GOTTA KNOW Flashcards
(133 cards)
1
Q
AGENCY. Actual Authority - “”
A
Actual authority can be express, where the agent is expressly given authority to act for the principal. It can also be implied, which is present when the principal’s conduct leads the agent to believe it has authority. This authority can be implied by custom, past course of conduct by the principal, necessity, or an emergency circumstance. This authority terminates after a reasonable time or following a change in circumstances, death, or incapacity of the principal
2
Q
AGENCY. Apparent Authority - “”
A
The elements of apparent authority are: (a) the person dealing with the agent must do so with a reasonable belief in the agent’s authority, and (b) the belief must be generated by some act or neglect on the part of the principal
3
Q
AGENCY. Vicarious Liability for torts.
An agent is always liable for ____.
A principal can be vicariously liable if the agent / employee was ____ and (1) ____ OR (2) ____ (a), (b), (c).
A
• An agent is always liable for her own torts. A principal can be vicariously liable if the agent or employee was acting in the scope of employment, made a minor deviation from employment, or committed an intentional tort (a) for the principal’s benefit, or (b) because the principal authorized it, or (c) the intentional tort arose naturally due to the nature of the employment
4
Q
AGENCY. Liability of a principal for contracts entered into by an agent.
A
• Agent is bound to a third party on a contract she enters into with the third party if the agent had no actual or apparent authority to enter into the contract. Also liable if the principal is undisclosed (i.e., the third party does not know the agent is acting on another’s behalf) or if the principal is “partially disclosed” (i.e., the third party knows the agent is acting on behalf of another but does not know the identity of the principal).
5
Q
PARTNERSHIP. Formation of a partnership.
- “A partnership is . . .”
- ____ creates a presumption that a person is a partner unless . . .
- Writing Requirement?
A
A partnership is the association of two or more persons to carry on as co-owners, a business for profit, whether or not the persons intended to form the partnership.” Profit sharing creates a presumption that a person is a partner unless the profits were received in payment of a debt, rent to a landlord, wages, etc. Other indicia of a partnership include capital contributions and mutual agency. No writing or certificate needs to be filed for a general partnership to be formed. Note that a general partnership is the default form, sometimes a general partnership is formed because a limited partnership was improperly formed (paperwork was not filed correctly).
6
Q
PARTNERSHIP. Fiduciary duties of loyalty.
A
Duty of Loyalty - A partner must discharge her duties in good faith and with the reasonable belief that her actions are in the best interest of the partnership. Duty owed to other partners and to the partnership.
7
Q
PARTNERSHIP. Fiduciary duty of care.
A
Duty of Care - A partner must use the care that a prudent person in like position would reasonably believe appropriate under the circumstances. Duty owed to other partners and to the partnership.
8
Q
PARTNERSHIP. Statutory duty of partners.
A
Partnership shall furnish to a partner (1) without demand any information concerning the partnership’s business and affairs reasonably required for the partner’s proper exercise of rights and duties, and (2) on demand any other information concerning the partnership’s business and affairs.
9
Q
PARTNERSHIP. Dissolution.
A
• Dissolution is not the end of the partnership but occurs when a partner withdraws in an at-will partnership; then the partners wind up the partnership and pay creditors. Then the partnership terminates
10
Q
PARTNERSHIP. What if a partner commits a tort before an LLP is filed and then files an LLP?
A
Partner is still liable for any actions that took place before the conversion to LLP
11
Q
PARTNERSHIP. Collection by a creditor of a partner or of a partnership.
A
• In general, although the partners are liable for debts of the partnership, creditors must attempt to collect from the partnership first before seeking the personal assets of the partners. If a creditor has a claim against a partner, the creditor can obtain an interest in the partnership. This includes profits, but not management or voting rights. If a creditor has a claim against the partnership, the creditor can try to collect from the individual partners
12
Q
CORPORATIONS. What do directors do?
- Role
- Mttgs?
- Voting?
- BJR?
A
• Manage the corporation. Meet regularly. Must vote responsibly (cannot vote by proxy or voting agreement). BJR applies. Presumed to act reasonably
13
Q
CORPORATIONS. What do shareholders do?
A
• Own the corporation. Don’t meet that often but are entitled to annual meetings. Need special notice for meetings. Can vote by proxy or agreement
14
Q
CORPORATIONS. Incorporation of a corporation and of an LLC.
A
• A corporation must be incorporated (articles must be filed with the state) in order for a valid corporation to be formed. For an LLC to be formed, articles of organization must be filed with the state
15
Q
CORPORATIONS. Business Judgment Rule.
- There is a presumption that . . .
- They are entitled to rely on . . .
A
• There is a presumption that “in making a business decision, the directors acted on an informed basis, in good faith, and with the honest belief that the action taken was in the best interest of the company.” Directors must be informed to an extent that they reasonably believe is appropriate. They are entitled to rely on information, opinions, reports, or statements of corporate officers, legal counsel, public accountants, etc., in making a decision
16
Q
CORPORATIONS. Lawsuits by shareholders against the corporation.
- A shareholder may . . .
- A direct suit is appropriate when . . .
- A derivative suit is appropriate when . . .
A
- A shareholder may file an action to establish that the acts of the directors are illegal, fraudulent, or willfully unfair and oppressive to either the corporation or the shareholder. Whether a suit is appropriately brought as a direct or derivative action depends on the injury
- A direct suit is appropriate when the wrong done amounts to a breach of duty owed to the individual personally. E.g., shareholder is denied preemptive rights, denied payment of a dividend, or is bringing a suit for oppression in a close corporation
- A derivative suit is appropriate when the injury is caused to the corporation, and a shareholder is trying to enforce the corporation’s rights. Also applies to LLCs. Requires SAD: (1) shareholder must have Standing to bring a lawsuit (owns stock in the corporation); (2) Adequacy (shareholder represents the interests of the corp), and (3) Demand (shareholder should file a written demand and wait 90 days before filing a suit unless irreparable injury would result or a demand would be futile). E.g., if the board is making a decision that hurts the corporation
17
Q
CORPORATIONS. When can a court pierce the corporate veil?
- He must show that ___ and ____ requires holding them liable.
- E.g., ___ or ___ or ____.
A
• If a plaintiff wants to sue a shareholder in a close corporation or in an LLC, he can seek to “pierce the corporate veil.” He must show that parties abused the privilege of incorporating and fairness requires holding them liable. E.g., if plaintiff can show undercapitalization of the business, or failing to follow formalities, or commingling of assets
18
Q
CORPORATIONS.
- Formation of an LLC.
- Duties of members in an LLC
- Members of an LLC in a member-managed LLC are treated as ____ of the LLC with actual and apparent authority to bind the LLC in ___ but not ___ affairs.
A
Articles of organization must be filed to create an LLC. Members of an LLC have fiduciary duties. Members of an LLC in a member-managed LLC are treated as agents of the LLC (with actual and apparent authority to bind the LLC in ordinary—but not extraordinary—affairs)
19
Q
CONFLICTS. Civil Procedure Combo - Klaxon Doctrine
A
• A federal district court sitting in diversity must apply the choice of law approach prevailing in the state in which it sits. This makes sense because it provides no incentive for the parties to forum shop
20
Q
CONFLICTS. Civil Procedure Combo - Transfer to a more appropriate forum.
A
• Federal court has authority to transfer a case to another federal district for the convenience of the parties and witnesses and in the interest of justice. The new forum must have subject matter jurisdiction and personal jurisdiction. The court will apply the law of the transferor forum
21
Q
CONFLICTS. Family Law combo - Recognition of Marriage.
- A marriage which is valid under . . .
- Common Law marriage rule:
A
- A marriage which is valid under the law of the state in which it was contracted will be valid elsewhere unless it violates a strong public policy of the state that has the most significant relationship to the spouses and the marriage. I.e., incest, polygamy, but not blood test requirements, marriage license requirements, common law marriage.
- If the common law marriage is recognized by the state where the couple entered into the marriage, it will be recognized by all other states
22
Q
CONFLICTS. Family Law Combo - Full Faith and Credit.
A state must recognize final judgments of other states so long as . . .
A
• A state must recognize final judgments of other states so long as the requirements of the Full Faith and Credit Clause are satisfied: the judgment is on the merits, the other state had jurisdiction, and the decision was final. i.e., a divorce decree
23
Q
CONFLICTS. Wills Combo - Postportem distribution of personal and real property.
A
• The postportem distribution of personal property is governed by the law of the state in which the decedent was domiciled at the time of his death. The postportem distribution of real property is governed by the law of the situs (where the property is located).
24
Q
FAMILY LAW. Common law marriage
If a couple is common law married in a state that recognizes it, ____.
Proponent must show CACH.
A
• If a couple is common law married in a state that recognizes it, other states will recognize the marriage too. Proponent must show CACH : Capacity to enter into a marital contract, a present agreement to be married, cohabitation, and holding out a marital relationship
25
FAMILY LAW . Custody Determinations
1. Custody is determined by looking at . . .
2. This is a ____ approach.
3. Modifiable?
• Custody is determined by looking at the best interests of the child. This is a multifactor approach. Modifications allowed if there is a substantial change in circumstances
26
FAMILY LAW. Custody Determination - Home State Test.
• Under the UCCJEA, the home state test provides that the home state has exclusive jurisdiction to modify a decree. A home state is a state where the child has lived with a parent or guardian for at least six consecutive months immediately before the commencement of the child custody proceeding. A home state continues to have exclusive jurisdiction to issue a custody order for six months after a child leaves the state, so long as a parent or guardian still lives in the state
27
FAMILY LAW. Custody Determinations - Significant Connections Test.
• Applies if a child has no home state. Under this test, a state may exercise jurisdiction based on (1) significant connections with the child and at least one parent, and (2) the existence of substantial evidence relating to child custody in the forum jurisdiction
28
FAMILY LAW. Child Support -
• Court will look at factors like income and earnings of the parents, number of children, ages, and special needs of the children. Modifications allowed if there is a substantial change in circumstances
29
FAMILY LAW. Retroactive Modifications of Child support
• Forbidden under federal law (absent fraud)
30
FAMILY LAW. Rights of the biological father.
• Biological fathers generally have parenting rights; however, the state may make the parent exercise his rights within a specific time (two years).
31
FAMILY LAW. Marital vs. Separate Property.
1. Marital property is . . .
2. Separate property is . . . (BIG).
3. Professional degrees?
Marital property is property acquired during the marriage and is subject to division. Separate property includes BIG (property acquired BEFORE the marriage, an INHERITANCE, or a GIFT to one party). Most states do not count professional degrees earned during the marriage as marital property. Separate property is generally not subject to division
32
FAMILY LAW. Premarital Agreement.
1. A court will enforce a premarital agreement so long as 1) 2) 3)
2. A court will not enforce a premarital agreement regarding __ or __ if it is not ___.
• A court will enforce a premarital agreement so long as voluntarily made, substantively fair, and if full disclosure of assets and obligations was made. A court will not enforce a premarital agreement regarding child custody or support if it is not in the best interests of the child
33
FAMILY LAW. Alimony.
1. Can be __, __, or ___.
2. Almost all states require the trial court to consider __, __, __. Some states look at __ and ___.
3. Finality? Modifiable?
• Can be permanent, temporary, or granted in a lump sum. Almost all states require the trial court to consider the parties’ financial resources and needs, marital contributions, and marital duration. Some states also look at spousal misconduct, one spouse’s support for the other’s education or training. Trial court has substantial discretion in choosing to award alimony. Awards are not final and can be modified if there is a substantial change in circumstances
34
SECURED TRANSACTIONS. UCC Article 9 applies to ___.
• Applies to all security interests in personal property or fixtures by contract
35
SECURED TRANSACTIONS. Kinds of goods.
* Tangibles - Consumer goods are bought primarily for personal, family, or household purposes. Inventory is anything being held for sale or lease, raw materials for that inventory, work in process, or materials used or consumed in a business. Farm products have never been tested. Equipment is anything that is not consumer goods, inventory, or farm products.
* Intangibles – accounts and chattel paper usually
36
SECURED TRANSACTIONS. Requirements of Attachment.
* If attachment does not occur, the secured party will not have an enforceable security interest.
* Requires: (1) value must be given by the secured party to the debtor (a loan), (2) debtor must have rights in the collateral; and (3) there must be a binding security agreement which reqs AID – authentication, intent to create a security agreement, and a description of the collateral. Discuss attachment always
37
SECURED TRANSACTIONS. Perfection.
• Perfection can occur by filing a financing statement. It can be automatic in some cases (e.g., a PMSI in consumer goods). Or, an interest can be perfected by possession or control
38
SECURED TRANSACTIONS. Priority.
• When multiple secured parties have a security interest in the same collateral, the first to file or perfect has priority. If no party perfects, then the first to attach has priority. Know that a perfected security interest beats an unperfected one—even if one has an unperfected PMSI
39
SECURED TRANSACTIONS. Buyer in the Ordinary Course of Business.
• Takes free from a security interest even if it was perfected so long as BFP and bought in the ordinary course of business.
40
TRUSTS. Validity.
1. A trust of personal property is valid if . . .
2. A trust will not fail for . . .
3. A trust's beneficiaries must be both __ and __.
4. Sole trustee/beneficiary?
5. The __ must be identifiable.
• “A trust of personal property is valid if it has a trustee, a beneficiary, and trust property.” A trust will not fail for lack of a specially-named trustee. The court can appoint one. A trust’s beneficiaries must be definite and ascertainable. Same person cannot be both the sole trustee and the sole beneficiary. The trust property, or trust res, must be identifiable
41
TRUSTS. Revocability.
1. Before settlor dies
2. After settlor dies
• If a trust is revocable, a settlor may terminate the trust if all beneficiaries are in existence and all agree. After the settlor dies, an irrevocable trust can be terminated through unanimous consent of both the income beneficiaries and the remaindermen. Additionally, there must be no material purpose of the trust yet to be performed
42
TRUSTS. Pour-Over Will.
1. A will that ___.
2. Valid so long as the trust is (1) __, and (2) the terms are ___.
3. Validity of later amendments to the trust under the modern approach and the common law approach.
• A will makes a gift to a trust. Valid so long as the trust is identified in the will and the terms are incorporated in a writing executed before or concurrently with the execution of the will. Under the modern approach, later-made amendments to the trust are valid. Under the common law, amendments made after the execution of the will are not valid
43
TRUSTS. Discretionary Trust.
• In a discretionary trust, the trustee has discretion to decide when to make a distribution to a beneficiary. The beneficiary cannot demand any disbursements. Neither can a creditor, except for child support or alimony in some states
44
TRUSTS. Discretionary Trust (Support Trust).
• Trustee must pay what is necessary for the beneficiary’s support
45
TRUSTS. Discretionary Trust (Spendthrift Trust).
| 1. The only creditors that can reach a beneficiary's distribution before it reaches the beneficiary are . . .
Restrains both the voluntary and involuntary transfer of a beneficiary’s interest. The only creditors that can reach a beneficiary’s distribution before it reaches the beneficiary are child/spousal support creditors, a judgment creditor who has provided services for the protection of a beneficiary’s interest in the trust, the state or the United States, or a creditor with a claim for necessaries
46
TRUSTS. Charitable Trusts.
• May be created for a charitable purpose. It must have a large number of not-readily-identifiable individuals (rather than a few). The trust may be terminated if the charitable purpose becomes unlawful, impracticable, or impossible. Cy pres may save the trust. If the purpose is no longer possible, no alternative charity is named in the trust and the court determines that the settlor had a general rather than specific charitable intent, then cy pres can be applied to modify or terminate the trust. This involves directing that the trust property can be distributed in a manner consistent with the settlor’s general charitable intent
47
TRUSTS. Duty of Care - Prudent Administration.
• Most states have adopted a form of the Uniform Prudent Investor Act, which states that a trustee must “administer the trust as a prudent person would . . . using reasonable care, skill, and caution.” This requires a duty to diversify. Note that the entire portfolio is examined to see whether a trustee breached her duty
48
WILLS. Valid will.
Will must be in writing, signed by the testator, and witnessed by two witnesses. Testator must be 18 or older and intend that the document is his will. Any mark that is made with intent to adopt the will counts as a signature
49
WILLS. Holographic Wills.
• Holographic wills are unwitnessed wills. Valid if signed and if the material portions of the will are in the testator’s handwriting. Recognized by about half the states. You’ll know it’s holographic will question if the will is unwitnessed
50
WILLS. Dispensing Power.
• The UPC adopts the “dispensing power” to allow a court to save an invalid will so long as there is clear and convincing evidence that the decedent intended the document to be her will
51
WILLS. Revocation of a will.
1. By physical act: 1), 2), 3). Must be done with ___. Either the testator or someone acting at the testator's direction and ______ may revoke.
2. Under the dependent relative revocation doctrine,...
3. If a testator revokes a will based on mistaken assumptions of law or fact, . . .
4. Divorce?
• By physical act – execution of a new will or cancellation or other writings on the document. Must be done with intent to revoke. Either the testator or someone acting at the testator’s direction and in the testator’s conscious presence may revoke. Under the dependent relative revocation doctrine, a first will is not revoked if a later will is found invalid. If a testator revokes a will or bequest based on mistaken assumptions of law or fact, the revocation of the will is ineffective if it appears that the testator would not have revoked had he had accurate information. A final divorce revokes gifts in favor of a spouse
52
WILLS. Slayer Statute.
• An individual who feloniously and intentionally kills the decedent, or who is convicted of committing abuse, neglect, or exploitation with respect to the decedent, forfeits all benefits with respect to the decedent’s estate (including an intestate share, an elective share, an omitted spouse or child share). Voluntary manslaughter is a form of a “felonious and intentional” killing. If a beneficiary accidentally kills the decedent (even if it rises to involuntary manslaughter), the slayer rule does not bar a gift. Nor if the slayer murdered someone other than the decedent. Usually not barred when tested on the MEE
53
WILLS. Intestate Succession.
1. Per capita at each generation approach
2. Per capita with representation (modern per stirpes) approach
• A decedent who dies without a will or with an incomplete will. Per capita at each generation approach: Find the first generation where there are children living and give one share to each living child and one share for each in that generation who died but left surviving children of their own. Then combine all the shares of the decedent and divide them equally at the next generational level. Every individual at each generational level is treated alike.
Per capita with representation (modern per stirpes) approach: Instead of combining the shares of the deceased to distribute evenly, the children of the deceased take the exact share that their deceased parents would have. Thus, individuals at each generational level not treated alike
54
TORTS. Duty - Child.
• A child owes the duty of care of a hypothetical child of similar age, intelligence and experience acting under similar circumstances. EXCEPT when engaging in an adult activity. Some states follow the “tender years doctrine,” where children under a certain age cannot be found negligent
55
TORTS. Invitee.
• Includes those invited onto land open to the public or into businesses. Landowner must warn or make safe all dangers that the landowner knows or should know of. Duty to inspect
56
TORTS. Licensee.
• Social guests. Most MEE answers state that landowners owe the duty to reveal hidden dangers of which the landowner knows or has reason to know of and which the entrant is unlikely to discover. But no duty to inspect
57
TORTS. Trespasser.
• Undiscovered trespassers are not owed a duty of care but the landowner must act willfully or maliciously. If the trespasser is discovered, then the landowner must warn or make safe any reasonably dangerous concealed artificial conditions that the landowner knows of
58
TORTS. Duty - Statutory.
• Plaintiff must show that (1) the defendant violated the statute without excuse, (2) the plaintiff was in the class of people the statute was trying to protect, and (3) the plaintiff received the injury that the statute was trying to prevent. If all three proven: negligence per se
59
TORTS. Battery.
• An act with intent to cause a harmful or offensive contact or imminent apprehension of that contact and a harmful or offensive contact directly or indirectly results. Must have intent to cause a battery, can’t be an accident
60
TORTS. Vicarious Liability.
Employers or principals are vicariously liable for torts of their employees or agents if the torts are committed within the scope of their employment
61
TORTS. Intentional Infliction of Emotional Distress
(1) extreme or outrageous conduct by D, (2) intent to cause severe emotional distress or reckless to the effect, (3) causation, (4) damages
62
TORTS. Defamation -
1. Public Official on Public Concern.
2. Reckless is measured by . . .
• A public official may not recover for defamatory words relating to his official conduct unless there is clear and convincing proof that the statement was made with actual malice (knowledge that the statement was false or reckless disregard). Recklessness is not measured by whether a reasonable person would have investigated before publishing but by whether the defendant subjectively entertained serious doubts about truthfulness
63
CONTRACTS. Article 2.
• “Article 2 of the Uniform Commercial Code (UCC) applies to transactions in goods. Goods are ‘things moveable’ at the time of identification to the contract. A contract under Article 2 may be made in ‘any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract."
64
CONTRACTS. Formation -- An offer.
• A person makes an offer when the person communicates to another a statement of “willingness to enter into a bargain,” so that the other understands that “his assent to the bargain is invited and will conclude it.” The terms of an offer need to be reasonably certain (parties, subject matter, price).
65
CONTRACTS. Option Contract.
| 1. Consideration under the common law / UCC?
• Under the common law, consideration is needed (or beginning performance on a unilateral contract). Under the UCC, no consideration is needed if there is a firm offer made in a signed writing by a merchant that holds open the offer for a time not exceeding three months
66
CONTRACTS. How to Accept.
1. Bilateral contract.
2. Unilateral contract.
• Under the common law, a bilateral contract may be accepted by mutual promise or by beginning performance. A unilateral contract may only be accepted by full performance. Under the UCC, both a unilateral and bilateral contract may be accepted by a promise to perform or by prompt shipment of goods
67
CONTRACTS. Acceptance Rules.
1. Common Law - Mirror Image Rule
2. UCC - express condition vs two merchants
• Common law rule is the Mirror Image Rule -- that any acceptance must exactly mirror the offer. Otherwise, it’s a counteroffer. Under the UCC, even if acceptance does not mirror the offer, there is still an acceptance unless the “acceptance” is expressly conditioned on acceptance of different or additional terms. If both parties are merchants, additional terms become part of the contract unless there is an objection or they materially alter the contract
68
CONTRACTS. Consideration.
1. Definition
2. Modify a contract under the common law vs contract
• A bargained-for exchange of something of legal value. Generally, under the common law, consideration is necessary to modify a contract. Under the UCC, only good faith is needed to modify a contract.
69
CONTRACTS. Modification.
• Under the common law, consideration is required. Under the UCC, no consideration is required, only good faith is required
70
CONTRACTS. Performance.
1. Common law rule. Exception.
2. UCC rule. Exception.
• Common Law - A party must “substantially perform” its contractual obligations to demand performance (usually payment), unless there was an express pre-condition. UCC Art 2 – Requires perfect tender for anything other than an installment contract, otherwise can reject goods
71
CONTRACTS. Expectation Damages.
1. Aims to . . .
2. Must be ___ and ___.
• “The normal measure of damages for breach of contract is expectation damages, which aim to give the nonbreaching party the benefit of his bargain. Expectation damages must be foreseeable and proved with reasonable certainty."
72
CONTRACTS. Mitigation of Damages.
• A party must try to mitigate damages when possible and cannot collect damages that he could have otherwise reasonably mitigated
73
CONTRACTS. Punitive Damages.
• Not recoverable under Contract law; look to torts law
74
CONTRACTS. Merchant's Firm Offer.
• Under the UCC, an offer by a merchant to buy or sell goods in a signed writing that, by its terms, gives assurances that it will be held open is not revocable for lack of consideration during the time stated (< 3 months). If the term assuring that the offer will be held open is a form supplied by the offeree, it must be separately signed by the offeror
75
CONTRACTS. Statute of Frauds.
• Under the common law, land, marriage, suretyships, contracts over a year, and executory promises. Under the UCC, covers the sale of goods over $500, except for the merchants’ confirmatory memo, part performance, judicial admissions, and unique goods. A contract is formed when parties orally agree to the sale of property. However, the oral contract is unenforceable unless a memorandum containing the contract’s essential terms is signed by the party to be charged
76
CONTRACTS. Unilateral mistake.
• Where only one of the parties is mistaken about facts relating to the agreement, the mistake usually will not prevent contract formation. But if the non-mistaken party is aware of the mistake, the mistaken party has the right to rescind
77
CONTRACTS. Shipment Contract.
• UCC presumes a shipment contract — the seller must ship the goods by carrier, the risk of loss passes to the buyer when the goods are delivered to the carrier. BUT if the buyer has a right to reject the goods, the risk of loss does not pass to the buyer until the defects are cured or the buyer accepts the goods
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CONTRACTS. Rejection.
• To properly reject, the rejecting party must, within a reasonable time after delivery and before acceptance, reject the goods or notify the seller of the rejection
79
CONTRACTS. Restitution.
• Where a builder in a construction contract breaches during the construction, the non breaching party is entitled to the cost of completion plus compensation for any damages caused by the delay in completing the building. Most courts will allow the builder to offset or recover for work performed to date to avoid unjust enrichment of the owner. Restitutionary recovery is based on the benefit received by the unjustly enriched party. If substitute performance is readily obtainable, damages are measured by the unpaid contract price minus the cost of completion (up to the value of the benefit received by the defendant).
80
CONTRACTS. Third-Party Beneficiary Rights.
• An intended third-party beneficiary can enforce a contract only after its rights have vested. Vesting occurs when the beneficiary: (i) manifests assent to the promise in a manner invited or requested by the parties; (ii) brings suit to enforce the promise; or (iii) materially changes position in justifiable reliance on the promise
81
CONTRACTS. Assignment.
• Once the assignment is effective, the assignee (the trucking company) becomes the real party in interest, and he alone is entitled to performance under the contract. (The assignor has been replaced by the assignee.) Once the obligor (the buyer) has knowledge of the assignment, he is bound to render performance to the assignee
82
CIV PRO. SMJ - Federal Question Jurisdiction.
• The federal question must appear on the face of the plaintiff’s well-pleaded complaint
83
CIV PRO. SMJ - Diversity Jurisdiction.
• Requires (1) complete diversity of citizenship, and (2) the amount in controversy must be over $75,000. Rules of domicile are tested with diversity jurisdiction. Look to where a party is domiciled at the time the lawsuit is filed
84
CIV PRO. SMJ - Supplemental Jurisdiction.
• Common nucleus of operative fact. You can get supplemental jurisdiction for a state claim against a different defendant so long as there is federal Q smj
85
CIV PRO. Personal jurisdiction.
• Both the State’s long arm statute and DPC of 14A must allow for jurisdiction. Discuss specific jurisdiction and general jurisdiction. Discuss minimum contacts. Look for “purposeful availment” of the benefits and protections of the state. Examine the quality of the contacts with the state
86
CIV PRO. Venue.
• Venue is proper in a district where (1) any defendant resides if all defendants reside in the same state, (2) in a district where a substantial part of the events or omissions giving rise to the claim occurred, or (3) where a substantial part of property that is subject to the action is situated
87
CIV PRO. Transfer to a more appropriate forum.
• Under § 1404, the federal court has authority to transfer a case to another federal district for the convenience of the parties and witnesses and in the interest of justice. The new forum must have SMJ and PJ. The court will apply the law of the transferor forum
88
CIV PRO. Summary Judgment.
• “There must be no genuine issue as to any material fact.” Moving party must meet its burden of production, and then the nonmoving party must respond
89
CIV PRO. Erie Doctrine.
• Under the Erie doctrine, when a state law-based claim is brought in federal court based on diversity of citizenship, the federal court generally applies the substantive law of the state in which it is sitting. However, where a specific federal statute or the Federal Rules of Civil Procedure are on point, the federal court must apply federal procedural law as long as the federal rule is valid. Under the Rules Enabling Act, a Federal Rule is valid if it deals with "practice or procedure" and does not "abridge, enlarge, or modify" a substantive right
90
CIV PRO. Joinder.
• To determine if the party is truly indispensable, the first step is to determine whether the absentee should be joined. One reason why an absent party should be joined is when complete relief cannot otherwise be accorded among parties. However, under the tort law in a number of states, any single joint tortfeasor may be liable for the entire wrong, making complete relief for the plaintiff possible. Another reason to join an absent party is if he has an interest in the subject matter of the suit such that, without his presence, his ability to protect his interest will be impaired or the existing parties will be subject to a substantial risk of incurring multiple or inconsistent obligations
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CON LAW. Eminent Domain.
• “Eminent domain is a restriction on government takings and arises from the Fifth Amendment as applied to the states through the Fourteenth Amendment."
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CON LAW. First Amendment.
• “The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment."
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CON LAW. Government Speech.
• Under the Due Process Clause of the Fifth Amendment, a person has a liberty interest in the exercise of specific rights provided by the Constitution, including freedom of speech. A government employee may not be fired for expressing his views regarding public issues, but can be fired for speech that disrupts the employer's policies or undermines the employer's authority. Under the Court's expansive interpretation of what a public issue is in this context
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CON LAW - Commercial Speech
• If the speech regulated concerns a lawful activity and is not misleading or fraudulent, the regulation will be valid if it (i) serves a substantial government interest, (ii) directly advances the interest, and (iii) is narrowly tailored to serve the substantial interest. While this test does not require that the least restrictive means be used, there must be a reasonable fit between the legislation's end and the means chosen. The greater the restriction on speech, the less likely it will be deemed to be reasonable. A complete ban on truthful advertising of a lawful product is very unlikely to be upheld because such a restriction is not narrowly tailored
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CON LAW - Takings
• If a government regulation denies a landowner all economic use of his land, the regulation generally will constitute a "taking" requiring the payment of "just compensation" under the Fifth Amendment. However, regulations that merely decrease the value of property do not necessarily result in a taking as long as there remains an economically viable use for the property. The court will consider (i) the social goals sought to be promoted, (ii) the diminution in value to the owner, and (iii) whether the regulation substantially interferes with distinct, investment-backed objectives
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CON LAW - 1A State Action
• Required in order to sue under the First, Fourteenth, or Fifteenth Amendment. Look for a state actor (e.g., a company town).
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CON LAW. Commerce Clause.
• “Under the Commerce Clause, Congress has the power to regulate interstate commerce.” Congress has the power to regulate the channels and instrumentalities of interstate commerce, the persons and things in interstate commerce, or anything that has a “substantial effect” on interstate commerce
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CON LAW. Dormant Commerce Clause.
• If Congress is silent, states may regulate commerce. When states regulate interstate commerce in the absence of congressional regulation, one of two tests is used to determine if the law is constitutional. If the law is discriminatory, strict scrutiny is used. For a regulation to discriminate against interstate commerce, it must treat economic interests from within the state differently from economic interests from outside of the state. If the law is merely a “burden” on interstate commerce, a burden-benefit analysis is used. State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid as violations of the negative implications of the Commerce Clause. If a state law that treats local and out-of-state interests alike nonetheless burdens interstate commerce, it will be invalid unless the burden outweighs the promotion of a legitimate local interest. Dormant commerce clause does not apply when Congress is regulating or when the state is acting as a market participant
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CON LAW. Anti-Commandeering Doctrine.
• Congress cannot “commandeer” states and force states to enforce federal laws. Congress will either have to regulate directly or regulate indirectly by threatening to take away funding if the state does not adopt a law (under Congress’s spending power).
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CON LAW. Equal Protection Clause.
• “The Equal Protection Clause of the Fourteenth Amendment provides that no state shall deny to any person within its jurisdiction the equal protection of the laws
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CON LAW. EPC - Rational Basis Review.
• Plaintiff must prove that the law is not rationally related to a legitimate government interest. Poverty, wealth, age, education, disability
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CON LAW. EPC - Intermediate Scrutiny.
• The government must prove that the classification is substantially related to an important government interest. Gender and illegitimacy classifications
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CON LAW. EPC - Strict Scrutiny.
• The government must prove that the law is narrowly tailored (necessary) to achieve a compelling interest. Applies to fundamental rights, racial or ethnic discrimination, alienage by state except if public function doctrine
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CRIM LAW. Homicide
• “In order to be guilty of murder, defendant must have the mens rea of malice aforethought which is satisfied in most jurisdictions with intent to kill (first degree), with knowledge that his acts would kill (first-degree), with intent to inflict great bodily harm (second-degree), or with reckless disregard of an extreme risk to human life (second-degree)."
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CRIM LAW. First Degree Murder. Intentional Killing.
"Intentional killing with premeditation and deliberation.” With malice aforethought, intentional conduct with intention to kill
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CRIM LAW. Voluntary Manslaughter. Intentional Killing.
• “An intentional killing of a human being in the heat of passion due to adequate provocation.” Without malice aforethought. Conduct and result intentional, but excused due to the circumstances
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CRIM LAW. Second-Degree Murder. Unintentional Killing.
• “(1) Extreme recklessness, (2) intentional infliction of great bodily harm and death results, (3) catch-all.” With malice aforethought
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CRIM LAW. Involuntary or Misdemeanor Manslaughter.
• “(1) A killing due to gross negligence or recklessness; (2) a killing during a misdemeanor or felony that does not qualify for felony murder.” Without malice aforethought. Neither conduct nor result intentional
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CRIM LAW. Felony Murder
• “Defendant commits a felony and someone other than the co-felon dies. The death can occur during the commission of the felony, the attempt to commit it, or the flight from it. The felony must be inherently dangerous and there must be causation. Under the agency theory, a defendant or his agent must cause the death. Under the proximate cause theory, the felon is liable so long as he “sets in motion” the acts that cause the death."
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CRIM PRO. Fourth Amendment.
• The 4A applies to searches or seizures conducted by government agents in areas where the complaining individual has a reasonable expectation of privacy. An agent usually needs a warrant. However, there are many exceptions, including exigent circumstances, search incident to arrest, consent, the automobile exception, plain view, inventory searches, special needs, and Terry stops.”• To have standing, a person must have a reasonable expectation of privacy
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CRIM PRO. Fifth Amendment
• 5A applies in a custodial interrogation. An interrogation is “any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response” from the suspect. Custody is either a formal arrest or “restraint on freedom of movement of the degree associated with a formal arrest.” If a suspect invokes 5A protection, he must do so explicitly, unambiguously, and unequivocally. A defendant may waive his rights if he makes a “knowing, intelligent, and voluntary” waiver. If a violation occurs, the statements are excluded from the prosecutor’s case-in-chief. However, any “physical fruits” can be admitted against the defendant if the defendant made the statements voluntarily.
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EVIDENCE. Relevancy.
• Evidence is relevant if it has any 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
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EVIDENCE. Lay Witness.
• A lay witness must have personal knowledge and her opinion must be rationally based on her perception, helpful to the trier of fact, and not based on scientific, technical, or specialized knowledg
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EVIDENCE. Expert witness.
• An expert witness must be qualified by knowledge, skill, experience, training, education, and their testimony must be helpful to the trier of fact and based on sufficient facts or data
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EVIDENCE. Hearsay.
• An out of court statement offered in evidence to prove the truth of the matter asserted
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EVIDENCE. Hearsay Exception - Present sense impression and excited utterance.
* An excited utterance is a “statement relating to a startling event or condition made while the declarant was under the stress or excitement that it caused.”
* A present sense impression is “a statement describing or explaining an event or condition made while or immediately after the declarant perceived it.”
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EVIDENCE. Hearsay Exception - Statement made for medical diagnosis or treatment
• These statements must be made for and reasonably pertinent to medical diagnosis or treatment and describe medical history, past or present symptoms or sensations, their inception, or their general cause
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EVIDENCE. say Exception - Records of a regularly conducted activity (business records exception).
• A record of “acts, events, conditions, opinions, or diagnoses” is admissible if it is made “at or near the time” of the event recorded by a “person with knowledge” of the event. Making of the record must occur in the course of a regularly conducted business activity and it must be the regular practice of the business to make such a record
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EVIDENCE. Hearsay Exceptions that Require Unavailability
• Unavailable – (i) exempted from testifying on the grounds of privilege, (ii) refuses to testify despite a court order, (iii) testifies to lack of memory of the subject matter of the statement, (iv) cannot be present or testify because of death or physical or mental illness, or (v) is beyond the reach of the court’s subpoena and the statement’s proponent has been unable to procure his attendance or testimony by process or other reasonable means. Former testimony of an unavailable declarant: The testimony of a witness who is unavailable, given at another hearing, is admissible in a subsequent trial if there is sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examination at the prior hearing was meaningful. The former testimony is admissible upon any trial of the same subject matter. The party against whom the testimony is offered or, in civil cases, the party's predecessor in interest must have been a party in the former action. "Predecessor in interest" includes one in a privity relationship with the party, such as grantor-grantee, testator-executor, life tenant-remainderman, and joint tenants. These requirements are intended to ensure that the party against whom the testimony is offered (or a predecessor in interest in a civil case) had an adequate opportunity and motive to cross-examine the witness. Dying Declaration – In a civil case or homicide prosecution, a statement made by a now unavailable declarant while believing his death to be imminent, that concerns the cause or circumstances of what he believed to be his impending death, is inadmissible. For this exception to apply, the declarant need not actually die. A statement based on mere suspicion rather than actual knowledge does not constitute a statement concerning the cause or circumstance of an “impending death.” Statement against interest – Requires that the declarant be unavailable as a witness. A declarant is unavailable if: (i) she is exempted from testifying because the court rules that a privilege applies, (ii) she refuses to testify concerning the statement despite a court order to do so, (iii) she testifies to not remembering the subject matter of the statement, (iv) she cannot testify because she has died or is ill, or (v) she is absent and the statement’s proponent is unable to procure her attendance or testimony by process or other reasonable means
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EVIDENCE. Impeachment.
• Any party can impeach a witness to show the jury should not believe her. Impeachment by prior inconsistent statement, by conviction of a crime, by prior bad act, by reputation or opinion for untruthfulness, by evidence of bias, by sensory deficiencies, or by contradiction
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EVIDENCE. Two Spousal Privileges.
• There are two separate privileges related to marriage. There is spousal immunity, under which: (i) a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and (ii) a married person may not be compelled to testify against her spouse in any criminal proceeding. In federal court, this privilege belongs to the witness-spouse so that she may not be compelled to testify, but neither may she be foreclosed from testifying. This privilege terminates upon divorce. There is also a privilege for confidential marital communications, under which either spouse, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were married. Both spouses jointly hold this privilege. Divorce does not terminate this privilege retroactively. Because the communication must be made in reliance upon the intimacy of the marital relationship, if the communication is made in the known presence of a stranger, it is not privileged. Similarly, if one spouse voluntarily reveals the contents of the communication to a stranger, that spouse waives the protection of the privilege as to herself (i.e., she cannot use the privilege to refuse to disclose, or to prevent another from disclosing, the communication), but the other spouse (i.e., the one who did not reveal the communication) retains this privilege.
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EVIDENCE. Character Evidence.
• Character evidence is inadmissible to prove that someone acted in accordance with his character at the time the event occurred. Generally, character evidence is tested in the context of a criminal case. In a criminal case, character evidence is inadmissible in the prosecutor’s case-in-chief to prove that the defendant acted in conformity with his own character. However, the defendant in a criminal case may introduce evidence of a pertinent (relevant) character trait to prove that he acted in conformity with his character at the time in question. He can do this by reputation or opinion evidence. Then, the prosecutor may rebut by using reputation evidence, opinion evidence, or cross-examining the defendant’s witness by asking about specific acts
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PROPERTY. Quitclaim deed.
• A quitclaim deed contains no covenants
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PROPERTY. Warranty deed.
• A warranty deed contains six present and future covenants: right to convey, seisen, no encumbrances, further assurances, quiet enjoyment, and warranty
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PROPERTY. Equitable Conversion.").
• The idea that the buyer’s interest is real property as soon as the contract of sale is signed, and the seller’s interest is personal property (that is, the money made from the sale). You can think that “in equity, the land converts to the buyer
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PROPERTY. Merger
• Once the closing occurs, the contract merges with the deed and the buyer can only sue on the deed at that point
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PROPERTY. Wild Deed.
• Not properly recorded in the chain of title
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PROPERTY. Recording Act.
“At common law, the principle rule was first-in-time, first-in-right. There are three different recording acts: A notice act provides that a conveyance of interest in land is not valid against any subsequent purchaser for value without notice unless it is recorded. A race-notice act provides that no conveyance of an interest in land is valid against any subsequent purchaser for value without notice unless it is recorded first. A pure race act protects a subsequent purchaser who records first."
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PROPERTY. Notice.
• There are three types of notice: Actual notice is actual knowledge. Record notice is present if the prior deed is recorded in the chain of title. Inquiry notice is present if the buyer could have (and should have) inspected the land and been alerted to the presence of another interest in the property
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PROPERTY. Mortgage.
• When the mortgagor transfers title to the property, the mortgage remains on the property and the mortgagor is still personally liable for the loan. Mortgagee is the bank. If the transferee takes the land subject to the mortgage, they will not be personally liable. If the transferee assumes the mortgage, they will be personally liable along with the original mortgagor. If there’s a novation, only the transferee is liable
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PROPERTY. Lease - Tenant's Duties.
• Tenant has specific duties to pay rent and maintain property. Otherwise, landlord can sue tenant or treat act as a surrender. Under the common law, the landlord has no duty to mitigate damages
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PROPERTY. Easement.
• Nonpossessory right to use the property of another
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CIV PRO: What is the time limit to file a motion for relief from judgment to correct clerical mistakes?
There is no time limit to file a motion for relief from judgment to correct clerical mistakes, and the court order correcting the error dates back to the time judgment was entered
