MBE High Priority Flashcards
(335 cards)
1
Q
When does a federal court have Subject Matter Jurisdiction?
A
If: Federal Question jurisdiction exists;* Diversity of Citizenship among the parties; OR* Supplemental jurisdiction is present.*Subject matter jurisdiction is NOT waived if a party fails to raise it at trial.
2
Q
When does Federal Question Jurisdiction exist?
A
When a Complaint alleges a claim that arises under:* Federal law;* The U.S. Constitution; OR* United States treaties.*The plaintiff MUST be enforcing a federal right and the federal question of law must be present on the face of the Complaint.
3
Q
When does Diversity of Citizenship Jurisdiction exist?
A
When:1. There is complete diversity of citizenship between all plaintiffs and defendants; AND2. The amount in controversy exceeds $75,000.
4
Q
What is the amount in controversy based on?
A
It is based on the damages alleged in good faith in the Complaint, unless it is legally certain that the plaintiff cannot recover the specified amount.*A claim for injunctive relief is valued by either the benefit to the plaintiff OR the cost of compliance for the defendant.
5
Q
When may a federal court exercise Supplemental Jurisdiction over additional state court claims?
A
When they arise from the same “case or controversy.”Generally, such claims must arise from a common nucleus of operative fact.
6
Q
How is Supplemental Jurisdiction limited?
A
- It CANNOT be used to overcome a lack of diversity.2. It DOES NOT apply to claims by the original plaintiff against a third-party defendant.3. The court may decline to exercise it when: * The claim raises a novel/complex issue of law; * The claim substantially predominates over the claim(s) of which the District Court had original jurisdiction; * The federal District Court has dismissed all claims it had original jurisdiction over; OR * In exceptional circumstances.
7
Q
When may a defendant remove a case to federal court?
A
When:1. The federal court has subject matter jurisdiction;2. All defendants agree;3. No defendant is a resident of the forum state (if removal is based on diversity jurisdiction); AND4. Removal is sought within 30 days (of either service of summons or receiving the initial pleading).*A plaintiff CANNOT remove a case to federal court.
8
Q
What are the traditional bases of Personal Jurisdiction?
A
- Domicile;* Transient jurisdiction (presence in the state when served);* Consent;* Waiver.*The above grounds comport with the Constitutional requirements of due process.
9
Q
How is Personal Jurisdiction exerted over a non-resident defendant of the forum state?
A
- The forum state must have a long arm statute; AND2. The Constitutional requirements of due process must be met.*Long-arm analysis requires: (1) the defendant have sufficient minimum contacts with the forum state; (2) so as not to offend traditional notions of fair play and substantial justice. BOTH prongs must be satisfied.
10
Q
What is the Constitutional Long-Arm Analysis?
A
Long-arm analysis requires:1. D has sufficient Minimum Contacts with the forum state – either: * General Jurisdiction – contacts so substantial that D is essentially at home in the state; OR * Specific Jurisdiction – a connection between the forum state and underlying controversy.2. Not offend traditional notions of Fair Play and Substantial Justice – it must be fair and reasonable for D to be sued in the forum state.*BOTH prongs must be satisfied*
11
Q
If the Summons and Complaint is NOT served upon the defendant within 90 days of filing, what must a court do?
A
Either:* Dismiss the action without prejudice against the defendant; OR* Order that service be made within a specified time.*Service may be made by any person who is at least 18 years old and not a party to the action.
12
Q
What are the Due Process Clause requirements for service of process?
A
It requires that notice:1. Be reasonably calculated to make the parties aware of the action; AND2. Give them an opportunity to object.
13
Q
Where is venue proper?
A
In any district where:* Any defendant resides (if all defendants are residents of the forum state);* Where a substantial portion of the claim occurred;* Where a substantial part of property is located (if property is the subject of the action); OR* If none of the above apply, then venue is proper in any district in which any defendant is subject to the court’s personal jurisdiction.*Proper venue is determined at the time the suit is filed.
14
Q
If venue was proper when the case was filed, then when MAY the court transfer the case?
A
If:1. Needed for the convenience of the parties and witnesses or interests of justice; AND2. The action could have initially been brought in the receiving court.*Following a transfer, the new court MUST apply the same substantive law as the original transferor court.
15
Q
What MUST the court do if venue was improper when the case was filed?
A
The court MUST either:* Dismiss the case; OR* Transfer the case to a proper court if the interests of justice require it.*Following a transfer, the law applied is that of the new transferee court.
16
Q
What law is applied under the Erie Doctrine in federal court?
A
The court will apply its own federal procedural laws, but MUST apply state substantive law.(A federal court sitting in diversity MUST apply the forum state’s choice of law rules to determine the applicable state substantive law in the action)
17
Q
Under the Federal Rules of Civil Procedure, when may multiple plaintiffs join in one action (Permissive Joinder)?
A
If:1. Joint and several relief is asserted by them OR the claim arises out of the same transaction or occurrence;2. A common question of law or fact to all plaintiffs exist; AND3. Subject matter jurisdiction exists for each claim.*The process is similar for multiple defendants.
18
Q
What is the standard on a Motion to Dismiss?
A
The court must:1. Consider the facts in the light most favorable to the non- moving party; AND2. Determine whether there is any basis upon which relief can be granted for the non-moving party.*The court DOES NOT evaluate the merits of the case.
19
Q
What are the Motion to Dismiss grounds?
A
- Lack of subject matter jurisdiction;2. Lack of personal jurisdiction;3. Improper venue;4. Insufficient process;5. Insufficient service of process;6. Failure to state a claim upon which relief can be granted;7. Failure to join a necessary party.*Grounds 2-5 are deemed waived if not raised in the first responsive pleading or Motion to Dismiss.
20
Q
When will a court grant a Motion for Summary Judgment?
A
When:1. There is no genuine issue of material fact; AND2. The movant is entitled to judgment as a matter of law.*When reviewing the motion, the court MUST view the evidence in the light most favorable to the non-moving party.
21
Q
When may Issue Preclusion (collateral estoppel) be invoked?
A
When:1. A valid and final judgment was rendered in the first action;2. The issue is identical to the issue decided in the prior action;3. The issue was actually litigated, determined, and essential in the prior action; AND4. The party against whom enforcement is sought had a full and fair opportunity to litigate the issue in the first action.
22
Q
What is a Final Judgment?
A
One which ends litigation on the merits (all claims are resolved) and leaves nothing for the rendering court to do but execute the judgment.(Appeal is thereby precluded from any decision that adjudicates some but not all claims in the action.)
23
Q
What are the exceptions to the Final Judgment Rule?
A
- Rule 54(b) Exception.2. Statutory Exceptions.3. Certified Appeal Exception.4. Collateral Order Doctrine.5. Writs of Mandamus and Prohibition.6. Pendent Appellate jurisdiction.7. Certification of Class Action.
24
Q
Under the Rule 54(b) exception, when is an appeal allowed?
A
When:1. The action has multiple parties or multiple claims;2. The court directs entry of a final judgment for some of the claims or parties; AND3. The court expressly determines that there is no just reason for delay.*If the above elements are NOT met, then the appeal must wait until after a final judgment for the entire case.
25
The 11th Amendment prohibits a party from suing a state or state agency in federal court.What are the exceptions to this?
* The state explicitly consents to waive its 11th Amendment protections;* The suit pertains to federal laws adopted under Section 5 of the 14th Amendment;* The suit seeks only injunctive relief against a state official for conduct in violation of the constitution or federal law; **OR*** The suit seeks money damages from a state official.
26
What is the Negative Commerce Clause?
State and local governments CANNOT pass laws that:* Discriminate against out-of-state commerce; **OR*** Place an undue burden on interstate commerce.
27
_Negative Commerce Clause_When is a law deemed **discriminatory**?
When it is either:* Facially discriminatory; **OR*** The law has a discriminatory impact because it favors in-state commerce over out-of-state commerce. These laws are typically unconstitutional, _unless_: * The burden on Interstate commerce is narrowly tailored to achieve a legitimate, non-protectionist state objective; **OR** * The state/local gov’t is a “market participant.”
28
_Negative Commerce Clause_When is a law deemed **unduly burdensome**?
State and local laws that place an undue burden on interstate commerce are _unconstitutional_ when:1. The burden on interstate commerce,2. Is clearly excessive to the putative benefits to the state and local government.\*Courts apply this balancing test on a case-by-case basis.
29
When will a court find “state action” for private conduct?
When the conduct involves either:* A ***traditional public function*** – powers traditionally and exclusively reserved to the government; **OR*** When ***significant government involvement exists*** to authorize, encourage, or facilitate private conduct that is unconstitutional.
30
_Equal Protection Clause_What must the government show under **Strict Scrutiny**, and when will courts apply it?
The government must show that a classification is ***necessary*** to serve a _compelling government interest_.Courts will apply strict scrutiny when:* A classification is based on a suspect class (race, origin); **OR*** When the law infringes on a fundamental right for a class of people.
31
_Equal Protection Clause_What must the government show under **Intermediate Scrutiny**, and when will courts apply it?
The government must show that a classification is ***substantially related*** to an _important government interest_.Courts will apply it when:A classification is based on a **quasi-suspect class** (gender/sex, non-marital children, & *most likely* sexual orientation/gender identity)
32
_Equal Protection Clause_What classes does the **Rational Basis** test apply to, and what must a plaintiff show regarding the classification?
This test applies to ALL other classes not covered under strict or intermediate scrutiny (age, disability, undocumented aliens, etc.).Under this test the plaintiff must show that the classification is _not rationally related to any legitimate government interest_.
33
_Takings (5th Amendment)_Possessory (per se) takings vs. Regulatory takings
**_Possessory_** – When the government physically takes or occupies the property (even just a small portion).**_Regulatory_** – Three Categories:* **Depriving Owner of All Economically Viable Use** – is a per se taking* ***Penn Central*** **Taking*** **Conditions on Approval of a Permit** (a.k.a. a Land-Use Exaction)
34
_Takings (5th Amendment)_What are the factors for a *Penn Central* Taking?
To determine whether a taking occurred, courts _balance the *Penn Central* Factors_:1. The ***economic interest*** of the regulation on the claimant;2. The ***extent of the interference***; **AND**3. The ***character*** of the governmental action.
35
_Takings (5th Amendment)_When do conditions placed on the approval of permits NOT constitute an uncompensated taking under the 5th Amendment?
If:1. There is an essential nexus between the state interest and permit condition; **AND**2. The government makes an individualized determination that the condition is roughly proportional to advancing the state interest.
36
_Free Speech_Public Forumvs.Designated Public Forumvs.Non-Public Forum
**_Public Forum_**: Traditionally available to the public for free speech.**_Designated Public Forum_**: Not traditionally available for free speech, BUT the government chooses to make it available. Treated the same as a Public Forum.**_Non-Public Forum_**: Public spaces that have traditionally been limited for free speech. The government may regulate speech here if the regulation is reasonable AND viewpoint neutral.
37
_Free Speech_:When are licensing requirements permitted?
If:1. The government has an important reason for licensing;2. Specific, articulated standards are used to grant the licenses to remove discretion of the licensing body; **AND**3. Procedural safeguards are in place.
38
What are the elements of a valid contract?
1. Mutual Assent (offer and acceptance);2. Consideration; **AND**3. No defenses to formation.
39
What law governs contracts for the Sale of Goods?
Article 2 of the Uniform Commercial Code.\*Under the UCC, a contract may be made in any manner sufficient to show agreement (i.e. conduct showing parties recognize existence of a contract).\*For _mixed contracts_, the ***predominant purpose*** determines which law governs.
40
What are the elements of Mutual Assent?
1. **_Offer_**: A manifestation of present intent to contract, with definite and reasonably certain terms, that is communicated to the offeree.2. **_Acceptance_**: A manifestation of assent to the terms of the offer, which indicates a commitment to be bound.
41
When is an offer Terminated?
Offers may be terminated *before acceptance* by:* Revocation by offeror;* Rejection or Counter-offer by offeree;* Lapse of time;* Death / Incapacity of either party; OR* Supervening illegality.
42
When may an offer be revoked, and which types of offers are *not* revocable?
They may be revoked *at any time before acceptance* through unambiguous words/conduct indicating an unwillingness/inability to contract (effective when received)._Irrevocable offers_ include: option contracts, a merchant’s firm offer, beginning performance for unilateral contracts, and offers that were relied on to the offeree’s detriment.
43
What is a Merchant’s Firm Offer?
1. An offer to buy or sell goods;2. By a merchant;3. In a signed writing;4. Which states that the offer will be held open and is not revocable; **AND**5. The assurance to keep the offer open must be signed separately by the offeror.\*Enforceable WITHOUT consideration.
44
Rejection vs. Counteroffer
**_Rejection_**: Manifestation of intent to *not* accept an offer (words/conduct) which terminates the offer. Offers CANNOT be accepted after they have been rejected.**_Counteroffer_**: Both a rejection that terminates the original offer and a NEW offer.
45
What is Consideration?
A ***bargained for exchange*** of a promise for a return promise or performance (that benefits the promisor or causes detriment to the promisee).\*Past or moral consideration is NOT sufficient to support a contract.
46
When does Promissory Estoppel apply?
Applies when:1. A party reasonably and foreseeably relied to his *detriment* on the promise of the other party;2. The promisor should have reasonably expected a change in position in reliance of the promise; **AND**3. Enforcement of the promise is necessary to avoid injustice.
47
What is the Common Law Pre-Existing Duty Rule?What are the exceptions?
Past performance or performance of a pre-existing duty is NOT adequate consideration.Exceptions:* If there is an ***addition or change*** in performance or promise;* ***Unforeseen circumstances*** – a fair and equitable modification is made due to unanticipated changed circumstance AND the contract is not yet fully performed by either party; **OR*** ***Third-party promise*** – the duty was owed to a third-person, not the promisor.
48
Is consideration required for a modification to a UCC Art. 2 sale of goods contract?
NO, consideration is not required for contract modifications made in ***good faith***.BUT, the modification must be in writing if:* It falls within the Statute of Frauds; **OR*** The original contract states that modifications must be in writing.
49
Under the Statute of Frauds, which types of contracts require a signed writing to be valid?
1. Marriage contracts.2. Suretyships (unless the main purpose exception applies).3. Contracts that cannot be fully performed in 1 year.4. Contracts for the sale of real property (or creating an interest in real property).5. Promises to pay an estate’s debt from the personal funds of the Executor/Administrator.6. Contracts for the sale of goods for $500 or more.
50
Contracts for the sale of goods for $500 or more MUST be in writing.What are the four exceptions to this rule?
1. Merchant’s Confirmatory Memorandum.2. Goods accepted or Paid for.3. Custom Made Goods.4. Admission during judicial proceeding.
51
What satisfies the writing requirement under the Statute of Frauds?
The writing MUST:1. Be signed by the party to be charged;2. Identify the subject matter of the contract;3. Indicate that a contract has been made by the parties; **AND**4. State the essential terms with reasonable certainty.\*An agreement DOES NOT need to be in *_one_* writing, it may consist of several writings.
52
What are the exceptions to the Parol Evidence rule?
1. To correct a clerical error or typo.2. To establish a defense against formation.3. To interpret vague or ambiguous terms.4. To supplement a partially integrated writing.\*The parol evidence rule DOES NOT apply to subsequent agreements.
53
How do courts determine whether a breach is material?
They will consider:1. The extent of the benefit deprived to the injured party;2. The adequacy of compensation for loss to the non-breaching party;3. The extent the breaching party will suffer forfeiture;4. The likelihood that the breaching party will cure; **AND**5. Absence of good faith and fair dealing by the breaching party.
54
After the acceptance of goods, when may a buyer later revoke that acceptance?
IF:1. The non-conformity substantially impairs the value of the goods; **AND**2. Either (a) the defect was difficult to discover (latent), (b) acceptance was reasonably induced by seller’s assurances, OR (c) the buyer accepted the goods on the reasonable assumption that the defect would be cured.\*If a buyer successfully revokes acceptance, he is entitled to return of the purchase price.
55
When does an Anticipatory Repudiation occur?
When a party *unequivocally* communicates that he is unable or unwilling to perform.\*A party that breaches may retract its repudiation and restore the contract UNLESS the aggrieved party has: cancelled, materially changed his position, or indicated that he considers the repudiation final.
56
When an Anticipatory Repudiation occurs, what may a non-breaching party do?
* Treat the contract as repudiated and sue for damages;* Treat the contract as discharged;* Wait until performance is due and sue when performance doesn’t occur; **OR*** Urge the party to perform.
57
The Warranty of Title includes what warranties?
1. The title conveyed shall be good and its transfer rightful; **AND**2. The goods shall be delivered free from any security interest or other lien or encumbrance.
58
What are Expectation Damages?When are they recoverable?
They arise _directly from the breach_, and are an attempt to put the non-breaching party in the same position it would have been in but for the breach.To recover, the damages must be:1. Caused by the defendant;2. Foreseeable;3. Certain; **AND**4. Unavoidable.
59
What are Consequential Damages?When are they recoverable?
They arise _indirectly from the breach_, and are awarded because of the injured party’s special circumstances.To recover, the damages must be:1. ***Reasonably foreseeable*** at the time of contract formation;2. Arise from the plaintiff’s special circumstances that the ***defendant knew or had reason to know of***; **AND**3. ***Reasonably certain*** (not speculative).
60
Under the UCC, what remedies does a seller have if a buyer breaches a contract for the sale of goods?
* Withhold delivery of the goods;* Cancel;* Recover cover damages;* Recover market damages;* Recover lost profits if the seller is a lost volume seller;* Stop delivery of the goods when he discovers buyer is insolvent;* Stop delivery of a truckload when buyer breaches; **OR*** Replevy identified goods.
61
Cover Damagesvs.Market Damagesvs.Loss-in-Value Damages
**_Cover_**: Difference in price between the contact price and price of substitute goods.**_Market_**: Difference between the market price and contract price (used if buyer did not cover in good faith or at all).**_Loss-in-Value_**: Difference between the value as promised and the value of the non-conforming goods (used if buyer keeps the non-conforming goods).
62
When will the Waste Doctrine apply?
IF:1. The contractor performs in good faith, but defects nevertheless exist; **AND**2. Remedying the defects greatly exceeds the value of the completed work.\*In this instance, the *decrease in value* becomes the proper measure of damages.
63
Choice of Law:Most Significant Relationship Approach
The laws of the state having the ***most significant relationship*** to the transaction and the parties will govern the action.
64
Choice of Law:Interest Analysis Approach
The court *weighs the interests* of the states involved.To determine ***which state has a greater interest*** in having its law applied a court will examine:* Each state’s connections to the parties and events of the action.* The difference between the state laws.* The underlying policies behind the state laws.* The law applied to the facts.
65
Contractual Choice of Law:For matters of contract _validity_, when may the parties choose which state’s law applies?
1. If a state has some connection with the contract;2. The contract has not been entered into under fraud, duress, or mistake; **AND**3. The choice of law isn’t contrary to a substantial policy interest of another state that has more of a significant interest in the matter.
66
What factors will a court consider for a _Contract_ Action under the Most Significant Relationship Approach?
1. The place of contracting;2. The place of negotiation of the contract;3. The place of performance;4. The location of the subject matter of the contract; **AND**5. The domicile, residence, nationality, place of incorporation, and place of business of the parties.\*Factors are weighed according to relevance.
67
In a will, can a decedent designate a particular state’s law to be applied for matters of construction?
**Yes**, BUT the validity and effect of a will is ALWAYS determined by the law of the situs state.
68
What is the Erie doctrine?When does it apply?
Under the Erie doctrine, a federal court sitting in diversity will apply its own federal procedural laws, but MUST apply state substantive law.When a federal case is brought under diversity of citizenship jurisdiction.
69
Procedural laws vs. Substantive laws
**_Procedural laws_**: Civil procedure rules, burden of proof, AND rebuttable presumptions.**_Substantive laws_**: Elements of claim/defense, choice of law rules, statute of frauds, irrebuttable presumptions, damages, statute of limitations, preclusion law.
70
A marriage that is valid where formed is valid everywhere, unless what?
It violates a strong public policy of another state that has the most significant relationship to the spouses and the marriage.\*Most states will honor a valid common law marriage established in another state.
71
In a matrimonial action involving economic or child custody issues, what must a court have for the judgment to be entitled to full faith and credit in other states?
Personal Jurisdiction over the defendant spouse.
72
Under the Parental Kidnapping Prevention Act (PKPA), states must give full faith and credit to child custody decrees of other states when what occurs?
1. The issuing court had jurisdiction under the laws of the state; **AND**2. The assertion of jurisdiction by that court was consistent with the jurisdictional requirements of PKPA.
73
What are the elements of a crime?
Elements:1. Physical act (actus reus);2. Mental State element (mens rea);3. Causation (actual and proximate cause); **AND**4. Concurrence (mental state and physical act occur at the same time).
74
What does Causation require?
It requires both:1. Actual causation (but for); **AND**2. Proximate cause (it was foreseeable that the injury would have occurred from the defendant’s physical act).
75
What is a Superseding Intervening Cause?
It is a third-party’s act that breaks the chain of causation. This normally cuts off the defendant’s liability.An act will ONLY break the chain if the force was:1. Independent of the defendant’s wrongful conduct; **AND**2. Not foreseeable.
76
What is the Simultaneous Acts Rule?
A person’s acts will *still* be the proximate cause of a resulting injury if his wrongful conduct ***created a condition of peril***.A wrongful act that **accelerates death** **is still the legal cause of death**, even if the person was going to die eventually.
77
Under the Common Law, what mental state categories were used?Mental states under the Model Penal Code?
**_Common Law_**: Specific Intent, General Intent, Malice, & Strict liability.**_MPC_**: Purposefully, Knowingly, Recklessly, & Criminal Negligence.\*Willful Blindness Standard: A person acts knowingly when they are aware that certain facts are highly probable OR are intentionally ignorant of them.
78
_Murder_When is a Malice Aforethought killing established?
Upon a showing of:* An intent to kill;* An intent to inflict great bodily injury;* A reckless disregard of an extreme risk to human life; **OR*** An intent to commit an inherently dangerous felony under the felony murder rule.
79
_Murder_Second Degree Murdervs.First Degree Murder
**_Second Degree Murder_**: The unlawful killing of a person with malice aforethought.**_First Degree Murder_**: Occurs when the killing was willful, deliberate, AND premeditated.
80
_Murder_Murder under the Model Penal Code (MPC)
The killing of a person either:* Committed purposely/knowingly; **OR*** Recklessly under circumstances manifesting an extreme indifference to the value of human life.\*Recklessness and indifference are presumed if the killing occurred during the commission of or an attempt to commit a dangerous felony (Felony Murder Rule).
81
_Murder_Felony Murder Rule
A person is guilty of murder if a person is killed during their:* Commission of (or attempt to commit) a dangerous felony; **OR*** Felony escape.\*Dangerous felony = robbery, rape, arson, burglary, kidnapping
82
What is Voluntary Manslaughter?
An *intentional killing* of a person without malice aforethought (**adequate provocation**)._Adequate provocation_ is established if:1. The defendant was provoked;2. A reasonable person would have been provoked;3. There was not enough time to cool off before the killing; **AND**4. The defendant DID NOT cool off before the killing.
83
What is Involuntary Manslaughter?
An *unintentional* killing of a person committed:* Recklessly;* Under the Misdemeanor Murder Rule; **OR*** During a non-dangerous felony.
84
What is Manslaughter under the Model Penal Code (MPC)?
The killing of a person:* Committed recklessly; **OR*** Which would otherwise be murder, but is committed under the influence of extreme mental or emotional disturbance.\*The MPC doesn’t distinguish between voluntary/involuntary manslaughter.
85
What are the elements of Larceny?
The:1. Trespassory taking,2. And carrying away,3. Of the personal property of another,4. With the intent to permanently deprive the owner of the property.\*Larceny by Trick = when one obtains possession of another’s property by trick or deception.
86
What are the elements of False Pretenses?
It occurs when one:1. Obtains title,2. To personal property of another,3. Through a known false statement of material fact,4. With the intent to defraud.\*Opinion or commercial puffery is NOT false pretenses.
87
What are the elements of Embezzlement?
1. The fraudulent or wrongful,2. Conversion,3. Of personal property of another,4. By a person with lawful possession of the property.
88
What are the elements for the crime of Receiving Stolen Property?
When a person:1. Receives possession of stolen property,2. Who knows the property is stolen at the time of receiving it, **AND**3. With the intent to permanently deprive the owner of the property.
89
What are the elements of Robbery?
1. The trespassory taking and carrying away,2. Of the personal property of another person,3. In their presence;4. By the use of force or threat of immediate physical harm,5. With the intent to permanently deprive the owner of the property.\*Armed robbery requires the elements above, PLUS the use of a dangerous weapon.
90
What are the elements of Burglary?
Burglary is:1. The breaking and entering,2. Of a dwelling,3. Of another,4. At night,5. For the purpose of committing a felony inside.\*Most jurisdictions have extended burglary to any structure at any time.
91
What are the four Insanity tests?
1. The M’Naghten test.2. The Model Penal Code test.3. The Irresistible Impulse test.4. The Durham test.\*A defendant will be acquitted if he meets the applicable insanity test of his jurisdiction.
92
_Insanity_What is the *M’Naghten* Test?
1. A **mental disease or defect**; **AND**2. That resulted in being:* Unable to know the *wrongfulness of the conduct*; OR* Unable to understand the *nature and quality of the acts*.
93
_Insanity_What is the Model Penal Code Test?
As a result of a mental disease or defect, the defendant was:* Unable to appreciate the criminality of the conduct; **OR*** Unable to conform his actions to the law.
94
_Insanity_What is the Irresistible Impulse Test?
Defendant’s mental illness made him:* Unable to control his actions; **OR*** Unable to conform his actions to the law.
95
_Insanity_What is the *Durham* Test?
Defendant must show that his unlawful conduct was the ***product of mental illness***.
96
_Justification – Self-Defense_Deadly Forcevs.Non-Deadly Force
_Deadly Force_ is justified when: (1) the defendant kills another on a reasonable belief, (2) that he was in imminent danger of being killed or suffering great bodily injury, *and* (3) the use of deadly force was necessary to defend against the danger._Non-Deadly Force_ is justified when: (1) the defendant reasonably believes, (2) that he is imminent danger of being harmed, *and* (3) the force used is proportional to the harm threatened.
97
_Justification – Self-Defense_What is Imperfect Self-Defense?
It’s when the defendant kills another based on a ***good faith belief*** that:1. She was in imminent danger of being killed or suffering great bodily injury; **AND**2. The use of deadly force was necessary to defend against the danger; **BUT**3. At least one of those beliefs was *unreasonable*.\*This can reduce a murder charge to manslaughter.
98
What is required to challenge a Search and Seizure?
STANDING.The challenger must have a *reasonable expectation of privacy* regarding the item or place searched.\*Courts have held that individuals have a reasonable expectation of privacy in that of which they own or possess.
99
_Arrests_When does Probable Cause arise?
It arises when the police officer has:1. Trustworthy facts or knowledge,2. Sufficient to warrant a reasonable person to believe,3. That a crime has occurred.\*If in a public space, probable cause is all that’s required. If in someone’s home, a warrant is required to make an arrest.
100
When may a police officer Stop and Inquire?
If the police officer:1. Has reasonable articulable suspicion,2. That criminal activity is afoot.\*Allows only a brief detention for questions, after which the suspect must be released.
101
When may a police officer Stop and Frisk?
If the police officer:1. Has reasonable articulable suspicion,2. That criminal activity is afoot, **AND**3. That the person has a weapon.\*Under the Plain Feel Doctrine, the officer may only seize items during the frisk that he reasonably believes is contraband or a weapon.
102
What is required for a valid Search Warrant?
To be valid:1. There must have been ***probable cause***;2. The warrant must state with ***particularity*** the place to be searched and the items to be seized; **AND**3. It must be issued by a ***neutral and detached magistrate***.
103
What are the exceptions that permit a Warrantless search and seizure?
1. Plain View doctrine.2. Exigent circumstances.3. Automobile exception.4. Search incident to an arrest.5. Consent.6. Inventory searches.7. Stop and Frisk.8. Where the U.S. Supreme Court has concluded there is a special need.
104
What are the Miranda Warnings?
Miranda warnings inform suspects that:1. They have the right to remain silent;2. Anything they say can be used against them in court;3. They have the right to talk to an attorney and have one present when they are questioned; **AND**4. If they cannot afford one, an attorney will be provided to them.\*These rights only attach when there is a *custodial interrogation* of a suspect.
105
When may a custodial interrogation be _reinitiated_ after the right to counsel has been invoked?
If:1. The suspect has been re-advised of his Miranda rights;2. Has provided a knowing and voluntary waiver; **AND**3. Either:* Counsel is present,* The suspect initiates the communication; OR* At least 14 days have passed since the suspect was released from custody.
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When does the Exclusionary Rule NOT apply?
If:* The police had an independent source for the secondary evidence;* The discovery of the evidence would have been inevitable regardless of the illegality;* Through the attenuation doctrine;* The police relied in good faith on a defective search warrant; **OR*** Violation of Knock-and-Announce Rule.
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What are the limitations on the Exclusionary Rule as applied to Miranda Violations?
**Limitation #1**: Failure to give warnings DOES not require suppression of the physical evidence.**Limitation #2**: Statements made after Miranda warnings are admissible, UNLESS a non-mirandized statement was the result of coercive police tactics offensive to due process.**Limitation #3**: Statements obtained in violation are inadmissible in the prosecution’s case-in-chief, BUT may be used to impeach a defendant on cross examination.
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When is evidence Relevant?
1. When it has ***any tendency to make a fact more or*** ***less probable*** than it would be without the evidence;**AND**2. The fact is ***of consequence*** in determining the action.
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_Rule 403 Exclusions_A court may exclude evidence if its probative value is substantially outweighed by a danger of what?
* Unfair prejudice;* Confusing the issues;* Misleading the jury;* Undue delay;* Wasting time; **OR*** Being needlessly cumulative.
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When is evidence Unfairly Prejudicial?
When the evidence is:1. Unnecessary;**AND**2. Might cause the jury to improperly sympathize or dislike a party.
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When is evidence of Subsequent Remedial Measures **NOT** admissible?
To prove:* Negligence;* Culpable conduct;* A defect in product or design; **OR*** A need for a warning or instruction.\*But, it _may_ be admissible to impeach or prove a disputed issue of ownership, control, or feasibility of precautionary measures.
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_Character Evidence_Character evidence may be offered as circumstantial evidence to *prove propensity* (that a person acted in conformity with the character trait) in what limited circumstances?
1. Criminal cases – by defendant OR by prosecution if the defendant “opens the door”.2. Victim’s character (in non sex-offense cases) – to prove defendant’s innocence; prosecution may rebut.3. Homicide cases – by defendant to show self-defense, prosecution may offer evidence of victim’s character for peacefulness if defendant claims victim was aggressor.4. Sex offense cases – not admissible, unless exceptions apply.5. Civil cases – only if sex offense cases exception applies.Priority: HIGH
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_Character Evidence_What are the exceptions in Sex Offense Cases that allow character evidence (to prove a victim’s sexual behavior or predisposition) to be admissible?
1. **Civil cases**: If its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party. (Evidence of the victim’s reputation is admitted *only if* the victim placed it in controversy).2. **Criminal cases**: If offered to prove the defendant was not involved in the sex crime, to prove consent, if offered by the prosecution, OR if exclusion would violate the defendant’s Constitutional rights.
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_Character Evidence_How may character evidence be proven?
By **Reputation** or **Opinion** — In all instances.By **Specific Acts/Instances** — Only allowed: a) on Cross-Examination of a character witness; **OR** b) if “Character in Issue”.*Note: Special rules apply to evidence of a Victim’s Character in Sex-Offense cases.Priority: HIGH
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**Prior Bad Acts** may be admissible for NON-PROPENSITY purposes, such as?
Proving:* Motive;* Identity;* Absence of mistake or accident;* Intent;* A common plan or scheme;* Opportunity;* Preparation; **OR*** Knowledge.
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What must a proponent show in order to offer Prior Bad Acts as evidence?
1. That the prior act was committed by a preponderance of the evidence (vague references are insufficient);2. That its probative value substantially outweighs the danger of unfair prejudice; **AND**3. Proper notice (in criminal cases).Priority: HIGH
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When is evidence of a person’s Habit or an organization’s Routine Practice admissible?
To prove that on a particular occasion the party acted in accordance with the habit or routine practice.\*This may be admitted regardless of corroboration or eyewitnesses.
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Evidence of prior convictions may be admissible to attack a witness’s character for truthfulness in which instances?
1. *Prior felony or misdemeanor* convictions involving *dishonesty* – a dishonest act or false statement.2. In Felonies that DO NOT involve dishonesty when: * The witness is *not* a criminal defendant (criminal/civil); * In a criminal case where the witness IS a defendant, BUT the probative value outweighs the prejudicial effect.\*A _felony_ is a crime punishable by death *or* imprisonment over 1-year.\*Evidence of a conviction is NOT admissible if it has been pardoned/annulled on a finding of innocence.
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In what circumstance may a witness’s credibility be attacked on cross-examination with specific instances of conduct (i.e. prior bad acts)?
**Only** when:The conduct is probative of the witness’s character for truthfulness or untruthfulness.\*\*BUT, _extrinsic evidence_ is NEVER admissible to attack/support such instances of a witness’s credibility.
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When is Refreshing a Witness’s Recollection using a document permitted?
When:1. The witness once had a personal knowledge of the matter,2. But is unable to recall the matter when testifying.\*\*Only the opposing party may offer the document into evidence.
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What is a Lay Witness?When is Lay Witness testimony admissible?
Any person who gives testimony in a case that is NOT called as an expert. Their testimony is admissible if they are *competent* to testify (competency is presumed under the FRE).They must take an oath to tell truth and only testify to matters of personal knowledge.
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When may a Lay Witness offer an opinion?
If it is:1. Rationally based on the witness’s perception;2. Helpful to clearly understand the testimony or to determine a fact in issue;**AND**3. Not based on scientific, technical, or other specialized knowledge.
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When is Expert Witness testimony permitted?
When the:1. Witness is ***qualified*** as an expert;2. Testimony is ***helpful*** to the trier of fact;3. Testimony is based on ***sufficient facts/data***;4. Testimony is based on ***reliable principles/methods***; **AND**5. Witness ***reasonably applied*** the principles/methods to the facts of the case.
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_Expert Testimony_What is reliability based on?
On the methodology’s:1. Testability;2. Publication & Peer Review;3. Error Rate;4. Standards & Controls; **AND**5. Whether it’s generally accepted in the field.
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What is Hearsay?
1. An ***out of court statement***,2. That is ***offered to prove the truth of the matter asserted***.\*Hearsay is ONLY admissible if it falls under an exception.\*A _statement_ is an oral/written assertion or nonverbal conduct if intended as an assertion (it MUST assert something).
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What is Non-Hearsay?
An out of court statement that is offered to prove *something other* than the truth of the statement. It **IS** admissible.Non-Hearsay includes:1. Verbal acts of independent legal significance.2. Statements to show the effect on the listener.3. A prior inconsistent statement used to impeach.4. Circumstantial evidence of the speaker’s state of mind.
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What is a Statement by a Party Opponent?(deemed non-hearsay under the FRE)
1. Any statement offered against an opposing party,2. That either: * Was made by the party in an individual or representative capacity; * Is adopted or believed to be true; * Was made by an authorized person; * Was made by the party’s agent or employee; **OR** * Was made by the party’s co-conspirator in furtherance of the conspiracy.
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When are Prior Statements by a declarant witness deemed Non-Hearsay?
1. If the declarant testifies;2. If the declarant is subject to cross examination; **AND**3. If the prior statement was: * Inconsistent with their testimony and given under penalty of perjury; * Identifies a person as someone they perceived earlier; **OR** * Is consistent with the declarant’s testimony *_and_* is offered to rebut that they are lying or to rehabilitate their credibility when attacked.
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_Hearsay Exceptions_What is a Present Sense Impression?
A statement describing an event made by the declarant;* While observing the event; **OR*** Immediately thereafter.
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_Hearsay Exceptions_What is an Excited Utterance?
A statement:1. Relating to a ***startling event or condition***,2. Made while the declarant was ***under the stress of excitement*** that the event/condition caused.
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_Hearsay Exceptions_Business Records are an exception to the Hearsay rule. When are they admissible?
If it is:1. A record of events, conditions, opinions, or diagnoses;2. Kept in the regular course of business;3. Made at or near the time of the matter described;4. Made by a person with knowledge of the matter;5. The regular practice of the business to make the record;**AND**6. The opponent party does not show a lack of trustworthiness in making the record.
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_Hearsay Exceptions_Are Statements made for Medical Diagnosis or Treatment an exception to Hearsay rule?
**YES**, when:1. It’s made for and reasonably pertinent to a medical diagnosis, **AND**2. It describes medical history or symptoms (past or present).
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_Hearsay Exceptions_Are Statements of Mental, Emotional, or Physical Conditions an exception to the Hearsay rule?
**Yes**, the declarant’s then existing state of mind (motive, intent, or plan) OR their emotional, sensory, or physical condition **are** exceptions to the Hearsay rule.HOWEVER:Statements of memory or belief offered to prove a fact believed or remembered are NOT admissible, *unless* it relates to the validity/terms of the declarant’s will.
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What types of statements are testimonial in nature?
1. Statements made to grand juries;2. Affidavit or Certified Report with forensic lab results; **AND**3. Statements made to police whose primary purpose is to collect testimony to be used *at a later trial.*(It is NOT testimonial if used to assist police in an emergency.)
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What is the Physician-Patient Privilege?
It protects confidential communications between a Physician and Patient from disclosure if the communication:1. Was ***confidential***; **AND**2. Made for the purpose of ***medical diagnosis or treatment***.\*The patient holds the privilege (*not* the physician).
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When is the Physician-Patient Privilege recognized?(state vs. federal)
_Most States_: DO recognize the privilege_Federal Courts_: DO NOT recognize the privilege\***Exception**: Federal courts will recognize it when:1. it’s a civil case;2. a claim/defense is *based on state law*; AND3. *state law recognizes* a physician-patient privilege.
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How is a Common Law Marriage formed?
When the spouses:1. Live together for a specified amount of time;2. Are legally able to marry;3. Have a present agreement that the two parties are married; **AND**4. Hold themselves out as being married.\*Most states will honor a valid common law marriage established in another state.
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Under the UPAA, a Premarital Agreement is NOT enforceable if a spouse proves what?
Either:* The agreement was made involuntarily (fraud, duress, coercion); **OR*** It was unconscionable when executed AND before execution the spouse was not: * Provided fair disclosure of property/financials; * Did not waive disclosure in writing; AND * Did not have knowledge of such information.
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What factors will be considered to determine if a Premarital Agreement was made _voluntarily_?
1. Presence of independent legal counsel;2. Length of time between the date of agreement and the wedding;3. The party’s ability to understand the agreement; **AND**4. Other reasons for proceeding with marriage (i.e. pregnancy).\*A party’s insistence on signing the agreement as a condition to marriage DOES NOT render it involuntary.
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Are provisions in a marital agreement regarding child support/custody binding?
**NO**, they are not binding.\*Additionally, any provisions that adversely affects a child’s right to support is unenforceable.
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May an ex-parte divorce action be maintained *without* personal jurisdiction over the absentee spouse?
**YES**, if the plaintiff-spouse is a ***domiciliary*** of the rendering state.\*Many states have _Durational Residency Requirements_ – specifies the amount of time a spouse must live in the state before he/she can bring a divorce action.
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What is a Divisible Divorce?
It allows one party to terminate the marriage in one proceeding, and reserves other issues (property division, spousal support) for another proceeding.\*It occurs when a court has personal jurisdiction over the marriage (the *res*) to maintain a divorce action, BUT *not* over the defendant spouse to maintain an economic or support action.
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Under the UCCJEA, when does a court have **Home State Jurisdiction**?
Either:1. Child’s home state; **OR**2. Where (i) child lived with a parent for 6+ months immediately before action was filed, (ii) child is absent from state, *_and_* (iii) parent or acting parent is still present in the state.
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Under the UCCJEA, when does a court have **Significant Connection Jurisdiction**?
If:1. No home state;2. Child and *at least* one parent have a significant connection to the state; **AND**3. Substantial evidence in the state exists.
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Under the UCCJEA, when does a court have **More Appropriate Forum Jurisdiction**?
When:***All other courts*** ***decline to exercise jurisdiction*** because this particular court is a more appropriate forum.
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Under the UCCJEA, when does a court have **Temporary Emergency Jurisdiction**?
When the:1. Child is ***physically present in the state***; **AND**2. Child is ***abandoned*** *_or_* it’s an ***emergency to protect the child***.
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Under the UCCJEA, when does a court have **No Other State Jurisdiction**?
When:No other state has jurisdiction.
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_Division of Property_What does Separate Property include?
It includes:* Property/assets acquired prior to marriage;* Gifts/bequests to an individual spouse during marriage;* Property which spouses agree will be separate; **AND*** Passive appreciation of assets for any of the above.\*Each spouse’s separate property will NOT be subject to equitable distribution.
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_Division of Property_What does Marital Property include?
It includes:All property acquired during the marriage, *regardless* of whose name is on the title of the property.Most states also consider active appreciation (appreciation caused by the effort of one or both of the spouses) as Marital Property.\*Generally, fault is IRREVELANT to the division of marital property.
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_Spousal Support_Under the Uniform Marriage and Divorce Act (UMDA), the court may order Maintenance when?
If the spouse seeking maintenance:1. Lacks sufficient property to provide for their reasonable needs;**AND**2. Is either unable to support themselves through employment OR is the custodian of a child whose condition makes it so they cannot seek work.
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_Spousal Support_What factors will a court weigh when determining the amount of Spousal Support?
1. The party’s financial resources;2. The time necessary to obtain an appropriate job;3. The standard of living established during the marriage;4. The duration of the marriage;5. The age and physical condition of the seeking spouse;6. The ability of the spouse paying, to meet their needs, while still supporting their ex-spouse.\*Support obligations terminate upon death of the obligor spouse.
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_Child Support_What kind of State Child Support Guidelines are required by federal law?
Guidelines that:1. Take into consideration ALL earnings and income of the non-custodial parent;**AND**2. Are based on specific descriptive and numeric criteria to compute the support obligation.
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_Modification of a Child/Spousal Support Order_Most Statesvs.UMDA
**_Most States_**: ONLY when there is a ***substantial & continuing change in circumstances*** of either the payor or payee spouse making the prior order unreasonable.**_UMDA_**: ONLY allowed upon a showing of changed circumstances ***so substantial and continuing*** as to make the prior terms ***unconscionable***.
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Under UIFSA, child/spousal support orders from other states CANNOT be modified unless what occurs?
1. The court has jurisdiction to issue an order; **AND**2. Either:* All of the parties *do not* reside in the issuing state;**OR*** Each party has consented in writing to jurisdiction in another state.
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What is the standard for determining Child Custody?
The ***best interests of the child*** standard.\*This broad standard gives great discretion to the court.
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_Child Custody_What is the Parent vs. Third-Party custody preference?
Parental rights are Constitutionally protected.As such, a **fit legal parent** is ***given preference***, and it’s **_presumed_** that **custody with a parent over a third-party is in the *best interests of the child***.\*A court will ONLY grant custody to a third-party upon the showing of special circumstances (i.e. neglect).
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_Agreements between Unmarried Cohabitants –Division of Property_Express vs. Implied Agreements
An _express agreement_ is enforceable so long as it wasn’t based on sexual relations.An _implied agreement_ is also enforceable, BUT more difficult to prove.
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What is Paternity by Estoppel?
A male (who is not the biological father) will be estopped from denying paternity if he:1. Held himself out as the father; **AND**2. Paid support.\*If paternity by estoppel applies, he will be responsible for child support.
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_Adoption_Generally, the consent of *both* parents is required to place a child up for adoption.When is the consent of a parent NOT required?
1. If the child is non-marital, the consent of the biological father is *only required* when he has assumed parental responsibility.2. If the parent has: * Surrendered the child to an adoption agency; * Is incompetent due to mental illness; * Has abandoned the child without contact; OR * Has permanently neglected the child.
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What is a Fee Simple Defeasible, and when is it created?
A conveyance of property that has conditions placed on it.It is created when the grantor uses express conditional language to indicate that it will be ***terminated upon the occurrence/non-occurrence of an event or condition***.
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What are the three types of Fee Simple Defeasibles?
_Fee Simple Subject to a Condition Subsequent_ – reserves a future interest in the grantor (right of re-entry)._Fee Simple Determinable_ – reserves a future interest in the grantor (possibility of reverter)._Fee Simple Subject to Executory Interest_ – reserves a future interest in a third-party.
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Possibility of Reverter vs. Right of Re-entry
**_Possibility of Reverter_**: Creates a future interest of possession in the grantor if a specified condition occurs (property *automatically* vests to the grantor upon occurrence of the condition).**_Right of Re-entry_**: Creates a future interest in the grantor, wherein the grantor has *_the right_* to re-enter and take the property if a specified condition occurs.
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Vested Remainder vs. Contingent Remainder
**_Vested remainder_**: A future interest in land that is given to an identifiable person with NO conditions.**_Contingent remainder_**: A future interest in land that is conditioned upon the occurrence (or non- occurrence) of a specific event.\*In most jurisdictions, a future remainder interest is devisable and passes to that person’s heirs.
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A lease provides the tenant with a present possessory interest in the property, and gives the landlord a future interest.What are the three types of Leaseholds?
1. _Tenancy for Years_ – fixed period of time, automatically terminates;2. _Periodic Tenancy_ – initial period of time, then automatically continues for additional equal periods until terminated by proper notice.Created by: express agreement, implication, or by law.1. _Tenancy at Will_ – continues until either party terminates it, usually created by express agreement.
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When does Constructive Eviction occur?
When:1. The landlord breached a duty to the tenant;2. The landlord’s breach caused a loss of the substantial use and enjoyment of the premises;3. The tenant gave the landlord notice of the condition;4. The landlord failed to remedy it in a reasonable time after notice was given; **AND**5. The tenant vacated the premises.
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Does a Landlord have a duty to _mitigate_ his damages?
At common law, a landlord DID NOT have a duty to mitigate.BUT, now most states DO impose a duty to take reasonable steps to mitigate losses (i.e. attempting to lease to another tenant).\*Mitigation doesn’t need to be successful to recover damages, and a landlord is entitled to sue for the difference in rent between the new and original tenant.
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_Assignment of a Lease_When does an Assignment occur, and who is liable to the Landlord for rent thereafter?
It occurs when the assignor transfers ALL of his remaining interest in a lease to a third-party (the assignee).**Assignee** → liable to the landlord for rent and all other covenants that run with the land (privity of estate).**Assignor (Original Tenant)** → also remains liable for rent (privity of contract).
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_Termination of Leases_What is a Surrender?
An agreement between the landlord and the tenant to end a lease early.If accepted, the tenant’s duty to pay rent ends. If not accepted and the tenant leaves anyway, they are deemed to have abandoned the lease and are liable for damages.
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_Easements_Easement in Gross vs. Easement Appurtenant
**_Easement in Gross_**: Benefits a specific owner’s enjoyment, and DOES NOT attach to the land. Doesn’t pass to subsequent owners.**_Easement Appurtenant_**: Benefits ANY owner’s enjoyment, and DOES attach to the land. Passes to subsequent owners.
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_Easements_What is an Easement by Grant?
An ***express agreement*** by the grantor allowing the easement, which _must_:1. Be in writing signed by the grantor and satisfy the statute of frauds;2. Identify the land and parties involved; **AND**3. Indicate the grantor’s intent to convey the easement.
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_Easements_What is an Easement by Prescription?
It’s created when the possessor’s use of the land is:1. Open and notorious;2. Continuous;3. Hostile; **AND**4. For the statutory period.
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_Easements_What is an Easement by Implication?
It’s established when:1. A single tract of land is divided by a ***common owner***;2. A ***pre-existing use*** by the grantor is established prior to the land division;3. The use was ***continuous and apparent*** indicating it was intended to be permanent; **AND**4. Such use is ***reasonably necessary*** for the owner’s use.
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_Easements_What is an Easement by Necessity?
It’s created when:1. The original piece of land owned by the one owner is subdivided; **AND**2. Access is essential to the use of the property because no other ingress or egress is available.
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_Easements_What are the ways an Easement can be Terminated?
1. Estoppel;2. Termination of the necessity that created the easement;3. Involuntary destruction of the servient estate;4. Condemnation of the servient estate;5. Written release;6. Abandonment;7. Merger; **OR**8. By prescription
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What is a Fixture?(under the Common Law)
A fixture is:1. *Personal property*,2. That is *attached to land or a building*, **AND**3. Regarded as an *irremovable part of the real property*.\*A fixture is treated as real property, and passes with the ownership of the land (unless otherwise agreed).
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What factors are considered to determine if an item is a Fixture?
1. The nature of the item;2. The manner in which it’s attached;3. The damage that would result if removed; **AND**4. The extent to which the item is adapted to the property.\*Whether an item is a fixture is determined by the ***objective intent*** of the party who attached the item.
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What are the elements of Adverse Possession?
It allows someone who is in possession of land, owned by another, to acquire title when the possession of the property is:1. Continuous for the statutory period (i.e. 10 yrs);2. Open and notorious;3. Exclusive;4. Actual; **AND**5. Hostile and under a claim of right.\*An adverse possessor can only acquire title to the portion of the land he has met all the requirements on.
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What is Constructive Adverse Possession?
When a person takes possession of only a portion of the land covered *under color of title* → that possession extends to the *entire portion of the land* described in the title for adverse possession purposes.
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What is a Home Builder’s Implied Warranty?
A warranty that protects a purchaser of a newly constructed home against latent defects, AND warrants that the building is safe and fit for human habitation at the time of sale.
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What are the six covenants of a General Warranty Deed?
The three _present_ covenants are:1. Seisin;2. Right to convey;3. Against encumbrances.The three _future_ covenants are:1. Warranty;2. Quiet enjoyment;3. Further assurances.
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What is a Special Warranty Deed?
It ONLY warrants that the seller has not breached the covenants of title during his period of ownership (that the seller hasn’t previously conveyed the property and there are no encumbrances against the title).
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What is a Quitclaim Deed?
A deed that DOES NOT contain any covenants or promises to the buyer. It’s an “AS IS” deed leaving the buyer with NO rights to sue.
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What happens if a land transfer is NOT recorded?
It is considered a “wild” deed and *is effective* between the parties, but will NOT put subsequent purchasers on constructive notice because it’s outside the chain of title.
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What is a Bona Fide Purchaser (BFP)?
A person who:1. Takes real property *without* notice of a prior conveyance;**AND**2. Pays valuable consideration.\*Receipt of land by gift or bequest *_does not_* constitute BFP status.\*Shelter rule: a person who purchases from a BFP receives the same status and rights as a BFP.
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What is a Future Advance Mortgage?
A loan in which the lender may provide future payments under the original loan.The lender secures a mortgage on the real property for the entire amount of the loan, including future advances.
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What does Article 9 of the UCC govern?
**Any transaction, *_regardless of its form_*, that creates a security interest.**Substance over form controls (how the parties classify the transaction is immaterial).
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When is a transaction labeled a “Lease” deemed a security interest?
1. If a commitment to make payments for a term exists;**AND**2. Either:* The original lease term is greater or equal to the remaining economic life of the goods;* The lessee renews the lease for the remaining life of the goods; **OR*** The lessee has an option to renew or become the owner for no additional consideration.
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_Collateral_What is an Account?
A right to payment arising from:* Property that has been sold, leased, or disposed of;* Services rendered;* A policy of insurance issued;* A secondary obligation incurred;* Energy provided;* The use/hire of a vessel under charter/contract;* A debt from a credit card; **OR*** Winnings in a lottery.
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_Collateral_What does Inventory mean?
Goods which are:* Leased by a person as lessor;* Held by a person for sale/lease;* Given by a person under contract of service; **OR*** Consist of raw materials, work in process, or materials used/consumed in a business.Does NOT include: Farm products or Goods being held for repair.
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_Collateral_What does Equipment mean?
Goods *other than* inventory, farm products, or consumer goods.Goods = all things that are movable when a security interest attaches.
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_Collateral_What is a “Certificate-of-Title” Statute?
It requires the security interest to be *noted on the title* of the vehicle for it to be perfected.
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_Collateral_What are Consumer Goods?
Goods purchased primarily for ***personal, family, or household purposes***.
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_Collateral_What do “Proceeds” refer to?
The following property:* Anything acquired upon the sale, lease, or disposition of collateral;* Anything distributed/collected on account of collateral;* Rights arising out of collateral;* Claims arising out of the loss, nonconformity, defect, or interference with the use of collateral; **OR*** Insurance payable by the result of the above.
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Enforcing a security interest depends on what 2 factors?
1. *Attachment* (secures the creditors rights to the collateral);**AND**2. *Perfection* (gives notice of rights to other parties).\*Perfection is obtained by the creditor filing a financing statement with the Secretary of State.
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What does Attachment require?
1. ***Creditor extends value*** to the debtor;2. ***Debtor has rights*** in the collateral; **AND**3. One of the following: * an ***authenticated record/security agreement*** – it must (i) be *authenticated* by the debtor *_and_* (ii) *reasonably identify* the collateral; * ***collateral is in the secured party’s possession***; * collateral is a ***certificated security in registered form _and_ the security certificate has been delivered to the secured party***; **OR** * the secured party has ***control of certain types of collateral*** (deposit accounts, electronic chattel paper, investment property, or letter-of-credit rights).
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Perfection is obtained by the creditor filing a Financing Statement.What must a Financing Statement contain?
To be effective, is must:1. State the name of the debtor and secured party;2. Indicate the collateral covered by the statement;**AND**3. Be filed by a person authorized by the debtor in an authenticated record, security agreement, or upon acquisition of the collateral.\*Unless seriously misleading, minor errors DO NOT render the statement ineffective.
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What is a Purchase Money Security Interest?Why is a PMSI in consumer goods special?
A PMSI occurs when a creditor extends value to the debtor for the purpose of enabling them to acquire rights in the collateral.A PMSI in consumer goods enjoy *AUTOMATIC perfection* (there is no need to file a financing statement to perfect).
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Interests in proceeds (from the disposition of collateral) will become unperfected on the 21st day after attachment, *unless* what happens?
* The proceeds are identifiable cash proceeds;* The security interest in the proceeds is perfected when the interest attaches to the proceeds or within 20 days; **OR*** If all of the following conditions are satisfied: * Original collateral was perfected under the general filing rule; * The proceeds are collateral that may be perfected; * The proceeds are not acquired with cash proceeds.
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Who is a Buyer in the Ordinary Course of Business?
A person that:1. Buys goods in good faith,2. Without knowledge that the sale violates the rights of another person in the goods,3. In the ordinary course from a merchant.\*They take free of any security interest.
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_Priorities_Perfected Interest vs. Unperfected Interest
A perfected security interest has PRIORITY over a conflicting unperfected security interest in the same collateral.
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_Priorities_Unperfected Interest vs. Unperfected interest
When there are two competing unperfected security interests, the *first to attach* will prevail.
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_Priorities_Perfected Interest vs. Perfected Interest
“First in time, first in right” controls – the first creditor to prefect by filing has priority.
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_Priorities_When do Judgment Lien Creditors have priority over conflicting security interests?
If they became a lien creditor BEFORE the conflicting security interest was *perfected*.
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What may a secured party do after default?
The secured may:1. Take possession of the collateral; **AND**2. Without removal, render equipment unusable and dispose of collateral on a debtor’s premises.\*They may proceed with or without judicial process.
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What must a secured party do if they want to dispose of collateral?
They MUST send an _authenticated notice_ of the disposition to the debtor (and any secondary obligors), or else they are liable for damages._Exception_ – If the collateral:* is perishable;* threatens to decline speedily in value; **OR*** is customarily sold on a recognized market.
206
What does disposition of collateral at a foreclosure sale do?
It:1. Transfers all of the debtor’s rights to the transferee for value;2. Discharges the security interest; **AND**3. Discharges any subordinate security interests.
207
What are the damages available to the debtor if a secured party fails to comply with the applicable rules?
A secured party is liable for the debtor’s ***actual damage*** for the amount of any loss caused by their failure to comply.The damages for loss are generally equal to expectation damages, and may include losses resulting from the debtor’s inability to obtain alternative financing.
208
_Deficiency Judgments_Absolute Bar Rulevs.Rebuttable Presumption Rule
**_Absolute Bar Rule_**: Secured party is barred from collecting any remaining deficiency after the disposition of collateral when they fail to comply with disposition provisions.**_Rebuttable Presumption Rule_**: If the secured party fails to comply, it is presumed that the proceeds from the disposition are equal to the debt owed.Can be rebutted if the secured party shows the debt owed is greater than the fair market value of the collateral.
209
_Deficiency Judgments_If a debtor places a secured party’s compliance in issue and the secured party fails to prove that the disposition was proper, then what is the amount recoverable in deficiency?
It is limited to an amount by which the total debt exceeds the greater of:* The proceeds of the disposition; **OR*** The amount that would have been realized had the secured party complied with the applicable provisions.
210
When does an Agency Relationship exist?
If there is:1. Assent;2. Benefit; **AND**3. Control.
211
When does Express Actual Authority exist?
When the principal has ***explicitly told the agent*** that he is entitled to act.
212
When does Implied Actual Authority exist?
When either:* The agent believes he is entitled to act to carry out his express authorized duties;* The agent has acted similarly in prior dealings; **OR*** It is customary for agents in that position to act in that way.
213
When does Apparent Authority exist?
When:1. A third-party reasonably believes that the person has authority to act on behalf of the principal;**AND**2. That belief is traceable to the principal’s manifestations.
214
How does a principal hold out an agent as having authority?
When he:* Gives the agent a position/title indicating such authority;* Has previously held the agent out as having authority and has *not* published a revocation; **OR*** Has cloaked the agent with the appearance of authority.
215
Apparent Authority is *not* applicable during what circumstances?
* If the third-party has actual knowledge that the agent did NOT have authority;* The contract/transaction was *not* within the ordinary usages of business; **OR*** If there is an undisclosed principal(May be applicable if principal is partially disclosed or unidentified.)
216
When does ratification of an agent’s contract occur?
When the principal:1. Has knowledge of all material facts or contract terms;**AND**2. Thereafter manifests assent (approval) of the same through words or conduct.
217
An agent has NO contractual liability to a third-party for contracts entered into with that party, if he does what?
1. Fully discloses the principal he is acting on behalf of; **AND**2. Agent had (a) actual authority, or (b) apparent authority (*even if* no actual authority present).\*Agent WILL be liable if both elements above are not met.
218
Employeevs.Independent Contractor
**_Employee_**_:_ Employer controls manner/means of the employee’s performance of work. Employer *IS* vicariously liable for negligent acts of employee (within scope or employment).**_Independent Contractor_**_:_ A person NOT controlled or subject to control with respect to performance (may or may not be an agent). Principal/employer is generally *NOT* liable for torts committed by a contractor.
219
What determines whether a person is an Independent Contractor or Employee?
Whether the principal *had the right* to ***_control_*** the manner and method in which the job is performed.(If the principal had substantial control, it’s likely the person will be deemed an employee).
220
Under *respondeat superior*, an employer is vicariously liable for an employee’s negligent act if the employee was acting within the scope of employment.When is an employee deemed to be acting within that scope?
When:* Performing work assigned by the employer; **OR*** Engaging in a course of conduct subject to the employer’s control.\*\* Conduct is not outside the scope merely because an employee disregards the employer’s instructions.
221
_Vicarious Liability – Respondeat Superior_Acts Within Scope of Employmentvs.Acts Outside Scope of Employment
**_Within Scope_**: When performing work assigned by the employer OR engaging in conduct subject to the employer’s control.**_Outside Scope_**: Tort occurs within an independent course of conduct AND is not intended by the employee to serve any purpose of the employer.
222
What causes an employee’s intentional torts to be considered within the scope of employment?
The Act was:* specifically authorized by the employer;* driven by a desire to serve the employer; **OR*** the result of naturally occurring friction from the type of employment.
223
When will a principal be liable for torts committed by an Independent Contractor?
If:* The contractor is engaged in an inherently hazardous activity;* The duty owed by the principal is non-delegable; **OR*** Through the doctrine of estoppel:The principal holds the contractor out as his agent to a third-party, they reasonably relied on the agent’s skill, *_and_* the third-party suffered harm as a result.
224
What fiduciary duties does an agent owe to the principal?
1. The duty of **care** – to use reasonable care2. The duty of **loyalty** – to act solely and loyally for the principal’s benefit3. The duty of **obedience** – to obey all reasonable instructions
225
When is a general partnership created?
When:1. Two or more persons;2. As co-owners;3. Carry on a business for profit.\*No written agreement or intent is needed.
226
A person who receives a share of the profits of the partnership business is presumed to be a partner, *unless* the profits were received in payment of what?
* of a debt;* for wages (as an employee/independent contractor);* of rent;* of an annuity or retirement benefit;* of loan or interest charges; **OR*** for the sale of the goodwill of the business.
227
When does a partner have Express Actual Authority to bind the partnership?
Upon receiving said authority from the partners.* Differences among partners for Acts within the *ordinary* course of business = approved by a _majority_ vote of partners.* Acts *outside* the ordinary course = can only be approved _unanimously_.\*If the **partnership agreement is silent**, a partner has authority for ***usual and customary matters***, UNLESS the partner *knows* that: (a) other partners might disagree; OR (b) for some other reason consultation with fellow partners is appropriate.
228
A partner with *Apparent Authority* will NOT bind the partnership during what circumstance?
1. The partner lacked authority; **AND**2. The third-party knew or had notice that the partner lacked authority.\*For acts *outside* the scope of business → Need a manifestation by the Partnership that the partner had authority in order to be binding.
229
What is the liability for General Partners?Incoming Partners?
**_General Partners:_** Personally liable for ALL obligations of the partnership AND jointly and severally liable. (UPA 1997).**_Incoming Partners:_** NOT liable for obligations incurred prior to their admission, but still at risk for losing capital contributions made to satisfy partnership obligations.
230
When can a judgment creditor levy execution of a judgment against a partner’s *personal* *assets* for a partnership debt?
1. When a judgment has been rendered against the partner;**AND**2. The partnership assets have been exhausted or are insufficient.\*A judgment against the partnership is NOT itself a judgment against the individual partners.
231
Under RULPA, when does a partnerbreach his duty of care?
When he engages in:* Grossly negligent or reckless conduct;* Intentional misconduct; **OR*** A knowing violation of law.Examples include: violating a partnership policy, failing to thoroughly investigate facts before entering into a contract, acting outside the scope of the business without consent from the other partners.
232
Under RULPA, what must a partner do to satisfy his duty of loyalty?
1. Account for any property, profit, or benefit derived by the partner from the partnership property;2. Not have an interest adverse to the partnership; **AND**3. Not compete with the partnership.
233
When is a partner NOT liable for conduct that would otherwise breach his duty of loyalty?
1. If the partner fully discloses the information; **AND**2. Either: * The partnership agreement is amended; OR * All partners consent to the transaction.\*The partnership agreement must be amended by a unanimous vote (unless it provides otherwise).
234
How does a partner become dissociated from a partnership?
* *Notice* of the partner’s express will to withdraw;* *Occurence* of an agreed upon event in the agreement;* *Expulsion* per the agreement or by judicial means;* Expulsion by unanimous vote, if it’s: * Unlawful to carry on business with that partner; or * If there has been a transfer of his interest.* *Bankruptcy*;* *Incapacity* or *Death*;* *Appointment* of a personal representative/receiver; **OR*** *Termination* of an entity partner.
235
When will a dissociation be deemed wrongful?
* If it’s in breach of an express provision of the partnership agreement; **OR*** If the partnership is for a definite term or particular undertaking, *_and_* the partner: * Withdraws; * Is expelled by judicial determination; OR * Becomes a debtor in bankruptcy.\*A wrongful dissociation bars a partner from management and the winding up process.
236
When does dissolution of a General Partnership occur?
* Upon notice of the partner’s express will to withdraw;* Upon an event agreed upon in the agreement;* Upon an event that makes it unlawful to continue;* Judicial dissolution on application of a partner; **OR*** Judicial dissolution on application of a transferee.
237
When does dissolution of a*Partnership for Definite* *Term* occur?
* Within 90 days of a partner’s dissociation by death or wrongful dissociation (if it's the express will of at least half of the remaining partners to wind up the business);* Upon the express will of ALL the partners to wind up the business; **OR*** Upon the expiration of the term or completion of purpose.\*A partner may dissociate at any time by providing notice to the other partners.
238
What does dissociation by one partner allow the other partners to do?
It allows ALL of the remaining partners to *waive winding up* and termination, and instead gives them the option to *continue the partnership* by buying out the dissociated partner’s interests.
239
A court will pierce the corporate veil, and hold the shareholders personally liable in _what_ situations?
1. The corporation is acting as the *alter ego* of the shareholders (little or no separation between the shareholder and corporation);2. Where the shareholders *failed to follow corporate formalities*;3. The corporation was *inadequately capitalized* at its inception to cover debts/liabilities; **OR**4. To *prevent fraud*.\*Even if a court doesn’t pierce the veil, a person is ALWAYS liable for their own torts.
240
A shareholder may vote shares at a meeting without physically attending through use of a proxy.What is required for a _valid_ proxy?
It must be signed on:* An appointment form; **OR*** An electronic transmission.(oral proxy is invalid)A proxy must be accepted by the corp. if on its face there are no reasonable grounds to deny its genuineness and authenticity.
241
Are proxy agreements freely revocable by the shareholder?
**YES**, even if the proxy states that it is irrevocable.One exception to this rule is a *proxy coupled with an interest* or legal right, which is irrevocable if the proxy expressly states as such.
242
When MAY a shareholder inspect the following corporate books and records?(Certain Accounting Records, Excerpts of Board Meeting Minutes, & Record of Shareholders)
When:1. The inspection is made during *regular business hours* at a reasonable location specified by the corporation;2. Shareholder provides *5-days written notice*;3. The demand is made in *good faith* and for a *proper purpose*;4. The purpose is *described with particularity*; **AND**5. The records are *directly connected* with the purpose.
243
Directors owe a duty of care to the corporation.How must they discharge this duty?
1. In good faith;2. In a manner the director reasonably believes to be in the best interests of the corporation; **AND**3. With the care that a person in a like position would reasonably believe appropriate under similar circumstances.\*If this 3-part test is satisfied, then a director will NOT be liable for corporate decisions that resulted in adverse consequences.
244
May a director rely on the reasonable advice of advisors?
**Yes**, when such reliance was reasonable *_and_* the advisor or committee was qualified to provide such advice.
245
When does the Business Judgment Rule NOT apply to protect directors?
When directors:* Are financially interested in a transaction (conflict of interest);* Are not acting in good faith; **OR*** Who engaged in fraud or illegality.\*If a director breaches his duty of care, he may be held personally liable to the corporation for any losses suffered as a result.
246
What does the fiduciary duty of loyalty forbid a director from doing?
A director is forbidden from:* Entering into conflicting interest transactions;* Usurping a corporate opportunity;* Competing with the corporation; **and*** Trading on inside information.
247
When is a conflicting business transaction NOT a breach of the duty of loyalty?
If:* Approved by a majority of disinterested directors, after full disclosure of relevant material facts;* Approved by a majority of disinterested shareholders; **OR*** The transaction as a whole was fair to the corporation at the time it was entered into.
248
When does a director have a conflict of interest?
When the director or family member either:* Is a party to the transaction;* Has a beneficial interest in the transaction or is so closely linked to it that the director’s judgment may be affected; **OR*** Is involved with another entity that is conducting business with the corporation *_and_* that transaction would normally be brought before the board because of its importance.
249
What must a shareholder prove when bringing a direct action against a director or officer?
They must prove an actual injury that is NOT solely the result of an injury suffered by the corporation.\*A direct action involves injury or breach of a duty owed to a shareholder.
250
Under the RMBCA, what requirements must a plaintiff-shareholder meet to commence a derivative suit on behalf of a corporation?
He must:1. Be a shareholder at the time of the act/omission OR became a shareholder by operation of law from such a shareholder;2. Be a shareholder through entry of judgment;3. Fairly and adequately represent the interests of the corporation; **AND**4. Make a written demand upon the corporation to take suitable action.
251
How is bringing a derivative action on behalf of an LLC different than that of a corporation?
All elements are the same as those for a corporation EXCEPT:1. The action may be brought within a reasonable time after the demand; **AND**2. The demand requirements may be waived if the demand is deemed futile.
252
When is a dissenting shareholder entitled to appraisal rights (to obtain payment for the value of his shares)?
* When he has the right to vote on a merger plan;* When is he is a shareholder of the subsidiary in a short form merger *_or_* of a corporation whose shares are being acquired in a share exchange;* When he has the right to vote on the distribution of all or mostly all of the corporate assets; **OR*** When an amendment to the Articles of Incorp. materially and adversely affects his rights.
253
How may a shareholder (that DOES NOT consent to a fundamental change) *force* the corporation to purchase his shares?
If:1. The shareholder gave notice to the corporation of his intent to demand payment if the change was approved;2. The notice was given *before* the vote was taken;3. The fundamental change is effectuated; **AND**4. The shareholder DID NOT vote in favor of the change.
254
What are the elements of Battery?
When there is:1. An intentional,2. Harmful or offensive contact,3. With the plaintiff’s person.Intentional acts are done with the desire to bring about harm OR knowing the harm is substantially certain to occur.Bodily harm is the physical pain, illness, or impairment to another’s body.
255
_Intentional Tort Defenses_Consent is a defense to intentional torts, and can be express, apparent, or implied by law.Apparent Consent vs. Implied by Law Consent
_Apparent Consent_: When words or conduct are reasonably understood to be intended as consent (such as customary practice or a person’s failure to object)._Implied by Law Consent_: Occurs in special circumstances, such as medical emergencies.
256
_Intentional Tort Defenses_What is the defense of Privilege?
It is conduct that under ordinary circumstances would subject the actor to liability, **BUT is excused under the circumstances**.
257
_Intentional Tort Defenses_What are the different Privilege defenses?
Privilege includes:1. Necessity (acts were necessary to prevent serious harm).2. Self-defense/defense of others.3. Defense of property.4. Recapture of chattels.5. Detention for investigation.6. Privilege to discipline children.7. Privilege to arrest.
258
What are the elements for a *prima facie* case of Negligence?
1. A ***duty*** owed to the plaintiff by the defendant;2. A ***breach*** of that duty;3. ***Causation*** (the breach was the *actual and proximate cause* of the plaintiff’s injuries); **AND**4. ***Damages***.
259
When will an Affirmative Duty to act arise?
If:* There is a pre-existing relationship between the parties;* The defendant put the plaintiff in peril;* The defendant has undertaken to rescue the plaintiff; **OR*** A duty is imposed by law.
260
When is a Rescuer liable for injuries caused to another person?
If they *fail to exercise reasonable care*, **AND**:* The failure increased the risk of harm; OR* The harm is suffered because of reliance on the person providing the aid.\*\*A rescuer is liable if the aid is discontinued *_and_* the person is left in a worse position.
261
What is the Reasonable Person Standard?
Every person owes a duty to act as a ***reasonable prudent person*** would act under similar circumstances.(A reasonable person takes appropriate measures to avoid foreseeable risks.)\*This duty is owed to ALL foreseeable plaintiffs.
262
What is the Standard of Care for Children?
They are held to a standard of care a ***hypothetical child*** of similar age, experience, and intelligence acting under similar circumstances.\*If the child is engaged in an _adult activity_, they have the duty to act as a reasonable ADULT would act under the circumstances.
263
What is the Standard of Care for Professionals?
A professional owes a duty to act with the knowledge and skill as an **_average member_ of that profession** practicing in a **similar community**.\*A specialist is held to the care and skill of an average member of the profession practicing the specialty.
264
What is the Standard of Care for Landowners?
They have to **exercise *_reasonable care_* to ALL entrants** upon their land, and take appropriate measures to avoid foreseeable risks.\*Some states determine the duty of care required based on the type of entrant (trespasser, licensee, invitee).
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Undiscovered Trespasser vs. Anticipated Trespasser
**_Undiscovered Trespasser_**: **NO duty is owed** by the landowner.**_Anticipated Trespasser_**: The landowner must use ***reasonable care in operations*** on the property AND ***warn of highly dangerous artificial conditions*** that they know of.
266
What is the Attractive Nuisance Doctrine?
For _child trespassers_, landowners must make the premises **reasonably safe _or_ warn of hidden dangers** on their land.Landowners are held liable for harm if:1. They know the condition is likely to cause death;2. They know that children frequent the area;3. That children are unlikely to discover the condition;4. The risk of harm outweighs the expense of repair; AND5. They fail to exercise reasonable care in eliminating the danger.
267
Licensee vs. Invitee
**_Licensee_**: Landowner must exercise reasonable care AND warn of (make safe) dangerous conditions the owner knows of but not apparent to the guest.**_Invitee_**: Landowner owes all the duties he would to a Licensee, PLUS the duty to make reasonable inspections of the property to find/make safe non-obvious conditions.
268
When does Negligence Per Se apply?
When:1. The statute’s purpose is to prevent the type of harm that the plaintiff suffered; **AND**2. The plaintiff is in the class of persons the statute seeks to protect.\*If established, a violation of the statute is deemed a breach of the duty of care owed._Two Exceptions_: (1) When compliance with the statute would be more dangerous; (2) Compliance is impossible.
269
Under the _Traditional Test_ for *Res Ipsa Loquitur*, what must the plaintiff show?
1. That the injury typically does not occur in the absence of negligence;2. The instrumentality (thing/object) which caused the injury was in the defendant’s exclusive control; **AND**3. Plaintiff did not cause or contribute to the injury.\*If applicable, the breach element is established.
270
Under the _Restatement (Second) Test_ for *Res Ipsa Loquitur*, what must the plaintiff show?
1. That the event typically does not occur in the absence of negligence;2. Other responsible causes are sufficiently eliminated by the evidence (incl. plaintiff & third persons); **AND**3. The negligence is within the scope of duty the defendant owed the plaintiff.\*If applicable, the breach element is established.
271
Actual Cause vs. Proximate Cause
**_Actual Cause_**: The “but for” cause.Under the _substantial factor test_ → something that is a substantial factor in bringing about the injury **IS** an actual cause.**_Proximate Cause_**: The legal cause, which means the injury MUST have been a ***foreseeable result*** of the breach.
272
What is an Intervening Cause?
Any act that occurs AFTER the defendant’s breach that **contributes to the harm**.\*It absolves the defendant of liability if it resulted in an _unforeseeable/unexpected_ injury.
273
What is the Eggshell Plaintiff Rule?
A tortfeasor takes his victim as he finds him.The tortfeasor is **liable for ALL harm a plaintiff suffers** as a result of his conduct, *even if* plaintiff suffered from a pre-existing condition making the harm greater.
274
Pure Comparative Negligencevs.Partial Comparative Negligencevs.Contributory Negligence
**_Pure_**: P’s negligence/assumption of risk will NOT bar recovery. P’s damages are reduced by % at fault.**_Partial_**: If less than 50% at fault, then P’s damages are reduced by % at fault. If over 50% at fault, then P’s claim is barred.**_Contributory_**: Plaintiff CANNOT recover if he contributed to his own injury in any amount. P’s claim is barred.Exceptions → when the defendant had the last opportunity to avoid injury OR was reckless.
275
What are the 3 instances a plaintiff can recover for Negligent Infliction of Emotional Distress?
1. **Near Miss Case**: D’s negligence, created foreseeable risk of injury, P is in zone of danger, _and_ P manifests physical symptoms.2. **Bystander Claim**: D’s negligence, P is contemporary witness to injury to close family member, _and_ P manifests physical symptoms.3. **Rare Egregious Situations**: Pre-existing relationship between P and D, _and_ negligent act foreseeably causes distress.
276
_Vicarious Liability_Employeevs.Independent Contractor
**_Employee_**_:_ Employer controls manner/means of the employee’s performance of work. Employer *IS* vicariously liable for negligent acts of employee (within scope or employment).**_Independent Contractor_**_:_ A person NOT controlled or subject to control with respect to performance (may or may not be an agent). Principal/employer is generally *NOT* liable for torts committed by a contractor.
277
_Vicarious Liability_What determines whether a person is an Independent Contractor or Employee?
Whether the principal *had the right* to ***_control_*** the manner and method in which the job is performed.(If the principal had substantial control, it’s likely the person will be deemed an employee).
278
_Vicarious Liability_Under *respondeat superior*, an employer is vicariously liable for an employee’s negligent act if the employee was acting within the scope of employment.When is an employee deemed to be acting _within_ that scope?
When:* Performing work assigned by the employer; **OR*** Engaging in a course of conduct subject to the employer’s control.\*\* Conduct is not outside the scope merely because an employee disregards the employer’s instructions.
279
_Vicarious Liability – Respondeat Superior_Acts Within Scope of Employmentvs.Acts Outside Scope of Employment
**_Within Scope_**: When performing work assigned by the employer OR engaging in conduct subject to the employer’s control.**_Outside Scope_**: Tort occurs within an independent course of conduct AND is not intended by the employee to serve any purpose of the employer.
280
_Vicarious Liability_What causes an employee’s intentional torts to be considered within the scope of employment?
The Act was:* specifically authorized by the employer;* driven by a desire to serve the employer; **OR*** the result of naturally occurring friction from the type of employment.
281
_Vicarious Liability_In what situations is a principal _still_ liable despite the doctrine of *respondeat superior* being inapplicable?
When:1. The principal intended the conduct or consequences;2. The principal was negligent in selecting, training, retaining, supervising, or controlling the agent;3. The conduct involved a non-delegable duty to an injured person with whom they had a special relationship; **OR**4. The agent had apparent authority, the agent’s actions taken with apparent authority constitute the tort (or enable the agent to conceal it), *and* a third-party reasonably relied on that authority.
282
_Vicarious Liability_When will a principal be liable for torts committed by an independent contractor?
If:* The contractor is engaged in an inherently hazardous activity;* The duty owed by the principal is non-delegable; **OR*** Through the doctrine of estoppel:The principal holds the contractor out as his agent to a third-party, they reasonably relied on the agent’s skill, *_and_* the third-party suffered harm as a result.
283
What is the Doctrine of Alternative Liability?
It allows the jury to find ALL defendants liable if:1. Multiple defendants are deemed negligent,2. But it’s unclear which one caused the plaintiff’s injury.
284
What is the Doctrine of Joint Enterprise?
It allows the negligence of one defendant to be imputed to other defendants if:1. Multiple defendants were engaged in a common project or enterprise; **AND**2. All defendants made an explicit/implied agreement to engage in tortious conduct.
285
What is the Doctrine of Market Share Liability?
ALL manufacturers are liable to their *proportional share* of the market _when the following factors are present_:1. All the named Ds are potential tortfeasors;2. The harmful products are identical and share the same defective qualities;3. P is unable to identify which D caused the injury; **AND**4. Substantially all of the manufacturers that created the defective products during the relevant time period are named as Ds.
286
What are the elements for Strict Products Liability?
1. The product was defective (manufacturing defect, design defect, failure to warn);2. The product was not altered when it reached the plaintiff;3. The product caused an injury when it was being used in an intended use (or unintended foreseeable use); **AND**4. The defendant is a commercial supplier who routinely deals in goods of this type.
287
What 3 theories are available to prove Strict Products Liability?
**Manufacturing Defect**: Product differs from the intended design AND is more dangerous than if made properly.**Failure to Warn**:Plaintiff was *not* warned of the risks regarding use, which are not obvious to an ordinary user.**Design Defect**: There was a way to build the product that was safer, more practical, AND at a similar cost.
288
What is the definition of a Commercial Supplier?
Any person/entity who is engaged in selling goods of the type (routinely sells such goods).\*A strict products liability suit may ONLY be brought against a commercial supplier of goods.
289
What are the elements to form a valid Trust?
1. Definitive beneficiary;2. Settlor with capacity;3. Intent to create a trust;4. Trustee;5. Valid trust purpose;6. Trust property; **AND**7. Compliance with any State formalities.
290
How is intent to create a trust established?
By a promise that creates enforceable rights in another person who holds these rights as Trustee. An oral promise supported by consideration is sufficient.
291
What are the majority and minority views for a Trust’s revocability?
**_Majority View & UTC_**: Trusts ARE *revocable*, unless stated otherwise.**_Minority View_**: Trusts are *irrevocable* by default, unless expressly stated otherwise. (Trust cannot be modified or revoked after creation).
292
What is a Pour-Over Provision?How is it different than a Testamentary Trust?
It gifts property to a previously established Trust.It is distinguished from a Testamentary Trust because it does NOT create a trust. Instead, it transfers property to a trust already in existence (must be connected to an inter vivos trust).
293
What is a Discretionary Trust?
When a Trustee has ***absolute discretion and power*** to determine when and how much of the trust property is distributed to the beneficiaries of the trust.The exercise of discretion must be in good faith.
294
What is the Cy Pres Doctrine?
An equitable doctrine that applies to charitable bequests and charitable trusts.Courts will apply it to modify a charitable trust to be consistent with and *“as near as possible”* with the settlor’s or testator’s intent, if the purpose of the trust or bequest is frustrated.\*Only applies if the testator had a general charitable intent.
295
What is a Spendthrift Provision?When is it valid?
It prevents the transfer of a beneficiary’s interest, and it is valid _ONLY IF_ it restrains both voluntary AND involuntary transfers.\*A _spendthrift interest_ means that the interest CANNOT be sold or assigned by the beneficiary, nor may any creditors reach it.
296
What are the _5 exceptions_ allowing a creditor to reach a beneficiary’s interest despite a Spendthrift Provision?
1. A judgment creditor who has provided services for the protection of a beneficiary’s interest;2. A creditor who furnishes necessities (only in some jurisdictions);3. An Order for child support or alimony;4. Any claim by the state/federal government; **OR**5. A self-settled trust where the settlor retains an interest.\*Spendthrift Trusts DO NOT provide protection for *mandatory distributions* of trust property.
297
What happens if a beneficiary’s interest is **NOT** subject to a Spendthrift Provision?
Then the court may authorize a creditor to reach the beneficiary’s interest by attachment of *present* or *future* distributions to the beneficiary.\*Whether or not a trust contains a spendthrift provision, a creditor CANNOT compel a distribution that is subject to the trustee’s discretion.
298
Under the UTC, when may a trust be Terminated?
1. It is revoked or expires pursuant to its terms;2. The material purpose of the trust has been achieved;3. The trust has become unlawful, contrary to public policy, or impossible to achieve;4. The settlor and all beneficiaries consent;5. All beneficiaries consent and the court decides continuation isn’t necessary;6. Termination will further the purpose of the trust;7. The Cy Pres doctrine applies; **OR**8. The court or trustee determines that the value of the trust property is insufficient to justify the cost of administration.
299
Under the UTC, how _must_ a Trustee administer a Trust?
1. In good faith;2. In accordance with the trust purpose and terms; **AND**3. In the interests of the trust beneficiaries.
300
What are the _5 exceptions_ to a Trustee’s Duty of Loyalty involving self-dealing?
Exceptions:1. If the transaction was authorized by the terms of the trust;2. If the transaction was approved by the court;3. The beneficiary did not commence a judicial proceeding within the required time;4. The beneficiary consented to the conduct, ratified the transaction, or released the trustee of liability; **OR**5. The transaction occurred before the person became trustee.
301
What does the _Prudent Investor Rule_ require a Trustee to do?
To exercise the degree of care, skill, and prudence of a reasonable investor investing in his own property.This includes diversifying assets, avoiding risky investments, and keeping trust assets productive.
302
What Trust disbursements and receipts must be allocated to _income_ and _principal_?
**_Allocated to Income_**: Receipt of rental payments from real/personal property; money received from an entity; and ordinary expenses and repairs.**_Allocated to Principal_**: Proceeds from the sale of a principal asset; all other property received (other than money received from an entity); and extraordinary expenses and repairs.
303
When are Remainder Beneficiaries entitled to receive Trust property?
At the _termination_ of the trust.
304
Under Common Law, what happens if a Remainder Person dies before a Life Tenant?
The remainder interest **vests in the remainder person’s heirs** (if no heirs, the interest passes to the remainder person’s estate).
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What is a Power of Appointment, and how is it granted?
When a testator/settlor gives another person the power to decide where and to whom the testator’s property will go (that person then has power of appointment).It is granted when the testator DOES NOT leave any *conditions or restrictions* as to the appointment of the property – therefore the donee may grant the appointment to anyone (including himself).
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How is Donee’s Power of Appointment effectively exercised in a written instrument?
Only if:1. The instrument is valid under State law;2. The terms indicate the holder’s intent to exercise the power and are consistent with the conditions imposed by the testator; **AND**3. The appointment is permissible.
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A General Residuary Clause expresses an intention to exercise a Power of Appointment ONLY if what?
Only if:* The testator’s Will manifests an intention to include the property subject to the power; **OR*** The power is a general power AND the creating instrument does not contain a gift if the power is not exercised.
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When is an interest valid under the common law Rule Against Perpetuities (RAP)?
The interest MUST **vest within a life in being at the time of the grant plus 21 years**.RAP invalidates any interest that will not vest during the time period AND those that *hypothetically* may not vest within the time period.
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What are the modern modifications to the Rule Against Perpetuities adopted in some States?
A non-vested property interest is invalid ONLY IF it actually DOES NOT vest within 21 years after the death of a life in being at the time the interest was created.Rather than invalidate the interest on the possibility that it will not vest, this approach **waits to see** if the interest will *actually* not vest.Some statutes modify an age contingency to 21 years if it violates RAP.
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When does a Class Gift _vest_ under the Rule Against Perpetuities?
Class gifts vest under RAP when:1. The class closes; **AND**2. All conditions for every member of the class are satisfied.
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A Class Gift is a gift to a group of persons described collectively. When do Class Gifts close?
Class gifts generally close at the death of the testator/settlor.Under the _Rule of Convenience_, the class is closed when any member of the class is entitled to possession of the gift.
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_Class Gifts to Predeceased Members_Class Specifically Namedvs.Class Members Named as a Group
Whether the _gift to a predeceased member_ of the class will go into the residuary estate or be divided amongst the other class members depends on:**_Specifically Named_**: The gift will lapse and fall into the residuary estate UNLESS an anti-lapse statute applies.**_Named as a Group_**: The predeceased member’s share will be divided amongst the other members, UNLESS there is a provision to the contrary or an anti-lapse statute applies.
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What is an Intestacy Statute?
**It** **governs *any* property NOT passing by a valid will or by operation of law**.The statute will dictate how the property will pass to heirs._Example_: If a decedent leaves only a surviving spouse and no descendants, in most states the surviving spouse will receive the ***entire*** estate.
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What are the Will Execution Formalities under the Uniform Probate Code (UPC)?
A will must be:1. In a writing;2. Signed by the testator; **AND**3. Either:* Signed by at least two individuals within a reasonable time after witnessing the signing; **OR*** Notarized.\*A valid will requires *_intent_* by the testator to create the will.
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What is a Codicil?
An instrument made AFTER a will is executed that modifies, amends, or revokes portions of a will (a codicil MUST satisfy the same formalities as a will to be valid).\*Execution of a codicil republishes the will.
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What is a Holographic Will?What is a Holographic Codicil?
**_Holographic Will_**: A handwritten will that is **NOT** witnessed. Some states require that the writing be subscribed (signed at the *end* of the will) by the testator.**_Holographic Codicil_**: A handwritten alteration to a will that is **NOT** witnessed. A valid holographic codicil revokes any earlier will to the extent it conflicts with the codicil.
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When will a document/writing be Incorporated by Reference into a Will?
If it:1. Was in existence at the time the will was executed;2. Is sufficiently described in the will; **AND**3. The testator intended to incorporate it into the will.\*To incorporate into the will, it must be signed by the testator and describe the item and the recipients.
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When is a Will revoked by a physical act?
If:1. Testator intended to revoke the will; **AND**2. The will is burned, torn, destroyed, or cancelled by the testator.\*Cancellation by physical contact with the words of the will is required under common law, but *not* under the UPC.
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When does Revocation by Subsequent Will or Codicil occur?
By executing a _subsequent valid will_ or codicil. Execution of a new will revokes a previous will *only to the extent* that the previous will conflicts with the new will (unless the new will expressly revokes the previous will in its entirety).
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What is the Dependent Relative Revocation Doctrine, and when does it apply?
It *cancels a previous revocation* that was _made under a mistaken belief of law or fact_ by the testator.The doctrine applies when the testator would not have revoked his original will or bequest *but for* the mistaken belief that another will would be valid.
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What is an Anti-Lapse Statute?
When a beneficiary under a will predeceases the testator, the gift will vest in the issue of that predeceased beneficiary if:1. The predeceased beneficiary is a specified blood relative of the testator; **AND**2. The beneficiary leaves issue who survive the testator.
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When does a specific gift fail (adeem) by extinction?
**_Common Law_**: If it cannot be identified at the time of the testator’s death or if the testator does not own it at the time of his death. *(This can occur when the testator makes a specific gift, but the property is later destroyed or sold before his death.)***_Modern View_**: A specific gift will adeem ONLY IF the testator intended the gift to fail.
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What is a beneficiary entitled to if the testator DID NOT intend for a specific gift to fail (adeem)?
* Any real or personal property that the testator acquired as a replacement for the specific gift; **OR*** A monetary devise equal to the value of the specific gift.
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What is Abatement?What is the Abatement order?
Abatement is not giving effect to bequests in the will so that creditors’ claims against the estate can be satisfied.A testator’s property abates as follows:1. Property passing by intestacy;2. Residuary gifts;3. General gifts;4. Specific gifts.\*Each category must be fully abated before moving onto the next category.
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What happens to a beneficiary’s gift if they kill the decedent?
If the beneficiary ***feloniously and intentionally kills*** the decedent, they **forfeit all benefits and entitlements to the decedent’s estate**. If the decedent dies intestate, the estate passes as if the killer disclaimed their intestate share.\*Modern precedent holds that a state’s slayer statute DOES NOT apply to a person acting under a Durable Health Care Directive when withholding treatment to a decedent.
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What are the requirements for a valid Disclaimer?
It must:1. Be declared in writing;2. Describe the interest or power disclaimed;3. Be signed by the person making the disclaimer; **AND**4. Be delivered or filed.
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What happens if a gift/interest is Disclaimed?
It either:* Passes according to any applicable terms of the will or trust; **OR*** Passes as if the person predeceased the testator (the gift will lapse unless an anti-lapse statute is applicable).
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What effect does a _final_ Divorce Decree have on a Will?
It REVOKES any gift or appointment of property made to the former spouse.(Some states revoke gifts to a spouse when divorce proceedings are *pending*)\*Under _Common Law_, bequests/appointments in favor of the former spouse’s relatives *remain intact*. Under the _UPC_, they are revoked.
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A Class Gift is a gift to a group of persons described collectively. When do Class Gifts close?
Class gifts generally close at the death of the testator/settlor.Under the _Rule of Convenience_, the class is closed when any member of the class is entitled to possession of the gift.
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_Class Gifts to Predeceased Members_Class Specifically Namedvs.Class Members Named as a Group
Whether the _gift to a predeceased member_ of the class will go into the residuary estate or be divided amongst the other class members depends on:**_Specifically Named_**: The gift will lapse and fall into the residuary estate UNLESS an anti-lapse statute applies.**_Named as a Group_**: The predeceased member’s share will be divided amongst the other members, UNLESS there is a provision to the contrary or an anti-lapse statute applies.
331
At Common Law, only biological children born into wedlock were entitled to inherit.What is the Modern View on this?
Under the _Modern View_, gifts to children include any child that is included in the legal definition of “children”, including *biological children, half-blood children, and adopted children*.\*BUT, non-marital children inheriting from a father must first establish paternity.
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What is a Spouse’s Elective Share?
It gives a surviving spouse the **right to take a statutory amount** of the deceased spouse’s estate.The amount of the elective share varies by state, but it is typically _one-third of the net probate estate_ (which is the gross-probate estate less creditor claims).
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When does a child who was _omitted_ from a Will have rights to his parent’s estate?
When the child is a _Pretermitted Child_ (a child born *_after_* the will was made).BUT, a child that is *intentionally omitted* from a will is NOT entitled to a share of the parent’s estate.
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What are the elements of Testamentary Capacity?
The Testator _must know and understand_:1. The nature and extent of his property;2. The natural objects of his bounty (heirs);3. The disposition that he is making of that property; **AND**4. Have the ability to connect above elements into a coherent plan.\*Mental capacity is *presumed*, unless proven otherwise.\*Appointment of a conservator/guardian alone DOES NOT automatically establish a lack of capacity.
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What are the elements of a prima facie case of Undue Influence?
If:1. Testator had a weakness that made him susceptible to influence;2. Wrongdoer had access to the testator and an opportunity to exert influence;3. Wrongdoer actively participated in drafting the will; **AND**4. There is an unnatural (unexpected) result.
