I CAME TO WIN Flashcards

Question

# hearsay / exceptions / declarant unavailable what is required for the statements against interest exception? | Evidence

Answer 1

(1) at the time it was made, statement was against the (2) declarant's pecuniary, proprietary, civil, or penal interest (3) such that a reasonable person would not have made the statement (4) UNLESS it were true statements that would subject the declarant to CRIMINAL liability are NOT admissible UNLESS corroborating circumstances clearly indicate the trustworthiness of the statement | applies to civil + criminal cases

Answer 2

**BUMPERS** * **p**resent sense impression * **e**xcited utterance * **s**tate of mind * statements made for the purposes of **m**edical diagnosis or treatment * past **r**ecollection recorded * **b**usiness records * p**u**blic records * learned treatises * judgment of previous conviction * records of vital stats * statements in ancient docs * market reports and commercial publications * marriage and baptism certificates etc.

Answer 3

statement made while declarant was perceiving the event or immediately after, describes or explains the event NOT excluded as hearsay | like narrating what's happening in real time to someone on the phone

Answer 4

statement relating to a startling event or condition while the declarant is still under the stress of excitement caused by the event or condition NOT excluded as hearsay

Answer 5

statement of a declarant's then-existing physical, mental, emotional condition is ADMISSIBLE to prove the existence of that condition statement of intent can be used to prove action in conformity with that intent NOT excluded as hearsay

Answer 6

ADMISSIBLE if relate to 1. activities 2. observations AND 3. factual findings and conclusions

Answer 7

* criminal defendants have the right to be confronted with the witnesses against them * witnesses must testify in front of the accused (face-to-face preferred) * out of court statements that are testimonial give rise to Confrontation Clause problems | remember that testimonial means if declarant would reasonably expect it to be used in a prosecution

Answer 8

only be admitted against a criminal defendant IF 1. declarant is now unavailable AND 2. declarant had a prior oppy to cross examine that declarant

Answer 9

_substantively_ (1) it was given under penalty of perjury at a trial, hearing, deposition, or other proceeding AND (2) the declarant testifies and is subject to cross-examination _impeachment_ extrinsically for impeachment purposes if the witness has the opportunity to explain or deny, and the adverse party can examine the witness about, the statement

Answer 10

* intrinsic evidence - examining witness about the statement OR * extrinsic evidence IF (1) witness has oppy to explain or deny AND opposing party can question witness about it OR (2) justice so requires

Answer 11

* compete with partnership business * advance an interest that is adverse to the partnership * usurp a partnership oppy

Answer 12

* engage in grossly negligent or reckless conduct * engage in intentional misconduct * engage in a knowing violation of law partnership agreement may not unreasonably reduce the duty of care

Answer 13

* event triggered in partnership agreement * expelled pursuant to partnership agreement * unlawful to continue to do business with that partner * court may order that they disassociate * partner goes bankrupt * partner dies * partner becomes incapacitated * one of the entities dissolves (if entity not human)

Answer 14

if partnership dissociates --> former parter has no right to participate in management of the partnership + partner no longer has any duties if partnership continues --> must buy out the dissociated partner's interest all partners (including any properly dissociated partners) must agree to waive the right to terminate the partnership (Essay 4982)

Answer 15

open-ended partnership with no fixed term dissolved when any partner chooses to dissociate

Answer 16

partnership may be dissolve when the term expires or when the undertaking is complete

Answer 17

Evidence of an additional promise made before the written contract was entered into that does not contradict the contract **may** be considered **unless** the parties would certainly have included the term in the contract.

Answer 18

prevents a party to a written contract from presenting extrinsic evidence of a prior or contemporaneous agreement that contradicts the terms of the contract as written whether any of the earlier oral or written terms are part of the parties’ contract, even though they are absent from the parties’ written agreement

Answer 19

firm offer must be (1) written (2) signed by the offeror (a merchant) and (3) contain an explicit promise not to revoke firm offer can include a condition

Answer 20

mirror image rule terms in the acceptance must match the offer exactly or it is a counteroffer (not acceptance)

Answer 21

(1) definite and seasonable expression of acceptance (2) sent within reasonable time **is an acceptance** (3) even though additional or different terms (4) unless acceptance is expressly made conditional on the additional/different terms more forgiving of accpetnaces that don't match exactly doens't matter whether parties are merchants ## Footnote UCC 2-207

Answer 22

only if 1. both parties are merchants 2. new term doesn't materially alter the deal 3. initial offer didn't expressly limit acceptance to its terms **AND** 4. offeror doesn't reject/object the new term within a reasonable time

Answer 23

knock-out rule (majority) - neither term governs, UCC gap-filling rules apply minority states - intial offer controls

Answer 24

(1) written confirmation (2) sent within reasonable time (3) operates as an acceptance Under the UCC, an exception to the SOF applies when (1) both parties are merchants (2) a memorandum sufficient against one party is sent to the other party who has reason to know of its contents, and (3) the receiving party does not object in writing within 10 days of receipt of the memorandum. In that case, the contract is enforceable against the receiving party even though he has not signed it. | think of early agreement + later writing with additional terms

Answer 25

preexisting duty rule - promise to do something that you are already legally obligated to do is NOT consideration but exceptions

Answer 26

* change in performance * 3p promising to pay * unforseen difficuties that would excuse performance

Answer 27

ask whether the debt is currenlty due and undisputed if so, modification is NOT binding

Answer 28

ask whether the modification is made in good faith if so, is it IS binding even without new consideartion

Answer 29

**PDI - promise made, deterimental reliance, injustice** 1. promise is made that would be reasonably expected to induce reliance 2. promsie does indeed take detrminental action in reliance on the promise AND 3. injustice can only be avoided by enforcement of the promise | don't need to prove #2 for charitable gift promise

Answer 30

1. plaintiff confers a measurable benefit on the defendant 2. plaintiff reasonably expected to get paid AND 3. it woud be unfair to let the defendant keep the benefit without paying look for oppy to decline or a good reason why there wasn't an oppy to decline

Answer 31

allows the **adversly affected party** to rescind if 1. there is a mistake of fact at the time the deal was made 2. mistake relates to a basic assumption of the contract + has material impact on the deal 3. impacted party didn't bear the risk of mistake

Answer 32

both signatures are NOT required the writing does NOT have to be a formal contract must cover the fundamental facts 1. contract has been made 2. ID the parties 3. contain the essential elements of the deal

Answer 33

UCC world! * signed writing satisifes - need quantity, price not required * part performance satisifies but only for the quantity delivered and accepted * custom-made goods are EXEMPTED from SOF, can satisify SOF as soon as maker makes a substnatial beginning towards manufacturing * judicial admission (incl. statement during testimony or a pleading) satisifies * confirming memo - failure to object to a confirming memo within 10 days will satisify SOF if both parties are merchants The UCC requires a contract for the sale of goods for $500 or more be evidenced by a writing that (1) identifies the subject matter of the agreement, (2) identifies the parties, (3) contains a quantity term, and (4) is signed by the party against whom enforcement is sought—i.e., the "party to be charged." A signature includes any authentication that identifies the party to be charged (not just a handwritten signature), such as a letterhead on the memorandum. The writing need not be an actual contract. Even a series of correspondence between the parties may suffice as a writing.

Answer 34

1. look at what the agreement entails - have the parties reduced their contract to a comprehensive writing? if so, earlier statemetns are not part of the deal 2. have the parties created an integrated writing?

Answer 35

1. will not bar evidence relevant to a defense against contract formation 2. even if a writing is completely integrated, a party can intro evidence of a second separate deal 3. even if a writing is completly integrated, party might be able to intro evidence of a prior comm that is designed to interpret an ambiguous term in the final agreement

Answer 36

1. express warranty 2. implied warranty of merchantability 3. implied warranty of fitness for a particular purpose

Answer 37

promise that affirms or describes goods + is part of the basis of the bargain unless it is merely the seller's opinion use of a sample or model creates an express warranty

Answer 38

triggered only when the seller is a merchant dealing in the goods at issue warrants that the goods are fit for **ordinary commercial purposes** can be disclaimed by using "as if" if (1) disclaimer uses the term "merchantability" and (2) must be conspicuous if in writing can be disclaimed orally

Answer 39

triggered when buyer relies on a seller's expertise to select a special type of good that will be used for a special purpose warrants that the goods will satisfy this special purpose can be disclaimed if (1) conspicuous and (2) disclaimer is in writing non merchant can extend this warranty if the buyer relies on any seller's expertise

Answer 40

**perfect tender:** (1) perfect goods and (2) perfect delivery exceptions: contract explicitly changes default rule, installment contracts

Answer 41

**substantial performance** if there is not a material breach only satisfied constructive condition of exchange if failure is not willful divisible contracts

Answer 42

1. does the contract already deal wtih this problem? if so, that controls. 2. has either party breached? (typically part of contract) if so, breaching party bears risk (even if breach is totally unrelated to delivery damage) 3. if no breach and goods are being shipped, what type of delivery contract is it? shipment - buyer bears risk destination - seller 4. all other cases: is the seller a merchant? yes, risk of loss is with seller until buyer receives the goods no, risk of loss moves to the buyer when seller tenders the goods

Answer 43

1. expectation damages must be proven with **reasonable certainty** 2. unforeseeable consequential damages 3. mitigation

Answer 44

if any one of the following is true 1. beneficiary determinately relies on the rights 2. beneficiary manifests assent to the contract 3. beneficiary filed a lawsuit to enforce the contract

Answer 45

not liable unless they receive consideration from the delegating party

Answer 46

depends on type of auction reserve auction - may withdraw goods prior to completion of sale no-reserve auction - goods cannot be withdrawn after auctioneer calls for bids

Answer 47

bidder has right to withdraw a bid until the auctioneer announces completion of the sale under reserve OR no-reserve auction

Answer 48

not required to have consideration without consideration --> revocable by signer unless (1) obligor already performed (2) doc symbolizing the assigned right has been delivered to the assignee, (3) written assigns signed by the assignor has been delivered to the assignee OR (4) the assignee has determinately relied on the assignment

Answer 49

allows evidence that might **add to the terms** but EXCLUDES evidence that would **contradict** the terms of the agreement

Answer 50

1. shipping the goods terms of the offer are the contract terms effective when shipment is made OR 2. promising to ship the goods if merchants: contract terms are terms of the offer + battle of the forms if not merchants: terms of offer, new terms are proposals

Answer 51

implied-in-fact contract is created ONLY when conduct indicates assent or agreement implied-in-law = quasi-contract

Answer 52

degree of uncertainty relating to the nature and duration of situation extent to which a delay in making substitute arrangements would have prevented the entire contract

Answer 53

1. if goods already exist + identified - when contract is made OR 2. (future goods) - earliest of when goods are shipped, marked, or otherwise designated by the seller

Answer 54

if assignment would 1. materially change duty of obligor 2. materially inc burden or risk on obligor 3. materially impair obligor's chance of obtaining return performance OR materially reduce value of that return promise 4. forbidden by statute or precluded by PBPL 5. validly precluded by contract

Answer 55

Contracts that fall within the Statute of Frauds are unenforceable unless evidenced in writing and signed by the party to be charged. A contract for the sale of goods for a price of $500 or more is subject to the SOF.

Answer 56

parties to an earlier contract agree that performance will be satisfied instead by the completion of a different performance the new performance is the accord excusal of the initial performance obligation is the satsification

Answer 57

**each installment** buyer MAY REJECT nonconforming goods that can't be cured OR substantially impairs the value of the installment buyer MUST ACCEPT conforming shipment OR nonconforming shipment with seller's promise to cure **whole contract** buyer can cancel future installments if nonconforming goods substantially impair value

Answer 58

1. principal manifests **assent** to the agent and agent manifests **assent** or otherwise consents 2. agent acts on principal's **behalf** AND 3. agent's actions are subject to principal's **control** | ABC ; make sure to list these in an exam answer

Answer 59

can be created via * oral or written words * clear, direct, and definite language OR * specific detailed terms and instructions agent must believe they are doing what the principal wanted them to do (subjective standard) + agent's belief must be reasonable (objective standard) look at communication b/t agent and principal

Answer 60

agent can take whatever actions (designated or implied) are properly necessary to achieve principal's objectives based on agent's reasonable understanding of the manifestations and objectives of the principal implied authority act within accepted business customs or general trade usage w/in an industry (agent must be aware of these before they act)

Answer 61

derives from a reasonable reliance of a 3p on that party's perception of the level of authority granted to the agent by the principal perception is based on principal's behavior does not require 3p to establish that they acted in reliance of principal's manifestations or suffered a determined

Answer 62

principal is liable for the appearance of authority arising solely from the **principal's failure** to take reasonable steps and use ordinary care 1. 3p is justifiably induced 2. to make a detrimental change in position b/c 3. that 3p believed the transaction was entered into for the principal AND 4. the principal (a) intentionally or carelessly caused the belief or (b) failed to take reasonable steps to notify them of the facts

Answer 63

* principal - actual vs. apparent authority * agent - undisclosed vs. disclosed principal

Answer 64

1. alter ego - investor/SH treated corporation just like itself 2. undercapitalization 3. fraud / fraud-like behavior 4. failure to follow corporate formalities (doesn't apply to LLC)

Answer 65

1. plaintiff purchased or sold the security 2. transaction involves interstate commerce 3. defendant engaged in fraudulent or deceptive conduct - making an untrue statement of a material fact (does not include opinions or predictions) 4. conduct related to material info 5. defendant acted with scienter - intentionally or recklessly 6. plaintiff relied on D's conduct 7. P suffered harm

Answer 66

1. applicable companies --> traded on national securities exchange OR assets over $10mm and over 500 SH 2. corporate insiders - BOD, officers, SH with 10+% 3. generally only transactions during or after becoming an insider (not before) 4. during any 6 month period, corporate insider who buys and sells the stock is liable to corporation for any profits | reason of buying/selling and having non-public info is irrelevant

Answer 67

1. must be in writing 2. signed by SH as of record date 3. sent to secretary of corporation 4. state that it authorizes someone else to vote SH's shares AND 5. cannot be valid for more than 11 month unless otherwise specified

Answer 68

* SH is suing on behalf of the corp for injury caused to the corporation * must be SH at time of harm and hold shares throughout the litigation (**standing**) * must fairly and **adequately** represent the interests of corporation * plaintiff SH has to first file a written **demand** BOD bring the lawsuit before SH can bring the suit (but demand futility defense in some states)

Answer 69

* **act with care that a person in a like position would reasonably believe appropriate under similar circumstances** * D/O owe this to corporation * Business Judgment Rule * use your special skills (accounting, law) * reliance defense - D/O is entitled to rely on expertise of officers, other employees, outside experts, committees

Answer 70

In making a business decision, there is a rebuttable presumption that the directors acted on an **informed basis**, **in good faith**, and their actions were in the **best interest** of the company, in the absence of fraud, illegality, or self-dealing.

Answer 71

* **may not receive an unfair benefit to the detriment of the corporation w/o effective disclosure and ratification** * self-dealing transitions * corporation opportunity doctrine - usurping or stealing a corp oppy ways to cleanse 1. disclosed and ratified by vote of majority of disinterested directors 2. "" disinterred SH 3. demonstrate that the transaction was fair (best defense)

Answer 72

trying to determine whether the oppy is the type where it must first be offered to the corp 1. interest or expectancy test whether the corporation has an existing interest or an expectancy arising from an existing right in the opportunity expectancy can also exist when the corporation is actively seeking a similar opportunity 2. line of business test whether the opportunity is within the corporation’s current or prospective line of business key is how expansively the corporation’s line of business is characterized

Answer 73

1. members dominated the entity in such a way that the LLC had no will of its own 2. members used that domination to commit a fraud or wrong 3. control and wrongful action proximately caused the injury

Answer 74

petitioner must demonstrate that there was such a unity of interest and ownership b/t entity and members that, in fact, the LLC did not have an existence independent of the members and that failure to pierce the veil through to the members would be unjust or inequitable

Answer 75

operating agreement can amend the duty of loyalty as long as it is not **manifestly unreasonable**

Answer 76

* self-dealing * any transaction b/t director and corp that would normally require approval of the board of directors AND that is of such financial significance to the director that it would reasonably be expected to influence the director’s vote on the transaction * can be direct or indirect * **must be financial and material**

Answer 77

* make sure to include lots of analysis in each part * if no structure given, see if one of the cases gives a structure * write numbers in blue pen to correspond to issue then cross out numbers * make sure to include a conclusion section

Answer 78

1. Due Process Clause (14th) - forum state may apply to its own law to a particular case only if it has **significant contact** or aggregation of contacts so that it's neither arbitrary nor fundamentally unfair 2. Full Faith and Credit - forum state to apply law of another state when forum state has no contacts or interest in the controversy state may apply its own **substantive law** to an issue ONLY IF state has a **significant contact** or aggregation of contacts with the issue such that application of its own law is neither **arbitrary nor fundamentally unfair**

Answer 79

1. valid agreement with effective choice of law clause 2. applicable to the lawsuit under terms of contract 3. reasonably related to the lawsuit AND 4. not in violation of pbpl of forum state or another interested state choice of law provisions are generally enforceable

Answer 80

1. traditional approach / vested rights approach / 1st Restatement 2. governmental interest analysis 3. most significant relationship / 2nd Restatement

Answer 81

law that controls is the law of the jurisdiction **where the parties' rights were vested** (act or relationship that gave rise to the cause of action occurred or was created) court only needs to determine where legal right vested + apply law of that place

Answer 82

presumed that forum state will apply its own law, but another state may have a greater interest state has interest in applying conduct-regulating law when wrongful conduct occurs w/in its territory or domiciliary is injury state has interest in applying loss-shifting law when it would benefit a state domiciliary conduct-regulating laws - designed to regulate conduct, label conduct as wrongful loss-shifting laws - determine who can/can't be liable

Answer 83

court must determine which state has the most significant relationship to the issue in question apply guiding principles (key ones below) 1. promote relevant policies of the forum and other interested states 2. protect systemic interests like certainty, uniformity, predictability, and simplicity 3. protect justified expectations of the parties for planned transactions | additional factors for certain areas of law (torts, contracts, etc.)

Answer 84

federal law always

Answer 85

federal district court in diversity case must apply choice of law rules of the state in which it sits Klaxon Rule

Answer 86

federal courts must give full faith and credit to state court judgments

Answer 87

if federal court had diversity jurisdiction over an action issues a judgment, then state court must give that judgment the same res judicata effect that judgment would have been given by courts of state where federal court was located

Answer 88

federal courts exercising diversity jurisdiction must apply the * substantive law of the states in which they sit as the law has been interpreted by the highest state court * federal procedural it is substantive if it is **outcome determinative** in a direct and certain enough way that it encourages forum shopping between state and federal court

Answer 89

* could write issue statements in yes/no + because format

Answer 90

D acts in **reckless disregard** of a high degree of harm, D realizes the risk and acts anyway **A**rson and **M**urder | "I AM certain there are two malice crimes"

Answer 91

D's **conscious objective** is to engage in the conduct or to cause a certain result

Answer 92

D is aware that 1. their conduct is of the nature required to commit the crime AND 2. the **result is practically certain** to occur from this conduct

Answer 93

D acts with a **conscious disregard** of a substantial and unjustifiable risk that constitutes a gross deviation from the standard of conduct of a law-abiding person

Answer 94

D **should be aware** of a substantial and unjustifiable risk and acts in a way that grossly deviates from the standard of care of a reasonable person in the same situation

Answer 95

both the planned crime + **any other foreseeable crimes** that occur in the course of the criminal act crimes that are the **natural and probable consequnece** of their conduct

Answer 96

_majority + MPC approach_ accomplice (1) must act with the purpose of promoting or facilitating the commission of the offense AND (2) must intend that their acts will assist or encourage the criminal conduct _minority_ accomplice is liable IF they **intentionally or knowingly** aids or causes another person to commit an offense

Answer 97

_general intent crimes_ defense ONLY IF mistake is reasonable + goes to criminal intent _specific intent crimes_ are a defense whether the mistake is reasonable or unreasonable question is whether the D held the mistaken belief

Answer 98

D has the burden of proving insanity either by a preponderance of the evidence OR clear and convincing evidence 1. M'Naghten test D either did not know the nature of the act OR did not know the act was wrong B/C OF mental disease or defect 2. Irresistible impulse test D has a mental disease or defect that prevents D from controlling themself 3. Durham rule D would not have committed the crime BUT FOR having a mental disease or defect 4. MPC due to a mental disease or defect, D did not have **substantial capacity** to appreciate the wrongfulness of their actions OR to confirm their conduct to the law

Answer 99

1. agreement 2. b/t 2+ people 3. to commit an unlawful act 4. **performance of an overt act** (lawful or unlawful) in furtherance of the conspiracy MPC doesn't require overt act if conspiratorial crime is felony 1st or 2nd | #4 is difference from common law

Answer 100

_MPC / federal law_ conspirator can withdraw **prior to the commission of any overt act** by communicating her intention to withdraw to all other conspirators OR by informing law enforcement after an overt act, conspirator can withdraw only by helping to thwart the success of a conspiracy _common law_ impossible to withdraw b/c crime is complete the moment the agreement is made

Answer 101

must be a causal relationship b/t D's actions and what happened to victim **actual causation** - victim wouldn't have died but for what D did AND **proximate causation** - D's act is a foreseeable cause of victim's death / death is the natural and probable result of the conduct independent actions by 3p are not a foreseeable cause

Answer 102

* specific intent crime * **deliberate and premeditated** murder OR * a killing that results during the commission of an inherently dangerous felony | felony murder is frequently classified as M1

Answer 103

unlawful killing of another human being committed with **malice aforethought** lawful killing of another is not murder (ex. state execution) 1. **intent to kill** - D acted with desire that the victim end up dead, intent need not be premeditated 2. **intent to inflict serious bodily harm** - D intended to hurt the victim badly and victim died 3. **abandoned or malignant heart or depraved heart** - D acted with cavalier disregard for human life and death resulted D must realize their conduct is really risky, but doesn't need intent regarding outcome of actions majority + MPC: D must actually realize there is danger minority: reasonable person would have recognized the danger 4. **felony** - death occurred during the commission or attempted commission of a dangerous felony (BARRK felonies) dangerous felony must be independent of killing itself can involve someone who resists the felony includes when bystander is killed during a felony can include 3p killed by resistor or police (majority uses agency theory - D is only responsible for crimes of D's agents)

Answer 104

* occurs when a D intends to kill the victim, but mens rea is less blameworthy than murder * acted in heat of passion or under extreme emotional disturbance * test: is this situation one in which most people would act w/o thinking and w/o time to cool off? | ex. walking in to your spouse in bed with someone else (not hearing about it)

Answer 105

* criminally negligent killing OR killing someone while committing someone other than those covered by felony murder (BARRK) * D who engages in a criminally negligent conduct and causes a death

Answer 106

robbery = larceny + assault 1. taking 2. another person's property 3. without their consent 4. with intent to deprive them of it permanently 5. taking occurs from victim's person or in their presence 6. either by violence or putting victim in fear of imminent physical harm

Answer 107

1. unlawful (consent is a complete defense) 2. application of force 3. to another person 4. that causes bodily harm OR an offensive touching general intent crime doesn't require actual physical contact b/t D and victim

Answer 108

* occurs when an officer, by means of physical force or show or authority, intentionally terminates or restrains a person's freedom of movement * whether a reasonable person would feel free to disregard the officer * stop and frisk / Terry stop * traffic stops * arrests * warrants * warrantless arrests * searches incident to arrest

Answer 109

* officer stops an individual when officer has **reasonable suspicion** based on **articulable facts** to believe suspect is or about to be engaged in criminal behavior * officer's reasonable mistake of law can give rise to reasonable suspicion * can pat down for only weapons, not evidence * if pat down reveals objects whose shape makes their identity obvious, officer can seize * if probable cause develops during a Terry stop, officer can make an arrest

Answer 110

* must be **probable cause** to believe that the idv has committed a crime * can be w/ or w/o arrest warrant

Answer 111

* officers must have **reasonable suspicion** to stop a car * once lawful stop, officers may pat down an occupant for weapons IF they have reasonable suspicion that person has a weapon * do not need reasonable suspicion at a checkpoint (stop everyone)

Answer 112

authorizes an officer to arrest a particular person 1. must be issued by a neutral and detached magistrate 2. must be based on finding of **probable case** to believe that they committed a particular crime AND 3. name the person and ID the offense

Answer 113

1. must be issued by neutral magistrate 2. must be based on probable cause to believe that the items sought are fruits, instrumentalities, or evidence of crime 3. must describe the property and place to be searched with particularity generally govt needs search warrant to conduct a search if there is a reasonable expectation of privacy | ex. bank robbery --> loot is fruit of the crime, gun is instrumentality, bloody shirt robber wore is evidence

Answer 114

passenger compartment of vehicle as long as suspect still has access to vehicle at the time can't start searching the car once suspect is in the back of the squad car b/c no longer a threat to officers and no longer risk of destruction of evidence (but can search car if it is reasonable that evidence of the offense of arrest might be found in the vehicle)

Answer 115

when (1) govt conduct violates a (2) reasonable expectation of privacy **govt conduct** * physical intrusion upon private property * can occur without a physical intrusion * using some types of technology (ex. thermal imaging device) can constitute a search

Answer 116

ESCAPES from the warrant requirement **E**xigent circumstances **S**earch incident to arrest **C**onsent **A**utomobiles **P**lain view (if officer is legally present) **E**vidence obtained from administrative searches **S**top and frisk

Answer 117

* if officers are in **hot pursuit** or there is **an immediate danger**, may conduct a search w/o a warrant * officers are entitled to secure premises while they obtain a warrant, but sometimes not sufficient * does not apply if police created the exigency * need warrant for DUI blood draw absent exigent circumstances

Answer 118

if police have **probable cause** to believe car contains contraband, can search those parts of the vehicle **that might contain contraband** even without an arrest ex. can't search the money holder for a machine gun (obvi too small to hold the gun)

Answer 119

Miranda warnings are required before custodial interrogations **custodial** person being questioned has been arrested or is otherwise not free to leave if not in custody, no warning is required **interrogation** official asking questions or engaging or words or conduct that police know/should know will elicit a response does not include volunteered statements or routine booking questions

Answer 120

_how to invoke_ 5th: must be affirmatively invoked by D 6th: auto attaches once there has been an indictment, info, or other formal charges exists unless D knowingly and intelligently waives _charges it applies to_ 5th: applies to custodial interrogation for ANY charge, but not to non-custodial interrogation 6th: ONLY applies to offense for which D has actually been charged (including any lesser-included offenses) doesn't apply to unrelated charges - D can be questioned still applies whether you're in custody or not applies to all felony prosecutions + any misdemeanor prosecutors for which jail time or suspended jail sentence is imposed all critical stages

Answer 121

If D moves to suppress evidence that a witness picked the D out of lineup, court will consider **whether the lineup was impermissibly suggestive** if so, court can exclude the testimony

Answer 122

illegally obtained evidence (physical evidence obtained by illegal search OR statement from illegal interrogation) is **inadmissible** at criminal trial of **person whose rights were violated** to prove their guilt applies at trial, not pretrial proceedings (like grand jury) evidence obtained in violation of 4th, 5th, or 6th applies to states through 14th _exceptions_ * knock and announce * inevitable discovery * independent source * attenuation in causal chain * good faith * negligence (half exception)

Answer 123

D must **knowingly and intelligently** waive these rights through plea allouction where judge asks questions * informs D of his rights and ensures that D understands * informs D of possible sentences * informs D of immigration consquences (but judge isn't required to inform of other collateral consequences) * determines that plea didn't come from force, coercion, threats, or promises * makes sure there is a factual basis for the plea

Answer 124

1. length of delay 2. reason for delay 3. whether D asserted their right to a speedy trial AND 4. risk of prejudice to D

Answer 125

1. right to confront witnesses against them (Crawford Doctrine) if statement is testimonial, 6th bars admission IF declarant is unavailable AND D had no prior oppy to cross-examine the witness if non-testimonal statement, look at rules of evidence 2. right to compulsory process to produce their own witnesses (Bruton Doctrine) D's own statements are **always admissible against him** even if the D doesn't testify at trial if co-D, a non-testifing co-D's statemetns are NOT admissible against the other D

Answer 126

Strickland test - assesses whether D was denied effective assistance 1. performance - did defense counsel's performance fall below wide range of reasonable conduct that lawyers might engage in 2. prejudice - reasonable probability that the result would have been different if counsel performed effectively

Answer 127

6th right to jury trial prohibits judges from enhancing sentences beyond statutory maximums based on facts other than those decided by jury beyond a resonable doubt BUT this doesn't apply to sentence enhancement based on prior criminal convictions (don't need to be found by a jury) ALSO judge is allowed to determine whether offenses are consecutive or concurrent (MBE Practice Exam #4)

Answer 128

* voluntary confessions are not protected by Miranda * involuntary ONLY IF police coerced D into making it * based on totality of circumstances - conduct of police, characteristics of D, time of the statement

Answer 129

use and derivative-use immunity (grant the woman immunity from any future use against her of her grand jury testimony or any evidence derived from it) prevents govt from using self-incriminating testimonial communications + any evidence derived from them against the suspect in any way that could lead to a criminal prosecution not if transactional immunity (grant the woman immunity from any future prosecution for any crime she might disclose in the course of her testimony) protects the suspect from being prosecuted for any crimes associated with self-incriminating testimonial communications

Answer 130

remember to write "as applied to states through the 14th"

Answer 131

1. SMJ - power of ct to decide this type of case 2. PJ - power of ct to decide the rights and liabilities of this D 3. Venue - which districts have proper venue (among cts with SMJ + PJ)

Answer 132

* complete diversity is required * every citizenship represented on P's side must be different from every citizenship represented on D's side

Answer 133

_one P + one D_ yep, P can aggregate all of her claims regardless of whether the claims are related _one P + multiple D_ P may not aggregate claims claims against **each D** must meet $75k _multiple P + one D_ P may not aggregate claims **each P** must seek $75k+ from D

Answer 134

removal is proper **ONLY** if the case originally could have been brought in federal court if the P chose to sue in federal court in the first place, would the fed ct had SMJ? only D can remove

Answer 135

only if 1. complete diversity 2. amount in controversy AND **3.** action is brought in a state of which no defendant is a citizen must remove within **one year** of the commencement of action in state court UNLESS P acted in bad faith if in D's home state court, D can't remove

Answer 136

allows a federal court with SMJ over a case to hear additional claims over which the ct would not independently have jurisdiction if ALL the claims constitute the **same case or controversy** same case or controversy if arise out of same common nucleus of operative fact, same transaction or occurrence not required to expand its jurisdiction

Answer 137

focus on the anchor claim (the federal question claim not the state law claim) if both claims are out of the same common nucleus of operative fact, fed ct may exercise supp jurisdiction over state law claim doesn't matter whether those claims involve joinder

Answer 138

state law claims must still be part of the **same case or controversy / common nucleus of operative fact** CAN'T exercise supp juris over * claims by P against persons made a party under Rules 14, 19, 20, 24 (if only one D, then it's okay) * claims by parties seeking to intervene as P under Rule 24 * claims by parties proposed to be joined a P under Rule 19 | these claims need to independently satisfy the div juris requirements

Answer 139

* compulsory - same transaction or occurrence as the opposing party's claim * permissive - does NOT arise out of same transaction or occurrence

Answer 140

if counterclaim is compulsory + brought by D, doesn't have to meet $75k

Answer 141

can only be heard by federal div court IF **it independently satisfies diversity jurisdiction**

Answer 142

1. arise out of the same t/o as anchor claim 2. must NOT be asserted by P against a person made a party under Rules 14, 19, 20, 24

Answer 143

1. in personam - against the person (further divided into general or specific) 2. in rem - against the thing 3. quais in rem - kinda against the thing

Answer 144

are there **sufficient contacts** b/t the D and forum state so that it would be consistent with traditional notions of **fair play** and **substantial justice** to sue the D here? Due Process minimum contacts --> whether there is Purposeful Availement by D

Answer 145

P can assert any claims against D, **even if unrelated** to D's contacts with the forum state whether a corporation’s affiliations with the forum state are so “continuous and systematic” as to render the corporation essentially “at home” in the forum state | additional from Essay 4983

Answer 146

1. physical presence within the state 2. domicile 3. consent 4. corporations

Answer 147

service of process on D while they are physically present in the state --> knowingly and voluntarily in the state EXCEPTIONS only in the state because of summons force fraud

Answer 148

1. expressly 2. implicitly (by not raising the issue) 3. appointment of an agent for receiving process 4. contract

Answer 149

P's claim must **arise out of D's forum contacts** OR be directly related to those contacts D must have **sufficient minimum contacts** with forum such that exercise of juris is fair state long arm statutes authorize specific jurisdiction based on some minor contacts

Answer 150

1. **Federal Interpleader Act** - nationwide service of process 2. **Bulge Provision of Federal Rules** - allows service anywhere within 100 miles of federal court for (1) impleading 3p D under Rule 14 + (2) joining necessary parties under Rule 19 3. **Unusual Provision Rule 4k2** - if D is not subj to PJ in any state + suing under federal law --> federal ct can exercise jurisdiction as long as D has minimum contacts with US as a whole

Answer 151

suit can be brought against a **piece of property** if (1) property is in the state where you are suing and (2) suit will settle all rights and everyone's claims to the property any property - real or personal form of specific jurisdiction

Answer 152

okay as long as it follows the law of the state in which the federal court is based

Answer 153

moving party has to establish under oath 1. immediate and irreparable injury if there is a delay 2. moving party's atty has to certify any efforts that have been made to give notice and why notice is not required

Answer 154

1. where any D resides (as long as ALL D reside in the same state) OR 2. where the claim arose (substantial part) 3. if neither 1 or 2, any district where D is subject to PJ has venue

Answer 155

venue is automatically proper in federal district where state court sits even if it would not have been proper originally

Answer 156

1. avoid forum shopping 2. avoid inequitable administration of justice

Answer 157

1. must concern same conduct, transaction, or occurrence as OG pleading AND 2. new party must have known or had reason to know that the action should have been brought against it but for a mistake

Answer 158

P or D can join IF 1. claims are out of the same t/o (or series) AND 2. common question of law or fact | FRCP 20

Answer 159

* all joinder rules assume there is SMJ * diversity jurisdiction: **no party** can join whose presence would destroy complete diversity

Answer 160

focus is on what D can compel P to do 1. Is bringing in this party necessary for **a just adjudication**? if yes, they're necessary risk of inconsistent liability, prejudice to existing parties, complete relief can't be granted without them 2. Is it feasible to add the new party? feasible if (a) won't deprive the court of SMJ and (b) court can exercise PJ over necessary party 3. If not, court decides to proceed without the necessary party OR dismiss the whole suit b/c they're indispensable a person is a required party to a federal action and must be joined (if joinder is feasible) IF any of the following is true: (A) in that person’s absence, the court cannot accord complete relief among existing parties; OR (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may: (i) as a practical matter impair or impede the person’s ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. | FRCP 19

Answer 161

compulsory counterclaim if lost if not pleaded now permissible counterclaims can be raised now or later

Answer 162

supplemental jurisdiction is generally available if SMJ over main claim, there's SMJ over compulsory counterclaim diversity case: if counterclaim is raised by D, okay amount of the claim usually doesn't matter

Answer 163

does NOT arise out of same t/o may be pleaded now or later has to be timely (statute of limitations) requires an **independent jurisdictional basis** --> federal question or diversity juris requirements

Answer 164

must arise out of the same t/o as original claim or counterclaim

Answer 165

no genuine dispute as to any material fact and moving party is entitled to judgment as a matter of law no genuine dispute --> no reasonable juror could find for the moving party materials in the record must generally be sworn look at facts in light most favorable to nonmoving party

Answer 166

federal right to trial by jury (7th Amendment) no right to jury trial for equity issues (injunctions, specific performance, admiralty issues)

Answer 167

viewing the evidence in the light most favorable to the opposing party, evidence can't support a verdict for that party, and moving party is entitled to judgment as a matter of law **ct must find that there is legally insufficient evidence for a jury to reasonably find for nonmoving party** kinda like motion for summary judgment after trial started | FRCP 50

Answer 168

if reason for new trial is question of law --> de novo otherwise, abuse of discretion

Answer 169

1. final judgment on the merits in the first suit (includes default judgment, summary judgment, dismissal w/ prejudice) 2. second suit must be b/t same parties or their successors in interest (both parties) AND 3. second suit must involve the same claim or cause of action final judgment on the merits of a claim bars re-litigation of that claim by the same parties or their successors in interest precludes re-litigation of every claim that was raised or should have been raised in the first suit

Answer 170

1. same issue of fact in both suits (even if different claims) 2. issue must have been actually and necessarily decided in first suit by a valid and binding judgment (only actually litigated claims) AND 3. party to be precluded must have been a party in the first suit (party invoking preclusion doesn't need to be involved in first suit)

Answer 171

federal procedural law + state substantive law

Answer 172

federal substantive + federal procedural law

Answer 173

**MIBB** 1. the movant is likely to succeed on the **merits** 2. the movant is likely to suffer **irreparable harm** in the absence of relief 3. the **balance of equities** is in the movant's favor AND 4. the injunction is in the **best interests of the public**

Answer 174

may be subject to sanctions for failing to take reasonable steps to preserve evidence that should have been preserved in the anticipation or conduct of litigation Sanctions are authorized for spoliation of evidence only if the information cannot be restored or replaced by additional discovery **court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence**

Answer 175

* when transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect * If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching. * SCOTUS held that a forum selection clause should be given “controlling weight in all but the most exceptional cases."

Answer 176

valid federal rule applies IF the rule (1) is arguably procedural AND (2) does not abridge, modify, or enlarge a substantive right

Answer 177

de novo A trial judge’s decision to grant a summary judgment motion is a legal ruling. As a legal ruling, the appropriate standard of review by the appellate court is de novo.

Answer 178

* reasons why it was granted * reasonable description of prohibited/commanded acts **without reference** to complaint or another doc AND * specific terms (e.g., persons bound, penalties for noncompliance)

Answer 179

* must be signed by at least one attorney of record (or party if pro se) * certifies that to the best of their knowledge, info, and belief formed after a reasonable inquiry THAT * (1) paper is not presented for any improper purpose * (2) factual contentions have evidentiary support (or will likely have it after reasonably oppy for discovery) * (3) claims, defenses, etc. are warranted by existing law or non frivolous * (4) denials of factual contentions are warranted or specifically identified as reasonably based on belief or lack of info

Answer 180

A district court has discretion to decline to exercise supplemental jurisdiction over a claim that would otherwise qualify for supplemental jurisdiction in each of the following circumstances: (i) the supplemental claim raises a novel or complex issue of state law; (ii) the supplemental claim substantially predominates over the claims within original federal jurisdiction; (iii) all of the claims within the court’s original jurisdiction have been dismissed; or (iv) in exceptional circumstances, if there are other compelling reasons for declining jurisdiction.

Answer 181

Under the Federal Rules, a nonparty has the right to intervene in an action when, upon timely motion, (1) the nonparty has an interest in the subject matter of the action; (2) the disposition of the action may impair the nonparty’s interests; and (3) the nonparty’s interest is not adequately represented by existing parties. The burden is on the party seeking to intervene.

Answer 182

* extent of prejudice to the absent party or existing parties if the litigation proceeds * extent to which the court could mitigate that prejudice by shaping relief * adequacy of a judgment rendered in the absence of the missing party * whether the plaintiff would have an adequate remedy if the action were dismissed

Answer 183

actor acts with the purpose of causing the consequence OR knows that the consequence is going to come about to a substantial certainty | includes children and mentally incompetent people if they act with the requisite intent

Answer 184

1. defendant causes a **harmful or offensive contact** with the person of another AND 2. **acts with intent to cause the contact** or apprehension of that contact 3. Causation: act must result in contact of a harmful or offensive nature

Answer 185

1. causes **reasonable apprehension of imminent harmful** or offensive bodily contact AND 2. defendant **intends to cause apprehension of such contact** or to cause the contact itself bodily contact is NOT required

Answer 186

**IEOD** defendant (1) **i**ntentionally or recklessly engages in (2) **e**xtreme and (3) **o**utrageous conduct that (4) causes the plaintiff severe emotional **d**istress (beyond what a reasonable person should endure) Causation: D's actions must be a cause in fact of P's harm don't need to show physical injury

Answer 187

(1) immediate family member of the victim (2) who is present at the time of the conduct and (3) contemporaneously perceives the conduct **may recover for IIED** regardless of whether that fam member suffers bodily injury as a result of the distress **ALSO** if D wanted to cause emotional distress on 3p but harmed individual, 3p can recover w/o showing the above elements

Answer 188

an intentional interference with the plaintiff's right to possess personal property by 1. dispossessing the plaintiff of the chattel 2. using or intermeddling with the plaintiff's chattel OR 3. damaging the chattel

Answer 189

intentionally committing an act (1) depriving the P of possession of his chattel OR (2) interfering with the P's chattel in a manner so serious as to deprive the P entirely of the use of the chattel

Answer 190

* duration and extent of the interference * D's intent to assert a right inconsistent with the rightful possessor * D's good faith * expense or inconvenience to the P AND * extent of the harm difference is more of a degree of seriousness rather than specific behavior

Answer 191

1. duty - an obligation toward another party 2. breach - failure to meet that obligation 3. causation - cause in fact (actual cause) + proximate cause (legal cause) 4. damages - the loss suffered

Answer 192

land possessor owes a duty of reasonable care to * inspect the property * discover unreasonably dangerous conditions AND * take reasonable steps to protect the invitee can't delegate this duty to independent contractor invitee is someone who comes onto the land for a material or economic purpose public invitee - land is held open to the pubic (ex. state fair) business visitor

Answer 193

land possessor has a duty to (1) make the property reasonably safe OR (2) warn licensees of hidden dangers no duty to inspect must exercise reasonable care in conducting activities on the land enters the land with express or implied permission (like a social guest)

Answer 194

no duty to undiscovered trespassers EXCEPTION: refrain from willful, wanton, intentional, or reckless misconduct discovered or anticipated trespassers - duty to warn or protect from hidden dangers attractive nuisance doctrine - may be liable flagrant trespassers - even lesser duty of care

Answer 195

land possessor may be able for injuries to children trespassing on the land if 1. artificial condition exists in a place where the owner knows or has reason to know that children are likely to trespass 2. knows or has reason to know that the artificial condition poses an unreasonable risk of death or serious bodily harm 3. children do not discover or can't appreciate the danger (due to their age) 4. utility of maintaining the condition < risk of injury AND 5. fails to exercise reasonable care

Answer 196

1. maintain safe common areas 2. warn of hidden dangers AND 3. repair hazardous conditions

Answer 197

1. criminal law or regulatory statute imposes a particular duty for the protection or benefit of others 2. defendant violated the statute 3. P must be in the class of people intended to be protected by the statute 4. accident must be the type of harm that the statute was intended to protect against AND 5. harm was caused by a violation of the statute | violation of the law consists a breach, statute establishes the standard of care

Answer 198

1. accident was of a kind that does not ordinarily occur in the absence of evidence 2. it was caused by an agent or instrumentalist within the **exclusive control** of D AND 3. not due to any action by P

Answer 199

1. accident is a type that ordinarily happens as a result of negligence of a class of actors AND 2. D is a member of that class more generous than traditional approach

Answer 200

* scope of liability * foreseeability of harm

Answer 201

pure emotional harm P can recover for NIED if 1. P was within **zone of danger** of the threatened physical impact AND 2. threat of physical impact caused emotional distress need some physical manifestation of distress (nausea, insomnia, miscarriage)

Answer 202

if 1. closely related to person injured by D (relational proximity) 2. was present at the scene of the injury (geographic proximity) AND 3. personally observed the injury (temporal proximity)

Answer 203

allows a negligent P to recover upon showing that D had the last clear chance to avoid injuring the P but failed to do so

Answer 204

D will be held strictly liable for personal injuries and property damage caused by the activity, regardless of any precautions scope of liability - harm that flows from the risk that made the activity abnormally dangerous * whether it creates a foreseeable and highly significant risk of harm even when the actor takes due care * severity of the harm resulting from the activity * appropriateness of the location for the activity * whether it has great value to the community

Answer 205

1. product was defective (manufacturing, design, failure to warn) 2. defect existed when the product left the defendant's control AND 3. defect caused the P's injury when the product was used in a foreseeable way

Answer 206

1. product deviated from its intended design 2. product does NOT conform to the manufacturer's own specifications

Answer 207

**test 1: consumer expectation test** if less safe than the ordinary consumer would expect **test 2: risk-utility test** if risks outweigh the benefits, must show there is a reasonable alternative design

Answer 208

anyone who sells the product when it is defective must be in the chain of distribution + business of selling causal sellers are NOT SL, but maybe negligence

Answer 209

1. merchantability - product is suitable for the ordinary purposes for which it is sold 2. fitness for a particular purpose - seller knows the particular purpose and buyer relies on seller's skill or judgment

Answer 210

P must prove that D 1. made a defamatory statement 2. that is of or concerning the P (the particular P) **must be living** 3. statement was published to a 3p who understood the defamatory nature AND 4. there is resulting damage to P's reputation

Answer 211

person who made the statement knew that it was false OR acted with reckless disregard for the truth actual malice standard

Answer 212

1. statement is false 2. person who made the statement was negligent (should have known the statement was false)

Answer 213

P must prove special damages (show economic loss) exceptions for slander per se (general damages available) * commission of a serious crime * unfitness for a trade or profession * having a loathsome disease * severe sexual misconduct

Answer 214

the speaker is completely immune from liable for defamation statements including: * in the course of judicial proceedings * course of legislative proceedings * b/t spouses * required publications by radio and TV

Answer 215

statement is made in good faith pursuant to some duty or responsibility P must show a higher level of culpability includes statements made * in the interest of the D (defending your reputation) * interest of the recipient of the statement * affecting some important public interest

Answer 216

D intrudes upon P's private affairs in a manner that would be highly offensive to a reasonable person

Answer 217

D (1) publication of facts about the P (2) that place the P in a false light (3) which would be highly offensive to a reasonable person

Answer 218

when someone (1) appropriates another's name or likeness (2) for D's advantage (3) w/o consent and (4) causes injury appropriation must be exploitative, but not necessarily commercial

Answer 219

1. D publicizes a matter concerning the private life of another 2. the matter publicized is highly offensive to a reasonable person AND 3. the matter is not of legitimate concern to the public (hard to prove)

Answer 220

1. false representation 2. scienter 3. intent 4. causation 5. justifiable reliance 6. damages

Answer 221

1. D provided false info to P 2. as a result of D's negligent in preparing the info 3. during the course of a business or profession 4. causing justifiable reliance and pecuniary loss AND 5. P is either in a contractual relationship with D OR P is 3p known by D to be a member of the limited group for whose benefit the info is supplied | negligence misrepresentation is a different cause of action than tort of negligence

Answer 222

1. publication 2. of a false or derogatory statement 3. with malice 4. relating to P's title to their business, quality of their business, or quality of products AND 5. causes special damages as a result of interference with or damage to business relationships

Answer 223

1. publication 2. of a false statement 3. derogatory to P's title 4. with malice 5. causing special damages AND 6. diminishes value in eyes of 3p

Answer 224

P's recovery is barred if their fault > 50% some juris do >= 50%

Answer 225

defendant's violation of a statute or ordinance creates a rebuttable presumption (as opposed to a conclusive presumption) that the defendant breached a duty of care

Answer 226

* conversion - full value of item * trespass to chattel - amount of the damages

Answer 227

In any negligence action, a plaintiff must show that the defendant owed the plaintiff a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others, that the defendant’s conduct fell below the applicable standard of care, and that the defendant’s conduct was both the cause in fact and the proximate cause of the plaintiff’s injuries.

Answer 228

* FS determinable - grantor has possibility of reverter; 3p has springing or shifting EI * FS CS - grantor has right of entry (have to exercise) * LE - grantor has reversion, 3p has remainder

Answer 229

interest that is 1. given to an ascertained grantee (you can ID them) AND 2. not subject to a condition precedent if 1 + 2 met, vested remainder if fails, contingent remainder

Answer 230

prevents remainders in a grantor's heirs A conveys “to B for life, remainder to A’s heirs.” **With Doctrine: B has life estate, A has reversion (unless contrary intent is established)** W/o Doctrine: B has life estate, A's heirs have contingent remainder

Answer 231

prevents reminders in a grantee's heirs uses doctrine of merger to create a fee simple changes the remainder of heirs from fee simple absolute to contingent remainder A conveys “to B for life, remainder to B’s heirs.” **With Shelley's Case: B has life estate, heirs have FSA** Without: B has life estate, heirs have contingent remainder

Answer 232

if gift to **any** member of the class is void under RAP, THEN the gift is void to **all** members of the class all or nothing rule

Answer 233

1. grantor must make clear expression of intent AND 2. must be survivorship language ("as joint tenants with a right of survivorship") 3. four unities

Answer 234

disparate treatment (intent) + disparate impact (effect)

Answer 235

* choice of law provision * cases involving marriage, especially classifying property as marital or separate --> domicile of party may override law of the situs * mortgages: mortgage docs may require repayment to be made in another state

Answer 236

1. tenancy for years 2. periodic tenancy 3. tenancy at will 4. tenancy at sufferance | how is each created? how is each terminated?

Answer 237

* measured by a fixed and ascertainable amount of time * created by agreement by landlord and tenant * need to demonstrate intent to create the leasehold * if longer than 1 year, needs to be in writing (SOF) * automatically ends at expiration of term (no notice require) * can end early if tenant surrenders the lease OR if tenant or landlord commits a material breach

Answer 238

* estate that is repetitive and ongoing for a set period of time * renews automatically at end of each period until one party gives proper notice of termination * must intend to create this * intent can be express (signed lease) or implied (payment of rent) * old approach to termination: must give 6 month notice for year-to-year lease * new approach to termination: shorter notice requirements * proper notice = gives notice before start of last term (generally written)

Answer 239

* may be terminated by either landlord or tenant at any time for any reason * created by express agreement or implication * can be terminated by either party without notice * if agreement gives ONLY landlord right to terminate at will, tenant gets right too by implication * if agreement gives ONLY tenant right to terminate, landlord does NOT get the right too * terminates at death of landlord or tenant

Answer 240

* created when tenant holds over after lease ends * temporary tenancy exists before landlord evicts the prior tenant OR re-rents the property to the tenant (creates a new tenancy with holdover tenant) * tenant owes landlord reasonable value of their daily use + reasonably foreseeable special damages * created by actions of tenant alone * termination if (1) tenant voluntarily leaves, (2) landlord evicts tenant, or (3) landlord re-rents to tenant

Answer 241

tenant can withhold rent when landlord takes actions that makes the premises wholly or substantially unstable for their intended purposes + tenant is constructively evicted

Answer 242

1. premises were unstable for their intended purposes (breach of covenant of quiet enjoyment) 2. tenant notifies landlord of the problem 3. landlord doesn't correct the problem AND 4. tenant vacates the premises after a reasonable amount of time has passed

Answer 243

* landlord has an obligation to maintain the property such that it is suitable for residential use * conditions that threaten tenant's heath and safety * can't waive * residential only, not commercial * if premises are not habitable, tenant may (1) refuse to pay rent, (2) remedy the defect and deduct costs from rent, or (3) defend against eviction * can use offensively or defensively * does not require tenant to move out

Answer 244

**majority:** landlord must deliver actual (physical) possession of leasehold premises **minority:** landlord is only required to deliver legal possession (right of possession)

Answer 245

tenant (b/c of privity of contract) OR subsequent tenant (b/c of privity of estate)

Answer 246

only the tenant (they have privity of contract + privity of estate)

Answer 247

**majority:** landlord may deny only for a commercially reasonable reason **minority:** landlord may deny at their discretion, reason isn't required

Answer 248

marketable title --> title is free from an unreasonable risk of litigation * title acquired by adverse possession that hasn't been quieted * private encumbrances (mortgage, convent, easement) * violation of zoning ordinance | applies to quit claim deeds too (PQs Set 1)

Answer 249

needs to be cured or fixed **before closing** closing is when deed and contract merge and deed controls

Answer 250

applies to defects in new construction most jurisdictions: both initial homeowner/purchaser and subsequent purchasers may recover damages minority: only OG buyer can enforce suit must be brought within reasonable time after discovery of the defect

Answer 251

**majority:** buyer holds equitable title b/t execution of contract and closing/delivery of deed buyer is responsible for damage during that period seller has right to possess the property (they hold legal title) **minority:** risk of loss on seller until closing and delivery of deed

Answer 252

legal instrument that transfers ownership of real property 1. must be delivered (includes intent) 2. must be accepted

Answer 253

* whether the grantor had the present intent to transfer the property * physical transfer is NOT required

Answer 254

**PTSD** 1. parties identitifed (grantor + grantee) 2. transfer (words of transfer - any words that evdience a present intent to transfer) 3. signed by grantor (SOF) 4. description of the property (doesn't need to be a legal description, just sufficient)

Answer 255

* only grantor needs to sign * doesn't need to be witnessed or notarized * deed is void if signature is forged (even if bona fide purchaser) * **equal dignities rule:** if agent is required to sign, then agency relationship must be created in writing

Answer 256

person who takes from a bona fide purchaser proceed by recording act has the **same rights** as the grantor

Answer 257

grantor warrants against **all** defects even if they didn't cause the defect 6 implied covenants (first 3 = present convents, last 3 = future) 1. covenant of seisin 2. covenant of the right to convey 3. covenant against encumberances 4. covenant of quiet enjoyment 5. covenant of warranty 6. covenant of further assurances | first you've gotta "SCE" (sick) it then F with queens (FWQ)

Answer 258

grantor promises that the grantee's possession will not be disturbed by 3p claim

Answer 259

grantor promises to defend against future **valid** claims of title by 3p

Answer 260

grantor promises to fix future title problems

Answer 261

grantor warrants against defects **only caused by the grantor** includes the six covenants but only apply to acts/omissions of grantor

Answer 262

valid if it is (1) for a limited time and (2) reasonable purpose

Answer 263

1. assumes the mortgage upon default, transferee is personally liable for the mortgage + original mortgagor doesn't need to be in writing 2. takes subject to the mortgage transferee is not personally liable upon default if deed is silent or ambiguous, subject to is default

Answer 264

common law right held by mortgagor to reclaim title and prevent FCL upon full payment of the debt mortgagor must exercise **before** FCL sale * deed in lieu of FCL * clogging equity of redemption concerns

Answer 265

first in time rule surviving debts are satisfied chronologically # foreclosure / priorities

Answer 266

mortgage given to lender in exchange for a loan to buy real property has priority over mortgages/liens created by/against mortgagor **prior** to mortgagor's acquisition

Answer 267

junior mortgage that satisfies recording statute may sometimes take priority over unrecorded senior mortgage

Answer 268

eliminates their interest in the property EXCEPTION: statutory redemption - some states allow mortgagor to redeem property even after FCL sale, will restore title to homeowner

Answer 269

1. easement by necessity 2. easement by implication (easement by prior use) 3. easement by prescription 4. easement by estoppel

Answer 270

* created only when property is **virtually useless** (like it's landlocked) * (1) common ownership (dominant and servant estates were owned in common by one person) AND (2) necessity at severance (when it was severed, one of the properties became virtually useless w/o easement) * strictly necessary * ends when no longer necessary

Answer 271

created by an existing use on a property 1. common ownership - land owned by one person 2. before severance, owner uses land as if there's an easement on it (quasi-easement) at this point, the land is split up 3. after severance, use must be continuous and apparent 4. necessity - use must be reasonably necessary to dominant estate's use and enjoyment

Answer 272

* like acquiring via adverse possession, but this is about use (not possession) * same elements as adverse possession **except exclusivity**

Answer 273

1. permission - permissive use (license) 2. reliance - second neighbor relies on the first neighbor's promise --> must be reasonable + in good faith 3. permission withdrawn by first neighbor if reliance was detrimental to second neighbor, first neighbor is estopped from withdrawing permission (creates an easement)

Answer 274

* determined by the terms * if terms are ambiguous, ct considers intent of OG parties * changes in use are tested under **reasonableness standard** (reasonably foreseeable) * if use exceeds the scope, dominant estate is trespassing on servient estate

Answer 275

determined by nature and scope of prior use or necessity

Answer 276

* release - holder expressly releases it + in writing (SOF) * merger - owner acquires the other land so it merges into the title * abandonment - (1) non-use + (2) act demonstrating intent to abandon * prescription - fail to protect against adverse possessor * sale to purchaser * estoppel * end of necessity - easement is no longer needed

Answer 277

**TWIN-P** (almost like wimy) 1. touch and concern the land - benefit or burden must affect both parties 2. writing (SOF) 3. intent - OG parties must intend for the covenant to run with the land (look for express language) 4. notice - actual or constructive, maybe inquiry if equitable servitude 5. privity

Answer 278

* horizontal privity - OG parties shared some interest in the land independent of covenant * vertical privity is about an original party and their successor to the property * strict vertical privity - successor must take the original party's **entire** interest * relaxed vertical privity - takes only an interest that is **carved out** of the original party's estate

Answer 279

tangible personal property that is attached to real property in a manner that is treated as part of the real property

Answer 280

when land-sale contract is silent about risk of loss * **majority apply this doctrine - risk of loss is placed on party with equitable title at time property was destroyed UNLESS other party is at fault for the loss** * Uniform Vendor and Purchaser Risk Act (minority) - seller retains risk of loss unless and until buyer takes possession or title is transferred * applies to events that occur during the executory time period (b/t signing and closing) * determination of who will receive proceeds depends on who had equitable title

Answer 281

junior interests remain attached mortgagee's interest is extinguished unless it was reserved

Answer 282

life tenant has duty to pay current charges up to the amount of income that can be generated from the land

Answer 283

**nature and character of use cannot be a substantial change** owner may be permitted to increase the frequency of the nonconforming use to upgrade the means to accomplish the nonconforming use, so long as the nature and character of the use does not constitute a substantial change

Answer 284

* delivery presumed if recorded * BUT can be rebutted by evidence that grantor didn't intend to presently transfer ownership * IF deed is NOT delivered during grantor's lifetime, it is void + conveys no interest

Answer 285

remedies for breach of title matters

Answer 286

disclaims the seller's duty to disclose defects IF the disclaimer is **sufficiently clear and specific** assuming no statutes require disclosure of known defects

Answer 287

1. variance does NOT deviate from the comprehensive zoning plan 2. compliance with zoning ordinance would cause the landowner unnecessary hardship (can't be self-imposed)

Answer 288

to comply with RAP, right of first refusal must be set to vest or fail within the perpetuities period so probs fails unless there's an end date or it's tied to a life in being

Answer 289

once delivered and accepted * delivered - evidenced by grantor's intent to presently convey ownership (CAN'T be conditional delivery) * accepted - presumed when transfer is beneficial to grantee delivery presumed if recorded BUT can rebut if grantor did not intend to presently transfer ownership

Answer 290

* equitable right of redemption is before foreclosure * statutory right is an additional time period after FCL sale for prior mortgagor and others have the option to pay a certain sum of money and redeem the title to the property

Answer 291

interest in personal property or fixtures that secures payment or performance of an obligation

Answer 292

* transactions, regardless of form, that creates a security interest in **personal property or fixtures** by contract * must be consensual * not real estate * agricultural liens **sales of certain types of collateral** * chattel paper * promissory notes * accounts * payment intangibles

Answer 293

1. goods 2. rights to payment 3. documents - bills of lading, warehouse receipts, held by bailee 4. investment property - stocks and bonds 5. deposit accounts - bank accounts 6. commercial tort claims 7. letter of credit rights 8. payment intangibles - catch all, includes IP | remember classification can change depending on which party holds the collateral

Answer 294

anything movable at time a SI attaches 1. fixtures (if the goods attach to real property where you won't take it when you move) 2. standing timber 3. unborn animals 4. growing or unharvested crops 5. manufactured homes 6. **consumer goods** 7. **farm products** 8. **inventory - held for sale or lease** 9. **equipment - catch-all**

Answer 295

1. **value** given by the secured party (no new value needs to be given, binding commitment is value) 2. debtor must have **rights** in the collateral 3. there must be a **security agreement** - _(a)_ authenticated SA that describe the collateral OR _(b)_ secured party has possession or control pursuant to oral or unauthenticated SA _(a) security agreements are RAD_ 1. record - doesn't need to be written on paper, but must be stored 2. authenticated by the debtor - signature/symbol of debtor 3. describe the collateral - reasonably ID the collateral, no super generic description, consumer goods and commercial tort claims need more particularity _(b1) attachment by possession pursuant to SA (like you can hold it)_ consumer goods, equipment, farm products, chattel paper, tangible docs, certificated securities, instruments, money _(b2) attachment by control pursuant to SA_ electronic chattel paper, investment property, LOC rights, deposit accounts | attachment links debt to a particular piece of collateral SI becomes enforceable against debtor's collateral upon attachment

Answer 296

if SI attaches to the original collateral, it **automatically attaches to the identifiable proceeds** whether or not SI states that it covers proceeds

Answer 297

* type of SI * only applies if collateral is **goods or software** * lender PMSI - lender loans money to debtor so debtor can acquire goods; value is actually used to acquire the goods and lender takes SI in those same goods * seller PMSI - goods bought on credit * partial PMSI is allowed for non-consumer goods transactions --> Dual Status Rule * consumer goods transactions: court can apply Dual Status Rule or say there is no PMSI * PMSI in consumer goods are automatically perfected 1. value given allows the debtor to **acquire** the goods or software AND 2. goods or software acquired **secure** the loan | Article 9 consignment is treated as PMSI in inventory Dual Status Rule = a SI may be part PMSI and part non-PMSI; party claiming PSMI has burden of establishing that

Answer 298

* central filing office where debtor is located * debtor is corporation = state of incorporation * business not registered = state where it operates, chief executive office if multiple states * individuals = principal residence * real property-related (incl. fixtures) = county where property is located

Answer 299

* some collateral automatically perfect when a SI attaches without filing, possession, or control * PMSI in consumer goods * casual or isolated assignments of accounts that don't transfer a significant part of outstanding accounts receivable * sales of payment intangibles or promissory notes | if certificate of title statute covers, no auto perfection

Answer 300

* proceeds arise when collateral is sold, leased, licensed, or disposed of * SI attaches to proceeds automatically * initially perfected for 20 days * priority dates from time of perfection in OG collateral IF secured party has remained continuously perfected

Answer 301

_initially_ temporary automatic perfection for 20 days after collateral is sold _beyond 20 days_ perfection will lapse UNLESS 1. amend the FS or the OG FS is broad enough to encompass the proceeds 2. cash proceeds rule: perfection continues indefinitely in identifiable cash proceeds 3. same office rule: FS covers the original collateral + proceeds are collateral in which it may be perfected by filing in the same office as OG FS + proceeds are NOT acquired with cash proceeds

Answer 302

first in time to file or perfect takes priority

Answer 303

* if secured party's advance is made within 45 days of lien creditor's lien, secured party wins * advances over 45 days lose to lien creditor UNLESS advance is made w/o knowledge of lien OR advance is made pursuant to a commitment entered into without knowledge of the lien

Answer 304

* phrase the question as "did the buyer take the collateral free of a security interest or subject to a security interest" * unless secured party authorizes the sale free and clear of its security interest, buyer takes **subject to** a perfected security interest _exception 1: buyer in the ordinary course of business_ takes free of SI created by buyer's seller IF * buyer buys good from a merchant * ordinary course of merchant's biz * buyer acts in good faith and without knowledge that sale violates the rights of others in teh same goods * seller is engaged in business of selling goods of this kind, not pawn broker _exception 2: garage sale exception_ consumer buyer will take free of SI even if it's perfected IF * buyer buys consumer goods for value * for their own person, family, or household use * from a consumer seller * without knowledge of the SI * unless secured party has filed a FS covering the goods before the purchase occurs

Answer 305

buyer takes subject to a SI EXCEPTION: user will take free of an unperfected SI if buyer * gives value * receives delivery of the collateral AND * w/o knowledge of preexisting interest

Answer 306

PMSI > all other security interests, no matter when they are perfected IF secured party perfects within 20 days of debtor receiving the goods if don't perfect within 20 days, apply secured party vs. secured party rule (first in time to file or perfect) | PMSI in consumer goods is auto perfected so 20 day rule will always be met

Answer 307

PMSI > all other secured interests in that same inventory IF PMSI * perfects before inventory is delivered to debtor AND * sends an authenticated notification of PMSI to other secured parties (notification is effective for 5 years) | if fail this super priority rule, then apply secured party vs. secured party

Answer 308

* Article 9 does NOT apply to a true lease bright line test 1. lessee of property is obligated to pay the FULL obligation under the lease (whether or not its terminated early) AND 2. one of the following outcomes * OG term of lease >= remaining economic life of goods * lessee is bound to renew the lease for the remaining economic life of teh goods * lessee has option to renew the lease for no additional consideration or nominal additional consideration * lessee has option to become owner or goods for no or nominal additional consideration if pass test, it is a secured transaction (Article 9 governs), need to perfect SI | factors are showing what a secured transaction is

Answer 309

once there has been a default, secured party can repossess the collateral 1. by using the judicial process 2. by using self-help repossesion (secured party cannot **breach the peace**) large equipment can be rendered unusable in lieu of repossession after repossession, secured party can dispose of the collateral in Article 9 disposition sale or can accept the collateral in satisfaction of all or part of the obligation

Answer 310

**commercially reasonable standard** secured party may sell, lease, license, or dispose of the collateral so long as the everything about disposition is commercially reasonable commercially reasonable IF * sold in usual manner in a recognized market * sold at the price current in that market or * otherwise in conformity with the reasonable commercial practices among deals in that type of collateral price alone is not determinative of whether a sale is commercially reasonable

Answer 311

* secured party has to send authenticated notice of dipsotiion to a variety of parties * parties who need notice: debtor, secondary obligors, other secured party, anyone else who has a claim or interest * safe harbor of timing for non-commercial transactions: reasonable if sent at least 10 days before sale notice must include (1) secured party + debtor's name, (2) description, (3) how, when, where collateral is disposed of, (4) statement that debtor is entitled to accounting for unpaid indebtedness * notice not required if collateral is perishable, sold on recognized market, or notice is waived by default

Answer 312

if secured party has perfected SI in all future inventory, etc. (this is first), then the SI attaches to those items when it is delivered so it's possible that a PMSI seller will get a SI in the item first if delivery occurs a few days later (this is when secured party SI attaches)

Answer 313

A perfected purchase-money security interest in goods other than inventory has priority over a conflicting security interest in the same goods so long as the interest was perfected when the debtor received possession of the collateral or within 20 days thereafter.

Answer 314

* divide shares equally according to decedent's lineal line * divide shares into total number of kids who survive or leave issue who survive, then divide by representation * surviving kid can stand in the place of their deceased parent * issue takes in equal shares regardless of whether anyone in that generation survived

Answer 315

* divide the property equally at first generation where a member survives the decedent * if deceased members at first generation, their shares drop down to their surviving issue at the next generation * if deceased member is not survived by living issue, then that member doesn't take a share

Answer 316

* divide property into equal shares at first generation where there is a surviving member * pool the remaining shares after each generation --> divide equally at next generation

Answer 317

1. signed writing 2. witnesses 3. testamentary intent - present intent to make a testamentary transfer

Answer 318

* entire will must be signed by testator * Uniform Probate Code does NOT allow oral (including video) wills * some states: signature must be at end of document * other states (and UPC): signature can be on any part of the doc, important part is whether testator intended their name to be a signature; if signature is not at bottom, any words after signature are not given effect * capacity: must be 18 years old + of sound mind (measured at time of signing) * formal signature is not required, must indicate testator's desire to sign

Answer 319

_presence_ * signed in presence of at least two witnesses * witnesses must sign the doc (not necessarily at same time) * most juris: testator must sign or acknowledge the will in presence of witnesses + witnesses must sign in the presence of testator * UPC: witnesses must sign within a reasonable time of the original signature by testator * line of sight approach to presence (traditional): witness and testator must observe or have oppy to observe signing of the will (same room) * conscious presence approach (modern): witness or testator must be aware the act is being performed, even if they can't see it _interested witnesses_ (has a direct financial interest in the will) * common law: interested witnesses are not competent to witness the will * UPC: abolished this doctrine, just go after problematic witness via undue influence or fraud * purge theory (many states): direct financial interest does not affect validity of will * BUT probate court will purge any gain in excess of what the witness would take under intestate succession * do NOT purge gain IF there were 2 other disinterested witnesses OR interested witness would take share under intestate succession + interested witness takes the lesser to eh intestate share or bequest

Answer 320

* common law (majority): strict compliance with will formation formalities * modern view (UPC, minority): substantial compliance * clear and convincing evidence that descendent intended the doc to serve as their will

Answer 321

* informal, handwritten will * does not need witnesses * must be signed to be valid * some jurisdictions: any markings not in testator's handwriting invalidate the will * UPC: only requires that material provisions are in testator's handwriting * look for words or phrases that suggest intent * UPC expressly authorizes looking to extrinsic evidence to establish intent | words that express intent: "bequeath" "inherit"

Answer 322

* supplements (does not replace) a will * must be executed with same formalities as a will

Answer 323

**express revocation** later writing expressly revokes a prior will **implied revocation (inconsistency)** later writing is inconsistent with prior will so long as it is validly executed, later will controls

Answer 324

testator may revoke a will be engaging in a physical act of destruction (tearing, burning, crossing stuff out) **must intend** for physical act to revoke the will _destroying specific language_ * majority: particular language in question must be destroyed * UPC: only requires that destructive act affect some part of the will _lost wills (lost at time of testator's death)_ * creates a rebuttable presumption that testator revoked will by physical act * burden is on proponent to show will's existence by clear and convincing evidence * duplicate originals can be admitted, but not copies

Answer 325

* UPC (majority) does not recognize automatic revival of a revoked will * Dependent Relative Revocation - safety valve for testators who revoke a will based on a mistake, mistake can be grounded in law or fact * DRR invalidates the mistaken revocation and revives the earlier revoked will

Answer 326

other writing must meet three requirements: 1. it existed at the time the will was executed (UPC waives if doc disposes only of personal property) 2. the testator intended the writing to be incorporated into the will AND 3. the writing is described in the will with sufficient certainty so as to permit its identification

Answer 327

if estate doesn't have sufficient funds to pay debts or make gifts, gifts will be abated in a specific order **ARGS** 1. asset property 2. residuary gift - left over 3. general gifts - gift of property satisfied from general assets of estate (like $ generally) 4. specific gifts (last to be reduced, most protection) - gift of a particular piece of property demonstrative gift - gift from a particular source (like money from BAC account) if demonstrative gift can be satisfied, treated as specific gifts; otherwise, treated as general gifts

Answer 328

* will makes specific devise of property, but the property is no longer in the estate * traditional rule (identity theory): device is extinct, devisee takes nothing * UPC (intent theory): look at testator's intent at time they disposed of property, look for facts that suggest the testator intended the ademption, trying to avoid ademption

Answer 329

**common law** any lifetime gift is presumed to be an advancement child has burden to show it was an outright gift _hotchpot analysis_ add value of advancements back into intestate estate divide resulting estate by number of children taking deduct child's advancement from their interstate share **UPC** gift is advancement only if (1) decedent declared in a contemporaneous writing that gift was an advancement OR (2) writing indicates gift should be taken into account in computing the division of property of decedent's estate

Answer 330

* _when_: person challenging the will (contestant) bears burden of providing the testator lacked the requisite mental capacity at time of execution of the will whether testator had ability to know (NOT actual knowledge) * _why_: nature of the act * _what_: nature and character of their property * _who_: natural objects of their bounty (like their kids) * _how_: plan of the attempted disposition

Answer 331

* false belief to which testator adheres in spite of all reason and evidence to the contrary * testator has general capacity, but insane delusion as to some belief * objective test: (1) measure testator's insane delusion against actions of a rational person in testator's person and (2) belief is an insane delusion if rational person could not have reached the same conclusion * **causation - insane delusion was a but for cause of the testamentary disposition** | ex. testator is convinced spouse is cheating on them (even though no evidence) so will leaves nothing to spouse

Answer 332

* coercive relationship * contestant alleges that a 3p effectively controlled the testator's decision making process contestant bears initial burden of showing 1. beneficiary received a substantial benefit under the will 2. beneficiary had a confidential relationship with the testator (frequently lawyer, doctor, therapist) AND 3. testator had a weakened intellect at time of execution if contestant meets burden, there is presumption of undue influence burden shifts to proponent (3p) to show by a preponderance of evidence that there was no undue influence beneficiary is treated as if they predeceased testator to the extend that the gift is in excess of beneficiary's intestate share causation is v important | like a whisper in the ear

Answer 333

contestant bears burden of showing that the beneficiary engaged in an unlawful misrepresentation at time of conveyance beneficiary made misrepresentation with 1. intent to deceive the testator AND 2. for purpose of influencing the testamentary disposition * fraud in the inducement * fraud in the execution remedy - constructive trust

Answer 334

in order of priority 1. surviving spouse who is devisee 2. other surviving devisee 3. surviving spouse (if not devisee) 4. other heirs of decedent 5. any creditor (after 45 days of decedent's death)

Answer 335

authority to act on another's behalf in a legal or business matter principal / agent relationship 1. must be in writing 2. signed AND 3. dated

Answer 336

**general**: covers all affairs during a person's period of incapacitation **special**: limits authority to specific subject matters (like resolving a certain deal) **advance health care directives**: * living will - dictates care individual wants in teh event they cannot make those wishes known, agent needs to make sure directive is enforced * durable POA for health care - appoints agent in event principal becomes incapacitated and is unable to make medical decisions, allows agent to stand in principal's shoes and make decisions for them

Answer 337

* common law: state where the testator was domiciled at the time of his death * UPC: validity is determined under the law of the place where (i) the will was executed OR (ii) the testator is domiciled, has a place of abode, or is a national at the time of death.

Answer 338

* testator satisfies a specific or demonstrative gift (in whole or part) via inter vivos transfer * (1) testator must have intended for the gift to deem + (2) intent must be supported by a writing

Answer 339

If an heir of a decedent fails to meet the survival requirement, then the heir is considered to have predeceased the decedent and does not take under the laws of intestacy. The clause is similar to the state anti-lapse statute, and the fact that the testator uses the phrase “if [he/she] survives me” demonstrates that the testator intentionally distinguished gifts that were subject to survivorship. HOWEVER, the UPC takes a contrary approach with respect to the effect of the phrase “if he [or she] survives me.” It provides that an express survivorship contingency does not evidence intent for the anti-lapse statute to be inapplicable.

Answer 340

defects in a prev validly executed will can be cured if the will is "republished" in a properly executed codicil treats portions of the original valid will that are not inconsistent with the terms of the codicil as recited in codicil

Answer 341

* mandatory trust - trustee must make distributions from the trust, no discretion * discretionary trust - trustee may make distributions in their discretion, complete discretion * support trust - trustee makes distributions to support the beneficiary

Answer 342

owner expressly indicates the intent to create a trust may be private or charitable

Answer 343

**RIC PAT** _1. res - trust res (property)_ * can't be a trust if there's no property in it (no empty trusts) * EXCEPT pour-over trust (trust terms must be in writing at time will is executed, properly need not be in trust at time of will) _2. settlor's intent_ * "trust words" create a presumption of a trust ("in trust" "for the benefit of") * oral trusts are valid * minority rule: valid trust must be in writing * precatory language does not create a trust ("hope" "wish") BUT trust must be in writing in certain situations * SOF (conveying real property) * devise _3. capacity of settlor_ _4. trust purpose - valid if not illegal or contrary to pbpl_ _5. ascertained beneficiary - either specific person or criteria to determine_ (ex. Chatterbox students) EXCEPT * unborn children * class gifts must be definite * charitable trusts _6. trustee has duties_

Answer 344

used when trust fails (ex. property is supposed to go to A's kids and A dies without any kids --> trust fails, property goes back to O) trustee must return property to seller or settlor's estate goal is to avoid unjust enrichment avoid a resulting trust by creating a **gift-over clause** (ex. if A dies without kids, then the property goes to B) **purchase-money resulting trust** P1 buys property but it's taken in P2's name If P2 is not the natural object of P1's bounty (not a close friend or relative), court will create this type of trust

Answer 345

* remedy used to prevent unjust enrichment if 3p takes advantage of a settlor * **wrongful conduct** like fraud, duress, undue influence, breach of a duty, detrimental reliance by 3p

Answer 346

**1. beneficiary's equitable interest in trust property is freely alienable** creditor can reach beneficiary's equitable interest EXCEPTION: trust instrument or statute limits this rights **2. creditor CANNOT reach trust principal or income until such amounts become payable to beneficiary or beneficiary can demand it** has to be in beneficiary's hand for creditor to get it

Answer 347

if trust has been satisfied, it auto terminates

Answer 348

if settlor is dead and beneficiary wants to terminate the trust prematurely and trustee opposes termination (beneficiary wants their money early) **trustee can block premature termination if the trust is still serving some material purpose** discretionary trust, support trusts, age-dependent trusts

Answer 349

settlor can unilaterally terminate unless trust is irrevocable trusts are presumed revocable so a settlor doesn't need to expressly reserve right to terminate

Answer 350

* all beneficiaries agree to a modification consistent with material purpose of trust OR * an unforeseeable event has frustrated purpose of the trust (equitable dedication) | if fact pattern involving unforeseen events, think clearly about purpose of the trust

Answer 351

* subjective standard - did trustee act in good faith * care that a person of ordinary prudence would practice in the care of their own estate * trustee should treat property as their own * trustee must use their special skills - held to heightened standard _delegation_ * common law rule: trustee can never delegate authority * modern rule: permits delegation when unreasonable for trustee to undertake such functions (ex. investment decisions), trustee has duty to oversee _investments_ * old rule: trustees were limited to specific list of acceptable investments, breach if outside the list * modern rule (Prudent Investor Rule): trustee has discretion to invest and manage property as a prudent investor, expected to diversify, look at portfolio as a whole _duty of impartiality_ * trustee has duty to balance the competing interests of present and future beneficiaries * old rule: life beneficiary entitled to income, remainder holder to principal * modern rule: allocation b/t income and principal must be balanced, treat them fairly

Answer 352

**w/o clause:** if trustee pays beneficiary, then beneficiary's creditors have same rights as beneficiary * spendthrift trust expressly restricts the beneficiary’s power to voluntarily or involuntarily transfer his equitable interest * applies only as long as the property remains in the trust, and it is inapplicable after it has been paid out to the beneficiary * creditors can't reach the beneficiary's trust interest * most states allow certain classes of creditors to reach a beneficiary’s interest even w/ clause * some states have exception for a provider of necessities to the beneficiary

Answer 353

any method manifesting clear and convincing evidence of settlor's intent trust assets revert to settlor (if a revocable trust)

Answer 354

later marriage is void burden is on the person trying to prove the first marriage EXCEPTION: some states allow marriage to become valid if one party had a good faith belief that the marriage was valid and the impediment is removed (punative spouse doctrine!)

Answer 355

void marriage - doesn't require judicial degree, will not be legally recognized for any purpose, any party (incl. 3p) can seek it voidable marriage - requires judicial decree, valid until one of the parties seeks annulment

Answer 356

marriage is "irretrievably broken" also called irreconcilable differences no prospect of reconciliation some states require parties to be separated for a period of time before seeking one spouse can't prevent hte dissolution b/c they want to reconcile

Answer 357

* all property acquired during the marriage * NOT prop acquired before marriage * NOT gifts and inheritance (except gifts b/t spouses) * NOT prop acquired after separation * NOT prop excluded via valid agreement * NOT any award/settlement payment from a cause of action before the marriage, regardless of when payment was received

Answer 358

* length of marriage * whether any prior marriages * economic circumstances of each spouse * health, earnings, age, earning potentail, liabilites, needs * contirbutions to education or career advancement of other spouse * needs for future acquisitions * value of any separate property * custodianship of any minor children * standard of living

Answer 359

party seeking modification has the burden of showing a significant change in circumstances in (1) the needs of the recipient OR (2) financial abilities of the payor

Answer 360

rights to custody and visitation and duty to support

Answer 361

* husband promised to provide for the kid * wife relies on that promise AND * wife would suffer economic detriment from relying on that promise

Answer 362

yes in most jurisdictions requires a **substantial change** in circumstances of (1) child's needs or (2) parents' financial situtation

Answer 363

home state - where child lived with parents for 6 consecutive months if child has moved, home state can still have jurisdiction if (1) it was the home state within past 6 months and (2) parent/guardian still lives there

Answer 364

(1) no other state is the home state, (2) child and at least one parent have **significant connections** to the new state AND (3) substantial evidence in that state concerning the child

Answer 365

(1) no court has home state juris (2) no court has significant connection juris AND (3) court in a state that has **appropriate connections** to the child

Answer 366

court that made the initial rulings in the custody case continue to have jurisdiction until (1) parties no longer reside in that state OR (2) child no longer has significant connection to the state AND No substantial evidence of the child's condition continues to be available in the state

Answer 367

new home state or court of exclusive continuing jurisdiction can decline when the forum is **no longer convenient** factors * when domestic violence occurred * length of time child has resided outside of the juris * distance b/t competing juris * agreement of the parties * parties' relative financial circumstances * nature and location of evidence that is relevant etc.

Answer 368

* deemed unfit * detrimental to the child OR * parent has terminated those rights

Answer 369

right to substantive due process must demonstrate a commitment to parenting responsibilities

Answer 370

yes "change in circumstances" must be substantial and unforeseen at time the final judgment was entered

Answer 371

most courts use state with the most significant relationship to the agreement and the marriage

Answer 372

DR. FIVS 1. **full _d_isclosure** of assets and debts 1. **_r_easonable and _f_air terms** 1. _v_oluntary 1. _i_n writing AND 1. _s_igned

Answer 373

burden on party trying to invalidate clear and convincing evidence standard (1) agreement was involuntary OR (2) unconscionable when executed (a) spouse did not waive fair and reasonable disclosure AND (b) spouse didn't/couldn't have had adequate knowledge of other's assets and debts

Answer 374

most states say it is marital property

Answer 375

* time pressure * relative business experience of each party * oppy to be represented by independent counsel

Answer 376

fundamental right to the care, custody, and control of his children

Answer 377

UIFSA governs SMJ over interstate child support disputes. UIFA utilizes a home state jurisdictional rule that establishes _priority_ among competing child support orders. UIFSA’s home-state rule does not preclude a state from issuing a support order when another state is the child’s home state.

Answer 378

* divorce - law of plaintiff's domicile * adoption - forum ct applies own stat law * marriage - generally valid where it took place / celebrated

Answer 379

* common law - need consideration to modify a contract * UCC - only good faith

Answer 380

* UCC vs. common law * contract formation + defenses * performance obligations + defenses * damages * assignment, delegation, 3p beneficiaries

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