Priority 1 Flashcards

Question

Apparant authority in partnership

Answer 1

* By statute, a partner is an agent of the partnership and has apparant authority to bind the partnership to **transactions within the ordinary course of the partnership's business** **unless** the third party is aware that the partner lacks actual authority to act. * Partnership default rules that affect the rights of third parties cannot be changed by agreement.

Answer 2

*** A defining characteristic of the general partnership is that each partner is jointly and severally liable (so, one or more partners may be sued) for all obligations of the partnership, whether arising in tort or contract.** * The plaintiff must first exhaust partnership resources before seeking to collect from an individual partner’s assets (partners essentially guarantors) * Each partner is personally and individually liable for the entire amount of partnership obligations (joint and several) * Where one partner pays the whole obligation of a partnership, they’re entitled to indemnification from the partnership. They may also require the other partners to contribute their pro rata shares of the payment if the partnership is unable to indemnify. * Partners cannot limit a third party’s rights without the third party’s consent. The agreement is effective, however, among the partners themselves. a partner who make an agreement on behalf of the partnership without apparant or actual authority will be personally liable.

Answer 3

Highest duty the law can impose. Comprises of duty of care and duty of loyalty.

Answer 4

* Essentially a duty of fairness towards to the principal. * duty to act in the *best interest* of the principal in *good faith* and*avoid conflicts of interest* (agent cannot put their interests or the interests of third parties above the interests of the principal). * Cannot be limited by agreement

Answer 5

Each partner and the partnership shall furnish to a partner * (1) without demand, any information concerning the partnership’s business and affairs reasonably required for the proper exercise of the partner’s rights and duties; and * (2) on demand, any other information concerning the partnership’s business and affairs (except to the extent the demand or the information demanded is unreasonable or otherwise improper under * the circumstances). * CAN be limited by agreement.

Answer 6

**partnership property if** * aquired by a partnership * aquired by a partner with reference to the partnership * Presumer if partnership funds are used **Presumed partner property if:** * Held in name of partner, not purchased with partnership money, with no sign they were acting for the partnership. **Untitled property** * look at circumstances and intent to determine ownership.

Answer 7

**Partnership:** unrestricted rights to property **Partner:** Not a co-owner. No interest in property. Can only use for partnership purposes.

Answer 8

**The partnership interest is the personal property of the partner.** Inlcudes: * financial rights * management rights (everything else)

Answer 9

**Transfer of rights:** * Default no right to unilateral transfer. The default rule for the admission of a new partner is that it requires a unanimous vote of the existing partners. * Unless otherwise agreed, a partner can unilaterally transfer his financial rights, but the transferee does not become a partner, and the partner retains all management rights.

Answer 10

Withdrawal from partnership. Dissociation can occur via: * notice of express will to withdraw * occurance of a contractuall specified event * valid explusion of partner * partner's bankruptcy * death of incapacity of partner * court order * termination of partner business entity Unlike the other events of dissociation, notice of a partner’s express will to withdraw from a partnership at will automatically triggers dissolution of the partnership. On an essay with this fact you should discuss both dissociation and dissolution.

Answer 11

Partners have not agreed to a timeframe for the partnership. Default.

Answer 12

Two statutory approaches depending on the circumstance: 1) the partnership is dissolved, its business must be wound up, and the business will be **liquidated**. 2) the partnership continues in existence. The dissociated partner is entitled to a **buyout** of their partnership interest.

Answer 13

* Partner's right to participate in management ceases. * Partnership buys out interest though either liquidation or going-concern value. * Partnership indemnifies partner against known pre-dissociation liabilities and post-dissociation liabilities not incurred by the dissociating partner’s acts. Note: a partner who wrongfully dissociates a term partnership early is not entitled to payment of the buyout price until the term expires or the undertaking is completed, but interest must be paid on buyout price from date of dissociation.

Answer 14

Dissolution and winding up are required only in limited circumstances. Two circumstances are of particular importance: 1. When a partner dissociates by express will in an at-will partnership, the partnership is dissolved and its business must be wound up. 2. In a term partnership, if one partner dissociates wrongfully, or if a dissociation occurs because of a partner’s death or bankruptcy, dissolution and winding up of the partnership are required only if, within 90 days after the dissociation, at least one-half of the remaining partners agree to wind up the partnership.

Answer 15

The partnership is terminated once the winding up process is complete.

Answer 16

**Pre-Dissociation Liability** * A dissociated partner remains liable for pre-dissociation partnership obligations **Post-Dissociation Liability** * A dissociated partner can be liable for post-dissociation partnership liabilities incurred within two years after the dissociation if (1) when entering the transaction the other party reasonably believed the dissociated partner was still a partner, and (2) did not have notice of the partner’s dissociation. * Note that a dissociated partner can protect themselves by notifying creditors directly of their dissociation (effective immediately) or by filing a public notice of dissociation (becomes effective 90 days after filing).

Answer 17

* A partnership can be bound by an act of a dissociated partner undertaken within two years after dissociation if: (1) the act would have bound the partnership before dissociation, and (2) the other party to the transaction (a) reasonably believed the dissociated partner was still a partner, and (b) did not have notice of the dissociation. * The partnership can protect itself by notifying creditors directly of the dissociation (effective immediately) or by filing a public statement of dissociation (becomes effective 90 days after filing).

Answer 18

1) Outside creditors 2) Inside creditors. 3) Reimburse partners for capital contributions. 4) Excess assets are distributed to the partners in cash in accordance with their profit shares OR individual partners must contribute in accordance with their loss shares, inlcuding reimbursing other partners capital consitubutions

Answer 19

* notice of an at-will partner's express will to withdraw * occurance of a contractually specified event. * consent of all of the partners to dissolve * within 90 days after a partner’s death, bankruptcy, or wrongful dissociation, at least half of the remaining partners wish to dissolve; * Partnership becomes unlawful * The passage of 90 consecutive days during which the partnership does not have at least two partners. * court order

Answer 20

Partners retain apparent authority to bind the partnership to a third party on new business even after an event requiring winding up. The partnership can protect itself by * notifying creditors directly of the dissolution. * Filing a statement of dissolution which gives all persons constructive notice after 90 days. Partnership will have rights against a partner that binds it in this way if that partner knew about the dissolution when she entered into the contract.

Answer 21

Any time before the winding up of the partnership business is complete, the partners may decide to waive the dissolution and continue the partnership by unanimous vote of the partners who have not wrongfully dissociated.

Answer 22

The general partner(s) is personally liable for partnership obligations, while the limited partner(s) generally does not have any liability beyond the liability to make agreed-upon contributions.

Answer 23

* A general partnership is an association of two or more persons to carry on as co-owners of a business for profit. * No formalities are required to form a general partnership. * Each partner is an agent of the partnership and has authority to bind the partnership in the ordinary course of business. * Partners are jointly and severally liable * default allocation of profits/losses - equally * default allocation of distributions - no provision

Answer 24

* A partnership with at least one general partner and at least one limited partner. General partnership principles typically apply unless displaced by LP-specific provisions. * Requires filing a **certificate of formation** with the state. * A limited partnership is an entity distinct from its partners. * General partners are jointly and severally liable for all obligations of the LP. * GPs have fiduciary duty * has a perpetual duration unless otherwise provided. * Limited Partnership agreement can be written, oral, or implied. * As in a general partnership, the agreement can displace almost all of the statutory provisions. * Name must inlcude the phrase “limited partnership” or the abbreviation “L.P." * default allocation of profits/losses - no provision * default allocation of distributions - in proportion to contributions

Answer 25

**Role of General Partners** * The LP is managed by the general partner(s). * Each general partner has equal rights. * Decisions require a majority of GPs. **Role of Limited Partners** * Generally, limited partners usually have no management rights (can changed by agreement). * Participation in management does not cause a limited partner to become personally liable. **All Partners** The vote of ALL partners is necessary for certain extraordinary activities, including to: (1) amend the partnership agreement; (2) convert the partnership to a limited liability limited partnership; (3) dispose of all or substantially all of the limited partnership’s property outside the usual and regular course of the partnership’s activities; (4) admit a new partner; or (5) compromise a partner’s obligation to make a contribution or to return an improper distribution.

Answer 26

* An LLP is a essentailly a GP in which all of the partners have limited liability (no partner is personally liable for a partnership obligation beyond their contribution to the partnership). * Requires filing a **certificate of formation** with the state. * In general, you apply the default general partnership rules to LLPs, with some exceptions * default allocation of profits/losses - Equally * default allocation of distributions - No provision

Answer 27

an LLLP is essentially an LP in which even the general partners have limited liability, meaning they are not personally liable for the debts and obligations of the partnership beyond their investment. * Requires filing a **certificate of formation** with the state. * A limited partnership is an entity distinct from its partners. * GPs have fiduciary duty * Has a perpetual duration unless otherwise provided. * Limited Partnership agreement can be written, oral, or implied. * As in a general partnership, the agreement can displace almost all of the statutory provisions. * Name must be indicative * default allocation of profits/losses - no provision * default allocation of distributions - in proportion to contributions

Answer 28

A certificate of partnership must be * be filed with the secretary of state * be signed by all general partners. Must inlcude: (1) the name of the partnership (2) the names and addresses of the agent for service of process, and (3) the names and addresses of each general partner. (4) what types of partnership it is. If you don't have these you'll be a GP!

Answer 29

A limited liability **company** (“LLC”) is a hybrid business organization between a corporation and a partnership that (1) is taxed like a partnership (except for a single-member LLC), (2) offers its owners (called members) the limited liability of shareholders of a corporation, and (3) can be run like either a corporation or a partnership. * Most common form of new business organization. * Requires filing a **certificate of organization** with the state. * An LLC is treated as a separate legal entity distinct from its owners * Members are personally liable only if the court decides to pierce the LLC veil or if proper procedures for dissolution and winding up have not been followed. * An LLC operating agreement may waive the duty of loyalty so long as it is not "manifestly unreasonable" * business judgment rule applies to LLCs * default allocation of profits/losses - proportional to contribution in most states * default allocation of distributions - proportional to contribution in most states.

Answer 30

An LLC is formed by filing a certificate of organization with the secretary of state. Certificate must inlcude: 1. The name of the LLC 2. The address of the LLC’s registered office AND 3. The name and address of its registered agent Name must denote LLC Must have at least one member

Answer 31

If a creditor has a claim against an individual partner, the creditor can obtain an interest in the partnership. This includes profits but not management or voting rights.

Answer 32

if a member leaves, then it leads to a dissociation of that member, but it does not lead to winding up or dissolution unless the other members unanimously agree to dissolve the LLC.

Answer 33

* presumes that the **duty of care**, to act with reasonable diligence under the circumstances and to act on an informed basis, is met. * Plaintiff has the burden to prove that the directors were negligently uninformed or acted unreasonably. * Directors may rely on information, opinions, reports, or statements of corporate officers, legal counsel, public accountants, etc., in making decisions.

Answer 34

1) **conflicting transaction/self dealing:** A transaction where the coporation is on one side and on the other side is a director, his close family member, or his business interest. 2) **competition** between a director and the corporation 3) **usurption of a corporate opportunity**: A director can’t personally take a business opportunity the corporation would have an interest in it until he (1) tells the board about it and (2) waits for the board to reject the opportunity).

Answer 35

1) the transaction was **approved by a majority of the disinterested directors** IF director disclosed all material facts to the board or the facts were already known 2) the transaction was approved by a **majority of votes entitled to be cast by disinterested shareholders** IF director disclosed all material facts to the board or the facts were already known 3) Judged by the circumstances at the time the corporation entered into the transaction, it was **fair to the corporation** (same terms as an arms length transaction) some jurisdictions require fairness and either 1 or 2.

Answer 36

* Directors manage the corporation. They meet regularly. * Directors must vote responsibly, so they **cannot vote by proxy or voting agreement** * To hold a vote there must be quorum (a majority of directors) present throughout the meeting. * A resolution at a meeting requires a majority vote of the directors present. * Directors can also take action by unanimous consent, in writing, without a meeting. * Meeting notice is only required for special meetings. (2 days) * A director only has actual authority to bind a corporation if authorized by resolution or unanimous written consent. * Under the business-judgment rule directors are presumed to act reasonably. * Directors do not have inherent authority to bind the corporation in day-to-day operations. * Directors cannot authorize fundemtnal corporate changes without the shareholders persmission.

Answer 37

* Shareholders own the corporation. * Entitled to **annual meetings**. * Meeting notice: 10-60 days + state the time, place, and purpose of the meeting. * Shareholders can vote by proxy or agreement. * To hold a shareholder vote, there must be a quorum (a majority of all **outstanding shares** are present). Qurorum is not quashed by shareholders leaving. * For most votes, a majority vote of votes actually cast is required

Answer 38

* must be a quorum. * each share is entitled to one vote * generally an action requires a majority of actualy voted shares to be approved. * Fundemental corporate change and removal of a director require a majority of outstanding shares

Answer 39

* Officers are agents of the corporation. * Officers are the president, secretary, treasurer, etc. * They have the **inherent** power to enter into **ordinary transactions on day-to-day operations** on behalf of the corporation. * A officer must have authorization from the board to enter into extraordinary transactions. * To implement a fundemental corporate change, an officer must have proper authorization from the board, who must have proper authorization from the shareholders. * In an Agency combo MEE question, an officer likely has actual or apparent authority to enter into a contract on behalf of the corporation.

Answer 40

* Articles of incorporation must be filed with the state) in order for a valid corporation to be formed. The articles must include basic information inlcuding the corporation’s: * Name * address * names of incorporators * purpose * number of shares authorized. Notes * Additional provisions can be added. * In a conflict between articles and bylaws, the articles control * Because the corporation files these with the state, they are public.

Answer 41

* An offer to buy a certain number of a corporation’s shares. * In general, the offer must be in a signed writing and state a price.

Answer 42

* A corporating is not generally liable for a contract entered into proor to incorporation unless it expressly or impliedly adopts (ratifies) the contract. * Express: the board of directors expressly ratifies the agreement. * Implied: there is a knowing acceptance or retention of the contract benefits. * Otherwise, the promoter is liable for preincorporation contracts.

Answer 43

* A shareholder may vote her shares in person or by proxy. * A proxy is (1) a writing (fax and email are fine), (2) signed by the record shareholder (email is fine if the sender can be identified), (3) directed to the secretary of the corporation, (4) authorizing another to vote the shares. * a proxy may be revoked by the shareholder attending the meeting to vote themselves, in writing to the corporate secretary, or by subsequent appointment of another proxy. * for a proxy to be irrecovable (1) the proxy says it’s irrevocable and (2) the proxy holder has some interest in the shares other than voting (such as an option to buy the shares).

Answer 44

a written agreement of shareholders under which all of the shares owned by the parties to the agreement are transferred to a trustee. valid for max of 10 years unless extended. requires: 1. the agreement be in writing and signed 2. a copy is given to the coproration 3. legal title to the shares is transferred to the trustee 4. The original shareholders receive trust certificates and retain all shareholder rights except for voting

Answer 45

* Can be brought when an officer or director has breached a duty owed to the shareholder personally. * Inlcudes payment of a dividend or opression in a close corporation. * In a shareholder direct action, any recovery is for the benefit of the individual shareholder.

Answer 46

* In a derivative suit, a shareholder is suing to enforce the corporation’s claim, not her own personal claim. * The coporation gets the award. * The corporation must be joined to the suit as a defendant.

Answer 47

**1) Standing** * A shareholder must have been a shareholder at the time the claim arose or must have become a shareholder through transfer by operation of law (inheretence or divorce) from someone who did own stock at the time the claim arose. **2) Adequacy** * Must adequately represent the coporations interests **3) Demand** * Must make a written demand to the board for action and either wait 90 days, receive notice that the corporation has rejected the demand, or show that wiating 90 days would cause irreperable harm. * Some states have no demand requirment if demand would be fuitile (such as when directors are the defendant).

Answer 48

* shareholders generally have limited liability and are only liable for their investment. To piece the corporate veil the shareholders must have abused the privilige of incorporation. Three common scenarios:** * **Alter Ego (Identity of Interests):** the corporation may be considered the “alter ego” or a “mere instrumentality” of the shareholders or another corporation. comingling of shareholder and coporate assets/money * **Undercapitalization** at the time of formation * **Fraud**, Avoidance of Existing Obligations, or Evasion of Statutory Provisions Notes: * Veil peircing is more common in tort cases, but extremely rare in contract cases.

Answer 49

* If the incorporators thought they formed a corporation, but they failed to do so, they’d be personally liable for business debts. * de facto corporation and corporation by estoppel can help avoid liability BUT are abolished in many states

Answer 50

doctrine limiting liabilty in the case of an improper incorporation requirements: 1. a relevant corporate statute exists 2. the parties made a good faith attempt to form a corporation under the statute 3. the parties acted as if there was a corporation 4. parties were unaware that they hadn't actually fromed a corporation limitiation of liability applies except against the state.

Answer 51

* Corporation by Estoppel limits liabilty in the case of an improper incorporation only in contract cases- does not apply to tort victims. * Persons who have dealt with the entity as if it were a corporation will be estopped from denying the corporation’s existence (they can't back out of their contracts) * Corporation cannot avoid liability by claiming it was improperly formed.

Answer 52

* Majority of a quorum of directors to adopt a resolution of fundemental corporate change. * Resolution is submitted to shareholders for a majority vote of outstanding shares. * Filing with secretary of state

Answer 53

Exclusive shareholder remedy for fundmental corporate change: 1) In a close coporation or a very small corporation 2) Shareholder must prove notice to the corporation before a fundemental coporate change involving: * Merging or consolidating * Transferring substantially all assets * Stock being acquired in a share exchange * Converting to another form of business 3) Of their intent to demand appraisal if vote succeeds 4) Demand appraisal immediately after successful vote 5) aggree on fair value or have court appoint a neutral appraiser.

Answer 54

* Article 9 of the UCC applies to any transaction, regardless of its form, that creates a security interest in personal property or fixtures by contract. * the words security interest do not have to be specifically present. * Also applies to lease agreements that are security interest rather than true leases. Typically occurs when the lease term covers the entire economic life of the goods or when the lessee has an option to purchase the goods for nominal consideration at the end of the lease.

Answer 55

look for (1) a credit transaction (a sale on credit or a loan) and (2) an agreement that creates a lien in favor of the creditor in the debtor’s personal property to secure the debt

Answer 56

a contingent property interest in the debtor’s collateral that the debtor grants to the creditor. When that contingency (which is default) occurs, the property interest springs to life and the creditor has rights in the debtor’s collateral.

Answer 57

Two types: 1. The secured party sells the goods to the debtor on credit and retains a security interest in the goods sold 2. The creditor loans the funds to the debtor to enable the debtor to buy specific collateral, those specific funds are used by the debtor to acquire the specific collateral, and the creditor takes a security interest in the specific collateral purchased.

Answer 58

* An after aquired property clause extends the secuity interest not only to the debtors present property, but also also to property that the debtor will obtain in the future without additional formalities. * Even without an after-acquired property clause, a security interest will attach automatically to collateral of a type that’s rapidly depleted and replenished, such as accounts and inventory. * A security interest will also automatically attach to identifiable proceeds

Answer 59

Automatically secures future loans to the same collateral as the original secured loan without additional formalities.

Answer 60

When the rights of the secured creditor become effective against the debtor

Answer 61

* When the rights of the secured creditor become effective against other creditors (gives notice to other creditors). * Perfection cannot occur until attachment has occured * There are six methods of perfection: (1) filing a financing statement; (2) taking possession of the collateral; (3) control; (4) automatic perfection; (5) temporary perfection. (6) notation on the certificate of title (automobiles only) * unperfected does not mean unsecured.

Answer 62

* Tangible **movable** personal property at the time the security interest attaches (including unborn animals and growing crops). * The key question is how the debtor intends to use the collateral (**original intent rule**) Four types of goods: 1. **Consumer goods**—goods used or bought primarily for personal, family, or household purposes. 2. **Equipment**—goods that are used or bought for use in a business. Also the default category for goods. 3. **Farm products**—crops or livestock or supplies used or produced in farming operations or products of crops or livestock in their unmanufactured states IF they are in the possession of a debtor engaged in farming operations. 4. **Inventory** - goods held for sale or lease, goods that are to be furnished under service contracts, and materials used or consumed in a business in a short period of time

Answer 63

8 types depending on the **nature** of the collateral 1. **Instruments**—Pieces of paper representing the right to be paid money. 2. **Documents**—A writing that represents the right to receive goods. 3. **Chattel paper**—A record or records which evidence both (1) a monetary obligation, and (2) a security interest in or a lease of specific goods. May be electronic. 4. **Investment property**—Includes items such as stocks, bonds, mutual funds, and brokerage accounts containing such items 5. **Accounts**—Includes a right to payment for property sold or services rendered. (accounts receiveable) 6. **Deposit accounts**—An account maintained with a bank. (art 9 only appplied to non-consumer desposit accounts) 7. **Commercial tort claim** — the claim arose out of the claimant’s business or profession, and the claim does not include damages for personal injury or the death of an individual 8. **General intangibles**—anythis else such as such as patent and trademark rights, copyrights, and goodwill.

Answer 64

Three requirements. Can occur in any order. 1A) **Binding Security Agreement with AID**: * **Authentication** (signature), * **Intent**, and * a **Description** that reasonably idenfies the collateral. OR 1B) **posession by the secured party**. * an agreement may be oral IF the collateral is in possession f the secured party, but this is often infeasible. 2) **Consideration** is given by the secured party * Consideration is usually a loan, but even past consideration will suffice. 3) The debtor must have **Rights** in the collateral * Need not be title, possession is sufficient.

Answer 65

* Proceeds include whatever is received upon the sale, exchange, collection, or other disposition of collateral or proceeds. * Even insurance pay out for damage to collateral and claims arising from damage or loss of collateral are proceeds. * Proceeds must be identifiable (traceable to the original collateral) * comingled cash uses the lowest intermediate balance rule (cannot exceed original value of cash proceeds)

Answer 66

=A secured party may obtain perfection by filing a financing statement (either in writing or electronically) Requires: 1) The debtor’s name and address, 2) The secured party’s name and address, and 3) A description of the collateral covered by the financing statement (may be generic) 4) Must be filed with state secretary of state office of debtor's location UNLESS involving timber, minerals, or fixtures, in which case must be filed with county office where the item is located. Issues: * Use of the debtor’s trade name is insufficient. * Financing statements are filed by the name of the debtor. * Error is seriosuly misleading and will invalidate if it cannot be found in a filing office using a search with the correct name. Spelling errors usually seriously misleading. (unless caused by filing office error). * Errors in secured party name are immaterial. * In the event of a debtors name change, the financing statement is effective only against collateral acquired by the debtor before the name became insufficient and within 4 months after. * Unlike with authenitcation, the collateral description may be generic. * Description need not mention after aquired property if it is broad enough. * If debtor moves, creditor must refile within 4 months * Is collateral is transferred to a new owner in new state creditor must refile within 12 months * Financing statement is valid for 5 years. Continuation statement must be filed within 6 months of end of statement.

Answer 67

* Most types of collateral are perfected upon posession by the secured creditor. * This is the only way to perfect a security interest in money. * Security interests in general intangibles, deposit accounts, nonnegotiable documents, electronic chattel paper, certificate of title goods, and accounts cannot be perfected by possession.

Answer 68

* Effective only for nonconsumer deposit accounts, electronic chattel paper, and investment property. * security interests in nonconsumer deposit accounts can only be perfected by control (unless they’re perfected as proceeds) * The bank in which a nonconsumer deposit account is maintained automatically has control over the deposit account. Other wise you need the creditors name on the account or a control agreement: lendor-lendee-bank contract

Answer 69

* A PMSI in consumer goods is perfected as soon as it attaches. * a security interest in an account or payment intangible is automatically perfected if the amount is not a significant part of the debtors outstanding accounts or payment intangibles

Answer 70

Perefection of security interest in collateral extends to proceeds of that collateral for **20 days**. Will continue beyond 20 days if: 1) the collateral is identifiable cash 2) the original collateral was perfected by filing a financing statement, the new filing statement would be filed in the same place as the original collateral, and the proceeds were direct (not purchased with cash proceeds) Otherwise creditor must refile.

Answer 71

* Security interests in motor vehicles can only be perfected by notation on the certificate of title issued by the state. * HOWEVER: Security interests created by dealers in vehicles held in inventory for sale or lease are perfected by filing a financing statement under the ordinary code rules

Answer 72

* The law of the state where the debtor is located generally governs perfection of the security interest. * human - principal residence * Registered organization - the state under whose laws it is organized * General partnership - place of business

Answer 73

First to perfect has priority

Answer 74

* A perfected security interest beats an unperfected one, even if the unperfected creditor has a PMSI * UNLESS the PMSI has a superpriority

Answer 75

The first to attach has priority.

Answer 76

Generally, when a buyer (or lessee) buys or leases something with a security interest on it, the security interest stays on the item. UNLESS * The sale or lease of the collateral is authorized by the secured party (can be implied through acquiescence * The sale is of inventory to a consumer (impliedly sold free of the security interest) * The sale (or lease) is to a **buyer in the ordinary course of business**.

Answer 77

Definition of “Buyer in the Ordinary Course” A “buyer in the ordinary course” is one who buys goods (1) in **good faith**, (2) **without knowledge** that the sale violates the rights of another person in the goods, and (3) in the ordinary course of business from a **seller in the business of selling goods of the kind purchased**. * The typical case of the buyer knowing that the sale violates the rights of another is where the buyer knows that the sale violates the security agreement. * Just because you know that there is a security interest on an item, does NOT mean you know someones rights are being violated

Answer 78

Buyers or lessees not in the ordinary course of business: * Take subject to perfected security interests, and * Take free from unperfected security interests unless they know of the security interest when they give value or take delivery

Answer 79

In the case of consumer goods, a buyer takes free of a security interest, even though it’s perfected, if the buyer buys (1) without knowledge of the security interest, (2) for value, (3) for the buyer’s own personal, family, or household purposes, and (4) before a financing statement covering the goods has been filed. Note that the goods must be consumer goods in the hands of both the buyer and the seller. Recall that PMSIs in consumer goods are perfected automatically without filing. Nevertheless, holders of these security interests will still lose to consumer buyers under this rule unless they file.

Answer 80

The following PMSIs will have a superpriority over other secured creditors: * A PMSI in consumer goods – automatically perfected. * A PMSI in equpiment if the interest is perfected before or within 20 days after the debtor receives possession of the goods. * A PMSI in inventory or livestock if filing occurs before delivery to debtor and any other secured parties are given authenticated notification before delivery to debtor.

Answer 81

* A judicial lien creditor won a judgment in court AND there has been a seizure of the collateral by the sheriff. * which ever happens first, perfection or seizure of the collateral by the sheriff, wins. * if a securied creditor files before seizure but the perfection occurs after, they will still beat the judicial lien creditor. * PMSI Grace Period Exception: If the secured party files a financing statement with respect to a PMSI within 20 days after the debtor receives the collateral, the secured party will have priority over a judicial lien arising between the time the security interest attaches and the time of filing.

Answer 82

* A secured party who has a PMSI in collateral as a seller (a seller-financed PMSI) has priority over a secured party who has a PMSI in the same collateral as a lender (a financer-financed PMSI) * Otherwise, the first secured party to file or perfect prevails

Answer 83

* A security interest in investment property perfected by control has priority over a security interest perfected by any other method * For conflicting security interests perfected by control, first to control wins

Answer 84

Priority is in the following order: 1) co-owner 2) maintain account 3) control agreement

Answer 85

a possessory statutory lien has priority over a security interest (even if perfected) as long as the goods or services were provided in the ordinary course of business and the collateral remains in the lien holder’s possession.

Answer 86

If Article 2 grants a buyer or seller a possessory security interest in goods (for example, if the buyer rightfully revokes acceptance of goods), the Article 2 claimant has priority over an Article 9 secured party as long as the Article 2 claimant retains possession of the goods.

Answer 87

**Notification to other secured creditors** * A secured creditor who wants to keep the collateral has to notify other known creditors that they plan to keep the collateral by filing a financing statement or noting its security interest on a certificate of titlend * If other creditors object within 20 days the creditor cannot keep and must be disposed of by sale **Notification to debtor** * The debtor and must recieve written notification of the resale. * the debtor must have 20 days to object.

Answer 88

**Notification to debtor** * The debtor and must recieve written notification of the resale. * the debtor must have have at least 10 days notice. * Contents of notice for public sale: notice of the time and place of sale and notice of deficiency liability * Contents of notice for private sale: notice of the time after which the sale will occur. Must describe the parties and the collateral. For consumer goods, must also inlcude notice of deficiency liabilty, and telephone or mailing address for more information.

Answer 89

the debtor can redeem prior to the disposition of the collateral by paying full dues.

Answer 90

* Under UCC, all types of collateral can be perfected by notice through proper filing except Deposit Accounts (Control) and Money (Possession) * State require cars to be perfected via notification on title certificate.

Answer 91

* The exercise of specifc PJ must: o 1) fall within a state long arm statute, and o 2) satisfy the Constitution (due process 14th amendment).

Answer 92

* Primarily a **fairness** analysis * Does the defendant have such **minimum contacts with the forum** so jurisdiction does not offend **traditional notions of fair play and substantial justice**? * The contact must result from defendant’s **purposeful availment** * Defendant can purposefully avail without setting foot in the forum by **causing a foreseeable effect in the forum** * Mere accessibility of a company's website in a state, without more, is usually insufficient contact

Answer 93

courts have General PJ over a corporation if it is * the state in which it is incorporated; * the state in which it has its principal place of business (“PPB”) * registered to do business in the state and has appointed an agent for service of process there, or * has been served with process in the state (tag jurisdiction)

Answer 94

A corporation is a citizen of every state or country in which it is incorporated and of the one state or country in which it has its principal place of business (“PPB”)

Answer 95

* The plaintiff's claim must arise under federal law, it cannot be anticipated in the answer. * Ask if the plaintiff is enforcing a federal right (taking away doesn’t count)

Answer 96

* When the federal court has subject matter jurisdiction over one claim, it has discretion to exercise supplemental jurisdiction over related claims that derive from the same **common nucleus of fact (“transaction or occurrence”)** and are such that a plaintiff would ordinarily be **expected to try them in a single judicial proceeding.** * In diversity cases, claims by plaintiffs cannot invoke supplemental jurisdiction. * There is an exception to the limitation when there are multiple plaintiffs, and the claim by one of them does not meet the amount in controversy requirement.

Answer 97

**Step 1.** Is there some federal law (like the Constitution, federal statute, Federal Rule of Civil Procedure, or Federal Rule of Evidence) on point that directly conflicts with state law? If so, apply the federal law **Step 2.** If there is no federal law on point, the federal judge must apply state law if the issue to be decided is “substantive.” Five issues are clearly “substantive”: * Conflict of law rules; * Elements of a claim or defense; * Statutes of limitation * Rules for tolling statutes of limitations; * The standard for granting a new trial **Step 3**. If there is no federal law on point and the issue is not one of the five just listed above, the federal judge must determine whether the issue is “substantive.” The law is very unclear. Factors include: * Whether the choice of law would be outcome determinative * Whether either the federal or state system have strong interest in having its rule applied. * Whether utilizing federal law instead of state law will cause forum shopping toward federal court.

Answer 98

The plaintiff may lay venue in any district where: A) All defendants reside (residential venue) or B) A substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located (transactional venue). * If all defendants reside in same state, you can choose the venue in which any of them reside. * A substantial part of the claim can arise in more than one district. Any is appropriate. * Improper venue may be waived by defendant

Answer 99

* If original venue was proper, court can order transfer based on convenience of parties and witnesses and in the interests of justice. * Balancing test. * Burden is on the person seeking transfer * The transferee court must apply the choice of law rules of the transferor court * Should be denied if the case could not have been filed in new venue to begin with.

Answer 100

1. SMJ 2. plausible claim with sufficient facts 3. relief sought

Answer 101

* Within 21 days of being served or within 60 days if waiving process

Answer 102

* A lack of personal jurisdiction; * Improper venue; * Improper process (a problem with the papers); and * Improper service of process. waived if not put in **first** response

Answer 103

Motions that can be made as late as at trial. * A failure to state a claim * A failure to join an indispensable party. Motions that can be made any time. * A lack of subject matter jurisdiction

Answer 104

* statute of limitations * Statute of Frauds * res judicata * self-defense Court may considered them waived if not raised in first response

Answer 105

* Plaintiff may amend once, no later than 21 days after Defendant serves rule 12 response. * Defendant may amend once, no later than 21 days after serving Rule 12 response.

Answer 106

* If the other party violates Rule 11, the opposing party cannot immediately file a motion for sanctions. Rather, she serves the motion on other parties but does not file it with the court yet. The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions.

Answer 107

**Is the absentee necessary (or “required”)?** * Absentee's interest will be harmed if not joined, or * Without absentee, court cannot provide relief to other parties. * Absentee claims an interest that would subject defendant to multiple obligations. * joint tortfeasors are NEVER necessary **If the absentee is necessary, can the absentee be joined?** * There is PJ over the absentee; and * There will be federal SMJ over the claim by or against the absentee. **If the absentee can’t be joined, can the case proceed anyway?** * is a better forum available? * Can the court shape relief to avoid harm to absentee? * If the court decides to dismss because of the absentee, the absentee is "indispensible"

Answer 108

There must always be SMJ over the counterclaim

Answer 109

Must arise from the same T/O as the underlying action.

Answer 110

* defendant brings in third party to contribute/indemnify them for plaintiff's damages. * supplemental jurisdiction allowed. * PJ if third party is within 100miles of summons location, otherwise traditional PJ.

Answer 111

Anywhere that it is subject to PJ

Answer 112

Summary judgement will be granted if moving party shows that: 1) There is **no genuine dispute on a material fact**; and 2) movant is **entitled to judgment as a matter of law**. * Used after the case has been filed and the plaintiff has survived any Rule 12 motions. Appropriate at any time until 30 days after close of all discovery * The court can look at “evidence” - usually (1) affidavits, (2) declarations, (3) deposition testimony, or (4) interrogatory answers provided under oath. * The court views evidence in the light most favorable to the nonmoving party. * if opponant bears burden of proof, movant doesn't need to provide evidence.

Answer 113

* Orders that the defendant either (1) do something or (2) refrain from doing something until a hearing for a preliminary injunction can occur. * Can be issued ex parte if movant files under oath that they will “suffer immediate and irreparable harm.” * Effective for max of 14. Can be extended up to total of 28 days. * not immediately appealable.

Answer 114

* provides equitible relief until trial, which must take place within 6 months. * Movant must show that: 1. likely to suffer irreparable harm 2. likely to win on the merits 3. harm to applicant outweighs harm to other party if the injunction is issued; and 4. injunction is in the public interest. * Either grant or refusal is immediately appealable. * (exception to the general rule is that interlocutory orders are not appealable because they are not final).

Answer 115

* Motion made prior to answer. * If the plaintiff’s complaint fails to state a claim, the case can be dismissed. * “if these facts are true, do they state a plausible claim?” * Judge uses experience and common sense. May allow plaintiff to amend.

Answer 116

* Same as a motion to dismiss for failure to state a claim, but made after the answer. * If the plaintiff’s complaint fails to state a claim, the case can be dismissed. * “if these facts are true, do they state a plausible claim?” * Judge uses experience and common sense. May allow plaintiff to amend.

Answer 117

* Similar to summary judgment but but comes up **at trial** rather than before. * Motion can be made any time before case is submitted to jury, but court may not grant motion until the party opposing the motion has been heard at trial on the issue. * Standard: **reasonable people could not disagree on result**. * Evidence viewed in light most favorable to non-moving party.

Answer 118

* Same as JMOL but after trial. * To get RJMOL, **the party must have earlier moved for JMOL on the same basis**. * Motion must be made within 28 after entry of judgment.

Answer 119

* Can be granted on any (non-harmless) error that makes the judge think there should be a do-over. A party must move for a new trial within 28 days of the judgment. * Up to discretion of judge. Reviewed on abuse of discretion if appealed. * Many possible reasons for granting. These include: o The judge gave an **erroneous jury instruction**; o **New evidence** was discovered that could not have been discovered before with due diligence; o **Misconduct** by a juror, party, or lawyer, etc.; o The **judgment is against weight of the evidence** (serious error of judgment); and o **Damages inadequate or excessive.**

Answer 120

* The losing party has a right to appeal if the court’s order is a final judgment. A final judgment is one that determines the merits of the entire case. * To determine whether an order is a final judgment, ask “after making the ruling”: Does the trial court have anything left to do on the merits of the case? If the answer is “yes,” it is not a final judgment but rather an “interlocutory order.” If the answer is “no,” the judgment is final. o Denial of summary judgement is not final (no appeal) – but granting is. o Granting a new trial is not a final judgement (no appeal) – but denying is.

Answer 121

1) **Same Claimant Suing the Same Defendant** 2) Case 1 must have ended in a **valid final judgment on the merits** (with prejudice-including default judgments) 3) Case 1 and Case 2 must **assert a right to relief arising from the same transaction or occurrence** * Where the claimant won the earlier lawsuit, the claim is said to be merged into the prior judgment. * Where the claimant lost the earlier lawsuit, the claim is said to be barred by the prior judgment.

Answer 122

1) **Case 1 ended in valid, final judgment on the merits**. 2) The issue in Case 2 must have been **actually litigated and essential to the judgment** in Case 1. 3) Against Whom: The Party against whom issue preclusion is used in Case 2 must have been the **same party as in Case 1** or have been in “privity” with the party in Case 1. 4) By Whom- who can invoke the issue preclusion? * Anyone who was **a party to Case 1** (or in privity with a party) (traditional mutuality). * Nonmutual Defense Issue Preclusion: Person asserting issue preclusion is the **defendant in Case 2.** * Nonmutual Offensive Issue Preclusion: **Plantiff in in case 2 ONLY if fair**: defendant in case 2 had opportunity AND incentive to litigate issue in case 1.

Answer 123

The following information must be given within 14 day of the initial rule 26(f) conference, even if other parties haven’t asked: * **Identities and contact information** of Persons with Discoverable Information, and the type of information that they have, that the Party May Use to **Support** Her Claims or Defenses * **Documents and tangible things**, including ESI, that the party has in their control and may use to **support** her claims or defenses must be disclosed as an initial disclosure * **Calculation of monetary relief** supported by documents. * **Relevant insurance coverage**. *discoverable is broader than admissible*

Answer 124

After the initial Rule 26(f) conference, a party can send discovery requests to another party. A party can generally discover anything that is relevant to a claim or defense and proportional to the needs of the case. *discoverable is broader than admissible*

Answer 125

* Work product or “trial preparation material,” which is material prepared in anticipation of litigation by a party, her lawyer, or other representative, is protected from discovery. * “Qualified work product” may be discovered if the requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way * Some things are considered undiscoverable “absolute work product”, such as “Opinion work product” consisting of mental impressions, conclusions, opinions, or legal theories. * A party has a right to demand discovery of any previous statement that she has made regarding the case.

Answer 126

If a party fails to cooperate in discovery, she will be subject to various sanctions plus costs. **Less than full response**: If moving party have made a good faith attempt to obtain discovery without court intervention, moving marty may make a motion to compel plus costs. If party does not comply with motion, then mertis sanctions plus costs. **No Response**: merit sanctions plus costs **Merit sanctions** inlcude: * Establishment order (establishes facts as true) * Strike pleadings of the disobedient party (as to issues re the discovery) * Disallow evidence from the disobedient party (as to issues re the discovery) * Dismiss plaintiff’s case (if bad faith shown) * Enter default judgment against defendant (if bad faith shown)

Answer 127

* A party can move for a protective order if they think that thinks a discovery request subjects her to annoyance, embarrassment, undue burden or expense. * must certify that she tried in good faith to resolve the issue without court involvement; that is, she asked the other side to “meet and confer.” Court can: * Deny discovery; * Limit discovery; or * Permit discovery on specified terms.

Answer 128

Contract = Mutual Assent (Offer+Acceptance) + Consideration – Defenses

Answer 129

* Communication of willingness to enter into a bargain. * Must be reasonably certain as to parties, subject matter, and price.

Answer 130

**Land Sale Offers Must Include** – (i) Price and (ii) Description of the Land. **Sale of Goods Must Include** – Quantity Terms (UCC Gap filler fills in the blank for price) **Employment Contracts** – If the duration of the employment is not specified then the acceptance of the contract creates a contract that is terminable at will.

Answer 131

Offers are generally revocable prior to acceptance. Offers may be revoked through: * lapse of reasonable time * explicit rejection * counteroffer * conditional acceptance * additional terms * revocation by seller * revocation by operation law revocation is effective upon receipt.

Answer 132

**Options Contracts** – When an offeree gives consideration to the offeror to not revoke offer for period of time. A mere promise not to revoke an offer, without consideration is still revocable. **Merchants Firm Offer** – Merchant promises, in signed writing, to keep an offer open for time stated or reasonable time (enforceable for up to 3 months.) **Unilateral Offer** – When an offeree begins performance under a unilateral contract the offeror’s offer becomes irrevocable. Mere preparation to perform is not the same as starting performance. **Foreseeable Detrimental Reliance** - makes an offer irrevocable.

Answer 133

* Not an offer but an invitation to deal. * However, advertisements can become an offer if it: (i) includes a promise (ii) the terms are definite/specific and (iii) the Offeree is identified

Answer 134

Acceptance is a manifestation of assent to the terms of an offer.

Answer 135

Types of acceptance * Express acceptance * Beginning performance (such as sending goods) * Completing performance (unilateral contract) Additional requirements * Under the mailbox rule, an acceptance is effective when sent. * If an offer is irrevocable, then acceptance must be received. * Rejections Sent Before Acceptance defeats the mailbox rule. Whichever is received first controls.

Answer 136

Under Article 2, a buyer accepts if they: * Indicate goods conform to contract. * Indicate they’ll keep nonconforming goods. * Fail to reject within reasonable time. * Fail to notify seller of rejection. * Act inconsistent with seller’s ownership! The buyer may revoke their acceptance if the goods have a defect that substantially impairs their value to the buyer and: * They accepted the goods on the reasonable belief that the defect would be cured and it has not been, OR * They accepted the goods because of the difficulty of discovering the defects or because of the seller’s assurance that the goods conformed to the contract

Answer 137

* Under common law an acceptance must mirror offer terms. If an offeree throws in additional terms, then it is considered a rejection and counteroffer.

Answer 138

* The shipment of nonconforming goods = Breach * The shipment of nonconforming goods as an accommodation with notice of such = Counteroffer (No Breach)

Answer 139

An offeree’s additional terms will be considered part of the contract if: 1. Both parties are merchants, 2. The additional terms are not material, and 3. The offeree doesn’t object to the non-material additional terms. * If the additional terms are material there is a contract without the materially different terms. * If term effects price, liability, or remedy, it is material. If change causes hardship or surprise to the adverse party it is material. If a change is customary in the industry, then it is not a material change. * If the offeree makes acceptance conditional upon assent to an additional term, there is no acceptance, but instead a counteroffer.

Answer 140

Two elements are necessary to constitute consideration: (1) a bargained-for exchange between the parties; and (2) legal value (benefit or detriment) * Past Consideration – is not consideration. * Some states will recognize past consideration if a promise is made after reciept of a significant benefit (such as after an emergency) * Possible future value - is consideration * Adequacy of Consideration – Courts do not inquire about the adequacy of consideration.

Answer 141

* New Consideration is required for Modifications under common law based on the preexisting duty. * Consideration is usually found to exist where the obligations of both parties have been changed.

Answer 142

No consideration is needed to modify sale of goods contracts. As long as there is good faith reason to modify a deal it is enforceable.

Answer 143

Under a modern trend, some courts will enforce a promise if: (i) it is based on a material benefit that was previously conferred by the promisee on the promisor, and (ii) the promisee did not intend to confer the benefit as a gift.

Answer 144

MYLEGS: * Contracts in consideration of **Marriage** * Contracts requiring performance more than one **Year** in the future. * **Land **Sales Contracts *** Executor** or Administrator Promises Personally to Pay Estate Debts * **Goods** worth $500 or more * **Sureties** (Guarantee) Contracts - unless guarantor benefits from underlying contract

Answer 145

The Statute requires a writing that (1) reasonably identifies the subject matter of the contract, (2) indicates that a contract has been made between the parties, and (3) states with reasonable certainty the essential terms. * Writings evidencing land sale contracts must contain a description of the land and the price * Writings for employment contracts must state the length of employment * Writings evidencing sales of goods contracts (UCC) must indicate that a contract has been made and specify the quantity term * Only the party to be charged (the person to be sued) must sign.

Answer 146

* In contracts between two merchants, if one party, within a reasonable time after an oral agreement has been made, sends to the other party a written confirmation of the understanding, this is sufficient under the Statute of Frauds to bind the sender, it will also bind the recipient if: (1) they have reason to know of the confirmation’s contents; and (2) they do not object to it in writing within 10 days of receipt.

Answer 147

(1) Real estate contracts in which conveyance by the seller has already occurred (2) Part Performance of real estate contracts – applicable if 2/3 are satisfied: * Payment * Possession * Improvement (3) Full performance of an oral contract for goods or services (4) Sales of custom goods (5) Judicial Admission – Agreements admitted in court (but only to the extent admitted). (6) Merchant’s confirmatory memo (7) Conditions precedent for a contract to come into force, even if the contract is required to be in writing under the statute of frauds.

Answer 148

* Excludes evidence of **prior or contemporaneous** agreements that contradict a final integrated writing. * Intregration is determined by the totality of the circumstances. parol evidence rule doesn't apply to * a determination of integration * defenses against formation * interprestation of vague terms * conditions precedent to efficetiveness * showing of consideration * additional, consistent terms under article 2 * subsequent modifications.

Answer 149

1. Express terms 2. Course of Performance – Parties conduct under prior installments of current contract. 3. Course of Dealings – Parties conduct in prior contracts. 4. Custom and Trade Usage – Industry norms that parties are aware of.

Answer 150

A contract for the sale of goods doesnt fail because on or more terms are missing. Gap filler will be used for the following: * Price – reasonable price at the time for delivery. * Place of delivery – the seller’s place of business/home * Time of delivery – within a reasonable time. * Time of payment – the time and place at which the buyer is to receive the goods. * Assortment - at the buyers option.

Answer 151

* a promise made concerning the quality and fitness of a product. * a sample is an express warranty. * cannot be disclaimed.

Answer 152

* Goods are fit for ordinary, foreseeable purposes. Applies to merchants who regularly sell the goods in question * To be effective, a disclaimer must be part of the offer and acceptance process

Answer 153

* Buyer comes in with special purpose, seller knows of special purpose, seller picks out goods fit for buyer’s special purposes. * A seller doesn’t have to be a merchant

Answer 154

Generally, the measure of damages for breach of any warranty is the difference between the value of the goods accepted and the value of the goods as warranted.

Answer 155

Nonmerchant sellers bear the risk of loss until the goods are TENDERED.

Answer 156

* If the seller is a merchant, then they bear the risk of loss until the buyer receives the goods.

Answer 157

A seller delivers goods to common carrier, arranges for delivery, and notifies buyer. The risk of loss passes to the buyer on delivery to the CARRIER.

Answer 158

Seller must give the goods to buyer’s location. Risk of Loss passes to buyer UPON RECEIPT FOB (FREE ON BOARD).

Answer 159

If goods that were **identified** (a particular item is specified) when the contract was made are destroyed (1) without fault by either party and (2) before the risk of loss passes to the buyer, the contract is avoided by impossibility (that is, the seller’s performance is excused, and the buyer need not pay). If the goods were **not identified** (not particular) the seller in this situation would have to prove impracticability. If the seller cannot prove impracticability, they will be liable for cover price minus contract price.

Answer 160

Satisfaction is measured by **reasonable person in good faith** unless: Contract deals with art or personal taste.

Answer 161

* When a promisor indicates that they won’t perform when the time comes. * Must be unequivocal. Excuses another party from their performance obligations. * Repudiations may be retracted so long as they have not been relied on yet. Gives the injured party immediate right to damages. Four options. a) Treat the anticipatory repudiation as a total repudiation and sue immediately b) Suspend their own performance and wait to sue until the performance date c) Treat the repudiation as an offer to rescind and treat the contract as discharged, or d) Ignore the repudiation and urge the promisor to perform

Answer 162

* Occurs when a party has reasonable grounds to believe that the other party will be unable or unwilling to perform when performance is due. A party may ask for assurance other will perform. * Only if Assurance not received = anticipatory repudiation

Answer 163

**Common Law Substantial Performance** * requires substantial performance to elicit performance from other party * performing party has completed enough of the contract's essential terms to fulfill its purpose. * If there is substantial performance with a minor breach, the innocent party can deducting damages suffered due to the first party’s incomplete performance from contract price or sue for damages. * Willfully incomplete performance is usually not considered substantial. **UCC perfect tender** * if goods or their delivery fail to conform to the contract in any way, the buyer generally may reject all, accept all, or accept any commercial units and reject the rest.

Answer 164

* An agreement to accept different performance to satisfy existing duty. * Unlike, modification, here performance is excused/discharged upon satisfaction. * Original obligation is suspended until the new accord is satisfied. * An agreement in which one party agrees to perform another obligation in lieu of an old performance. * Look for Bonafede dispute to claim. E.g. I make a partial payment because of a defect or dispute. Old contract is suspended until the accord is completed

Answer 165

* Establishes privity of contract between the obligor and the assignee while extinguishing privity between the obligor and the assignor. * Once the obligor has knowledge of the assignment, they must render performance to or pay the assignee * Valid Assignment requires language of present transfer not future transfer (promise to assign is NOT language of present assignment)No consideration is needed to make a valid assignment. * the last gratuitous assignee beats other gift asignees * The first assignee for consideration wins over all subsequent assignees and previous gifts assignee. * Even where an assignment is not permitted, an assignee without knowledge of the prohibition can still collect UNLESS null and void.

Answer 166

* Generally benefits of a contract are assigned, and duties are delegated. * cannot substantially change the obligor's duties. * Establishes privity of contract between the obligor and the assignee while extinguishing privity between the obligor and the assignor. * Once the obligor has knowledge of the assignment, they must render performance to or pay the assignee * Valid Assignment requires language of present transfer not future transfer (promise to assign is NOT language of present assignment) * No consideration is needed to make a valid assignment. * the last gratuitous assignee beats other gift asignees * The first assignee for consideration wins over all subsequent assignees and previous gifts assignee. * Even where an assignment is not permitted, an assignee without knowledge of the prohibition can still collect UNLESS null and void. * A gift assigment can be revoked by the assignor accepting performance from the obligor.

Answer 167

* Generally benefits of a contract are assigned, and duties are delegated. * personal service contracts or contracts involving unique skills cannot be delgated * Prohibition against delegation is absolute. * No assignments also = No delegations. * Party’s with special skills can’t delegate. * After a delegation the delegating party remains liable * Delegation creates an intended third-party beneficiary.

Answer 168

* intended 3rd party beneficiary are named in a contract and can enforce a contract. * Whether a 3rd party contract can be modified or cancelled without 3rd party beneficiary’s Permission depends on whether the 3rd party’s rights are vested. 3rd Party Rights is Vested if: 1) The 3rd party is required to assent to contract, 2) 3rd party detrimentally relied on the contract, or 3) 3rd party brings a lawsuit to enforce the contract (must occur before cancelation or modification). NOT VESTED- if a 3rd party merely learns of the contract.

Answer 169

* Contractual duties will be discharged if it has become impossible to perform them. * Objective test – the duties could not be performed by anyone. * The impossibility must arise after the contract has been entered into * Each party is excused from duties arising under the contract that are yet to be fulfilled.

Answer 170

* When 1) unforeseen circumstances arise, rendering performance 2) extremely and unreasonably difficult or expensive. * Increase in cost is generally not impracticability

Answer 171

* When 1) **unforeseen** circumstances arise, rendering performance 2) extremely and **unreasonably difficult or expensive**. * Increase in cost of production is generally not impracticability

Answer 172

performance is excused when the mututally understood central purpose of a contract is undermined

Answer 173

The original contract is considered voidable and rescinded. The grounds for rescission must have occurred either before or at the time the contract was formed. The grounds are: (i) Mutual mistake of a material fact (unless risk borne one party) (ii) Unilateral mistake if the other benefitting party knew or should have known of the mistake (iii) Unilateral mistake if hardship by the mistaken party is so extreme it outweighs the other party’s expectations under the contract (iv) Misrepresentation of fact or law by either party as to a material factor in the negotiations that was relied upon, and (v) Other grounds, such as duress, undue influence, illegality, lack of capacity, and failure of consideration

Answer 174

(1) the party threatens to commit a wrongful act that would seriously threaten the other contracting party’s property or finances; and (2) there are no adequate means available to prevent the threatened loss.

Answer 175

Used when money damages are inadequate, and it is feasible to enforce a decree. All land sale contracts are entitled to specific performance. * For sale of goods, it is only appropriate if the sale is unique, or * The buyer is unable to cover/replace.

Answer 176

* The writing setting forth the agreement between the parties is changed so that it conforms to the original intent of the parties. * Usually when mistake or misrepresentation.

Answer 177

* Simulates the contract benefits. Allows damaged party to buy a substitute performance. * = Cost of the benefit lost by nonperformance. * = cover price - original contract price

Answer 178

* Reliance damages award the plaintiff the cost of their performance; that is, they are designed to put the plaintiff in the position that would have been in had the contract never been formed. * Used if expectation damages are speculative

Answer 179

* Restitution is based on preventing unjust enrichment when one has conferred a benefit on another without gratuitous intent. * Can be used even when no contract. * = the value of the benefit conferred if 1) the party conferring the benefit had the reasonable expectation of being compensated, 2) the defendant knew or had reason to know of the plaintiff’s expectation, and 3) the defendant would be unjustly enriched.

Answer 180

* Cost incurred by dealing with the breach. * Inspection, receipt, transportation, care, etc,

Answer 181

1. reflect losses over and above standard expectation damages. 1. They arise because of the nonbreaching party’s particular circumstances, and most often they consist of lost profits. 1. only for buyers

Answer 182

**Mitigation Damages** * Cover Price – contract price (standard remedy) **Market Damages** * Market Price – contract price (applies when party doesn’t mitigate) **Warranty Damages (Loss In Value)** * When buyers keep nonconforming goods, they are still entitled to loss in value. * Loss In Value = Value Promised – Value as delivered

Answer 183

**Resale Damages** * Contract Price – Resale price **Market Damages** * Contract Price – Market price (applies when party doesn’t mitigate) **Loss-Volume Seller (Lost Profits)** * Characterized by unlimited supply (car dealer) * Lost profits measures of damages **Damages for defective good** * value of goods as warranted - value of goods accepted

Answer 184

* A breach of one installment does not necessarily constitute a breach of the entire contract unless it substantially impairs the value of the whole contract. * The aggrieved party is limited to recovering only the missed installment, not the entire contract. * Unless acceleration clause.

Answer 185

* A divisible contract is one where the performance is divided into separate parts, each with its own consideration (payment-delivery). * Can only sue on one installement

Answer 186

* Battery * Rape * Kidnaping * False Imprisonment

Answer 187

* Purposely – conscious object to engage in certain conduct. * Knowingly – Awareness that conduct is of particular nature or certain circumstances or likely outcomes exist or are likely to exist. * Recklessly – Consciously disregard substantial and unjustifiable risk. Involves both objective (“unjustifiable risk”) and subjective (“awareness”) elements. * Negligence – When a person fails to be aware of a substantial and objectively very unjustifiable risk.

Answer 188

* 1) Agreement between 2 or more person * 2) with an intent to enter into agreement * 3) intent to achieve criminal objective of agreement. * 4) modern rule requires an act in furtherance of the conspiracy (but common law does not). o Specific intent crime. o Common law does not require overt act o majority of state statutes require overt act, although mere preparation may suffice. o Co-conspirators liable for the crime contemplated and any other crimes committed that were probable or foreseeable

Answer 189

* 1) Specific intent to commit the crime attempted (even if the crime attempted isn’t a specific intent crime). * 2) An Act Beyond Mere Preparation; o Traditional Proximity Test: Dangerously Close to completion of the crime. o Majority Test: Substantial Step towards the commission of the crime

Answer 190

* Not a defense at common law. * Abandonment is a defense under MPC if o fully voluntary o complete renunciation.

Answer 191

* Withdrawal is NO DEFENSE to Conspiracy, because conspiracy is complete the moment the plan is made + act in furtherance of the conspiracy. * Withdrawal may be DEFENSE to substantive crimes committed in furtherance of conspiracy. Defense against accomplice liability. o Conspirators must perform an affirmative act that notifies ALL co-conspirators of withdrawal in time for them to abandon plan. If the conspirator has also provided assistance as an accomplice, they must try to neutralize the assistance.

Answer 192

* (1) asking, inciting, counseling, advising, urging, or commanding another * (2) to commit a crime, * (3) with the intent that the person solicited commit the crime. * It is not necessary that the person solicited agree to commit the crime.

Answer 193

* In most jurisdictions, it is not a defense that the solicitor renounces or withdraws the solicitation. * The M.P.C. recognizes renunciation as a defense if the defendant prevents the commission of the crime, such as by persuading the person solicited not to.

Answer 194

Solitation: merges Conspiracy: does not merge Attempt: merges unless transferred intent

Answer 195

Unlawful killing of a human being with Malice aforethough (any one of the following): 1. Intent to Kill (can be inferred from use of deadly weapon) 2. Intent to inflict great bodily injury. 3. (depraved heart) Reckless indifference to an unjustifiably high risk to human life. 4. Intent to commit a Felony

Answer 196

* intentional premeditated killing, or * killing that was a foreseeable result of a dangerous felony

Answer 197

Unlawful killing of a human being if adequate provocation (heat of passion): 1) If Provocation would arouse sudden and intense passion in the mind of an ordinary person, and 2) Defendant was in fact provoked, and 3) Insufficient time between provocation and killing for passions of reasonable person to cool off, and 4) Defendant did not cool off. OR Imperfect self defense - the defendant unreasonably believed the necessity of the use of deadly force.

Answer 198

* Killing committed with criminal negligence (failure to act with the care of a reasonable person under the same circumstances, casuing an unreasonable risk of death or serious injury) * Death incident to misdemeanor or nonviolent (or uneumerated) felony.

Answer 199

* The defendant’s conduct must be both the cause-in-fact and the proximate cause of the victim’s death: * Causation In Fact – When a defendant’s conduct is the cause in fact of the result, the result would not occur but for the defendant’s actions. * Proximate Causation rule – Defendant’s conduct is the “natural and probable consequence” of the conduct. Applies even if the defendant did not anticipate the precise manner of the result. * Intervening acts shield the defendant from liability if the act is a coincidence or is outside the foreseeable sphere of risk created by the defendant. They break the chain of the causation.

Answer 200

Before the crime becomes unstoppable, accomplice: * Must repudiate encouragement. – Mere withdrawal from a situation is not sufficient, and * Must attempt to neutralize assistance – Notifying police or taking other action to prevent crime is also sufficient.

Answer 201

* Intervening acts shield the defendant from liability if the act is a coincidence or is outside the foreseeable sphere of risk created by the defendant. They break the chain of the causation. o A third party’s negligent medical care and the victim’s refusal of medical treatment for religious reasons. o Grossly negligent medical care is an intervening act. o An act that hastens an inevitable result is still the cause of that result. o Simultaneous action of two defendants may be independent causes of that same result, even if foreseeability does not break the chain of causation.

Answer 202

* Unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. * GENERAL INTENT CRIME. Intoxication or Unreasonable Mistake NOT A DEFENSE. * The force need not be applied directly (dog)

Answer 203

* Battery with a deadly weapon * battery resulting in serious bodily harm * battery of a child woman, or police officer.

Answer 204

* (i) Specific intention attempt to commit a battery or * (ii) Intentional creation of reasonable apprehension of imminent bodily harm. (other than mere words) IF there is physical contact involved, the crime become battery.

Answer 205

* Assault plus (1) the use of a deadly or dangerous weapon, or (2) with the intent to rape, maim, or murder.

Answer 206

* Unlawful confinement of a person without a person's valid consent. * MPC requires actions that substantially interferes with a person’s liberty. * Preventing a person from going where they want to go is not confinement as long as there are alternative routes that is safe and not humiliating. * General Intent

Answer 207

* Unlawful confinement of a person that involves either (1) some movement of the victim, or (2) concealment of the victim in a “secret” place. * General Intent

Answer 208

1) A taking (obtaining control) 2) And carrying away (asportation – slightest movement) 3) Of tangible personal property (excluding realty, services, and intangibles, but including written instruments embodying intangible rights such as stock certificates) 4) Of another with possession 5) By trespass (without consent or by consent induced by fraud) 6) With intent (at the time of taking) to permanently deprive that person of their interest in the property larceny may occur with lost or mislaid property. larceny Does Not Occur with Abandoned Property.

Answer 209

1) Fraudulent conversion 2) of personal property 3) of another 4) by person in lawful possession of that property.

Answer 210

* Same as false pretense except victim gives up custody or possession of property instead of title.

Answer 211

o 1) Taking o 2) of personal property of another o 3) from the other person’s or presence (or vicinity) o 4) by imminent force or threat o 5) with intent to permanently deprive.

Answer 212

o 1) Breaking (creating or enlarging an opening by at least minimal force, fraud, or intimidation) o 2) and Entering (placing any portion of the body or any instrument used to commit the crime into the structure) o 3) of a dwelling o 4) of another o 5) at nighttime o 6) with the intent to commit a felony therein (not just larceny, but including larceny)

Answer 213

* Majority Law: Malicious burning of **any structure** or dwelling * Common law: Malicious burning of dwelling of another. * **No specific intent** is required. Malice crime - acting with a **reckless disregard** of an obvious risk that the structure would burn. * Accidently burning your neighbor’s house down instead of your own is sufficient for malice. * Significant damage is not required for a conviction. * Charring is SUFFICIENT * Scorching: blackening by smoke or discoloration by heat is NOT SUFFICIENT – but does suffice for attempted arson.

Answer 214

(i) disease of the mind (ii) caused a defect of reason and (iii) the defendant lacked ability to know the wrongfulness of actions or understand nature and quality of actions.

Answer 215

because of mental illness, defendant unable to control actions or conform conduct to the law.

Answer 216

crime was product of mental illness.

Answer 217

* Perfect defense to specific intent crimes. * Partial defense to 1st degree crime - merely reduces the crime to 2nd degree offenses, recklessness.

Answer 218

* No criminal liability for minors aged 7 and under. * Ages 7-14 = rebuttable presumption child is unable to understand wrongfulness of acts * Age +14 Child is treated as an adult.

Answer 219

* A person may use deadly force in self-defense if they * 1) Are without fault, (did not start the physical violence) * 2) Are confronted with unlawful force, and * 3) Reasonably believes they are threatened with imminent death or great bodily harm. o No Duty To Retreat (Majority view)

Answer 220

* A defendant has a right to defend others if the defendant reasonably believes the other person has right to use force in own defense. * No special relationship requirement in modern rule.

Answer 221

* A person may use non-deadly force in the defense of dwelling to the extent that they reasonably believe that it is necessary to prevent an unlawful entry. * Deadly force may be used only to prevent violent entry and when the person reasonably believes force is necessary to prevent a personal attack on themselves or another in the dwelling.

Answer 222

* Deadly force may never be used in defense of property. Reasonable, nondeadly force may be used to defend property in one’s possession from what they reasonably believe is an imminent, unlawful interference. * Force may not be used if a request to desist or refrain from the activity would suffice. * A person may use force to regain possession of property that they reasonably believe was wrongfully taken only if they are in immediate pursuit of the taker

Answer 223

* Defense to all crimes, other than intentional homicide, that defendant reasonably believed another person would imminently inflict death or great bodily harm if defendant did not commit crime.

Answer 224

* It is a defense to a crime that the person reasonably believed that commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime. * The test is objective; a good faith belief is not sufficient. * The defense of necessity is not available if the defendant is at fault in creating the situation requiring that they choose between two evils.

Answer 225

Elements (1) the intent to assist the primary party (2) the intent that the primary party commit the offense charged. (3) actually assising or encouraging the commission of illegal conduct. * The state of mind required for accomplice liability matches the state of mind of the underlying crime. * Remember a person is not liable for accomplice liability. They are liable for the crime committed through the theory of accomplice liability. * Mere knowledge that a crime would result from the aid provided is generally insufficient for accomplice liability. * Accomplice is liable for the crime contemplated and any other crimes committed by the principals that were probable or foreseeable.

Answer 226

Before the crime becomes unstoppable, accomplice: * Must repudiate encouragement. – Mere withdrawal from a situation is not sufficient, and * Must attempt to neutralize assistance – Notifying police or taking other action to prevent crime is also sufficient.

Answer 227

A person who, with knowledge of a completed crime, assists the perpetrator to escape arrest or punishment.

Answer 228

* All arrests must be based on probable cause * the **totality of the circumstances**, including trustworthy facts or knowledge, is **sufficient for a reasonable person to believe** that the suspect has committed or is committing a crime for which arrest is authorized by law.

Answer 229

* The Fourth Amendment applies to searches or seizures conducted by government agents in areas where the complaining individual has **a reasonable expectation of privacy**. * **An agent usually needs a warrant**. However, there are many exceptions, including exigent circumstances, search incident to arrest, consent, the automobile exception, plain view, inventory searches, special needs, and Terry stops.

Answer 230

**(1) Probably Cause** (totality of circumstances sufficifient for a reasonable person to conclude) * There must be probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed. **(2) Particularity** * a warrant must describe with particularity the place to be searched and items to be seized. **(3) Issued by neutral magistrate** * An affidavit based on an informer’s tip must meet the “totality of the circumstances” test. Under this test, the informant’s reliability and credibility or their basis for knowledge are relevant factors (although not prerequisites) in making this determination.

Answer 231

1. Was the person arrested or does the person have an expectation of privacy in the thingseized/searched? 2. Did police have a valid warrant? 3. If police did not have a valid warrant, was there an applicable exception to the warrant requirement?

Answer 232

* **Search Incident to Arrest Exception:** (wingspan search) * **Automobile Exception**: (probably cause to find evidence in car = can search anywhere the evidence could reasonably be) * **Plain View Exception** * **Terry Stop Excepton**: (Stop based on reasonable suspicions based on articulable facts. Frisk for weapons only if justified, may seize weapons or conraband on plain feel) * **Evanescent Evidence** * **Hot pursuit** * **Emergency Aid**

Answer 233

* Generally, police officers may stop a car if they have at least reasonable suspicion to believe that any law has been violated (including traffic laws) * The officer may order the occupants of the vehicle to get out. * If the police have probable cause to believe a driver violated a traffic law, they may stop the car, even if their ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop.

Answer 234

* Confession Must Be Voluntary – voluntariness determined by totality of circumstances. * A statement will be involuntary only if there is some official compulsion. * The standard for excluding a confession under the Due Process Clause is (1) whether the police subjected the suspect to coercive conduct and (2) whether the conduct was sufficient to overcome the will of the suspect.

Answer 235

The Sixth Amendment, as applied to the states through the Fourteenth Amendment, provides that the accused has the right "to have Assistance of Counsel for his defense." It attaches when **judicial proceedings have begun** * That is, when the accused is formally charged via indictment, arraignment, preliminary hearing, etc. * It **does not** attach upon arrest or before oproceedings have begun. * It applies to all "critical stages" of the prosecution after formal charges are filed. Once it attaches, any attempts to deliberately elicit an incriminating statement about the offense that the defendant was charged with, in the absence of counsel or a knowing, intelligent, and voluntary waiver, violates the Sixth Amendment. However - unlike 5th amendment, the invocation of 6th amendment rights is **offense specific** – if an attorney is present for burglary charge the police can ask the suspect other questions unrelated to the burglary charge without the attorney’s presence. Two offenses will be considered different if each requires proof of an additional element that the other crime does not require.

Answer 236

The Miranda warning requires police to inform interrogated person of their: (1) right to remain silent; (2) Right to an Attorney, and (3) given notice that If they can’t afford an attorney, one will be appointed and (4) advised that anything said can be used against them in court.

Answer 237

Waiver of Miranda rights must be 1) knowing and 2) voluntary.

Answer 238

* Invocation Of Right to Remain Silent – must be unambiguous. * The police must scrupulously honor the request by not badgering the detainee about the crime charged or any others. * One miranda is invoked, all interrogation must cease, even interrogation by an informant.

Answer 239

* Evidence gathered in violation of Miranda rights is generally inadmissible (exclusionary rule) * However: * Statements may be used to impeach defendant’s trial testimony but not used as evidence of guilt. * Physical fruits of voluntarily made incriminating statements in violation of miranda are admissible

Answer 240

* Public Safety Exception – Police can interrogate without Miranda warnings when reasonably prompted by concern for public safety. * Pretrial Identification – No right to counsel at photo identification. 6th amendment right to counsel applies to post-charge lineup or show up.

Answer 241

* Prohibits introduction of evidence obtained in violation of a defendant’s Fourth, Fifth, and Sixth Amendment rights. * Unconstitutionally obtained evidence is inadmissible at trial, and all “fruit of the poisonous tree” must also be excluded unless the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct. * However, a defendant may not exclude witnesses in court identification on the grounds that it’s the fruit of a poisonous tree or unlawful detention.

Answer 242

Evidence admissible despite the exclusionary rule: o Fruits derived from statements made in violation of Miranda if it’s not purposeful. o Evidence obtained from independent sources. o Attenuated or Remote violation: Causal Link between police misconduct and evidence is broken, or the misconduct was not purposeful o Defendant intervening act of free will. o Inevitable Discovery. o Violation of knock and announce rule. o Good faith exception – the exclusionary rule is inapplicable if the police arrest someone in good faith belief that they are acting pursuant to a valid arrest warrant. EXCEPT 4 situations where:  Affidavit is so lacking in probable cause no reasonable officer would rely on it.  Affidavits are so lacking in particularity; no reasonable officer would rely on it.  Officer or prosecutor lied to or misled the magistrate.  Magistrate is biased and wholly abandoned neutrality. Some illegally obtained evidence may still be used to impeach the defendant’s credibility if they take the stand at trial. Specifically, an otherwise voluntary confession taken in violation of the Miranda requirements is admissible for impeachment purposes, and evidence obtained from an illegal search may be used by the prosecution to impeach the defendant’s, but not others’, statements.

Answer 243

The fifth amendment privilege against self incimination - can be invoked at ANY time

Answer 244

* accused has right to assistance of counsel for his defense. * Statements obtained in violation of the defendant’s 6th amendment right to counsel will not be admissible in the prosecutions case in chief * Statements made in violation of 6th amendment rights may be used to impeach the defendent. * Remedy – If Defendant was entitled to a lawyer **at trial** and a lawyer was not provided it results in the automatic reversal of conviction. * At non-trial proceedings (such as post-indictment interrogations), the harmless error rule applies to deprivations of counsel.

Answer 245

The sixth amendment - rights only attach after judiical proceedings have begun. applied to the states via the 14th amendment

Answer 246

* Invocation Of Right To Counsel – must be unambiguous. All questioning must cease (including questioning about another offense) until counsel has been provided. **unless** detainee: * waives the right to counsel or * Is released back to the public and 14 days has passed.

Answer 247

* Post-Indictment interrogation * Preliminary hearings to determine probable cause to prosecute. * Arraignment * Post – charge line ups * Guilty plea and sentencing * Felony trials * Misdemeanor trials when imprisonment is actually imposed. * Overnight recesses during trial * Appeals as a matter of right * Appeals of guilty pleas

Answer 248

* Blood sampling * Tracking of handwriting or voice exemplar * Pre-charge or investigative line ups * Photo identifications * Preliminary hearings to determine probable cause to detain. * Brief recesses during defendant’s testimony * Discretionary Appeals * Parole and Probate revocation proceedings * Past-Conviction Proceedings

Answer 249

Waiver of right to counsel must be 1) knowing and 2) voluntary.

Answer 250

Miranda warnign not required if the questions are intended to protect public saftey, such as to secure a loose weapon after a shooting.

Answer 251

Federal court can only address actual case or controversy * 1) No Advisory opinion * 2) Ripe Not Moot * 3) Plaintiff must have Standing

Answer 252

**Generally** laws and policies must have been formalized and felt in concrete ways. * **Exception:** A plaintiff can establish ripeness before a law or policy is enforced by showing 1) the issues are **inherently legal**, not factual AND 2) The plaintiff would suffer **imminent substantial hardship** in the absence of review Can address a new law that is not yet in force but would harm the plaintiff, only if the law will be in force soon. Taking a “substantial step” to open a business that will be harmed/prohibited by a statute is sufficient for standing/ripeness

Answer 253

* Requires ongoing injury. * Unless: o The issue is capable of repetition but evading review because of an inherently limited duration. (laws requiring a one-year residency duration for voting). o Defendant voluntarily stops the harm but can resume (strip club violating an ordinance closes to avoid lawsuit). o Class action with at least one live claim.

Answer 254

**1) Injury in fact** – must be A) Particularized (personal and individual harm) B) Concrete (actual or imminent harm). **2) Causally related to the conduct complained of** **3) Redressable through damages or equity.** Generally no standing for citizens or taxpayers with ideological or generalized grievances to policies or tax usage. * tax payer can challenge own tax bill * Congressional spending challenges on First Amendment Establishment Clause grounds. Generally No Third-Party standing * difficulty * close relationship * Organizationon behalf of members if: 1) members harmed 2) in ways relating to orgs purpose 3) individuals do not need to participate in suit. * free speech overbreadth * plaintiff in zone of interest of federal statute.

Answer 255

Bars a private party’s suit against a State in federal and state courts. Exceptions: * When State Expressly Waives immunity: * Congress may abrogate state immunity by creating private causes of action under the 14th Amendment. * Inter-sovereign litigation: * Local Governments and Entities * Bankruptcy if you owe the state money. * State Officials (1) for damages personally or (2) to enjoin the official from future conduct that violates the Constitution or federal law.

Answer 256

Case relies on an unsettled question of state law.

Answer 257

Issues that are (1) constitutionally committed to another branch of government or (2) inherently incapable of judicial resolution.

Answer 258

* Taxing and Spending Power * Commerce Power * War Powers * Investigatory Power * Property Power * Postal Power * Citizenship * Admiralty * Coin Money * Patent/Copyright

Answer 259

Congress can pass laws under taxing power as long as * the tax has some reasonable relationship to revenue production or * if the law appears to be an exercise of congresses power to regulate. Congress may tax and spend for the “general welfare” can tax people for failing to purchase things!

Answer 260

Congress can spend for the "general welfare" as long as the expenditure is not conditioned on requiring a recipient to forgo an individual constitutional right. Strings attached to federal spending must be: * Clearly stated. * Related to Purpose (highway dollars conditional on state drinking age minimum) * Not Unduly Coercive (ACA example – cutting all Medicare funding if states don’t comply) * Not unconstitutional

Answer 261

Under the Commerce Clause, federal law regulating foreign or interstate commerce must concern one of the following: (i) **channels** (ii) **instrumentalities** (iii) **Activities** that have a substantial effect on interstate commerce, inlcuding intrastate activities. * Congressional regulation of **intrastate economic or commercial intrastate activity** needs only a **rational basis** for concluding that the activity in aggregate substantially affects interstate commerce. * Where Congress seeks to regulate n**oneconomic or noncommercial intrastate activity** under the Commerce Clause, Congress **must make a factual finding** that the activity regulated has a substantial economic effect on interstate commerce

Answer 262

* must include an intelligible standard. * General standards usually suffice. the separation of powers doctrine forbids Congress from trying to control the exercise of the power delegated in various ways, such as by overturning an executive agency action without bicameralism

Answer 263

Congress must use bicameralism and presentment * No line-item veto (giving the President the power to cancel parts of a bill while approving others) * No legislative veto (Congress gives itself the authority to amend or repeal an existing law without undergoing bicameralism and presentment)

Answer 264

* **Express or implied authority of Congress** - likely valid * **Congress is silent** - constitutionality uncertain, and the Court will consider the circumstances and any relevant history. Unlikely to be upheld if usurps the power of another governmental branch or prevents another branch from carrying out its tasks. * **Against the express will of Congress and Congress had authority to act** - likely is invalid

Answer 265

* All powers not granted to the federal government or prohibited to the states are reserved to the states or the people * States have general police powers (the power to adopt regulations for the health, safety, and welfare of citizens). Generally, they need only be rational. * A police power regulation that conflicts with a federal law is invalid under the Supremacy Clause.

Answer 266

Congress can’t commandeer the states by requiring them to enact state laws or to enforce federal laws, but can prohibit them from violating federal laws.

Answer 267

Express Preemption * Federal law expressly states that it preempts state law. Will be narrowly construed. Implied Preemption * Conflict between state and federal law. * A state or local law prevents achievement of a federal objective, even if enacted for a valid purpose. * States cannot go below the federal floor, but may regulate above unless there is express or field preemption. Field Preemption * A valid federal law may impliedly “occupy” the entire field, thus barring any state or local law even if the state or local law is nonconflicting. The courts will look at the regulatory scheme to determine whether Congress intended to preempt the entire field.

Answer 268

Protects Privileges of state citizenship. * Prohibits discrimination by a state **against nonresidents** when the discrimination concerns either important commercial activities (such as the pursuit of a livelihood) or fundamental rights and is intentionally protectionist. * doesn’t protected corporations or aliens. * To be valid, a descriminaroty law must be necessary to achieve an important government purpose: 1) (nonresidents either cause or are part of the problem that the state is attempting to solve) and 2) there are no less restrictive means available. Also considered alongside the dormant commerce clause.

Answer 269

* Protects privileges of national citizenship. States may not deny **their own citizens** the privileges or immunities of national citizenship. Corporations not protected. * A state law that distinguishes between **new residents** solely on the length of their residency will serve no legitimate state interest. Subject to strict scrutiny. * Also consider equal protection

Answer 270

Even where Congress has not acted, the Commerce Clause restricts state regulation of interstate commerce. Under the dormant commerce clause States may not use regulations or taxes to: 1) Discriminate in favor of local economics interests and against out of state interests, not 2) unduly burden interstate commerce. A discriminatory state or local law or tax may be valid if 1) it furthers an important noneconomic state interest AND there are no other reasonable nondiscriminatory alternatives available, OR 2) the state is a market participant If a nondiscriminatory state law or tax (a law that treats local and out-of-state interests alike) burdens interstate commerce, it will be presumptively valid unless the burden on interstate transport outweighs the promotion of a legitimate local interest

Answer 271

Prevents states and local governments from depriving any person of life, liberty, or property without due process and equal protection of law.

Answer 272

* A constitutional violation requires a state (or other government) action. * Includes government actors (such as police officers) who are acting in their official capacity, even if violating government policy. * State action can be found in actions of seemingly private individuals who: Perform exclusive public functions or Have significant state involvement

Answer 273

* Regulations that do not affect fundamental rights or involve suspect or quasi-suspect classifications. (age, disability, poverty, etc.) * The law is upheld if it is **rationally related to a legitimate government purpose**. This is a very easy standard to meet. * The person challenging the law has the burden of proof

Answer 274

* Regulations involving quasi-suspect classifications (that is, gender and legitimacy). * The law is upheld if it is **substantially related to an important government purpose**. Tailored but doesn’t have to be the least burdensome method. * Usually, courts place the burden on the government.

Answer 275

* Regulations affecting fundamental rights (for example, interstate travel, voting, and First Amendment rights) or involving suspect classifications (that is, race, national origin, and alienage) The law is upheld if it is: * **necessary to achieve a compelling government purpose** * narrowly tailored to achieve an overriding government purpose. * least restrictive means * There must be no less burdensome alternative. This is a difficult test to meet. * Desegregation, national security, and diversity in higher education, are compelling government purposes. *Government has burden of proof.

Answer 276

The Due Process Clauses of the Fifth Amendment (applicable to the federal government) and the Fourteenth Amendment (applicable to the states) provides that a person has a right to a fair process when the government deprives the person of life, liberty, or property. * There generally must be an intentional or reckless government action. Government negligence is not sufficient. * Government legislation with general effect is not sufficient.

Answer 277

1) **Notice** - must be reasonably calculated to inform the person of deprivation. 2) **Hearing** (this is a general term in the context and doesn’t necessarily mean in person). Type of hearing depends on balancing following factors: * The importance of the interest to the individual * The risk of error from the current procedures used and the benefits of additional procedures * The burden on the government from using additional procedures * There should generally be a pre-deprivation hearing or at least a predeprevation right of response. 3) **A neutral decisionmaker**

Answer 278

* Substantive due process tests the reasonableness of a statute; it prohibits arbitrary governmental action and regulation. * **Under substantive due process, when government action limits a fundamental right, it faces strict scrutiny. ** * If a fundamental right is not involved, the act must be rationally related to any legitimate government interest.

Answer 279

* Most of the Bill of Rights * All First Amendment rights * The right to interstate travel * Privacy-related rights * Voting

Answer 280

* Both substantive due process and equal protection guarantees require the Court to review the substance of a law rather than the procedures employed. * If a law limits the rights of all persons = due process * If a law treats a person or class of persons differently from others = equal protection AND due process

Answer 281

An equal protection claim arises whenever the government treats people differently from others. There must be **intent**. Intent can be shown by: 1) A law that is discriminatory on its face (easiest to prove) 2) A discriminatory application of a facially neutral law (must be an intentional pattern of application - requires evidence), or 3) A facially neutral law with a disparate impact on a protected class of people with the intent to do so (such as minorities) - requires evidence.

Answer 282

* The Fifth Amendment provides that private property may only be taken (1) for **public use** and (2) the government must **pay just compensation**. * **Public Use: Rationally related to public health, safety, or welfare.** * **Compensation** is **fair market value** of the property taken at the time of the taking * This is a **limitation** of government power. * Property subject to the Taking Clause includes personal property, real property, and certain intangibles (not welfare benefits) * Cannot take property for private use. BUT can take for sale to private company for redevelopment in the public interest.

Answer 283

A taking will be found if there is: (1) A **confiscation** of a person’s property, or (2) A **permanent or regular physical occupation** of a person’s property by the government * Temporary occupation = Case by case analysis (intent, burden, etc. ) Exceptions: * Development Conditions for essentials purposes like public health, safety, water and electricity (No compensation needed). Cable not included (modern amenities not included). * Public Emergency (No compensation needed)

Answer 284

* When **regulation leaves “no economically viable use of the property”** * Temporary denials are usually not a regulatory taking. Balancing test: * 1) Economic impact on owner (diminution of value to owner) * 2) Impact on Investment-backed expectations of owner * 3) Public interests sought to be promoted.

Answer 285

* limits the ability of state and local governments to enact laws that retroactively impair contract rights * **Legislation restricting private contract** - intermediate scrutiny: requires that state regulation: 1) Serves an *important and legitimate public interest*, and 2) Is a reasonable and *narrowly tailored* means of promoting that interest * **Legislation restricting contract to which state is a party** - Same test but higher scrutiny,

Answer 286

* Speech includes **words, symbols, and expressive conduct** (most tested). * Expressive conduct is any kind of conduct that is either (a) Inherently expressive, or (b) Intended to convey a message, and reasonably likely to be perceived as conveying a message

Answer 287

* Incitement * Fighting Words/True Threats * Obscenity * Defamatory Speech * Unprotected Commercial Speech

Answer 288

* (1) intended to produce imminent lawless action and * (2) likely to produce such action.

Answer 289

**Fighting word**: personally abusive words that are likely to incite immediate physical retaliation in an average person **True Threats**: words that are intended to or recklessly convey to someone a serious threat of bodily harm

Answer 290

Describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person: 1) **Appeals to the prurient interest in sex,** using a contemporary community standards (state or local). 2) Is **patently offensive** under contemporary community standards (state or local). AND 3) **Lacks serious value** (literary, artistic, political, or scientific), using a national, reasonable person standard

Answer 291

**Content Based**: * Strict Scrutiny. * Presumptively unconstitutional (unless they fall within one of the categories of unprotected speech, like obscenity) **Content Neutral**: * Intermediate Scrutiny * Limit speech on some other basis (time, place, manner) * Not overbroad. Must be **narrowly tailored** to serve an important government interest. Can’t burden more speech than necessary to promote government interest. Doesn’t have to be least restrictive means. * Must leave ample alternative channels.

Answer 292

If regulating speech in a **traditional or designated public forum** use the content dependent standard. * A courthouse and its grounds are not a public forum. (The surrounding sidewalks are). If regulating speech in a **limited public forum or non-public**, regulations may be used to reserve the forum for its intended use, and are valid if they are: * Viewpoint neutral and * Reasonably related to a legitimate government purpose. * If viewpoint based, strict scrutiny applies.

Answer 293

**Unprotected Speech in public employment** * Workplace speech on matters of private concern * Workplace speech regarding employee’s official duties, even if the speech touches on a matter of public concern. * The federal government may prohibit federal executive branch employees from taking an active part in political campaigns. **Protected Speech in public employment** * Speech as private citizen on matters of public concern (this very broad) * Must balance value of speech with interest in efficient workplace. * Private speech outside of the workplace seems to be protected absent a detrimental effect on the workplace.

Answer 294

A law is invalid if it bans substantially more speech than necessary or than the gov is entitled to prohibit (Look out for the words ALL and ANY).

Answer 295

* Attempts to muzzle speech before they enter the marketplace such as publishment or broadcasting. Through 1) injunctions & 2) licensing schemes. * Presumtively unconsitutional. Content-based prior restraints usually fail absent special societal harm. * Prior restraint systems (such as licensing schemes) require procedural safeguards. It must: (i) have **well-defined standards** (ii) Provide **prompt appeals** and judicial determination (iii) officials **cannot have broad discretion** over speech issues without judicial review.

Answer 296

* Prohibits government from punishing someone on the basis of their religious belief or related religious status or conduct. * A law is discriminatory if it is either: a) **Not neutral on its face** (expressly favors/disfavors a religion) or b) **Facially neutral but not generally applicable** (designed to target a particular religion) * A law that gives government officials discretion to grant exemptions from the law is not generally applicable. * The Free Exercise Clause does not require religious exemptions from generally applicable governmental regulations that happen to burden religious conduct, but granting an exemption to accommodate religious exercise generally would not violate the Establishment Clause.

Answer 297

* Prohibits government sponsorship of religion, meaning the government cannot aid or formally establish a religion. * Three elements: 1) Neutrality 2) No Coercion 3) History/Tradition/founders’ intent while government does not have to provide a religious exemption from a neutral law of general applicability, the government can choose to provide a religious exemption without violating the Establishment Clause.

Answer 298

* Prohibits slavery. * The Enabling Clause allows Congress to proscribe almost any **private** racially discriminatory action that can be characterized as a badge or incident of slavery.

Answer 299

To be a competent witness, the witness must have * **personal knowledge** of the matter, and * be willing and able to **testify truthfully**.

Answer 300

Evidence is generally admissible if it is relevant! unless a rule excludes it. Evidence is **relevant** if it is: 1) **Material** - relates to an issue in the case. 2) **Probative** - has any tendency to make the proposition more or less likely.

Answer 301

The four major reasons relevant evidence would be inadmissibility are * Failing the Rule 403 balancing test * Inadmissible because of public policy grounds * Evidence of prior similar occurrence without an exception * Hearsay without an exception

Answer 302

Relevant evidence may be considered inadmissible if its probative value is substantially outweighed by the danger of: * Unfair prejudice (emotional) * Confusion of the issues * Misleading the jury * Undue delay * Waste of time * Unnecessary repetition of evidence

Answer 303

Evidence of prior similar occurrences may be admissible if involves: * Plaintiff making **previous similar false claims** * Plaintiff had a **previous injury to relevant body part** * Previous similar accidents or injuries caused by the relevant event or condition. * Sales of similar property * Facts rebutting a claim of impossibility * Complex causation * Habit or business routine (distinguish from character) * Industry custom as evidence of standard of care

Answer 304

* **Liability Insurance/Ownership** - Inadmissible to prove negligence/wrongful conduct * ***Subsequent* (after harm) Remedial Measures** (repairs etc.) - Inadmissible to prove negligence, culpable conduct, defect, or need for warning or instruction. * **Civil Settlements and Negotiations** - Inadmissible to prove the validity or amount of claim. * **Plea Discussions** (not actual plea) * **Payments of Offers to Pay Medical Expenses** - Inadmissible to prove liability (but accompanying admissions are admissible)

Answer 305

* Hearsay is a statement made by a declarant, other than while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted. * hearsay is not admissible unless it comes within an exception * The declarant is the one who is alleged to have made the original statement. * look out for hearsay within hearsay - you must have an exception for both the inner and outer hearsay to be admissible.

Answer 306

* Statements offered to show their effect on the listener or reader (for example, to prove notice in a negligence case) * Statements offered as circumstantial evidence of declarant’s state of mind (for example, when a party is trying to prove someone’s insanity or knowledge/notice). * Verbal acts or legally operative facts (such as words of contract or defamatory words)

Answer 307

Note: These may all be brought in for the truth of the matter asserted as substantive evidence. A) **Prior Statements of a *Currently Testifying Witness* subject to cross examination** (*witness must be present*) * 1) **Prior Identification**: The prior statement is one of identification of a person as someone the witness perceived earlier. * 2) **Prior Inconsistent statements given under oath**: The prior statement is inconsistent with the declarant’s in-court testimony and was given under oath at a prior proceeding (such as a deposition, but including a grand jury) * 3) **Prior Consistent statements offered to rebut or rehabilitate**: The prior statement is consistent with the declarant’s in-court testimony AND is used to rebut charge that the witness is lying or exaggerating or rehabilitate a witness whose credibility has been impeached. B) **Statements by or Attributable to Opposing Party (admission)**

Answer 308

* These statements are hearsay, but are nevertheless admissible because they are considered to be especially necessary or reliable. * They may be brought in for the truth of the matter asserted as substantive evidence.

Answer 309

1) **Prior testimony of a third party given under oath** – requires opposing party had opportunity and similar motive to examine the testimony. (Statements made in depositions for current case are OK.) 2) Statements made **against** the declarant's **self interest** 3) **Dying Declarations** (Statements Under Belief of Impending Death - requires actual death in criminal cases - homicide only) 4) Statements on Declarants’ **Personal or Family History** 5) Statements Offered **Against a Party who caused the Declarant's Unavailability**

Answer 310

A declarant is considered unavailable in the following five circumstances: * **Privilege**: Are exempt from testifying because of privilege; * **Refusal**: Refuse to testify concerning the statement despite a court order; * **Incapacity**: Are unable to testify due to death or physical or mental illness; * **Supoena**: Are absent (beyond the reach of the court’s subpoena), and the proponent is unable to procure their attendance or testimony by process or other reasonable means. * **Memory**: Testify that they do not remember the subject matter;

Answer 311

* **Excited Utterance** – statement made while the declarant was under stress of excitement from event. * **Present Sense impression** – statement made right after event. * **Past physical, emotional, mental condition** – includes declarants plans and motives but NOT belief or memory. * **Statements Made For Medical Diagnosis Or Treatment** - does not extend to other material in the statement * **Regular Business Records** - see additional rules * **Public records** – see additional rules. *BUT not including police observations in criminal cases* * **Prior judicial judgements** – Certified copy of a judgment. Felony convictions admitted, misdemeanors not. * **Past Recollection Recorded at time of event** – when witness cannot recall. The record can only be read into evidence; it cannot be admitted as an exhibit UNLESS offered by an adverse party * **Learned Treaties** – only if established by an expert in testimony or on examination. * Ancient documents (prepared before 1998) * Documents affecting property interests. * Reputation * Market Reports

Answer 312

Record of act, event, condition, opinion, or diagnosis is admissible if: **1) Made in the regular course of business**, **2) The business regularly keeps such records**, **3) The record was made near time of event** **4)** Consists of **matters within personal knowledge of third-party entrant** or someone with a duty to transmit such matters to the entrant **5) authenticated** by a sponsoring witness in writing or testimony. * Business records often present a multiple hearsay problem - statements of outsiders contained must have an independent hearsay exception to be admissible. If not, those statements will be excluded even if the rest of the record is admitted. * Can be used to prove non-occurrence * Opponent may make a showing that the circumstances of the record indicate a lack of trustworthiness.

Answer 313

* Public records must have been made by and within the scope of the duty of the public employee, and it must have been made at or near the time of the event, * *BUT not including police observations in criminal cases*

Answer 314

Under the Confrontation Clause, **a hearsay statement will not be admitted (even if it falls within a hearsay exception) where** all of the following are true: * Its is offered against criminal defendant. * Declarant is unavailable * Accused had no opportunity to cross-examine declarant about statement, and * The Statement is testimonial.

Answer 315

For a hearsay statement that is not covered by a specific exception to be admitted, the Federal Rules provide a catch-all exception, which imposes the following conditions: * Hearsay statement must be trustworthy (totality of the circumstances, corroboration) * Strictly Necessary (more probative that other available evidence) * Reasonable Notice TO Adversary (on substance and name of declarant).

Answer 316

* First of all: **This is totally separate from substantive evidence** * Impeachment refers to discrediting a witness. When evidence is admissible only to impeach, it is not being offered as substantive evidence, but to show that the witness can’t be trusted. * Any party may impeach a witness. * Some grounds for impeachment require **Foundation**

Answer 317

1. Prior statement contradicting present testimony 2. Bias/Motive to misrepresent 3. Contradictory facts 4. Sensory Deficiencies 5. Opinion or reputation evidence about the truthfulness of a witness 6. Prior conviction for crimen falsi within last 10 years 7. Prior conviction for a felony not involving dishonesty 8. Any prior conviction more than 10 years old (higher bar) 9. Any Prior acts of misconduct showing untruthfulness (not conviction)

Answer 318

Foundation: some grounds for impeachment require Foundation: this means: * **The witness must be given an opportunity to explain or deny extrinsic evidence** at some point either before or after impeachment. * **The adverse party must be given an opportunity to examine the witness about the statement**.

Answer 319

* Introducing a prior inconsistent statement by the witness on relevant issue (on examination or through extrinsic evidence) * Requires proper foundation, however, the foundation requirement does not apply if the prior inconsistent statement is an opposing party’s statement * When the witness presently remembers a fact that they omitted in a prior statement on the subject (deposition), this is considered inconsistent. * Does not come in for truth value unless it was made under oath. * A juror can testify about a prior case for which they were a juror

Answer 320

* Evidence that the witness is biased or has an interest in the outcome of the case. * Modified Foundation requirement: The majority rule is that before a witness can be impeached by extrinsic evidence of bias or interest, they must first be asked about the facts that show bias or interest on cross-examination * Evidence that is otherwise inadmissible (such as arrests or liability insurance) may be introduced if relevant to bias, provided the proper foundation is laid. * Extrinsic evidence allowed if witness denies it.

Answer 321

* Evidence that the witness has sensory deficiencies and thus has no knowledge of the facts to which they testified. * No foundation requirement

Answer 322

* Evidence of contradictory facts. * If witness sticks to their story after being confronted with alleged contradictory facts, extrinsic evidence will be permitted unless the contradictory fact is collateral. * Impeachment evidence need not positively controvert the prior testimony; it need only tend to discredit the credibility of the prior witness. * Regular foundation requirement

Answer 323

* Opinion or reputation evidence from a character witness to show that the witness being impacted has bad character for truthfulness, to suggest that they were not telling the truth while on the stand. * Regular foundation requirement. * May be proven by extrinsic evidence.

Answer 324

* 10 years from date of release from confinement * Automatically admissible – no judicial discretion * No foundation required

Answer 325

* 10 years from date of release from confinement. * **Probative value must substantially outweigh prejudicial effect** (favors exclusion) and party used against must have notice. * No foundation required

Answer 326

* The cross-examiner must have a **good-faith basis** to believe the witness committed the misconduct. * Extrinsic Evidence is Prohibited, when the witness denies bad acts, attorney cannot impeach, must accept response. * Can’t ask about “arrest”, but it is permissible if it demonstrates bias.

Answer 327

The party against whom the out-of-court statement was offered has the right to call the hearsay declarant as a witness and cross-examine them about the statement.

Answer 328

A person who has been impeached may be rehabilitated by the following methods * Explanation on redirect examination (after cross examination) * Evidence of Good character for truthfulness (character must be attacked first) only reputation and opinion are allowed * Prior consistent statement (witness must be attacked with charge of lying or by some motive or other grounds such as faulty memory or prior inconsistencies). A prior consistent statement that is admissible to rehabilitate a witness’s credibility also is admissible as substantive evidence of the truth of its contents

Answer 329

* When part of an act, conversation, or writing is introduced into evidence, the Federal Rules provide that the adverse party may compel the proponent of the evidence to introduce any part thereof that ought, in fairness, to be considered at the same time. * does not require relevance and will triumph over a hearsay objection.

Answer 330

Lay witness opinion testimony is admissible if it is: (i) **Rationally based on witnesses’ perception** (ii) **Helpful**to determine a fact or understand the witness testimony (iii) **Not based on specialized knowledge** or legal conclusion Situations Where Opinions of Lay Witnesses Are Admissible o The general appearance or condition of a person; o The state of emotion of a person; o Matters involving sense recognition; o Voice or handwriting identification; o The speed of a moving object; o The value of the witness’s own services or property; o The rational or irrational nature of another’s conduct; and o A person’s intoxication.

Answer 331

Expert Opinion Testimony requirements: (1) specialized knowledge would be helpful to trier of fact (2) Opinion based on Sufficient Facts or Data, (3) uses reliable principles and methods (4) such principles and methods are properly applied (5) Witness is qualified by specialized knowledge, skill, experience, training, or education. (6) supported by Proper Factual Basis (3 types): * (i) Facts based on experts’ observation. * (ii) Facts made known to experts at trial. * (iii) Facts supplied to experts outside courtroom that are of a type reasonably relied upon by other experts in field.

Answer 332

* In a criminal case, the Prosecutor cannot introduce propensity evidence of a trait unless defendant brings evidence of relevant good character trait first. * **Reputation** or **opinion** evidence only for propensity (NOT specific acts) * Evidence of prior crimes or bad acts are never admissible to show propensity, however * Evidence of prior crimes or bad acts may be admissible to prove another point in the case such as **MIMIC (Motive, Intent, Mistake (Absence of), Identity (Signature Crime), Common Scheme or Plan** * If defendant testifies, he automatically places his credibility at issue and prosecution can bring evidence to impeach his credibility (truthfulness), BUT not other character traits

Answer 333

* **Victims** past behavior is **generally inadmissible** in both criminal and civil cases, except * In **criminal case** specific instances of sexual behavior are ADMISSIBLE to show (i) causation for injury or (ii) consent between victim and Defendant. * In **Civil Cases** admissible when probative value substantially outweighs unfair prejudice. Favors Exclusion (403 Reverse).

Answer 334

* **Defendant’s** prior similar sexual Misconduct (even if no charges were previously brought) is **ADMISSIBLE** for any relevant purpose (even propensity) in criminal sex crime cases or civil cases involving alleged sexual assault or child molestation.

Answer 335

* Character in Civil Cases is **generally not admissible to prove propensity/character in conformity**. * Character evidence may be admissible to prove any other point in the case besides propensity * Character Evidence is admissible in civil cases when **character trait is an element of a dispute** such as in: o Defamation cases where truth is a defense (plaintiff’s character is at issue); o Fraud o Negligent Entrustment o Negligent Hiring o Child Custody where parent’s character is at issue * **When character is directly in issue**, all forms of character evidence (reputation, opinion, and specific acts) are admissible. * If defendant testifies, he automatically places his credibility at issue and prosecution can bring evidence to impeach his credibility (truthfulness), but not other character traits

Answer 336

Testimonial privileges permit a person to refuse to disclose, and prohibit others from disclosing, certain confidential information in judicial proceedings.

Answer 337

* The attorney-client privilege * Spousal Immunity (spousal testimonial privilege) * The privilege for confidential marital communications; * The psychotherapist/social worker-client privilege; * The clergy-penitent privilege * Governmental privileges

Answer 338

Applies to * Confidential communications, * Between attorney and client (or representatives of either), * Made during professional legal consultation,

Answer 339

* In a criminal case, spouses may not be called as witness by prosecution to testify against the legal interests of their spouse. * Spouses must be married at time of trial – protects harmony in marriage * Spouse can voluntarily testify.

Answer 340

* In any civil or criminal case, confidential communications between spouses during a valid marriage are privileged. * The marital relationship must exist when the communication is made. * Either spouse can refuse to disclose the communication or prevent the other spouse from doing so.

Answer 341

* Official information not otherwise open to the public may be privileged. * The government also holds a privilege that protects the identity of an informer (someone who has provided the government with details of a potential crime).

Answer 342

* Duty (questions of law) – most important for test. * Breach (issue of facts) * Causation (logic and policy) * Damages (less tested, but a blend of fact and law)

Answer 343

**A reasonably prudent person acting under similar circumstances with the same physical limitations** * Make no allowance to individual shortcomings. * Mental deficiency no excuse. * People who have special knowledge are held to the standard of a reasonable person with their knowledge.

Answer 344

**Duty owed to foreseeable victims: those within the “zone of danger** * Rescuers are always foreseeable victims (but see firefighers rule). * Intended economic beneficiaries are foreseeable victims

Answer 345

* Children under 5 owe no duty of care. * Children 5-18 are held to the standard of **a child of similar age, intelligence, and experience** * Children engaged in adult activity use the default duty of care. (operating a motorized vehicle—not just cars, driving a boat, shooting a gun).

Answer 346

A professional is held to the knowledge and skill of **an average member of the profession or occupation** * This is a more concrete standard. * Custom of the profession sets the standard of care in professional negligence cases. * Most bar questions are about medical malpractice. * Today there is a national rather than a local standard of care in medicine. * A doctor has a duty to disclose the risks of treatment.

Answer 347

* default standard of care (**A reasonably prudent person acting under similar circumstances with the same physical limitations**) * ex: operating a plant nursery

Answer 348

no duty of care

Answer 349

Possessor must **warn of or make safe** conditions that are: 1) **artificial**, 2) **highly dangerous**, 3) **concealed**, AND 4) **known** to the land possessor (Known manmade deathtraps).

Answer 350

A **licensee** is one who enters onto the land with the possessor’s permission for their own purpose or business, rather than for the possessor’s benefit. Do not financially enrich defendant. ex. Social guest Possessor has a duty to warn of or make safe conditions that are: 1) **hazardous**, 2) **concealed** and 3) **known** to the land possessor in advance * (all known traps). * The possessor has **no duty to inspect or repair**.

Answer 351

An **invitee** is one who comes onto the property for the benefit of the landholder, such as business customer. Also applies when land is held open to the public for business purposes Possessor has a duty to warn of or make safe conditions that are: 1) **hazardous**, 2) **concealed** and 3) **known** to the land possessor in advance OR **could have been discovered by a reasonable inspection** * (all reasonable discoverable traps). * The possessor **has a duty to inspect!** * A person loses her status as an invitee if she exceeds the scope of the invitation – becomes licensee (no duty to inspect) or

Answer 352

landowner not liable for public recreational use unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

Answer 353

A vendor must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and which the vendor knows the vendee is not likely to discover on a reasonable inspection.

Answer 354

Possessor of land will be liable for harm to trespassing children if the if plaintiff can show: * 1) the existance of a **dangerous artificial condition** that owner should have been aware of * 2) the Condition was **likely to cause injury to children** * 3) the **Expense of remedying is low compared to risk of harm**. * 4) the posessor **failed to exercside reasonable care** to protect children.

Answer 355

* parent/guardian; * family members; (Modern trend to include any people who know each other) * Common carriers * innkeepers * shopkeepers * places of public accommodation

Answer 356

* No duty to rescue BUT a party that assumes a duty through action must follow through with reasonable care. * Many states have enacted Good Samaritan statutes – insulate imperfect rescuers as well as doctors and nurses from ordinary (but not gross) liability. * If you are cause of peril you will have a duty to rescue.

Answer 357

If physical injury has been caused by commission of a tort, the plaintiff can “tack on” damages for emotional distress as a “parasitic” element of their physical injury damages, without the need to consider the elements of the emotional distress torts.

Answer 358

Three Types: * Near miss * Related Bystander * Sensitive Business Relationship

Answer 359

1) Defendant **breached** duty of care 2) Defendant created a foreseeable risk of physical injury to the plaintiff (Plaintiff is within “**zone of danger**” - high risk of physical impact) 3) Plaintiff suffers **physical symptoms** from the distress

Answer 360

1) Defendant **breached** duty of care 2) Defendant **injures or kills close relative** of bystander. 3) Bystander **personally witnesses** injury of a close relative (spouses, parent/minor children) * No physical symptom requirement.

Answer 361

1) Defendant **breached** duty of care 2) Highly **foreseeable that the nature of relationship could cause emotional distress**. * YES: Medical Lab/patient – misdiagnosis; mortuary/family – negligent cremation of deceased contrary to family’s instructions; * NO: customer/dry cleaner – ruins clothing). * No physical symptom requirement

Answer 362

A plaintiff may “borrow” criminal statute to prove duty and breach when: 1) A defendent **violated a criminal statute** without excuse 2) The Plaintiff is a **member of the class of persons that the statute is trying to protect** (pedestrians) AND 3) The statute is **designed to prevent the type of harm suffered** by the plaintiff (being hit by a car) * This established duty and breach, but plaintiff must still establish caustation and harm. Even if test is met, the court will not use the stutory standard if: * Compliance with statute would be more dangerous than not doing so, OR * Compliance would have been impossible.

Answer 363

Establishes a prima facie case for negligence and defeats directed verdict if: 1) **The accident causing the injury is a type that would not normally occur unless someone was negligent**, and 2) **The negligence is probably** (more likely than not) **attributable to the defendant** (you probably sued the right person). * Can often be satisfied by showing that the instrumentality causing the injury was in the exclusive control of the defendant * Cannot be used when there are multiple equally likely causers (unless joint venture) * Basically, “this wouldn’t have happened if someone weren’t negligent, and it was probably him.”

Answer 364

* The defendant takes the plaintiff as they find the plaintiff; meaning, the defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable. * Applicable in negligence and in intentional torts.

Answer 365

* Old rule, no longer used unless stated in question. * Contributory negligence means the plaintiff cannot recover if they were partially responsible for their injuries * Intent exception - Contributory negligence is not a defense to wanton and willful misconduct or intentional tortious conduct. * Protective Statute exception * Last Clear Chance Exception

Answer 366

* Under comparative negligence plaintiff’s recovery is reduced based on their share of the fault. * Pure comparative negligence (majority rule) - recovery allowed no matter how great plaintiff’s negligence was. * Partial/modified comparative negligence - no recovery is plaintiff more than 50% at fault. * The plaintiff’s negligence will be taken into account in most states even though the defendant’s conduct was “wanton and willful” or “reckless.” * The plaintiff’s negligence is no defense to intentional tortious conduct by the defendant.

Answer 367

The transferred intent doctrine applies when the defendant intends to commit a tort against one person but instead: * Commits a different tort against that person * Commits the same tort as intended but against a different person OR * Commits a different tort against a different person Applies to (i) assault, (ii) battery, (iii) false imprisonment, (iv) trespass to land, and (v) trespass to chattels.

Answer 368

* Actual cause alone is insufficient in determining the party who is liable. * “**But for**” test – several acts each insufficient to cause injury alone but combine to cause injury. * **Substantial Factor Test** – several causes and any one alone would have been sufficient. (joint/several) * **Alternative Cause Approach** – Several acts but only one causes the plaintiff’s injury. Burden shifts to the defendant and one should prove that the other is liable or both will be liable.

Answer 369

1) Intentional Act by Defendant 2) Causing 3) Harmful or Offensive (unpermitted) Contact. 4) Against the plaintiff’s person * must have the intent to perpetrate the battery or another tort. Otherwise probably negligence. * Plaintiff’s person – Includes anything on the plaintiff’s person or in their hands (extended personality). * Contact need not be instantaneous (poisoning someone’s food counts as battery). * The plaintiff can recover nominal damages even if actual damages aren’t proved. * Consent may be implied from custom, conduct, or words, or by law.

Answer 370

1) Intentional Act by defendant 2) Causing 3) Reasonable apprehension 4) Of Immediate Battery * Plaintiff must have an awareness of the imminent touch or battery. * Mere words alone lack immediacy * BUT words can negate the immediacy requirement * Idle threat is still assault if the plaintiff reasonably believes that battery is imminent. * The plaintiff can recover nominal damages even if actual damages aren’t proved. * A defendant will be liable if he knows of the plaintiff's unreasonable fear and uses it to put the plaintiff in apprehension.

Answer 371

1) Act (or omission) 2) Causing restraint of the Plaintiff 3) In a bounded area. * Plaintiff must be aware of confinement or harm. * Credible threats are sufficient as an act of restraint * An Omission, failure to act can constitute a restraint if one has a duty. * Moral pressure or future threats are not sufficient. * There must be no reasonable means of escape known to plaintiff. Not reasonable if: **Dangerous, Disgusting, Humiliating, Hidden ** * The plaintiff can recover nominal damages even if actual damages aren’t proved. * Humiliation is a foreseeable consequence of a false arrest so can also be recovered for.

Answer 372

1) **Extreme and outrageous conduct** (exceeds all bounds of decency tolerated in a civilized society). 2) **Intent** on the part of defendant to cause plaintiff to suffer severe emotional distress, or **Recklessness** as to the effect of defendant's conduct, 3) **Causation** 4) **Damages** (suffering of severe emotional distress) * Physical Injury NOT required * Non outrageous conduct can become outrageous by: * Being repetitive or continuous; * Being committed a by a certain type of defendant (Common Carrier or inkeeper); * Being committed against a certain type of plaintiff (children, elderly, pregnant women, vulnerable).

Answer 373

1) Physical Invasion (by person or object) 2) Of plaintiff’s real property (right to possess) 3) Intent to bring about physical invasion 4) Causation the damage is the tresspass itself

Answer 374

(i) an act by defendant interfering with plaintiff’s right of possession in the chattel, (ii) intent to perform the act bringing about the interference, (iii) causation, (iv) damages * if not too severe–**trespass–remedy is damages** * if so serious that it warrants the full payment of Defendant’s property– **conversion–remedy is market value**.

Answer 375

* consent (express, implied, custom) - unless fraud * self defense * defense of others * defense of property * Shopkeepers privilege (reasonable belief; manner; time) * public necessity (absolute) * private necessity (qualified - pay damages)

Answer 376

1) a person **intentionally** (awareness sufficient) or **negligently**, 2) **unreasonably interferes** with another’s (intolerable) 3) **peaceful use or enjoyment of property ** (rather than exclusive possession as in trespass to land) * Minor interference is not actionable. The interference **must be offensive, inconvenient, or annoying to the *average* person in the community. ** * Harm because of unique sensitivity not actionable. * The severity of the inflicted injury must outweigh the utility of the defendant’s conduct on their own land, considering the neighborhood, land values, and existence of any alternative courses of conduct open to the defendant.

Answer 377

Strict liability if the activity: 1) Creates a foreseeable risk of serious harm 2) Cannot be made safe even with reasonable care. 3) Is not in common usage in the area where it is conducted.

Answer 378

1) A defendant must be a **Merchant** (manfacturer to retailer) 2) Product must be **defective** 3) Product was **not substantially altered** since leaving Defendant’s control 4) Plaintiff was making **foreseeable use** of the product at the time of injury. * NO Strict liability for Casual Sellers or Service Provider * **Manufacturing defect **– Product more dangerous than a properly made product. * **Design defects** – The risks associated with a product’s design outweigh the utility of the design choices.Plaintiff must show that alternative design would have been safer, practical, and economically feasible * **Information Defect **– Adequate warning must be. Prominent, Comprehensible, and Provide information about mitigating risk.

Answer 379

**1) Statement impugns character** (defamatory) **2) Identifies Plaintiff ** **3) Published** **4) False ** **5) Fault** – depends on plaintiff * **Private Person**: Negligent Failure to investigate truthfulness. *** Public Figure** (fame or involved with issue of public concern): Malice (knowledge of falsity OR reckless disregard for truth requiring subjective doubt as to veracity) **6) Damage** -Proof of economic harm required for reputation. Personal humiliation and mental distress also allowed as long as the plaintiff presents evidence. * **Libel** – defamation embodied in permanent form such as written or print publication. Damage is presumed (don’t need to be proved). * **Slander** – defamation by spoken word

Priority 1 Flashcards

Agency, Partnership, Corporations, Secured Transactions Civ Pro, Crim Law, Crim Pro, Evidence, Torts (408 cards)