

Answer 57

A trustee may not terminate a trust unless the trust contains express termination provisions. A court can remove a trustee if the purpose of the trust would be frustrated by the trustee's continuance in office, or if the trustee violated a duty.

Answer 58

Beneficiaries of trusts may disclaim their interest in trust property if it is reduced to writing within nine months after the future interest would become "indefeasibly vested". The trust principal becomes immediately distributable (accelerates) to the remainder beneficiaries of the trust, if the remainder is vested. If the remainder is contingent upon a condition, it will not accelerate. When the holder of a future interest effectively disclaims that interest, the disclaimant is deemed to have predeceased the life tenant.

Answer 59

In most states anti-lapse statutes do not apply to nonprobate gifts, and if a gift to "issue" fails by reason of the non-survival of the issue, children and further descendants will not take under the trust. UPC § 2-707 create a substitute gift in the descendants of the deceased issue. If such a statute governs, even words of survivorship ("to those of my issue who are living") will not cut off this substitute gift.

Answer 60

Powers granted expressly in the trust Powers necessary to act as a reasonably prudent person in managing the trust, including implied power to contract, sell, lease, or transfer the trust property

Answer 61

A trustee must (i) administer the trust in good faith (subjective standard); (ii) act reasonably (objective standard) when investing property and otherwise managing the trust; (iii) solely in the best interests of the beneficiaries.

Answer 62

Self-dealing creates an irrebuttable presumption that the trustee breached their duty of loyalty; no further inquiry into reasonableness or good faith is required because self-dealing is a per se breach. Even when the self-dealing is authorized (by settlor, court order, or all beneficiaries), the transaction must still be reasonable and fair to avoid liability for breach. Beneficiaries can set aside the transaction, or ratify the transaction and recover the profits from the transaction.

Answer 63

When a trustee invests trust assets in a corporation in which the trustee has an interest, a conflict of interest occurs. There is a presumption of a breach of the duty of loyalty, which can be rebutted by showing that the terms of the transaction were fair, or that the transaction would have been made by an independent party.

Answer 64

Duty to act as a reasonably prudent person, and treat the property as if it were his/her own. Duty to follow trust directions and carry them out in accordance with the trust.

Answer 65

Trustee must act as a prudent investor would (putting less emphasis on risk level); trustee must exercise reasonable care, caution and skill when investing and managing trust assets.

Answer 66

A trustee must adequately diversify the investments in order to spread the risk of loss under a total performance portfolio approach, but not if administrative costs would outweigh the benefits.

Answer 67

Duty to pursue all possible claims, and derive the maximum amount of income from investments, to sell assets when appropriate, secure insurance, pay expenses, and act within a reasonable period of time in all matters.

Answer 68

Balance interests of present beneficiaries (must not favor one of the present beneficiaries over the others, unless the trust provides for it). Must also balance the interests of the present and future beneficiaries by investing property so that it produces a reasonable income for the income beneficiaries while preserving the principal for the remainder beneficiaries.

Answer 69

Disclose complete and accurate information about nature and extent of the trust property, including allowing access to trust records and accounts. Periodically account for actions taken on behalf of the trust, so that trustee's performance can be assessed against the terms of the trust.

Answer 70

Lost profits, interests, and other losses resulting from a breach of trust are the trustee's responsibility; beneficiaries may sue the trustee and seek damages or removal of the trustee for breach of duties.

Answer 71

Although not recognized by most states, common-law marriage exists when the following four elements are met. 1. Capacity: mental and legal 2. Present agreement (both parties intend to be married) 3. Cohabitation 4. Holding out a marital relationship to the community A marriage valid in one state will be valid in another unless it violates a strong public policy of the other state.

Answer 72

A unilateral no-fault divorce requires neither fault nor consent of the other spouse The marriage must be irretrievably broken with no prospect of reconciliation ("irreconcilable differences"). No attempt at reconciliation is required

Answer 73

Some states require a minimum period of separation before a divorce will be granted. The separation does not have to be agreed to by both spouses. A spouse can unilaterally move out and start the separation period.

Answer 74

Mediation is sometimes used to facilitate the separation and divorce process Mediator must follow a code of conduct, and meet the duties of: • being impartial, disclosing any conflicts of interest • clearly explaining and controlling the mediation process, ensuring that the parties have the information to make an informed decision • not coerce or improperly influence a party to make a decision Mediator misconduct may be grounds for not enforcing a separation agreement or a property settlement.

Answer 75

Community property is only used in nine states, and it generally requires an equal division of the marital property.

Answer 76

Equitable distribution, which requires an equitable, or fair distribution (not necessarily an equal 50/50 division), and takes into consideration all of the circumstances between the parties.

Answer 77

Marital property is divided between spouses, but separate property generally remains the property of the owning spouse. SP includes assets acquired during marriage by gift, descent, or devise. SP also includes anything acquired before marriage. MP is all property/assets acquired during marriage by any means other than gift, descent, devise (e.g. wages earned byspouses) SP can be transformed into MP if marital funds or efforts by owner-spouse enhance its value or build equity during marriage.

Answer 78

Future retirement/pension benefits earned by working during the marriage Reimbursement for professional licenses or degrees Personal injury claim proceeds have two approaches: 1. if the cause accrues during marriage, even if the spouses are separated, all proceeds are MP 2. Damages are divided between MP and SP by type - Compensatory damages are SP of injured spouse - Consortium loss damages are SP of non-injured spouse - Lost wages, lost earning capacity and medical expenses are MP

Answer 79

Not modifiable after the fact because it is based on the assets at the time of the divorce. Changes in circumstances after divorce do not affect the award.

Answer 80

* Financial resources of both parties * Standard of living during marriage * Time it will take for receiving spouse to find employment * Length of marriage * Contributions to marriage * Age and health of both parties * Marital misconduct (only in some states)

Answer 81

1. Permanent alimony, for the remainder of the dependent spouse's life (only appropriate after long marriages) 2. Limited-duration alimony, awarded when marriage is of short duration 3. Rehabilitative support, limited period of time (such as until the spouse receives education or employment) 4. Reimbursement alimony, compensation for financial sacrifices made during the marriage which resulted in a reduced standard of living to secure an enhanced standard of living in the future.

Answer 82

Unlike property division, spousal support can be modified The party seeking modification of spousal support has the burden of establishing a SIGNIFICANT CHANGE IN CIRCUMSTANCES that warrants the modification. Voluntary reduction in income does not reduce support payments A court may consider new obligations that arise for the spouse paying support (e.g. remarrying with new children) In most jurisdictions, if the receiving spouse remarries, the spousal support may be terminated.

Answer 83

A court must have subject-matter and personal jurisdiction, but a state court may grant a divorce to one spouse, even if it does not have personal jurisdiction over the other spouse. However, if there is no personal jurisdiction over the absent spouse, the state does not have jurisdiction to address property division, spousal support, or child support.

Answer 84

Both parents are legally required to support their minor children, and cannot bargain away child-support payments or agree to any release or compromise that would negatively affect the child's welfare.

Answer 85

If the out-of-state parent: - is personally served within the state, or consents to jurisdiction - resided with the child in the state in the past - engaged in sexual intercourse in the state, and the child may have been conceived by that act of intercourse

Answer 86

Primarily the income received by the obligor (paying) parent Other factors may include: - best interests of child - age - special needs - assets of both parties - standard of living during marriage

Answer 87

When there is a SUBSTANTIAL CHANGE IN CIRCUMSTANCES regarding the child's needs or the parents' financial situation. The party seeking modification bears the burden of showing the change Circumstances may include a parents' change in occupation, remarriage, or an increase or involuntary decrease in income by either parent. * A court will only modify child support amounts prospectively * A court will not reduce the amount of child support retroactively.

Answer 88

Usually when the child reaches the age of majority (typically 18) Support can sometimes be ordered beyond the age of majority when the child is in college Reasonable parental demands: an employable child's right to support is contingent on compliance with reasonable parental demands; an employable child who fails to comply, even if attending college, risks loss of parental support.

Answer 89

The state that issued the initial child support order has continuing exclusive jurisdiction to modify it, except: • if both parents and the child no longer reside in the state, or • the parties expressly agree to permit another state to exercise jurisdiction

Answer 90

The receiving parent may register a child support order form one state in another non-issuing state The non-issuing state can then enforce the support order.

Answer 91

Legal custody: the right of a parent to make major decisions regarding the child Physical custody: the right to have the child reside with a parent or guardian, and the obligation to provide for routine daily care and control Joint custody: requires that both parents are willing and able to cooperate with respect to the wellbeing of the child, typically neither parent has a superior right to make major decisions.

Answer 92

A court has SMJ to preside over custody hearings and either enter or modify custody or visitation orders if the state is: • the child's home state, and has been the home state for a period of at least six months, or since birth if the child is under six months old • Was the child's home state in the past six months, and the child is absent from the state but one of the parents still lives there

Answer 93

If no other state has or accepts home-state jurisdiction, then a court can enter or modify a custody order if: * the child and at least one parent have a significant connection with the state * there is substantial evidence in the state concerning the child's care, protection, training, and personal relationships

Answer 94

A court making the initial ruling in a custody case has exclusive jurisdiction over the matter until the court determines that: • both parties no longer reside in the state, or • the child no longer has a significant connection to the state, and any substantial evidence connected to the child's condition is no longer available in the state.

Answer 95

The best interest of the child. Courts will consider an older child's wishes if the child has sufficient maturity, and will look at the reasoning behind the preference. Courts will generally not use race or religion in determining custody. Legal parents are presumptively entitled to custody of their children in cases against third parties, including grandparents or stepparents.

Answer 96

No, it is not constitutional unless language to that effect is present.

Answer 97

It is in the constitution. The noncustodial parent is allowed reasonable visitation with a minor child. Unwed biological fathers have substantive due process rights to have contact with their children, but only when the father demonstrates a commitment to the responsibilities of parenthood (e.g., participation in child rearing, or providing financial support).

Answer 98

The burden is on the parent seeking modification to establish modification is warranted. Most jurisdictions require a SUBSTANTIAL CHANGE IN CIRCUMSTANCES. Relocation: In most jurisdictions, the custodial parent seeking relocation bears the burden of demonstrating that relocation is for a legitimate and reasonable purpose, as opposed to restricting the noncustodial parent's visitation. Relocation considerations include: • the best interests of the child • the relationship of the non-relocating parent with the child • age and needs of the child • the child's preference • the quality of life of relocating parent and child

Answer 99

A prenup is a contract made before the marriage, typically containing terms that relate to division of property or spousal support in the case of a divorce and at death. Clauses relating to child custody and support are unenforceable.

Answer 100

If there has been (1) full disclosure (financial status, income, assets & debts of all parties), (2) the agreement is fair and reasonable (misconduct by a mediator, fairness of terms, mostly evaluated at time of contract execution but a minority evaluates at time of enforcement), and (3) it is voluntary (consider factors such as time-pressure or the opportunity to be represented) Additionally, the agreement must be (4) in writing, and (5) signed by the party to be charged. To make an agreement unenforceable, a party must show at least one of the following: 1. Involuntariness (fraud, duress, coercion), or 2. Unfairness or unreasonableness together with lack of reasonable knowledge or disclosure.

Answer 101

Separation agreements are made between spouses who are planning for divorce to define property division, spousal support, child support, custody and visitation. Can be invalidated in part or in whole if a party can show unconscionability or fraud.

Answer 102

An agreement to settle the economic issues of the marital estate, entered into by the parties before a divorce decree is issued. May be invalidated in part or in whole if a party can show unconscionability or fraud.

Answer 103

A statutory legal action in which the previous parent-child relationship is terminated and a new parent-child relationship is established.

Answer 104

They have protections under 14A Due Process Clause if they have shown commitment to being a parent, including the right to object to the termination of parental rights by an adoption. Some states maintain a putative father's registry that allows unwed fathers to register themselves as the father of a child. If registered, the father will receive notice and a hearing before rights are terminated.

Answer 105

Adoptive parents have all of the rights and responsibilities that biological parents would have had. An adopted child has all the rights and responsibilities that a biological child would have had.

Answer 106

A parent has a right to make decisions about how to raise a child, including religion, but courts may intervene in the best interest of the child. If medical treatment contradicts a parent's religious beliefs, courts can intervene to protect a child when necessary medical care is needed to prevent serious harm to the child's health.

Answer 107

Someone who enters into contracts securing capital to bring the corporation into existence Personally liable for a contract, even after the corporation comes into existence UNLESS: 1. Novation -- the corporation & third party agree to substitute the corporation for the promoter 2. Adoption -- the corporation takes the benefits of the contract

Answer 108

Must file articles of incorporation with the state

Answer 109

A corporation lists a purpose in its articles of incorporation, if it lists a narrow purpose and then acts outside of that scope, a shareholder can file suit to enjoin the action, or take action against the officer, director or employee who engaged in the act.

Answer 110

De Jure: exists when statutory requirements are met De Facto: exists when a good faith attempt to incorporate is unsuccessful but they ran the business believing it to be incorporated Corporation by Estoppel: a third-party entered into a contract with the corporation as though it was properly incorporated; the third party is estopped from asserting that the corporation was not formed appropriately.

Answer 111

Issuance must be authorized by the board of directors

Answer 112

The corporation assigns a minimum value to its stock, and if the stock is sold for less than that the board is liable

Answer 113

The primary purpose of this required meeting is to elect directors.

Answer 114

Yes, but: 1. Restricted to normal business hours 2. Requires five days' notice 3. Must state a proper purpose

Answer 115

Shareholders have a right to select the board of directors, and to approve of fundamental corporate changes (e.g., merger, sale of corporation). Shareholders may also engage in proxy voting, wherein a written agreement allows a person to vote on behalf of the shareholder. This agreement is revocable unless otherwise stated (irrevocable proxy is allowed).

Answer 116

Yes, shareholders can amend or repeal bylaws, pass new bylaws, and limit the board of directors' ability to change the bylaws.

Answer 117

Direct: suing the corporation for the shareholder's own benefit (i.e. to remedy a wrong personal to the shareholder). This usually arises when the shareholder is denied voting rights, the board failed to declare a dividend, or the board failed to approve or deny a merger. Derivative: suing on behalf of the corporation, usually against a director or officer. Any recovery goes to the corporation. Any person who is a shareholder at the time of the bad act or omission has standing, and the shareholder is required to first demand action by the board, giving them 90 days to act, unless the demand would be futile.

Answer 118

The court may "pierce the corporate veil" and hold shareholders personally liable based on a totality of circumstances approach, looking at the following factors: • Undercapitalization of the corporation at the time of formation • Disregard of corporate formalities (annual meetings, votes) • Use of corporate assets as shareholder's own assets • Self-dealing with corporation • Siphoning corporate funds or stripping assets

Answer 119

"Controlling" shareholders have a duty to not abuse their power to disadvantage minority shareholders. A controlling shareholder is someone who owns more than 50% of a corporation, or otherwise controls voting power.

Answer 120

Manage and direct the corporation's business and affairs.

Answer 121

Selected by shareholders at the annual shareholder's meeting, may be removed by shareholders for breach of fiduciary duty (common law) or without cause (modern trend)

Answer 122

Must have a quorum of directors present to hold a vote (generally a majority), and "presence" can include a phone call so long as the director can hear and participate.

Answer 123

Requires notice at least 2 days before meeting Notice must include date, time, and place (not subject) A director who did not receive proper notice can object, but if they attend and fail to immediately object to lack of notice, objection is waived.

Answer 124

Duty of care: PI - must act as ordinarily prudent person - duty to investigate and ask questions - can rely on reports and outside experts Duty of loyalty: - must act in the best interest of the corporation - violated if the director engages in self-dealing or usurping a corporate opportunity

Answer 125

A rebuttable presumption that a director reasonably believed his actions were in the best interest of the corporation. To overcome this presumption, one of the following must be shown: - Director did not act in good faith - Director was not informed to the extent reasonably necessary - Director did not show objectivity, and had material interest in the decision - Director failed to timely investigate after being alerted to a significant matter - Any other failure to act as a reasonable director

Answer 126

Engaging in a transaction with the corporation that benefits the director or a close family member; including transactions with another business entity that the director is associated with. Safe harbor rules: transaction can be protected if: - the director discloses all material facts to the board, and receives approval by a majority of disinterested board members - the director discloses all material facts to shareholders and receives approval by a majority of disinterested shareholders - the transaction is fair to the corporation substantively and procedurally. The transaction can be enjoined or rescinded, and the corporation can seek damages from the interested director.

Answer 127

Usurping a corporate opportunity means taking an opportunity that the corporation might be interested in without first offering it to the corporation. If the corporation declines, the director may take it without violating their duty of loyalty

Answer 128

Elected by the board of directors to run day-to-day operations President, Secretary, Treasurer, ... Act as agents of the corporation, and can act with actual express authority, actual implied authority, or apparent authority.

Answer 129

A corporation may voluntarily terminate its status, at which point it starts winding up, and the corporation exists for the limited purpose of winding up its affairs and liquidating its business. Order of distribution: 1. Creditors of the corporation 2. Shareholders of stock with preferences in liquidation 3. Other remaining shareholders of stock

Answer 130

Limited Liability Company, which has the tax advantages of a partnership and the limited liability of a corporation. It requires filing articles of organization, and members can be individuals or organizations. It can be member-managed or manager-managed, and members of a member-managed LLC have authority to bind the LLC.

Answer 131

Members are generally not liable for LLC obligations but if the veil is pierced, they can be.

Answer 132

Members owe fiduciary duties to each other and to the LLC. Duty of loyalty: - Must account to LLC for any profit or benefit - Must refrain from dealing with the LLC on behalf of an adverse interest - Must refrain from competing with LLC Duty of care: - Must act reasonably - Actions subject to business judgment rule

Answer 133

Direct action: suit to enforce the member's rights Derivative action: suit on behalf of the LLC against other members (or even against themselves)

Answer 134

At any time, and for any reason, though they must provide notice (not necessarily written)

Answer 135

Dissolution can occur if all members agree, if there are not enough members remaining, or any other reason stated in the operating agreement. A member can also ask for a court order to dissolve the LLC involuntarily. Must show that a controlling member has acted oppressively and harmed the member seeking dissolution. Winding up: must pay off debts to creditors before distributing assets to members.

Answer 136

If the agent acted with authority, the principal has liability.

Answer 137

1. Express actual authority: principal directly tells agent he has authority to perform certain actions ("do X") 2. Implied actual authority: based on reasonable understanding of principal's instructions ("do whatever you need to in order to do X") 3. Apparent Authority: Based on principal's manifestations to a third party. If the third party reasonably believes the agent has authority to act (based on principal's conduct), then agent has power to bind the principal. NOTE: If principal is undisclosed, there cannot be apparent authority.

Answer 138

The principal is prevented from denying liability if he failed to take reasonable steps, and use ordinary care to inform a third party about a lack of authority.

Answer 139

Actual authority: principal can simply tell the agent that authority is revoked. Apparent authority: principal must tell third party that authority is revoked.

Answer 140

A principal can ratify (affirm) an act performed by an agent, even if the agent did not have authority to act. Ratification requires: • the principal ratify the entire contract • the principal and third party have legal capacity to contract • the ratification occurs before the third party withdraws from the contract • the principal knows the material facts of the transaction

Answer 141

Formation requires an association of two or more persons to carry on a for-profit business as co-owners. It requires sharing of profits. No intent requirement, and no formal agreement or writing is required.

Answer 142

A partner owes the partnership and other partners fiduciary duties of loyalty and care. Loyalty: - Must not compete with the partnership - Must not advance an interest adverse to the partnership - Must not usurp a partnership opportunity Care: - Required to act as reasonable partner - Cannot engage in grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of the law Obligation of good faith and fair dealing

Answer 143

Absent a partnership agreement, each partner will share profits and losses equally.

Answer 144

Partners can transfer the right to receive distributions from the partnership to a third party Partner is still a partner with remaining rights and obligations Third party does not become a partner, but can seek judicial dissolution of the partnership A creditor of a partner can enforce a judgment against the partner's financial interest

Answer 145

It must be used for the benefit of the partnership

Answer 146

Each partner has equal rights in the management and conduct of the partnership. A majority of the partners can make a decision as to ordinary business matters. All partners must consent to a matter outside the course of ordinary business.

Answer 147

Access to records during business hours.

Answer 148

A partner is an agent of the partnership. - Express actual authority can come from the agreement, or authorization by partners - Implied actual authority is based on a partner's reasonable belief that an action is necessary to carry out his express authority - Apparent authority exists when the partner acts in the ordinary course of partnership business and the third party reasonably believes the partner has authority to act.

Answer 149

A partnership is liable for a partner's tortious acts, including fraud, committed in the ordinary course of partnership business, or with partnership authority.

Answer 150

A judgment creditor of an individual partner may not attach and execute upon partnership real estate.

Answer 151

A partnership is subject as a separate entity to a lawsuit for its obligations Partners are also jointly and severally liable for all partnership obligations Partnership creditor must exhaust the partnership's assets before taking the partner's individual assets

Answer 152

Any partner can choose to dissociate from the partnership by giving notice Partnership may dissolve when the partner dissociates, but partner dissociation does not necessarily cause dissolution.

Answer 153

A partnership that is dissovled only continues to exist to "wind up" its business. - Creditors have priority over partners to the partnership's assets - Partnership assets are first applied to pay off obligations to creditors (including partners who made loans to the partnership) before being distributed to the partners.

Answer 154

A limited liability partnership eliminates the partners' personal liability for partnership obligations. Individual partners remain liable for their own torts. Requires filing a statement of qualification with the state Failure to form an LLP will typically result in a general partnership.

Answer 155

Limited partners are agents of the LLP but are not personally liable for LLP obligations.

Answer 156

If a general partnership incurs liability and then becomes an LLP, the LLP is liable for those obligations. If an individual partner in a general partnership is liable, and then an LLP is formed, the partner is still liable for that obligation. A new partner admitted to the LLP is not liable for pre-transition obligations.

Answer 157

A Limited Partnership is formed by 2 or more people: at least one general partner, and one limited partner whose liability is limited to the amount contributed to the LP. Must file certificate with the state. Limited partners have a right to inspect and copy records upon reasonable demand. Limited partners are not liable for partnership obligations, but can be liable if they participate in control of the partnership. Removing a general partner does not amount to "control" of the partnership Only liable to third parties who reasonably believe the limited partner is a general partner.

Answer 158

An accomplice is someone who aids or abets the principal prior to or during the crime. They must intend to help the principal commit the crime, and intend that the principal commit the crime. Mere knowledge that another person intends to commit a crime is not enough. An accomplice is liable for any crimes that are the natural and probable consequence of the accomplice's conduct.

Answer 159

To legally withdraw (and avoid liability for the substantive crime), the accomplice must: 1. Repudiate prior aid; 2. Do all that is possible to countermand prior assistance; 3. Do so before the chain of events is in motion and unstoppable.

Answer 160

A person who aids a felon to avoid apprehension after the felony is committed. To be guilty, the person must know the felony was committed.

Answer 161

a. M'Naghten Rule: Not guilty if, because of mental disease or defect, the defendant did not know either (i) the nature and quality of the act, OR (ii) the wrongfulness of the act. b. Irresistible Impulse Test: Not guilty if mental disease or defect prevented him from being able to conform his conduct to the law c. Durham Rule: Not guilty if the crime would not have been committed but for the mental disease or defect d. MPC Test: Not guilty if a mental disease or defect either prevents the defendant from knowing the wrongfulness of the conduct, or prevents the defendant from being able to conform his conduct to the law.

Answer 162

Involves the voluntary ingestion of an intoxicating substance. It is a defense to specific intent crimes, if the intoxication prevents the formation of the required intent. Voluntary intoxication is not a defense to crimes involving malice, recklessness, or negligence, or for strict-liability crimes.

Answer 163

Unknowingly or forced to ingest an intoxicating substance. Defense to both general and specific crimes, as well as malice crimes when the intoxication serves to negate an element of the crime.

Answer 164

The unlawful killing of a human being committed with malice aforethought. This includes the following mental states: 1. Intent to kill 2. Intent to inflict serious bodily injury 3. Reckless indifference to an unjustifiably high risk to human life (depraved heart) 4. Intent to commit certain felonies (felony murder)

Answer 165

A defendant can be found guilty for the unintended but foreseeable killing that is proximately caused by or during the commission or attempted commission of an inherently dangerous felony. BARRK: burglary, arson, robbery, rape and kidnapping are considered inherently dangerous felonies.

Answer 166

Defenses: - If the death was unforeseeable, FMR does not apply - If the felony is complete and the defendant has reached a place of safety, FMR does not apply. Death of bystander (Majority Rule): - Defendant not liable for the death of a bystander caused by a police officer or as a result of resistance by the victim of the felony, because neither person is the felon's agent. Death of a co-felon: - Defendant will not be held liable for the death of a co-felon if a victim or police officer kills the co-felon.

Answer 167

ONLY APPLICABLE IF JURISDICTION ISSUED STATUTE Premeditated: defendant had enough time to plan and reflect on the idea of the killing. Amount of time needed may be brief, a mere second of reflection is sufficient. Deliberate: Defendant made the decision to kill in a cool and dispassionate manner

Answer 168

Second-degree murder is the statutory version of common law murder. Homicide committed with the necessary malicious intent: - Intent to kill - Intent to do great bodily injury, or - Depraved-heart murder

Answer 169

Murder committed in response to adequate provocation. - Objective element: reasonable person would have been provoked by the victim's actions. Words are generally not enough provocation, sufficient provocations include discovery of adultery or serious battery - Subjective element: defendant must have actually been provoked. Time to cool off: - Objective: there must not have been sufficient time for an ordinary (reasonable) person to cool off - Subjective: The defendant also must not have actually cooled off.

Answer 170

Unintentional homicide committed with criminal negligence or during an unlawful act. Criminal negligence: - Grossly negligent action (or inaction when there is a duty to act) that puts another person at significant risk of serious bodily injury or death - MPC: In addition to grossly negligent action, defendant must have also been actually aware of the risk his conduct posed. Unlawful Act: - Defendant commits an unlawful act that does not rise to felony murder and a death occurs as a result.

Answer 171

The intentional unlawful application of force to another person that causes bodily harm to that person, or constitutes an offensive touching.

Answer 172

An attempt to commit a battery, or intentionally placing another in apprehension of imminent bodily harm.

Answer 173

The unlawful confinement of a person against that person's will coupled with either movement or concealment of that person.

Answer 174

The unlawful confinement of a person without consent.

Answer 175

Unlawful sexual intercourse with a person against his/her will by force or threat of immediate force.

Answer 176

Trespassory taking and carrying away of the personal property of another, without consent, with the specific intent to permanently deprive the owner of the property at the time of the taking. * Taking and carrying away can be met by the slightest movement * Intent to permanently deprive must be present at the time of the taking

Answer 177

The fraudulent conversion of the property of another by a person who is in lawful possession of the property.

Answer 178

Occurs when the defendant obtains title to the property of another person through reliance of that person on a false representation of material fact made by the defendant with the intent to defraud. • False representation: The representation must be false and must be of a material past or present fact An opinion, sales talk, or puffing, a prediction, or a false promise is not sufficient. • Reliance: The victim must rely upon the false representation, and that reliance must cause the victim to pass title to the defendant. • Intent to defraud: The defendant must know that the representation is false, and specifically intend to defraud.

Answer 179

A larceny by force or intimidation when the taking of property is from the victim or in his presence.

Answer 180

Burglary is the breaking and entering of the dwelling of another at nighttime with the specific intent to commit a felony therein. * Breaking: the slightest push counts * Entering: merely crossing a threshold suffices * Specific intent to commit a felony: at the time of the breaking and entering, the defendant must have the intent to commit a felony (e.g., larceny, robbery, rape, murder) inside the dwelling. * A defendant who fails to commit the underlying felony may nevertheless be guilty of burglary and attempt to commit the underlying felony.

Answer 181

An agreement between two or more people to accomplish an unlawful purpose; With specific intent to agree and commit the criminal objective; and An overt act in furtherance of the conspiracy. NOTE: A defendant can be convicted of conspiracy to commit a crime and the underlying crime itself (as well as any other crimes committed in furtherance of the conspiracy). There is no merger doctrine with regard to conspiracy.

Answer 182

A conspirator is liable for the conspiracy and all the crimes of a co-conspirator committed in furtherance of the conspiracy.

Answer 183

After there has been an agreement but before an overt act has been committed, a person may avoid criminal liability for conspiracy.

Answer 184

Attempt requires a substantial step toward the commission of a crime, coupled with the specific intent to commit the crime. Mere preparation is not enough, and if a person succeeds in committing the crime he will not be liable for the attempt and the crime itself (the doctrine of merger applies).

Answer 185

CL: Once defendant has taken a substantial step toward the commission of the offense, the defendant may not legally abandon the attempt to commit the crime. Some states do recognize voluntary abandonment as a defense to attempt, though abandonment is not voluntary if it is motivated by a desire to avoid detection.

Answer 186

Self-defense: reasonable force to protect oneself at reasonable time; deadly force can only be used to protect against deadly force. - Unreasonable use of force can be used as imperfect self-defense. Too much force for the circumstances may mitigate a murder charge down to voluntary manslaughter. Duress: Third party unlawful threat causing a defendant to reasonably believe that the only way to avoid death or serious bodily injury to himself or another is to violate the law, and that causes the defendant to do so. - Under majority rule, duress is not a defense to intentional homicide but it is available for criminally negligent homicide.

Answer 187

If a person is domiciled in a particular state, then the person will be subject to personal jurisdiction in that state's courts, whether or not the person can be found and personally served process. Domicile is a question of fact.

Answer 188

Domicile will be where the person is present with the intent to remain for an unlimited time. Courts look to physical presence, and intent (absence of intent to go elsewhere qualifies) Presence under compulsion, such as prison, will not establish domicile by choice.

Answer 189

A corporation's domicile is always the state where it is incorporated.

Answer 190

When a cause of action involves contacts with more than one state, the forum court must determine which state's law is to be applied to decide the issues in the case.

Answer 191

Due Process: - A forum state may apply its own law to a particular case only if it has a significant contact or significant aggregation of contacts with the state such that a choice of its law is NEITHER ARBITRARY NOR FUNDAMENTALLY UNFAIR Full Faith and Credit: - A forum state must apply the law of another state when the forum state has no contacts with or interest in the controversy, but it does not prevent the forum state from applying its own law when the forum HAS such contacts or interest in the controversy. However, it does not require a state to apply another state's law in violation of its own legitimate public policy.

Answer 192

- Valid agreement with an effective choice-of-law clause - Applicable to the lawsuit under the terms of the contract - REASONABLY RELATED TO THE LAWSUIT (the law to be applied is from a state with connections to the parties or contract) - Not in violation of the public policy of the forum state or another interested state

Answer 193

1. Vested-Rights (First Restatement) 2. Most-significant relationship (Second Restatement) 3. Governmental interest

Answer 194

This approach looks to the jurisdiction where the parties' rights are vested, meaning where the act or relationship that gives rise to the cause of action occurred or was created. Generally this approach looks for the location where the LAST LIABLE EVENT TOOK PLACE. If the issue is procedural, the the forum court will apply its own procedural rules. If the issue is substantive, the court must identify the substantive area of law involved. The forum court will then determine what the forum state's choice-of-law rules require with regard to the characterized issue. For example, if the issue is characterized as a substantive tort issue, then the law of the forum state may require that the law of the place of the injury apply.

Answer 195

Applies the law of the STATE WITH THE MOST SIGNIFICANT RELATIONSHIP TO THE ISSUE IN QUESTION. Forum court generally considers the contacts that link each jurisdiction to the case, as well as the seven policy principles set forth in the Second Restatement.

Answer 196

Presumed that the forum state will apply its own law, but the parties may request that another state's law be applied. If so, that party must identify the policies of competing laws. If there is a false conflict (the forum has no interest in litigation), the court applies the law of the state that does have an interest. If there is a true conflict, the forum state will review its own policies to determine which law should apply. If the conflict cannot be resolved, the forum state law is applied.

Answer 197

The federal district court is generally required to apply the conflict-of-laws rules of the state in which it sits. However, if a diversity case was transferred under federal venue law from a federal court in one state to another federal court in a different state, the first state's choice-of-law rules will be applied.

Answer 198

Vested-Rights: governed by the law of the place where the wrong was committed -- where the last event necessary to make the actor liable for the tort took place (where the person or thing that is injured is situated) Most-significant-relationship: Four important contacts weighed (i) place of injury, (ii) place where conduct causing injury occurred, (iii) domicile, residence, place of incorporation, or place of business of parties, (iv) place where relationship is centered Governmental-interest: Forum state looks to its own law so long as the state has a legitimate interest in applying its own law

Answer 199

1. Express choice of law: If this exists in the contract, it will govern unless (i) it is contrary to public policy, (ii) there is no reasonable basis for the parties' choice, or (iii) there was fraud/mistake and true consent was not given 2. Vested rights: certain contractual issues are deemed to vest in the location where the contract was executed, while others are deemed to vest in the location where the contract was to be performed. Where the contract was executed: (i) validity of contract, (ii) defenses to formation of contract, (iii) interpretation of contract Where the contract was to be performed: (i) details of performance such as time, manner of performance; (ii) person who is obligated to perform and the person to whom performance is to be made; (iii) sufficiency of performance; and (iv) excuses for nonperformance. 3. Most-significant-relationship: consider (i) location of contracting, negotiation, and performance; (ii) place where contract's subject matter is located; (iii) location of the parties' domiciles 4. Default rules: land contracts controlled by law of the state of situs; personalty (personal property) contracts controlled by the law of the state where the place of delivery is located

Answer 200

UCC governs most of these issues, and parties may stipulate governing applicable law. For secured transactions, law governing perfection, nonperfection, and priority of security interests in tangible and intangible collateral is the law of the state in which the debtor is locatd.

Answer 201

1. Vested rights: state in which the property was located at the time of the transaction at issue (even when the property may have been taken to another state without the owner's permission) 2. Most-significant-relationship: Law of the situs of the tangible personal property at the time that the relevant transaction took place, unless another state has a more significant relationship to the transaction.

Answer 202

Vested Rights: law of the situs of real property governs legal issues concerning title, disposition of real property, and whether any interest can be gained or lost. MSR: law of situs is presumed to be most significant.

Answer 203

Questions regarding the validity of a decedent's will regarding personal property and the transfer of personal property from someone who dies intestate or who has a will are governed by the law of the deceased's domicile at the time of death.

Answer 204

Questions regarding the validity of a decedent's will regarding real property and the transfer of real property from someone who dies intestate or who has a will are governed by the law of the situs.

Answer 205

Marriages are valid where they took place, and are recognized in all other states. If a marriage violates a particularly strong public policy of the domicile of either party, however, it will be invalid. (these policies include bigamy or incest).

Answer 206

Questions of law relating to the grounds for divorce are controlled by the plaintiff's domicile in a divorce matter.

Answer 207

To determine the enforceability of a premarital agreement, most states apply the law of the state with the most significant relationship to the matter at hand. Some states apply the law of the state in which the premarital agreement was executed.

Answer 208

1. The law is procedural, rather than substantive 2. The law is against public policy 3. The law is a penal law.

Answer 209

If the foreign law sought to be applied is procedural, the forum state's law will always govern. The forum state's law is applied to determine whether a law is substantive or procedural.

Answer 210

- The proper court in which to bring an action - The sufficiency of the pleadings - The proper or necessary parties to an action - Venue - The rules of discovery - Service of process

Answer 211

In diversity jurisdiction cases, federal district courts must apply the substantive law of the state in which the court sits.

Answer 212

The court considers whether the failure to apply state law would lead to different outcomes in state and federal courts. If the answer is yes, then the court will generally apply state law. A state's choice of law rules are considered to be substantive law. Therefore, a federal court with diversity jurisdiction must use the choice of law rules of the state that it is located in.

Answer 213

When at least one person resides where the decree was issued.

Answer 214

If the court has personal jurisdiction over both spouses, and at least one spouse is domiciled in the state, then the divorce judgment will be a valid bilateral divorce and will be entitled to full faith and credit.

Answer 215

If the plaintiff spouse seeking divorce is domiciled in the forum state, the courts of that state have jurisdiction to dissolve the plaintiff's marriage (despite the lack of personal jurisdiction over the other spouse). However, the court may not issue a binding order affecting personal rights of the spouses such as property rights, alimony, and child custody unless the other spouse who is not domiciled in the state agrees to the order.

Answer 216

If it is in the child's home state. Other states cannot modify these custody decrees unless the original court has no significant connection to the child or parents anymore.

Answer 217

Unified possession of the estate -- each tenant owns an undivided interest in the entire property. No right of survivorship, interest is freely devisable or transferable In most states there is a presumption that a conveyance to two or more people is a tenancy in common.

Answer 218

Requires express language and the four unities: possession, interest, time, and title. Right of survivorship -- when one joint tenant dies, the interest goes to the other joint tenant.

Answer 219

If one joint tenant conveys his interest, it severs the joint tenancy and creates a tenancy in common.

Answer 220

A joint tenant may grant a mortgage on his interest in the property. Majority (lien theory) -- a mortgage is a lien, and does not sever the joint tenancy. Minority (title theory) -- a mortgage is a transfer of title and severs the joint tenancy.

Answer 221

Each cotenant has the right to possess the entire property. Ouster: a cotentant who is being denied access to the property can bring a court action to regain access Adverse possession: if one cotenant ousted another, he can make a claim for adverse possession if he meets the requirements.

Answer 222

A cotenant does not owe rent for his use of the property | A cotenant must share rents received from a third party

Answer 223

``` Operating expenses (taxes, mortgage payments) -- a cotenant can generally collect expenses if he paid more than his share Repairs and improvements -- a cotenant does not have the right to be reimbursed by other co-tenants for repairs, even if necessary - a cotenant may only seek contribution for necessary repairs if they gave notice of the need for repairs ```

Answer 224

- Tenancy for Years: express agreement for fixed period of time - Period tenancy: repetitive, ongoing estate measured by set periods that automatically renew (month-to-month) - Tenancy at Will: parties must expressly agree, no fixed period of time, may be terminated by either party at any time - Tenancy at Sufferance: tenant wrongfully holds over past the expiration of the lease, lasts until eviction, or converts into a periodic tenancy

Answer 225

Pay rent - If a landlord breaches the covenant of quiet enjoyment, can terminate lease and stop paying rent - If a landlord violates an implied warranty of habitability (residential only), can terminate lease and stop paying rent OR deduct from the rent - If fails to pay rent, landlord can sue for damages and eviction - Surrender: tenant transfers lease back, landlord accepts, tenant no longer obligated to pay rent - Abandonment: tenant abandons property, landlord can accept as surrender - Termination: occurs automaticaly at end of lease or if surrender occurs Avoid waste - tenant cannot damage property, must repair damages he causes

Answer 226

Duty to repair: must repair damages under RESIDENTIAL leases unless the tenant caused the damage Implied warranty of habitability: - only residential - must maintain property such that is reasonably suited for residence (heat, electricity, water, plumbing) - tenant must give notice to landlord and reasonable opportunity to repair Covenant of Quiet Enjoyment - residential and commercial - landlord cannot disrupt tenant's possession or enjoyment of the property.

Answer 227

1. Stay in property and deduct rent until the repair occurs 2. Stay in the property, pay for repairs and deduct the cost from the rent 3. Terminate the lease and move out

Answer 228

1. Landlord substantially interferes with tenant's use and enjoyment of the land 2. Tenant gives notice of problem and reasonable time for landlord to rpair but landlord does not repair 3. Tenant vacates premises in a reasonable amount of time

Answer 229

Transfer of tenant's entire remaining lease to a new party

Answer 230

Transfer of a portion of the tenant's lease (less than the remainder)

Answer 231

Original tenant remains liable for lease obligations under privity of contract Liable for rent, and covenants that run with the land under privity of estate Subtenant not liable to landlord because not in privity of contract or estate

Answer 232

Prohibition clauses are allowed If the lease prohibits only assignment, tenant can still sublease If the lease violates the prohibition, landlord can terminate lease - if landlord accepts payment from new tenant, he waives the right to enforce the prohibition clause Some clauses allow assignment or sublease only with landlord's consent - can withhold consent on commercially reasonable ground

Answer 233

- Duty to make reasonable efforts to re-rent property - Even if tenant has improperly breached lease - If tenant moves out early and landlord has multiple vacant apartments, the landlord is not obligated to prioritize tenant's vacant apartment

Answer 234

O-ACHE - Continuous (uninterrupted through the statutory period) - Tacking allows subsequent possessors to "tack on" to prior possession periods - Actual (actual possession of the land) - Open and Notorious (must make use as a reasonable owner would) - Hostile (without owner's permission) - Exclusive (cannot share land with owner)

Answer 235

- Identify the parties - Signed by grantor - Words of transfer - Reasonably definite property description

Answer 236

If transfer to grantee, intent is presumed Third-party agent: 1. Transfer to 3P for delivery to grantee, but grantor reserves right to take deed back: NOT deemed delivered 2. If no right to take deed back, intent determined by facts. a. If intended to transfer, cannot void the gift later b. If did not intend to transfer, transfer not valid 3. Testamentary: if 3P for delivery upon grantor's death, intent is determined by facts. - If intended to transfer only upon death, not a present intent to transfer, it is a testamentary transfer and it is governed by wills requirements.

Answer 237

Three present covenants: - Seisin: the grantor owns the land as described in the deed - Right to convey: grantor has right to transfer - Against Encumbrances: no undisclosed encumbrances Breach occurs at the time of conveyance; these do not run with the land, later grantee cannot sue original grantor. Three future covenants: - Quiet Enjoyment: possession will not be interfered with by a third party's claim for title - Warranty: grantor will defend against third party's claim for title - Further Assurance: grantor will do whatever is necessary to pass title to grantee Breach occurs at interference of possession Future covenants run with land, later grantee can sue original grantor.

Answer 238

A deed containing no covenants of title | The grantee receives whatever interest the grantor possessed.

Answer 239

Seller warrants he used adequte materials and workmanship Covers hidden (i.e. latent) defects and obvious (i.e. patent) defects The buyer has a duty to reasonably inspect the residence Buyer may sue for breach against builder, developer, and contractors within a reasonable time after discovery of defect.

Answer 240

Notice -- if a person purchases land without notice of a prior interest, the person will prevail in an ownership dispute against the prior interest Race -- the first person to record will prevail in an ownership dispute, regardless of knowledge Race-Notice -- if a person purchases land without notice of the prior interest, and records first, the person will prevail in an ownership dispute against the prior interest

Answer 241

Someone who pays value for the property and takes it without notice of prior claims. Notice and Race-Notice statutes protect BFPs BFP must pay value for the interest, it cannot be a gift.

Answer 242

BFPs who are protected by the recording act will "shelter" their grantees from prior claims. Applies when a subsequent grantee does not qualify as a BFP in their own right.

Answer 243

Actual Inquiry (reasonable investigation would have disclosed prior claims) Constructive (grantees are on notice of all prior interests that were properly recorded) NOTE: wild deeds are recorded outside the grantor's chain of title, and do not provide constructive notice to a grantee.

Answer 244

The right to use another's property for a limited purpose. The servient estate is burdened by the easement while the dominant estate benefits from it.

Answer 245

Appurtenant: attached to the land | In gross: specific to the person

Answer 246

Express: created by the parties in a writing complying with the SOF Necessity: created when dominant property is useless without benefit of an easement across neighboring servient property (landlocked) Implication: created when the owner of two parcels used one to benefit the other and the parties intended the easement to continue upon the sale of the dominant parcel. Requires prior use to be continuous, apparent, reasonably necessary for the dominant land's use and enjoyment Prescription: adverse possession except no exclusivity requirement

Answer 247

Abandonment: owner of the easement acts affirmatively to show a clear intent to relinquish the easement. Mere non-use is not sufficient. Merger: when the owner of the easement becomes the owner of the servient estate in addition to the dominant estate Sale to a BFP: If a written easement is granted but not recorded, it is not enforceable against a BFP

Answer 248

A promise to do or not do somehting in relation to land. Land can be benefitted or burdened by a covenant Covenants can exist between landowners but also between landlords and tenants

Answer 249

4 Benefit: Must have writing, intent, touch and concern, and vertical privity. 6 Burden: writing, intent, touch/concern, notice to burdened party, horizontal privity and vertical privity

Answer 250

Almost the same as a covenant, except enforceable by an injunction rather than money damages.

Answer 251

Generally first mortgage takes priority unless (1) a state recording act applies, or (2) a purchase money mortgage exists, which will take priority over non-purchase money mortgages.

Answer 252

When a borrow grants an interest in their property in exchange for the right to receive future payments (i.e., a line of credit) Priority issue arises when the mortgage is granted but no amount is actually given on the loan.

Answer 253

Duty, breach, causation (actual and proximate) and damages

Answer 254

``` All foreseeable plaintiffs Majority view (Cardozo) -- plaintiffs within the zone of foreseeable harm Minority view (Andrews) -- anyone who is harmed ```

Answer 255

Generally there is no affirmative duty to aid or rescue someone Assumption of duty -- if someone starts to aid or rescue, must act with reasonable ordinary care not to increase risk of harm Psychotherapist's duty to warn -- if patient makes credible threats of physical violence, under a duty to warn intended victim

Answer 256

To act as a reasonably prudent person under the circumstances

Answer 257

``` Possessors of land Landlords Children Industry/community Custom Professionals Physicians/doctors ```

Answer 258

Must exercise reasonable care under the circumstances to all land entrants, except trespassers. Traditional: is plaintiff trespasser, invitee, or licensee? Trespasser (on land without consent or permission): refrain from willful, wanton, reckless or intentional misconduct Invitee (invited as member of public, or business visitor): inspect and discover unreasonably dangerous conditions and protect invitee from them Licensee (express or implied permission for specific purpose): warn of concealed dangers known or which should be obvious, use reasonable care in conducting activities.

Answer 259

Applies to injuries to trespassing children, liable if: - An artificial condition exists in a place where the owner knows or should know that children are likely to trespass - Condition imposes an unreasonable risk of serious bodily injury - Children cannot appreciate the danger due to their youth - Burden of eliminating the danger is slight compared with risk of harm - Land possessor failed to exercise reasonable care to protect children

Answer 260

Protect from foreseeable attacks by third parties

Answer 261

Duty to act as a reasonable child of the same age If engaged in an adult activity (e.g. driving a car), duty to act as a reasonably prudent adult

Answer 262

Evidence of an industry or community custom is admissible as evidence of the relevant standard of care Evidence of custom is NOT conclusive

Answer 263

To perform at the same level as another practitioner in the same community

Answer 264

To perform as an average doctor based on a national standard.

Answer 265

When the defendant fails to meet the applicable standard of care

Answer 266

Cost-benefit analysis: 1. The foreseeability of harm 2. The severity of harm 3. The burden on the defendant to prevent the harm

Answer 267

No direct evidence of negligent conduct, but allows trier of fact to infer negligent conduct. Plaintiff must prove: 1. type of accident would not normally occur absent negligence; 2. injury caused by an agent or instrumentality in exclusive control of defendant; 3. injury not due to plaintiff's own actions

Answer 268

``` Arises when there is a statute imposing a specific duty. Plaintiff must be within the class of persons the statute is meant to protect Plaintiff must suffer the type of harm the statute is meant to protect against Defendant's violation of the statute must be the proximate cause of the plaintiff's harm ```

Answer 269

Plaintiff must show that but-for defendant's actions, plaintiff's injury would not have occurred 1. Substantial Factor Rule Arises when there are multiple causes of the harm and each alone would have been a factual cause of the injury Conduct of each defendant is cause in fact if it was a substantial cause of the injury 2. Alternative causation Arises when plaintiff's harm is caused by multiple defendants (2-5) and each defendant's conduct was individually tortious Burden of proof shifts to defendants to prove that each was not the cause in fact

Answer 270

Plaintiff must show injury was a foreseeable result of defendant's conduct Intervening cause - an outside force that contributes to the plaintiff's harm AFTER the defendant's act - if foreseeable, will not cut off defendant's liability - if unforseeable, superseding cause, and cuts off liability.

Answer 271

Plaintif must prove actual injury, not just economic loss Eggshell-skull rule: when plaintiff has preexisting condition or vulnerability - Defendant liable for full extent of injuries, even if extent was not foreseeable.

Answer 272

1. Plaintiff must have been within the zone of danger of threatened physical impact Must have some physical manifestation of emotional distress 2. Bystanders may recover if the plaintiff - is closely related to a person harmed by ∆'s negligence - was present at the scene of the injury - personally observed the injury

Answer 273

Old rule, if plaintiff's negligence contributed to his harm it was a complete bar to recovery.

Answer 274

Pure comparative negligence (minority rule) -- plaintiff's recovery is reduced by amount of plaintiff's fault, regardless of how at fault the plaintiff is (even if MORE at fault than ∆) Modified/partial: plaintiff's recovery is reduced by amount of plaintiff's fault, but cannot recover at all if more than 50% at fault.

Answer 275

Plaintiff's recovery may be barred or reduced if she voluntarily and knowingly assumed the risk of the behavior.

Answer 276

Activities with high risks of harm, not commonly found in communities, with have risks that cannot be eliminated with care Subject to strict liability for personal injuries and property damage. Must show causation, damages, and also assumption of risk may reduce recovery.

Answer 277

Strict liability applies to wild animals and also domestic animals if the owner knows or has reason to know of a dangerous propensity. Must show causation and damages.

Answer 278

Defendant in the business of selling a commercial product may be strictly liable for a defective product causing foreseeable injuries to a plaintiff. Absolute duty: defendants include manufacturer, distributor, retailer. A product is defective when, at the time of the sale or distribution, it contains a manufacturing defect, a design defect, or inadequate instructions or warnings (i.e., failure to warn)

Answer 279

Deviation from what the manufacturer intended the product to be, causing harm to the plaintiff. Does the product conform to the defendant's own specifications?

Answer 280

Consumer-expectation test: plaintiff must prove product is dangerous beyond expectation of an ordinary consumer. Risk-utility test: Plaintiff must prove that a reasonable alternative design that is economically feasible was available to defendant, and failure to use that design rendered the product unreasonably dangerous.

Answer 281

If there were foreseeable risks of harm, not obvious to an ordinary user of the product, which could have been reduced or avoided by providing reasonable instructions or warnings.

Answer 282

Actual: product must have been defective when it left ∆'s control, and defect was actual cause of harm. Proximate: defect occurred when product was being used in an intended or reasonably foreseeable way. ∆ may still be liable if plaintiff misuses product, as long as misuse was foreseeable.

Answer 283

Contributory fault generally not a defense, but if the plaintiff knows of the defect and unreasonably uses the product anyway, contributory fault may be a defense to bar or reduce recovery. Assumption of risk: recovery may be barred or reduced if plaintiff voluntarily and knowingly assumed risk of using the product.

Answer 284

Express warranty: promise or guarantee made by defendant about product. If product does not meet warranty, ∆ has breached and plaintiff can recover damages. Implied warranty of merchantability: product is warranted to be reasonably useful and safe for average use Implied warranty of fitness for particular purpose: if seller knows or has reason to know of a particular purpose for which some item is being purchased by a buyuer, the seller is guaranteeing that the item is fit for that particular purpose.

Answer 285

When defendant's defamatory language: 1. Is of or concerning the plaintiff; 2. Is published to a third party who understands its defamatory nature; 3. Damages plaintiff's reputation

Answer 286

Diminishing respect, esteem, or goodwill towards plaintiff

Answer 287

Damages presumed when statements involve professional reputation, disease, crimes of moral turpitude, or unchaste behavior

Answer 288

If plaintiff is public official (politician) or public figure (celebrity) OR plaintiff is private individual but statement involves a matter of public concern: 1. Falsity -- plaintiff must prove statement is false - if plaintiff is public official or figure, must also prove ∆ acted with actual malice (knowledge statement was false, or acted with reckless disregard as to truth/falsity of statement) - if plaintiff is private and statement involves matter of public concern, plaintiff is required to prove ∆ acted with negligence or actual malice 2. Limits on damages - public official or figure, or provate individual w/ matter of public concern must prove actual damages - private individual who can show actual malice may also recover punitive damages

Answer 289

1. Truth (absolute defense) 2. Consent (absolute defense as long as within scope) 3. Absolute privilege (remarks during judicial or legislative proceedings, between spouses, in required publications; cannot be lost) 4. Qualified privilege (important public interest or in the interest of ∆ or third party; can be lost if exceeds scope of the privilege or if speaker acted with malice)

Answer 290

1. Misappropriation: use of name, likeness, or identity for ∆'s advantage (commercial or otherwise). π must prove lack of consent and injury. 2. Intrusion upon seclusion: ∆'s acts of intrusion into π's private affairs are objectionable to reasonable person 3. False light: π must prove ∆ published facts about π or attributed views or actions to π that place him in false light and are highly offensive to reasonable person 4. Public disclosure of private facts: publication would be highly offensive to reasonable person, not of legitimate concern to public.

Answer 291

Harmful or offensive contact (objective) with plaintiff's person or anything connected to it, intent by ∆ to cause touching (transferred intent applies) and causation

Answer 292

Act or threat (words not enough) placing π in reasonable apprehension of imminent harmful or offensive contact with his person, intent by ∆ to place π in apprehension (transferred intent applies), and causation.

Answer 293

Requires extreme and outrageous conduct by the defendant causing severe emotional distress to plaintiff and intent by ∆ to cause distress. ∆ can be liable to 3P if he distresses a member of victim's immediate family ∆ can be liable if he distresses a bystander (not family) if distress results in bodily injury to bystander.

Answer 294

Intentional confinement or restraint of π (physical barriers or force, threats, invalid use of legal authority, duress) for any amount of time No reasonable means of safe escape Actual damages not necessary if π aware of confinement

Answer 295

If shopkeeper reasonably suspects π of stealing, he can detain π for a reasonable amount of time in a reasonable manner.

Answer 296

Must be voluntary | Defendant will be liable if he exceeds the scope of π's consent

Answer 297

Interference with π's possession of her chattel (tangible personal property) Requires intent to perform the act that interferes with the possession (transferred intent applies), causation, damages

Answer 298

Requires serious interference with π's possession of chattel, intent to perform the act that interferes with possession (transferred intent does not apply), causation, and damages.

Answer 299

Physical invasion of another's land and intent to enter the land or cause physical invasion. Private necessity (defense): allows a person to enter a π's land to protect her own person or property from harm -- not liable for trespass, but responsible for actual damages. Public necessity (defense): allows a person to enter π's land to prevent imminent public disaster. Not liable for damage if actions were reasonable or had reasonable belief that necessity existed, even if initial entry was not necessary.

Answer 300

Substantial (offensive to reasonable person) and unreasonable (balancing interests of π and ∆) interference with another's use or enjoyment of his land.

Answer 301

Unreasonable interference with a right common to general public.

Answer 302

Regulatory compliance is partial defense if ∆ is following law. Coming to the nuisance is a defense.

Answer 303

Money damages and injunctive relief.

Answer 304

Employer is liable for an employee's torts committed within the scope of employment (can include intentional torts) Employer generally not liable for independent contractor's torts (might be liable for non-delegable duties, or inherently dangerous activities).

Answer 305

The more control an employer exercises, the more likely the person is an employee.

Answer 306

Anything moveable at the time that a security interest attaches. 1. Consumer goods -- acquired primarily for personal, family or household purposes 2. Farm products -- crops or livestock including supplies used or produced in farming. Obligor must be engaged in farming 3. Inventory -- goods held for sale or lease, furnished under a service contract, or consisting of raw materials, works in process, or materials used or consumed in a business. 4. Equipment: catchall class, goods that are not consumer, farm, or inventory. Usually refers to goods used or bought primarily for use in business, such as desks or machinery used in manufacturing

Answer 307

1. Accounts: the right to payment for goods sold, property licensed, or services rendered. Also included is right to payment for issuance of an insurance policy, use of a credit or charge card, or winning a lottery. 2. Deposit account: A deposit account includes a savings, passbook, time, or demand account maintained with a bank.

Answer 308

Transactions that create, by agreement, a security interest in personal property or a fixture. In addition, a lease, consignment, agricultural lien, and even purchase of personal property may be subject to Article 9. Leases are covered under A9 when the txn, although in the form of a lease, is in economic reality or substance a secured txn. case-by-case basis. A transaction in the form of a lease creates a security interest if (a) lease payments must be made for the full term of the lease, and are not subject to termination and (b) the lessee has an option to become the owner of the goods for nominal consideration at the conclusion of the lease agreement.

Answer 309

Value - Rights - Agreement 1. Value given by secured party 2. Debtor has rights in collateral 3. Debtor has authenticated a security agreement describing the collateral, or the secured party has possession or control of the collateral pursuant to a security agreement.

Answer 310

- providing consideration - extending credit - as a buyer, accepting delivery under a preexisting contract, converting a contingent obligation into a fixed obligation - in satisfaction of, or as security for, part or all of a preexisting claim

Answer 311

Security interests attach only to rights that debtors have. 1. After-acquired collateral (debtor acquires in future) - exception: not effective if collateral is consumer goods, unless they're acquired within 10 days after secured party gives value 2. Proceeds from collateral: security interest automatically attaches to IDENTIFIABLE proceeds from sale, exchange, or other disposition 3. Accessions -- goods that are physically united with other goods in a manner that the identity of the original goods is not lost. Memory installed in a computer, or tires installed on a car. Security created in collateral that becomes an accession is not lost due to that collateral becoming an accession.

Answer 312

``` Must be in a record (written/typed document) Contain a description of the collateral ("all of debtor's equipment") be authenticated (signed) by debtor ```

Answer 313

A PMSI gives lenders a security interest in goods that have been purchased with funds borrowed from them or purcahsed on credit from them. A PMSI is subject to special rules with respect to perfection and priority. May only exist with goods and software. Goods: - A secured party gave value (made a loan) to the debtor and the debtor uses the loan to acquire rights in or use of collateral OR - a secured party sells the collateral to the debtor, and the debtor enters into an agreement requiring it to pay the secured party all or part of the purchase price (sale of goods on credit).

Answer 314

When the interest is attached, and one of the methods of perfection has been completed.

Answer 315

1. Filing a financing statement 2. Possession of the collateral 3. Control of the collateral 4. Automatic perfection (temporary or permanent) 5. Statute

Answer 316

Document giving notice of the security interest to interested parties. Must contain (a) debtor's name, (b) name of secured party, and (c) the collateral in question Financing statement is effective on the date of filing. Generally effective for five years, and may be continued for another five years by filing a continuation statement within six months prior to the expiration of the statement. Error in debtor's name -- if it fails to accurately contain the name, it may be "seriously misleading" and not effective to perfect the interst. UNLESS a standard search of the filing office records under the debtor's correct name would disclose it, in which case it doesn't make it seriously misleading, and it will be valid.

Answer 317

``` Investment property Deposit accounts Letter-of-credit rights Electronic chattel paper Electronic documents ``` All of the above can be perfected by taking control of collateral. Perfection only remains with control.

Answer 318

Only by control. A secured party has control if: - The party is the bank in which the account is maintained - The bank, secured party, and debtor agreed in writing to follow the instructions of the secured party, or - The secured party becomes the bank's customer with respect to the deposit account.

Answer 319

A PMSI in consumer goods is automatically perfected - special security interest in goods that have been purchased with funds borrowed from them, or purchased on credit from them - automatically perfected upon attachment (value, rights, agreement). No need for a financing statement or possession to perfect. A PMSI in other types of goods (inventory, equipment) or in automobiles is NOT automatically perfected.

Answer 320

If a security interest is perfected, and the collateral is sold for cash proceeds, the secured party will have a perfected interest in the proceeds.

Answer 321

Upon (i) attachment of that interest and (ii) compliance with one of the perfection methods (like filing a financing statement). NOTE: typically the interest attaches and is then perfected. It's possible to file the statement before attachment, in which case it would be perfected upon attachment.

Answer 322

1. Identify the status of each claimant (creditor, transferee/buyer, other secured party) 2. Apply the appropriate priority rule

Answer 323

General Creditor (unsecured): One who has a claim, including a judgment, but who has no lien or security interest with respect to the property in question. This type of creditor does not have a claim to particular property owned by the debtor. A secured party will always prevail over a general creditor with respect to the debtor's collateral. Judicial Lien Creditor: Lien acquired by judicial process, rather than operation of law. A perfected security interest has priority over a judicial lien creditor, but a judicial lien creditor has priority over an unperfected security interest. NOTE: If security interest was unperfected at the time the judicial lien comes into existence, the secured party will have priority if the only reason why it was unperfected is that the secured party had not yet given value.

Answer 324

Persons who obtain full title to the goods as a result of a transfer of the collateral from the debtor. 1. Transferee who is not a buyer 2. Buyer neither (a) in the ordinary course of business, or (b) consumer buyer. 3. Buyer in the ordinary course of business 4. Consumer buyer

Answer 325

If the collateral is transferred from the debtor to the transferee, and the transferee is not a buyer, the security interest continues in the collateral unless the secured party authorized the transfer free of the security interest. In other words, the secured party still has a security interest in the collateral.

Answer 326

A buyer, other than a secured party, of collateral that is goods, tangible chattel paper, tangible documents or a security certificate, takes free of an unperfected security interest in collateral if the buyer: 1. Gives value, 2. Receives delivery of the collateral 3. Without knowledge of the existing security interest

Answer 327

A buyer of collateral subject to a perfected security interest generally takes the collateral subject to that interest unless the secured party has authorized its sale free of the security interest.

Answer 328

A BOCB takes the goods free of a security interest that the seller gave to the creditor in the goods, *even if the security interest is perfected, and the buyer knows of its existence.* A BOCB must: - Buy goods (not farm products) - In the ordinary course of business - From a merchant who is in the business of selling goods of that kind - In good faith, and - Without knowledge that the sale violates the rights of another in the same goods. NOTE: this means actual knowledge that the sale is in violation of another party's rights. Mere notice or reason to know is insufficient.

Answer 329

A consumer buyer of consumer goods takes free of a security interest, even if perfected, unless prior to the purchase, the secured party filed a financing statement covering the goods. A consumer buyer is a person who: - Buys consumer goods for value - For his own personal, family, or household use - From a consumer seller - Without knowledge of the security interest.

Answer 330

A PMSI gives lenders a special security interest. It is automatically perfected upon attachment. Perfection through filing a financial statement is not required, but if they do not do so then a consumer buyer will have priority. If the party holding the PMSI in consumer goods does in fact file, then his security interest will be good even against a consumer buyer. Secured parties with a PMSI should file a financial statement, to protect their interest against consumer buyers.

Answer 331

The first party to either file a financial statement or perfect has priority.

Answer 332

The perfected interest takes priority

Answer 333

Whichever attached first.

Answer 334

Preference generally given to a PMSI over non-PMSI. - A PMSI in goods other than inventory or livestock prevails over all other security interests in the collateral, even if the other security interests perfected earlier, so long as the PMSI is perfected before or within 20 days after the debtor receives possession of the collateral. - A PMSI in inventory or livestock prevails over all other security interests if (i) it is perfected by the time the debtor receives possession of the collateral, and (ii) the secured party sends an authenticated notification of the PMSI to the holder of any conflicting security interests before the debtor receives possession of the collateral. The notification must state that the secured party has or expects to have a PMSI in the debtor's inventory or livestock, and include a description.

Answer 335

The priority of a PMSI in goods extends to the identifiable proceeds of the original collateral, but only as to proceeds in which the security interest is perfected when the debtor receives possession of the collateral or within 20 days thereafter.

Answer 336

A construction mortgage (a mortgage that secures an obligation incurred for the construction of an improvement on land, including the cost of acquiring the land, and that indicates it is a construction mortgage in the real property records) has priority over a subsequent security interest in a fixture, including a PMSI in the fixture. The construction mortgage must be recorded before the goods become fixtures, and it covers only goods that become fixtures before completion of the construction.

Answer 337

Generally the basic rules (first to file or perfect) govern priority if there are conflicting security interests and at least one of those is claimed as proceeds. The filing or perfecting date for the original collateral is treated as the filing or perfection date for the proceeds.

Answer 338

The secured party may: - Seek possession of the collateral and, in order to satisfy the obligor's outstanding obligation, either (1) sell the collateral, or (2) retain it in full or partial satisfaction of the obligation - Initiate a judicial action to obtain a judgment based on that obligation - Subject to statutory limitations, pursue any course of action to which the debtor and obligor have agreed.

Answer 339

A secured party may proceed as to the fixtures in accord iwth the rights and remedies with respect to the real property. - When a secured party's security interest has priority over owners and individuals who encumber real property, that secured party may remove the fixture from the real property. With respect to an owner or encumbrancer who is not the debtor, the secured party is liable for the cost of repairing any physical object damaged by the removal, but not for any reduction in the value of the real property due to the removal.

Answer 340

Unless the agreement provides otherwise, they are not required to give notice of default, nor required to give notice of intent to take possession.

Answer 341

Sell, lease, license, or otherwise dispose of all or any of the collateral. Within limits, the secured party may keep the collateral (strict foreclosure) in full or partial satisfaction of the obligation.

Answer 342

All aspects of the disposition of collateral (method, manner, time and place) must be conducted in a commercially reasonable manner. A disposition is commercially reasonable when conducted: - In the usual manner on a recognized market with standard price quotations for fungible goods - At the price current in any recognized market at the time of disposition - Otherwise in conformity with reasonable commercial practices among dealers in the type of property subject to disposition

Answer 343

No specific price, and the mere fact that a higher price could have been obtained by disposing in a different manner or a different time does not establish that the disposition was not commercially reasonable. A low price may trigger scrutiny by the court of the disposition and its reasonableness.

Answer 344

There is no specific time in which a disposition must occur.

Answer 345

Publicly or privately. A secured party may purchase the collateral at public sale, but not at a private sale unless the collateral is of a kind that is customarily sold on a recognized market (NYSE) or the subject of widely distributed standard price quotations. Cannot purchase at a private sale where the prices are individually negotiated or when the items are not fungible in a recognized market.

Answer 346

Send authenticated notification of disposition, reasonable in content, the manner in which it is sent, and timeliness. Must be sent to (i) the debtor, (ii) any secondary obligor, and for non-consumer goods, (iii) any other secured party or lien holder who held a security interest that was perfected by filing or pursuant to statute, and (iv) any other party from whom the secured party has received authenticated notice of a claim or interest in the collateral. Timeliness: reasonableness. Must be sufficiently far in advance of the disposition to allow the notified party to act. In a transaction other than a consumer transaction, when a secured party sends a notification of disposition after default, and at least 10 days before the earliest time for disposition set forth, the timeliness is reasonable, provided it is sent in a commercially reasonable manner.

Answer 347

1. Reasonable expenses for collection and enforcement, including reasonable attorney's fees and other legal expenses 2. Satisfaction of obligations secured by the security interest 3. Satisfaction of other subordinate security interests, provided that the junior secured party made an authenticated demand for proceeds before distribution of the proceeds is complete 4. The remainder to the debtor.

Answer 348

Surplus: secured party generally must pay the surplus to the debtor Deficiency: Obligor is liable for deficiency.

Answer 349

A sale gives the buyer all of the debtor's rights in the collateral. If the buyer acts in good faith, then disposition discharges the security interest being foreclosed, and any subordinate security interests and liens. HOWEVER the transferee takes the collateral subject to any security interests that were senior to the security interest foreclosed.

Answer 350

Federal issue must be present in plaintiff's well-plead complaint, federal defense is not sufficient.

Answer 351

Must be complete diversity between parties - Individuals: domiciled where they are present with intent to remain indefinitely - Corporations: domiciled where incorporated AND where principal place of business is located Amount in controversy must exceed $75,000 (in the complaint). Injunctive relief with monetary value assigned is fine, and multiple defendants can aggregate dollar amounts if jointly liable.

Answer 352

Jurisdiction over additional claims so long as they arise out of a common nucleus of operative fact with the original claim. FQJ: - ∏ can bring any state law claims related to federal claim - Additional ∏ can bring state law claim if related to original ∏'s federal claim - ∆ can bring cross-claim against another ∆ so long as the claim is related to original ∏'s federal claim Diversity: - ∏ can bring any state law claims related to basis of original claim - Additional ∏ can bring a related state law claim against ∆ SO LONG AS NEW ∏ DOES NOT DESTROY DIVERSITY - ∆ can bring cross-claim against another ∆ so long as it is related to original ∏'s claim

Answer 353

Claims are complex, or predominate the lawsuit Federal law claims are dismissed There are any other compelling reasons to decline jurisdiction.

Answer 354

Only a ∆, as long as federal court has SMJ. - Diversity jurisdiction: no ∆'s can be citizens of state in which claim was originally filed - Motion for removal must be filed within 30 days of receiving complaint - All ∆'s must join in or consent

Answer 355

Service while voluntary present Domicile Consent

Answer 356

Due process constraints of: Minimum contacts: - purposeful availment (reasonably foreseeable to be sued in the state) - relatedness (defendant's conduct in relation to the action) - specific jurisdiction (action arises out of ∆'s conduct) - general jurisdiction (∆ is essentially "at home" in jurisdiction) - corporation is "at home" where incorporated and where principal place of business is located Fairness (fair play and substantial justice): - interest of forum state in adjudicating the matter - burden on ∆ of appearing in the case - interest of judicial system in efficient resolution - shared interests of states in promoting social policies

Answer 357

1. District in which any ∆ resides if all ∆'s reside in the state where the district is located (if all ∆'s reside in the same state, venue is appropriate in any district in which any ∆ lives) 2. Where a substantial part of the events or omissions occurred, or where the property is situated 3. If neither of the above apply, then venue is proper in a judicial district where any ∆ is subject to personal jurisdiction

Answer 358

1. Is there personal jurisdiction? 2. Is there subject matter jurisdiction? 3. Is venue appropriate in the new district 4. Is transfer to new venue in the interest of justice?

Answer 359

When a federal court is dealing with state law.

Answer 360

Fed Q: federal substantive and procedural law will control Diversity: State substantive law, federal procedural law

Answer 361

A state law altering the calculation of damages is substantive under Erie A state law regarding a statute of limitations is substantive under Erie State laws creating evidentiary privileges are substantive under Erie

Answer 362

A temporary restraining order, where a party seeks to maintain the status quo prior to a hearing for a preliminary injunction. Must show: 1. Immediate and irreparable injury would occur absent the TRO 2. An effort was made to give notice to the opposing side (or the reason notice should not be required) Court may grant TRO without opposing party present.

Answer 363

Requires notice to opposing party, and a hearing Plaintiff must show: 1. Likely to succeed on the merits 2. Likely to suffer irreparable harm in absence of injunction 3. Balancing equities favors granting 4. Injunction is in the best interests of public

Answer 364

An officer, managing agent, general agent, or agent appointed/authorized by law. Rules governing service of process are procedural for Erie purposes.

Answer 365

Lack of SMJ -- can be raised any time, even on appeal Lack of PJ, improper venue, insufficient process -- must be raised at first opportunity (pre-answer motion, or if none, the answer). FAILURE TO RAISE THESE DEFENSES IN A TIMELY MANNER WILL WAIVE THE DEFENSE Failure to state a claim OR failure to join a necessary party under Rule 19 -- may be raised in any pleading, in a motion for judgment on the pleadings, or at trial

Answer 366

Once, within 21 days after service on the ∆. Otherwise, party may seek leave of court, or written consent from opponent.

Answer 367

If original complaint was timely, and new complaint arises out of same transaction or occurrence as original claims.

Answer 368

Claim arose out of same conduct, transaction or occurrence New ∆ received notice of action within 90 days of original complaint New ∆ knew or should have known that but for a mistake he would have been on the original complaint

Answer 369

When an attorney (or unrepresented party) submits a pleading, motion, or other signed document, he certifies that the documents are filed in good faith. If challenged, must revise or withdraw document May be subject to sanctions for violation of this Rule

Answer 370

When ∆ claims plaintiff's lawsuit cannot proceed without adding another party. 1. Party must be necessary 2. Must be PJ over new party 3. Must be SMJ (adding party cannot destroy diversity). If adding party would ruin diversity, court must decide whether the party is indispensable (and dismiss the case) or not (and proceed without the party)

Answer 371

- Court cannot afford complete relief without the party - There is a danger that the party would be harmed without joining - There is a risk of an inconsistent judgment or double liability

Answer 372

Factors to consider are: - Extent to which judgment would prejudice the parties in the person's absence - Extent to which prejudice could be reduced or avoided by protective provisions - Whether judgment rendered would be adequate - Whether plaintiff would have an adequate remedy if action were dismissed for nonjoinder

Answer 373

As long as it arises out of the same txn or occurrence as the ∏'s original claim Must have SMJ over cross-claim (fed. q, diversity, or supplemental)

Answer 374

∆ tries to pull a third party into the lawsuit. Impleaded claim must relate to the original claim between ∏ and ∆ Must have SMJ over impleaded claim (fed. q, diversity, supplemental)

Answer 375

When a party attempts to join a lawsuit 1. Intervention as of right if: a. nonparty has an interest in the subject matter of the action b. action may affect their interest and c. nonparty's interest is not adequately represented by the existing parties 2. Permissive intervention allowed if a. nonparty granted conditional right under federal statute, or b. nonparty has a claim or defense related to the original cause of action

Answer 376

Parties may discover any nonprivileged matter relevant to a claim or a defense. Court may limit discovery if unduly expensive, or burdensome. Does not need to be admissible evidence to be subject to discovery. Party may not discover privileged information.

Answer 377

Protects materials prepared by a party in anticipation of litigation. Exception: - Information not reasonably available by other means, and - Party would be substantially prejudiced if not allowed access to see materials A party can never discover mental thoughts and opinions about a case.

Answer 378

If an expert will not be called as a witness, reports are only accessible in exceptional circumstances.

Answer 379

Must take reasonable steps to preserve data or could be subject to sanctions Court may presume lost information was unfavorable to the party that failed to preserve it Court may also dismiss the case, or enter default judgment

Answer 380

Only when the requested party's mental or physical condition is at issue.

Answer 381

Any party or nonparty To depose a nonparty, must serve a subpoena Can also request that a nonparty produce documents with a subpoena duces tecum

Answer 382

That there is no genuine dispute as to any material fact, and the party is entitled to judgment as a matter of law. If there are conflicting facts presented by the parties, that is a genuine dispute of fact. As long as it is a material fact, summary judgment is inappropriate.

Answer 383

Seventh Amendment right when damages exceed $20 Must demand jury trial within 14 days after service of last pleading

Answer 384

Also called a directed verdict Motion made by either party at the close of plaintiff's evidence, or the close of all evidence Granted if no reasonable person could differ as to the outcome

Answer 385

If your directed verdict is denied, and the issue goes to jury, which deliberates and returns a verdict. JNOV asks the court to override the jury's verdict. Can only "renew" if motion was made earlier.

Answer 386

Must be a final judgment Interlocutory appeal allowed after denial or grant of an injunction

Answer 387

Typically see a plaintiff attempting to assert claim preclusion against a defendant who lost an earlier case. Three requirements: 1. Same plaintiff, same defendant from lawsuit 1 2. Lawsuit 1 ended in valid final judgment on the merits 3. Claimant asserting same claim as in lawsuit 1

Answer 388

Four requirements: 1. Same issue actually litigated 2. Final valid judgment on the merits 3. Issue essential to the judgment 4. The party against whom issue preclusion is asserted must have been a party in the prior lawsuit, or represented in that lawsuit (successor-in-interest). Must be fair for new plaintiff to assert same issue (prior law required mutuality of parties).

Answer 389

Logical: If it has a tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action. Legal: If probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Answer 390

Not admissible to prove that a person acted in accordance with that character or trait on a particular occasion. However, character evidence (reputation, opinion, and specific acts) is admissible when character is an essential element of a claim or defense, such as: defamation, negligent hiring or entrustment, and child custody.

Answer 391

In a criminal case, the prosecution is not permitted to introduce bad character evidence about a defendant in order to prove he has propensity to commit crimes, thus he is likely to have committed the crime in question. 1. Defendant's character: ∆ may introduce evidence of his own good character (reputation or opinion) to show it is inconsistent with the crime charged. - Reputation evidence is evidence of reputation in the community at large, not just among his friends. - Opinion evidence is testifying witness's personal opinion of the defendant, not opinions of others. If ∆ "opens the door", prosecution may - call witness to rebut and attack ∆'s claims of good character with reputation or opinion based evidence, or - cross-examine ∆'s witness and ask about reputation, opinion, or specific bad acts. 2. Victim's character: A ∆ may introduce reputation or opinion evidence of the victim's character trait if it is relevant to the defense asserted (for example, if ∆ is charged with assault and battery and claims self-defense, he can introduce evidence that the victim has a violent character) If ∆ "opens the door", prosecution may - introduce rebuttal (reputation or opinion) evidence of victim's character trait - attack ∆'s character regarding same trait that ∆ attacked of victim TIP: If criminal case, read carefully to see if ∆ opened the door by presenting evidence about his character or the victim's character, which would then allow the prosecution to rebut this with evidence attacking defendant or rehabilitating victim.

Answer 392

Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion a person acted in accordance with that character. However, evidence of prior bad acts may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. This is sometimes referred to as the MIMIC rule, which refers to Motive, Intent, absence of Mistake, Identity, or Common plan. M.O. can be used as identity evidence. If a specific bad act is introduced as evidence, consider arguments for any non-character uses of the evidence.

Answer 393

Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Answer 394

In civil or criminal, evidence of the victim's sexual conduct or predisposition is generally barred. EXCEPTION: In a civil case, a court may admit evidence offered to prove a victim's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim, and of unfair prejudice to any party.

Answer 395

A non-expert witness must have personal knowledge of a matter in order to testify about it.

Answer 396

If it is rationally based on a witness's perception, helpful to clearly understanding the witness's testimony or determining a fact in issue, and not based on scientific, technical, or other specialized knowledge. Lay witnesses are qualified to give testimony about the speed of a vehicle.

Answer 397

Scientific, technical, or some other specialized knowledge that will help a trier of fact understand evidence or determine a fact at issue that focuses on the relevance of testimony. - Must be qualified as an expert by knowledge, skill, experience, training, or education - Testimony must be based on sufficient facts or data, and product of reliable principles and methods - Finally, witness must apply these principles and methods reliably to the facts of the case.

Answer 398

A witness may examine any item to refresh his present recollection, and his testimony must be based on his refreshed recollection (he may not read from the document itself). The item itself is not entered into evidence unless the adverse party introduces it into evidence. When the item is a document, adverse party may have it produced, may inspect it, may cross-examine the witness about it, and may introduce any relevant portion into evidence.

Answer 399

A memorandum or record about a matter the witness once had knowledge of but now has insufficient recollection of, to testify that was made or adopted by the witness when it was fresh in their memory, and is accurate, may be read into evidence under the recorded recollection hearsay exception. NOTE: the memo itself may be admitted into evidence if the adverse party introduces it into evidence.

Answer 400

Calling their credibility into question

Answer 401

1. Opinion/reputation testimony from another witness - NOTE: Evidence of truthful character is admissible only after a witness's character for truthfulness has been attacked 2. Specific instances of conduct - Generally, extrinsic evidence is not admissible to show specific instances of witness conduct relating to truthfulness. HOWEVER on cross-examination, a witness can be asked about specific instances of his conduct to attack or support witness credibility. 3. Exception to specific instances of conduct rule: Criminal convictions - Extrinsic evidence of criminal conviction for crimes involving dishonesty/false statements must be admitted - Extrinsic evidence of criminal conviction for a crime not involving dishonesty/false statement (e.g. assault), if the crime was punishable by death or imprisonment for more than 1 year (a felony). - If used against witness who is NOT defendant, determine if probative value is substantially outweighed by danger of unfair prejudice or other factors - If used against witness who IS defendant in criminal case, only admissible if probative value outweighs prejudicial effect - 10-year-rule: if more than 10 years has passed since conviction or release, only admissible if probative value substantially outweighs prejudicial effect, and proponent gives reasonable notice of intent to use it. 4. Prior inconsistent statements - extrinsic evidence of prior statements can be admissible for purposes of impeachment 5. Bias or interest - extrinsic evidence admissible to show bias, witness may not be testifying truthfully 6. Sensory competence - extrinsic evidence showing witness physically or mentally impaired so not credible 7. Impeachment of hearsay declarant - If statement is admitted into evidence, declarant can be impeached as if they were a testifying witness.

Answer 402

If impeached, a witness may be rehabilitated by the introduction of rebuttal evidence, including: - explanation or clarification during the redirect - reputation or opinion evidence about character for truthfulness, - prior consistent statement

Answer 403

Proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is. Look for facts indicating the authenticity of the evidence could be in question: handwriting, or the sound of a person's voice may be in dispute. A lay person can testify about the authenticity of handwriting or a person's voice if they had prior knowledge.

Answer 404

The original document or a reliable duplicate must be produced in order to prove the contents of a writing, recording or photograph, including electronic documents, X-rays and videos. This rule only applies when the contents of the document are at issue, or a witness is relying on the contents of a document when testifying.

Answer 405

The testifying spouse can assert the privilege and refuse to testify against another spouse. Only applies if there is a valid marriage in existence. Analog to 5A self-incrimination

Answer 406

Both spouses can assert this privilege to prevent the other spouse from testifying about confidential communications made during the marriage. This privilege continues even if a marriage has ended. If a spouse breaks confidentiality and discloses information to a third party, the spouse may not be able to assert this privilege. The testimonial and confidential communications privileges are often tested together. If there are facts about spouses or ex-spouses testifying, you should discuss both issues.

Answer 407

Evidence of subsequent remedial measures taken by the defendant that would have made an earlier injury or harm less likely are admissible for purposes such as impeachment, or to show ownership or control, but NOT to show negligence.

Answer 408

Settlement offers and statements made during settlement negotiations are excluded. The offer must be made in response to a disputed claim. If there is no claim and an offer is made, it is not barred.

Answer 409

Offers to pay medical expenses are inadmissible to prove liability.

Answer 410

Evidence of liability insurance is not admissible to show liability, but it is admissible to prove agency, ownership, control, or the witness's bias or prejudice.

Answer 411

An out-of-court statement offered to prove the truth of the matter asserted

Answer 412

Assertive conduct is treated as a statement, and is subject to hearsay rules. Things like gesturing (nodding one's head to indicate 'yes'), or pointing a finger in a direction to indicate direction of travel will be treated as a statement. Laughing or crying may or may not be assertive conduct, depending on the circumstances.

Answer 413

When a statement is used to show something other than the truth of the matter asserted. It can be used to show the effect on the listener or reader, or as circumstantial evidence of the declarant's state of mind. EX: a mechanic telling a defendant his brakes are bad. This can be used to show effect on the listener - it has the effect of putting the listener-defendant on notice that he has bad brakes. Before discussing hearsay exceptions, look for any non-hearsay uses of the evidence and discuss them. Then, even if you find a non-hearsay use for the evidence, proceed to discuss the hearsay exceptions that might apply.

Answer 414

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conform with an exception to the rule. Read the facts carefully and look for items of evidence that contain two layers of hearsay. For example, a written police report containing a statement made by a witness to a car crash would present two levels of hearsay. The written report is hearsay, and contained within it is the statement, which is also hearsay. To admit the report and the statement, both levels must be admissible.

Answer 415

Declarant-witness Prior statements - prior inconsistent statements - prior consistent statements - prior statements of identification Opposing party's statements - party opponent -- anything the party opponent says is admissible, does not have to be against their interest - adoptive admission - vicarious statements - look for statements made by an employee that can be attributed to an employer

Answer 416

1. Former testimony 2. Dying declaration 3. Statement against interest (any declarant unavailable to testify who makes a statement against their criminal or civil interest) 4. Statement of personal or family history 5. Statement against party that caused unavailability

Answer 417

1. Present sense impression 2. Excited utterance 3. Statement of mental, emotional, or physical condition 4. Statement made for medical diagnosis/treatment 5. Recorded recollection (witness no longer able to testify) 6. Business records 7. Public records 8. Learned treatises (ONLY during expert testimony) 9. Judgment of previous conviction

Answer 418

Sixth Amendment Confrontation Clause gives a defendant in a criminal case the right to be confronted by the witnesses against him. The admission of out-of-court "testimonial" statements (such as hearsay) violates a defendant's right to confrontation (1) if the witness is unavailable to testify at a trial and (ii) the defense has not had a prior opportunity to cross-examine the witness. NOTE: Statements made to police officers in the course of an investigation are generally testimonial. However, when the primary purpose is to enable police assistance to meet an ongoing emergency, statements are not testimonial. If the emergency is over, the statements made during interrogation are testimonial. If the statements are admitted for a non-truth purpose (declarant's state of mind), Confrontation Clause does not bar them.

Answer 419

``` Government conduct / State action Reasonable expectation of privacy Seizure of persons Warrant Requirement Exceptions to warrant requirement - Stop and Fristk - Search incident to lawful arrest - Automobile exception - Plain view - Exigent circumstances - Consent Exclusionary rule - Fruit of the poisonous tree & exceptions ```

Answer 420

∆ must have a reasonable expectation of privacy as to the places searched or items seized. Typically a question will start with a seizure of a person, and then a search will occur. A good answer will walk through each government action chronologically.

Answer 421

By means of physical force or show of authority, a person's freedom of movement is restrained. Under the totality of circumstances, would a reasonable person not feel free to leave? Types of seizure: arrest, stop and frisk, police checkpoints, and traffic stops.

Answer 422

Generally requires an arrest warrant | Warrantless arrest allowed if officer has probable cause to believe that a felony has been committed.

Answer 423

Investigatory stop and frisk | Valid when an officer has reasonable suspicion that someone is engaged in criminal activity

Answer 424

Valid if (1) done in a non-discriminatory manner, and (2) there is an automobile-related reason for the checkpoint

Answer 425

If the officer has reasonable suspicion or probable cause that a traffic law has been violated.

Answer 426

When government conduct violates a ∆'s reasonable expectation of privacy.

Answer 427

``` A search conducted pursuant to a valid warrant is generally constitutional Warrant must (a) be issued by a neutral magistrate (b) be based on probable cause, and (c) describe with particularity the places to be searched and the items to be seized. ```

Answer 428

Knock and announce | If defective warrant, police execution in good faith will not result in a violation.

Answer 429

Can stop a person based on reasonable suspicion that the person is engaged in a criminal activity Frisk: can pat down outer clothing of defendant for officer safety. Plain feel: can seize an item if it is immediately obvious object is contraband. Automobile frisk: allowed after valid stop if: - officer has reasonable belief there is a weapon in the car, and - search limited to those areas which may contain a weapon. Finding contraband during frisk can give rise to probable cause to arrest.

Answer 430

May search arrestee within a reasonable scope Lawful arrest requires probable cause Scope: defendant and immediate area (wingspan) - In arrestee's home, can search areas within reach, or where others may be hiding - In a vehicle, can search glove compartment if within reach of defendant, or if it is reasonable that evidence of the offense of the arrest may be found.

Answer 431

If police have probable cause to believe a vehicle contains evidence of a crime, they can search any part of the car believed to have contraband.

Answer 432

1. Police must be lawfully present | 2. Incriminating nature of the item is immediately apparent

Answer 433

Several circumstances can satisfy this: - hot pursuit of a fleeing felon - danger of destruction of evidence - police or public safety

Answer 434

Excludes evidence obtained as a result of governmental violation of the 4th Amendment. Also excludes "fruit of the poisonous tree" -- other evidence obtained as a result of the violatieon.

Answer 435

1. Inevitable Discovery 2. Independent Source 3. Passage of Time (Attenuation) 4. Good Faith Reliance

Answer 436

5A provides that no person shall be compelled in a criminal case to testify against himself. Applies to testimonial evidence coercively obtained by police.

Answer 437

Required to give warnings prior to custodial interrogation Custodial: ∆ reasonably believes not free to leave, otherwise deprived of freedom Interrogation: police expressly question ∆ or words/actions likely to elicit an incriminating response Government informants: if ∆ does not know he is speaking to an informant, no custodial interrogation under 5A. Police line-up, not a custodial interrogation under 5A.

Answer 438

Must be knowing and voluntary. | Silence is not sufficient to invoke or waive Miranda rights. Must make an affirmative statement.

Answer 439

Yes, and furthermore police have no obligation to inform ∆ their attorney is trying to reach them.

Answer 440

Right to counsel: must UNAMBIGUOUSLY assert the right to counsel. Police cannot question ∆ any further Not offense-specific, once right is invoked, police cannot question about any crimes. Ambiguous statement - police under no duty to clarify or provide counsel Subsequent voluntary statement can be admissible. Right to remain silent: must UNAMBIGUOUSLY assert right. Re-approach: police may not re-approach later, except if there is a break in custody for 14 days or longer, then must give fresh Miranda warnings.

Answer 441

A ∆ has standing only to assert his own Miranda rights.

Answer 442

Voluntary confession: not protected Involuntary confession: inadmissible for any purpose Based on totality of circumstances, including police conduct, ∆'s characteristics (age, education, experience), timing of statement. Second confession: when confession obtained in violation of Miranda, then later rights are read and ∆ waives and confesses again. May be admissible if first confession was result of good faith mistake. Voluntary statement in violation of Miranda: excluded as substantive evidence, but admissible as impeachment if inconsistent with later testimony. Physical evidence: any physical fruits of a voluntary confession can be admissible evidence.

Answer 443

Automatically applies at all CRITICAL STAGES of prosecution after formal proceedings (indictment or formal charge) begin. - critical stages include post-charge in person lineups, and questioning by gov't informants (even if ∆ is not aware) Offense specific: does not prevent police from questioning ∆ about other crimes that have not been formally charged Waiver must be knowing and voluntary.

Answer 444

Must not be conducted in an impermissibly suggestive manner, or one that provides a substantial likelihood of misidentification

Answer 445

Prosecution must prove all elements of the crime beyond a reasonable doubt.

Answer 446

Any fact, other than a prior conviction, which is used to increase the sentence beyond the statutory maximum must be charged and proved beyond a reasonable doubt. Applies when the fact could increase the sentence beyond the max prescribed by statute.

Answer 447

Provides protections against (1) prosecution for the same offense after acquittal, (2) prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Same v. separate offenses (Blockburger test): each crime must require proof of an element that the other does not to be considered separate offenses. Prohibits multiple prosecutions of greater and lesser-included offenses. Permissible, however, to charge with greater and lesser-included offense in the same action.

Answer 448

A revocable trust can be terminated by the settlor at any time. An irrevocable trust usually cannot be terminated.

Answer 449

Traditional rule: irrevocable unless expressly stated otherwise. Majority/UTC: revocable unless expressly stated otherwise

Answer 450

A mandatory trust requires the trustee to distribute all trust income. In a discretionary trust, the trustee is given the power to distribute income at his discretion. The trustee does not abuse his discretion unless he acts dishonestly, or in a way not contemplated by the trust creator.

Answer 451

A trust may fail if all interests thereunder may not vest within the applicable period of perpetuities (usually a life in being plus 21 years). Some jurisdictions take a "wait and see" approach to the application of the rule, refraining from invalidating future interests until it is clear that they will not vest within the perpetuities period.

Answer 452

- Grantor/settlor (creator of trust) - Trustee (holds legal interest or title to trust property) - Beneficiary (receive benefit of trust) - Income beneficiary -- receive income from trust - Remainder beneficiary -- entitled to trust principal upon termination of trust

Answer 453

1. Intent (may be manifested orally, writing, conduct) 2. Trust Property (anything is sufficient) 3. Valid trust purpose (not illegal, restricted by law/statute, or contrary to public policy) 4. Ascertainable beneficiaries (identifiable, may refer to outside writings/acts) Exceptions to Identifiable Beneficiaries: - Indefinite class: A trustee can select a beneficiary from an indefinite class (such as "my friends") unless the trustee must distribute equally to all members of the indefinite class (not valid) - Unborn children: Trusts for the benefit of unborn children are valid, even though the beneficiaries are not yet ascertainable when the trust is created - Class Gifts: Reasonably definite class ("My brothers", "my grandchildren") upheld - Charitable Trusts (trusts that exist for the good of the public at large) must NOT have individual ascertainable beneficiaries.

Answer 454

A trust created while the trustor is living, which transfers some or all of their property into a trust. The trustor can designate himself or a third party as trustee.

Answer 455

A provision in a will that directs the distribution of property to a trust upon the happening of an event, so that the property passes according to the terms of the trust without the necessity of the will reciting the entire trust.

Answer 456

Created in writing in a will or in a document incorporated by reference into a will. The will containing the trust must meet the attested or holographic will requirements.

Answer 457

Must have a stated charitable purpose, must exist for the benefit of the community at large or for a class of persons the membership in which varies.

Answer 458

Purposes considered charitable include the relief of poverty, the advancement of education or religion, and other purposes benefiting the community at large or a particular segment of the community.

Answer 459

A court may modify a charitable trust to seek an alternative charitable purpose if the original one becomes illegal, impracticable, or impossible to perform. Specific (court may not modify trust, trust will terminate and become a resulting trust held for settlor or his heirs) vs. general (substitute a similar charity). Presume general intent and apply cy pres.

Answer 460

When a trust fails in some way or when there is an incomplete disposition of trust property, a court may create a resulting trust requiring the holder of the property to return it to the settlor or to the settlor's estate. When a testamentary trust fails, the residuary legatee succeeds to the property interest. The purpose of a resulting trust is to achieve the settlor's likely intent in attempting to create the trust.

Answer 461

Only when such amounts become payable to the beneficiary, or are subject to her demand.

Answer 462

Yes, unless a statute or trust instrument limits this right.

Answer 463

A support trust directs the trustee to pay income or principal as necessary to support the trust beneficiary. Creditors cannot reach the assets of a support trust, except to the extent that a provider of a necessity to the beneficiary can be paid directly by the trustee.

Answer 464

Trustee given complete discretion regarding whether or not to apply payments of income/principal to beneficiary. If the trustee exercises his discretion to pay, then the beneficiary's creditors have the same rights as the beneficiary, unless a spendthrift restriction exists. If the discretion is not exercised, then the beneficiary's interest cannot be reached by creditors. The beneficiary lacks standing to challenge the actions or inactions of a discretionary trustee unless there is a clear abuse of discretion.

Answer 465

Trustee has no discretion; trust governs when property is to be distributed.

Answer 466

A spendthrift trust expressly restricts beneficiary's power to voluntarily or involuntarily transfer his equitable interest (this is called a spendthrift clause). Creditors usually cannot reach the trust interest, unless money is owed for child/spousal support, or to basic necessities providers, or tax lien holders.

Answer 467

If a settlor has the power to revoke a trust, she also has power to modify or amend the trust. In the absence of such power, modification, amendment, or termination can occur ONLY WITH THE CONSENT OF ALL BENEFICIARIES and ONLY IF THE PROPOSED CHANGE WILL NOT INTERFERE WITH A PRIMARY PURPOSE OF THE TRUST.

Answer 468

A trust terminates automatically when its purpose has been accomplished May also terminate if settlor is deceased/has no remaining interest, and all beneficiaries (both income and remainder) consent. However, a trustee can block a premature trust termination by the beneficiaries if the trust is shown to have an unfulfilled material purpose. Most common example is one in which the settlor provided for successive interests, in which case both present and future beneficiaries must agree in order for the trust to be terminated prematurely.

Answer 469

None, unless there are express termination provisions.

Answer 470

A court can remove a trustee if the purpose of the trust would be frustrated by that trustee's continuance in office, or if they violated a duty.

Answer 471

In most states, disclaimer is not effective unless it is reduced to writing within nine months after the interest would become "indefeasibly vested". If the income beneficiary of a trust disclaims her interest, then the trust principal becomes immediately distributable (accelerates) to the remainder beneficiaries of the trust if the remainder is vested. If the remainder is contingent upon a condition, it will not accelerate. When the holder of a future interest effectively disclaims that interest, they are deemed to have predeceased the life tenant.

Answer 472

In most states they do not. If a gift to "issue" fails by reason of non-survival of the issue, then children and further descendants of the deceased issue will not take under the trust. However, some states have enacted UPC § 2-707 or a similar statute, under which a substitute gift is created in the descendants of the deceased issue. When such statutes govern, even words of survivorship ("to those of my issue who are living") will not cut off this substitute gift.

Answer 473

Anything expressly granted in the trust, and powers necessary to act as a reasonably prudent person managing the trust, including implied power to contract, sell, lease, or transfer the trust property.

Answer 474

Duty to administer trust in good faith (subjective standard) and to act reasonably (objective standard) when investing property and otherwise managing trust solely in the best interests of the beneficiaries.

Answer 475

When a trustee personally engages in a transaction involving trust property, a conflict of interest arises between the trustee's duties to the beneficiaries and her own personal interest. Prohibited transactions: buying/selling trust assets, selling property between trusts that trustee manages, borrowing from or making loans to trust, using trust assets to secure personal loan, engaging in prohibited transactions with friends/relatives, or otherwise acting for personal gain through trustee position. Irrebuttable presumption that trustee breached duty of loyalty when self-dealing is an issue, no further inquiry is required because it is a per se breach. Even when authorized (by settlor, court order, or all beneficiaries), must still be reasonable and fair to avoid liability for breach.

Answer 476

Beneficiaries can set aside the transaction, or ratify the transaction and recover the profits from the transaction.

Answer 477

When a trustee invests trust assets in a corporation in which the trustee has an interest (for example, owns stock in the corporation) that might affect a trustee's judgment, a conflict of interest arises. Presumption of a breach of duty of loyalty that can be rebutted by showing that the terms of the transaction were fair or that the transaction would have been made by an independent party.

Answer 478

General duty to act as a reasonably prudent person and treat trust property as if it were his/her own. Must follow trust directions and carry them out in accordance with trust.

Answer 479

Prudent Investor Rule: must act as prudent investor would when investing his own property (less emphasis on risk level); trustee must exercise reasonable care, caution, and skill when investing and managing assets. Duty to diversify: spread the risk of loss under a total performance portfolio approach, but not if administrative costs would outweigh the benefits Duty to make property productive: pursue all possible claims, derive the maximum amount of income from investments, sell assets when appropriate, secure insurance, pay expenses, act within a reasonable period of time in all matters. Impartiality: balance interests of the present beneficiaries (must not favor one over another, unless trust provides for it). Must also balance interests of present and future by investing property so that it produces a reasonable income for the income beneficiaries while preserving principal for remainder beneficiaries.

Answer 480

Duty to disclose: disclose complete and accurate information about nature and extent of the trust property, including allowing access to trust records and accounts. Duty to Account: periodically account for actions taken on behalf of the trust so that performance can be assessed against terms of the trust.

Answer 481

Lost profits, interests, and other losses resulting from a breach of trust are trustee's responsibility; beneficiaries may sue the trustee and seek damages or removal of the trustee for breach of duties.

Answer 482

D & SS share all surviving relatives -> SS gets 100% of estate Surviving parent but no descendants -> SS gets $300,000 + 75% of remainder D + SS have issue but SS also has separate issue -> $225,000 + 50% of remainder D has issue w/o SS -> $150,000 + 50% of remainder SS but no descendants or parents -> SS gets 100%

Answer 483

At death, the surviving spouse is entitled to 1/2 of the community property. The surviving spouse of an intestate decedent is also entitled to the decedent's 1/2 community property and quasi-community property. Therefore, the SS will take 100% of the community property.

Answer 484

Must have been legally married to decedent. Even if a marriage is not valid, as long as one party believes in good faith in its validity, the spouses are termed putative and qualify as spouses for inheritance purposes. UPC: Must be legally married at time of death, and must be clear and convincing evidence that he/she survived the decedent by 120 hours to take by intestacy.

Answer 485

Curtails all inheritance rights between natural parents and child Adopted children take the same as a natural child.

Answer 486

CL: born out of wedlock means no inheritance from natural father Modern trend: out-of-wedlock child cannot inherit from father unless: - Father subsequently married natural mother - Father held out child as his own and either received the child into his home or provided support - Paternity proven by clear and convincing evidence after father's death - Paternity adjudicated during lifetime of father by preponderance of evidence

Answer 487

If surviving issue are all of equal degree of kinship (all same level of relation to decedent) then property passes equally to each person

Answer 488

If surviving issue are not of equal kinship, property is divided at first generation in which at least one member survives decedent. Shares that would go to the member that predeceased the decedent instead go to his/her issue.

Answer 489

If no surviving spouse or issue exist, then the property may be distributed to the decedent's ancestors (parents, grandparents, great-grandparents) and more-remote collateral relatives (common ancestor such as siblings, cousins, aunts, uncles).

Answer 490

If no surviving spouse or descendant, then estate passes in the following order to the individuals designated below who survive the decedent: - Decedent's parents equally if both survive, or surviving parent - Descendants of parents (D's siblings) - D's maternal and paternal grandparent, one-half to each, or descendants of maternal and paternal grandparents if deceased - Nearest maternal and paternal relative - If no surviving relatives, estate escheats to state.

Answer 491

The testator must have capacity, demonstrate testamentary intent, and the will must be attested.

Answer 492

Must be at least 18 years and possess a sound mind. Testator lacks capacity if he does not have the ability to know: - nature of the act - nature and character of his property - natural objects of his bounty - plan of attempted disposition

Answer 493

Must understand he is executing a will and intent for it to have testamentary effect, and must generally know and approve of its contents.

Answer 494

Must be in Writing and Signed by T, or by some other person in his presence and at his direction. Witnesses Majority: will must be signed in joint presence of and attested to by two witnesses. UPC: Witnesses don't have to be present at the same time. T does not have to sign in their presence, as long as he acknowledges his signature to them before they sign and they sign within a reasonable time. Each witness must be of sufficient mental capacity and maturity.

Answer 495

CL: A witness with financial interest in the will is an "interested witness" and is not competent to be a witness to the will. If they are a necessary witness, then the will is not validly executed. Today, many states invalidate the portion of the will that provides an excess portion to the interested witness (any amount in excess of what the witness would otherwise have received) The UPC abolished interested witness doctrine.

Answer 496

CL: strict compliance with formalities required UPC: If not in compliance, it can be treated as if it were valid if there is clear and convincing evidence that T intended for the document to serve as his will, and he substantially complied with the required formalities.

Answer 497

T must handwrite "material provisions" of a holographic will. "Material provisions" include beneficiaries of a will, and items they will receive. A preprinted will form can still qualify as long as "material provisions" are handwritten. T must sign instrument. No witness requirement: need not be witnessed nor dated, but must be clear that T intended the document as a will.

Answer 498

A supplement to a will that alters, amends, or modifies the will, rather than replacing it. Generally a codicil must be executed with the same formalities as a will (can be attested or holographic).

Answer 499

A validly executed codicil republishes a will as of the date of the codicil. A valid codicil executed after the original will may cure problems that existed at the execution of the will, such as an insufficient number of witnesses. A valid attested will can be altered, amended, or modified by a holographic codicil.

Answer 500

If a grantor delivers a deed to a third party (agent) with instructions to give the deed to a person (grantee) on the grantor's death, the deed serves as a will substitute, and the deed will be transferred to grantee upon the grantor's death.

Answer 501

The law of the deceased's domicile at time of death governs.

Answer 502

The law of the situs (location of the property) governs.

Answer 503

In whole, or in part, at any time prior to the death of the testator by a subsequent writing, physical destruction, or by operation of law.

Answer 504

Oral revocations are not valid. Discuss whether original will/codicil is partially or completely revoked Can be expressly stated to revoke, or implied if terms of the new instrument conflict with prior terms. If there are inconsistencies between the prior will/codicil and the subsequent will/codicil, the later document controls and revokes the prior inconsistencies.

Answer 505

Destroying a portion of the will or codicil with the intent to revoke it. The destruction must occur with the intent to revoke (simultaneous act and intent). Majority: effective canceling requires defacement of the language of the will (at least some language must be crossed out, including signature). UPC: destructive act must merely affect some part of the will.

Answer 506

If a will once known to exist cannot be found at the testator's death, or is found mutilated, then there is a rebuttable presumption of revocation. Inapplicable if a duplicate original is found. Extrinsic evidence is permitted to rebut the presumption. Destruction of a signed original or duplicate original presumptively destroys all copies. A third party can revoke through physical destruction of the will or codicil on behalf of the testator if it is requested by the testator and destroyed in the testator's presence.

Answer 507

Divorce -- in most states this will revoke all will provisions in favor of the former spouse, unless it can be shown that the testator intended for the will to survive. Separation does not revoke the will provisions unless there is a separation agreement.

Answer 508

Look for fact patterns where there is a valid will and a later will or codicil is created, revoking the original will. If the later will is destroyed, the original will may be revived. It is revived if there is proof that the testator intended to revive the original will. If the later will is revoked by physical act, extrinsic evidence of intent to revive original will is admissible.

Answer 509

DRR will allow a court to revive a revoked will when the testator revoked the will by subsequent instrument or physical act under a mistaken belief of law or fact. It must be shown that T would not have revoked the original will but for the mistaken belief. DRR should be discussed when T revokes original will under a mistaken belief of law or fact. DRR will revive the original will if the testator would not have revoked the original will but for the mistake of law or fact.

Answer 510

The will consists of all pages that are present at the time of execution and that are intended to form part of the will, which can be shown by physical connection (stapled or paper clips), or the ongoing nature of the language of the will (pages not attached, but page numbers indicate that pages follow each other).

Answer 511

A writing not executed with testamentary formalities may be incorporated by reference if it existed at the time the will was executed, is intended to be incorporated, and is described in the will or codicil with sufficient certainty. UPC: Writing need not exist at the time the will was executed if it only disposes of T's personal property (T can write a will referencing another document and then create that document later). A validly executed codicil can incorporate an invalid will and make the terms of the will valid.

Answer 512

A will can provide for designation of a beneficiary or amount of a disposition by reference to some unattested act or event occurring before or after execution of the will or T's death, if the act or event has some significance apart from the will. "to the person that is my brother's spouse"

Answer 513

Specific (distinguishable with reasonable accuracy) General (gift of personal property like money intended to be satisfied from general estate assets) Demonstrative (intended to be paid from a particular source, but if it is insufficient then from general assets) Residuary (legacy of estate remaining when all claims against estate and all specific, general, and demonstrative legacies have been satisfied)

Answer 514

When assets are insufficient to pay all debts of testator and legacies, a court will "abate" or reduce gifts to pay debts, in the following order: - Intestate property (not addressed in will) - Residuary bequests - General bequests - Specific bequests

Answer 515

Traditionally, if the subject matter of a specific gift is missing, destroyed, or there is a substantial change in the form of the gift (the court can trace the gift if it undergoes a minor change) the beneficiary takes nothing. Does not apply to general or demonstrative gifts. - Beneficiary is entitled to whatever is left of the specifically devised property or balance of purchase price owing from purchaser of property. UPC: examine T's intent when devise was disposed of. - If T intended beneficiary to receive gift despite ademption, beneficiary may inherit replacement property, or outstanding balance. - If neither replacement property nor outstanding balance applies, then UPC provides that a beneficiary of a specific gift is entitled to money equivalent to the value of the specific property as of the date of disposition of the gift if ademption is inconsistent with intent or plan of distribution.

Answer 516

The contract wins. Life insurance contracts almost never permit a change of beneficiary by will, courts have upheld these restrictions.

Answer 517

CL: If beneficiary dies before T, gift lapses (fails) Modern anti-laps: if beneficiary was blood-related to T, surviving issue takes in his place Class gift: if beneficiaries are class, "my brothers", only members of the class who are alive at the time of the execution of the will receive the benefit of the will. However, if anti-lapse applies (b/c predeceased class member was related to T), issue of predeceased member also take.

Answer 518

Patent ambiguities appear on the face of the will, and were required to be resolved within the four corners of the instrument without extrinsic evidence. Latent ambiguities were not apparent from a reading of the will and were allowed to be resolved with extrinsic evidence. Many states no longer distinguish between these two and allow both to be resolved by extrinsic evidence.

Answer 519

Extrinsic evidence is admissible to show a mistake in the execution of a will, such as when T is unaware she was signing a will. Not allowed if the mistake involves the reasons behind making the will, or a particular gift.

Answer 520

When a marriage is formed after execution of T's will, and spouse is not mentioned in will. Omitted spouse entitled to intestate share unless - omission was intentional - spouse given property outside of the will in lieu of disposition in will - spouse is party to a valid contract (prenup) waiving her right to a share in the estate

Answer 521

A child omitted from the will can force a share if certain requirements are met: - born or adopted after will is created, or T mistakenly believes child to be dead - unintentionally omitted from will LIMITATIONS: share will not be forced if child has been provided for outside the will, or if T had other children when will was executed and left substantially all of his estate to child's parent. SHARE: If no other children when will executed, child takes intestate share. If at least one other child living at the time of execution, and will devised property to at least one child, then omitted child's share is taken from property already devised to other child, and must equal the share the other child receives.

Answer 522

A party cannot take property from a D when that party was responsible for D's death. UPC and majority of jurisdictions treat the killer as if they had predeceased D.

Answer 523

An objection raised against validity of a will, based on the contention that the will does not reflect T's actual intent. The basis is the assertion that the testator (i) lacked testamentary capacity, (ii) was operating under an insane delusion, or (iii) was subject to undue influence or fraud.

Answer 524

A belief is an insane delusion if a rational person in the testator's situation could not have reached the same conclusion. If it is shown that the testator has an insane delusion, it must also be shown that but for this delusion, testator would not have disposed of his property in the manner that he did (the delusion must have caused the disposition).

Answer 525

General rule: UI occurs when mental or physical coercion is exerted by a third party on a testator with the intent to influence T such that he loses control of his own judgment. if UI is shown, will may be invalidated in whole or in part. Majority view 4 elements: - Susceptibility - Motive - Opportunity - Causation

Answer 526

Misrepresentation made by a beneficiary with both (a) the intent to deceive T, and (b) the purpose of influencing testamentary disposition. The result must be a will that would not have been executed but for the fraud. Fraud in the inducement: misrepresentation that causes T to make a different will that he otherwise would have made. Must be shown that T would not have made gift if he knew the truth. Fraud in execution: misrepresentation as to the will itself or its contents (T does not know he is creating a will, or is not told the true content of the will).

Answer 527

Citizens from one state cannot sue another state in federal court Congress may expressly repeal state immunity if acting to enforce rights under 13A, 14A, 15A - may not abrogate state immunity by exercising AI powers (like commerce clause)

Answer 528

Individual standing: ICR - injury in fact - causation - redressability Organizational standing: - individual members have standing - claim related to purpose of organization - individual members not necessary to adjudicate claim

Answer 529

If it is not a live controversy, it is moot. If injury has not yet occurred or is speculative, it is not ripe.

Answer 530

Congress has the power to regulate interstate commerce, including the channels, instrumentalities, and activities that have a substantial effect on interstate commerce.

Answer 531

Economic activity is presumed to have a substantial effect Aggregation - can regulate economic activity that is intrastate if the activity as a whole has an effect on interstate commerce.

Answer 532

Congress can condition federal funds to states and require states to implement certain regulations. Permitted as long as the condition is related to the purpose of the funds. Commandeering -- states might claim Congress is violating 10A by forcing state legislature to pass specific legislation. A valid exercise of Spending Power does not violate 10A.

Answer 533

Congress may delegate its power to an agency as long as it provides reasonably intelligible standards.

Answer 534

Issue executive orders Domestic Affairs - appointment and removal powers, pardon power, commander in chief power, and duty to execute the law Foreign Affairs - power to conduct foreign negotiations, to deploy troops overseas, and to make executive agreements.

Answer 535

If state law conflicts with federal law, federal law governs.

Answer 536

Federal law explicitly states that it is the only law allowed in that area. Any state law addressing that issue is invalid.

Answer 537

Congress passes law intending to "occupy the field" State law conflicts directly with federal law State law conflicts indirectly with federal law

Answer 538

Prohibits states from discriminating against nonresidents, unless it is necessary to achieve an important government interest. Only applies to individual citizens, corporations cannot claim this clause.

Answer 539

10A: all powers not expressly given to federal gov't reserved for states. Fed gov't cannot commandeer state legislatures to force them to pass legislation. Often arises with Spending Power -- cannot force enactment of laws, but can condition federal funds to persuade state legislatures.

Answer 540

A state may not discriminate against out of state commerce or in a way that unduly burdens interstate commerce. Plaintiff who claims that a state's law is invalid under the Commerce Clause. Discuss DCC and analyze whether state has exceeded its powers by passing a law that negatively impacts interstate commerce.

Answer 541

Can be discriminatory on its face or by impact If statute discriminates against out of state commerce, state must show: a. important state interest, and b. no other non-discriminatory means available to achieve that interest MARKET PARTICIPANT EXCEPTION: can favor local business if state is acting as a buyer or seller

Answer 542

If statute is not discriminatory, may still unduly burden interstate commerce. Balance: - purpose of statute - burden on interstate commerce - are there less restrictive alternatives

Answer 543

The constitution protects against wrongful conduct by the gov't, not private parties. A private party may be subject to the constitution if it is acting as if it is a state.

Answer 544

Gov't may not take private property for public use without just compensation. Gov't action: protects from gov't "taking" of private property; includes land and also regulatory takings by rezoning, prohibiting development, etc. Private property: land or other real property, but can be e.g. contract or patent rights or trade secrets Public use: must be rationally related to a conceivable public purpose, including health, safety, economic development, etc.

Answer 545

Physical: gov't physically takes/occupies land Regulatory: law has effect of decreasing value of property. 1. total taking: no economically viable use remains 2. partial taking: regulation affects some economic use, but there is still some economic use available a. economic impact -- how much value was lost b. reasonable expectations -- of return on investment c. character of regulation -- does the regulation impact a few owners or the entire community?

Answer 546

Local gov't may exact promises from a developer in exchange for construction permits. Does NOT constitute a taking if there is: 1. an essential nexus between legitimate state interests and the conditions imposed 2. a rough proportionality between burden on owner and impact on community.

Answer 547

Fair market value of the property at the time of taking Only a portion has been taken - owner entitled to compensation for land actually taken and any loss in value of the land still owned.

Answer 548

Local gov'ts have the power to pass zoning ordinances, so long as they are reasonably related to a legitimate government purpose (health, safety, morals, general welfare) Variance may be granted to allow the owner to continue the nonconforming use of land, owner must show an undue burden if variance is not granted. Takings clause claim: must show that the zoning ordinance amounts to a regulatory taking

Answer 549

Gov't shall not deprive a person of life, liberty, or property without due process of law. Notice, hearing, and neutral decisionmaker. Amount of process due, factors: 1. interest affected: life, liberty (including fundamental rights), or property 2. value of additional safeguards 3. burden or cost of additional process

Answer 550

Whether gov'ts action (law or regulation) impermissibly infringes on an individual's rights

Answer 551

``` Fundamental rights (life, liberty, property, voting, travel, privacy): Strict scrutiny - only valid if necessary to achieve a compelling governmental interest ``` Non-fundamental rights: Rational basis: valid if rationally related to a legitimate government interest

Answer 552

Involves treating classes of people differently. Discrimination requirement: - discriminatory intent warrants strict or intermediate scrutiny depending on classification - disparate impact warrants rational basis review. Determine whether statute is facially discriminatory or impliedly discriminatory, and whether there is discriminatory intent. If mere disparate impact, limited to rational basis review.

Answer 553

Any law involving fundamental rights, and classifications based on race, ethnicity, and national origin. Gov't must show that it is: - the least restrictive means - to achieve a compelling gov't interest

Answer 554

Laws involving gender and non-marital children born outside of marriage. Gov't must show: - substantially related - to an important gov't interest Gender discrimination must show an "exceedingly persuasive justification", and that facilities are substantially equivalent.

Answer 555

All other rights and classifications. Must be: - rationally related - to a legitimate gov't interest Plaintiff bears burden of showing the law is arbitrary or irrational.

Answer 556

14A § 5 states Congress may pass legislation to enforce EP and due process rights (overriding state statutes).

Answer 557

For symbolic speech or expressive conduct, it is valid if: - it furthers an important government interest - the interest is unrelated to the suppression of ideas, and - the burden on speech is no greater than necessary.

Answer 558

If it regulates more speech than necessary to protect a compelling gov't interest

Answer 559

Fails to provide a person of ordinary intelligence with fair notice of what is prohibited.

Answer 560

Prohibits speech before it occurs. Generally not allowed unless specific procedural safeguards are in place Standards must be narrowly drawn, reasonable, and definite.

Answer 561

Protected by 1A.

Answer 562

Content-based regulations are subject to strict scrutiny. - necessary to achieve - a compelling gov't interest - narrowly tailored to meet that interest Content-neutral regulations subject to intermediate scrutiny - substantially related to - an important gov't interest Time place manner regulation validity depends on type of forum

Answer 563

Less-protected: commercial. Protected unless it is false, misleading, or unlawful Protected commercial speech can only be regulated if: 1. gov't interest is substantial 2. regulation directly advances interest 3. regulation narrowly tailored Unprotected speech: - Obscenity: avg person, applying contemporary community standards, finds the speech a. appeals to prurient interest b. depicts sexual conduct in a patently offensive way c. lacks serious literary, artistic, political, or scientific value - Incitement to Violence - advocates use of force or unlawful action if a. directed to inciting or producing imminent lawless action b. is likely to incite or produce such action (clear and present danger) - Fighting words - by their very nature, likely to incite immediate breach of peace

Answer 564

If ∏ is public official or public figure, or speech involves matter of public concern

Answer 565

sidewalks, streets, parks Content-based regulations subject to strict scrutiny Content-neutral regulations subject to time, place, manner test: - narrowly tailored - to serve significant gov't interest - leave open ample alternative channels for communication

Answer 566

Not historically used for speech related activities, but opened for such use Content-based regulations subject to strict scrutiny Content-neutral regulations subject to time, place, manner test: - narrowly tailored - to serve significant gov't interest - leave open ample alternative channels for communication.

Answer 567

example: gov't office, school, jail, military base, airport terminal, privately owned areas open to the public like a building lobby Gov't can regulate speech if: - regulation is viewpoint-neutral - reasonably related to - legitimate gov't interest Gov't can regulate content in a non-public forum, as long as it is viewpoint neutral

Answer 568

Prohibits the gov't from establishing a religion, preferring that particular religion over another, or preferring religion over non-religion. Facially religious preference: if statute shows a preference to one religion over another (or to religion over non-religion), strict scrutiny applies. Facially neutral statute: might have the effect of favoring religion Lemon test: - law must have secular purpose - primary effect neither advances nor prohibits religion - law does not result in excessive gov't entanglement with religion

Essay Writing Workshop Mixed Flashcards

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