Rules Flashcards
(187 cards)
1
Q
What is an assignment? (UWorld)
A
A transfer of all, or part of, the tenant’s interest under the lease to a third party for the remainder of the tenant’s lease term
2
Q
What is a sublease? (UWorld)
A
A transfer of all, or part of, the tenant’s interest under the lease to a third party for less than the remainder of the tenant’s lease term.
3
Q
Can evidence be used to establish a condition precedent that must occur before a contract becomes effective admissible under the Parol Evidence Rule? (UWorld)
A
Yes. Evidence used to establish a condition precedent that must occur before a contract becomes effective is admissible under the parol evidence rule.
4
Q
What is a requirements contract? (UWorld)
A
A requirements contract is an exclusive agreement between the buyer and seller for as many goods as the buyer requires during a specific period.
5
Q
What happens if a buyer fails to purchase the goods from a seller in a requirements contract? (UWorld)
A
The buyer’s failure to purchase the goods from the seller violates the implied duty of good faith and fair dealing and constitutes a breach of contract.
6
Q
In a requirments contract, how is the quanity term sufficiently definite? (Uworld)
A
The quantity term is sufficiently definite in a requirements contract because the quantity can be made certain by reference to objective facts (ie, the buyer’s actual requirements).
7
Q
Can consideration for a contract be valid even if it is not certain to occur? (Uworld)
A
Yes.
8
Q
What is the implied warranty of habitability? (UWorld)
A
The implied warranty of habitability guarantees that a new home is habitable and fit for its intended purposes. This allows buyers to recover for losses caused by poor workmanship and, in most jurisdictions, allows subsequent purchasers to recover for losses caused by latent construction defects.
9
Q
What is the majority rule if a remainder is subject to an ambiguous survivorship condition? (UWorld)
A
If a remainder is subject to an ambiguous survivorship condition (eg, “if she survives”), the majority rule is that the remainderman must survive the owner of the immediately preceding estate (eg, the life tenant) for the interest to become possessory. The minority rule is that the remainderman must survive the transferor.
10
Q
When is unilateral mistake grounds to avoid a contract? (UWorld)
A
Unilateral mistake is not grounds to avoid a contract unless (1) the mistake would make enforcement of the contract unconscionable or (2) the nonmistaken party caused, or knew or had reason to know of, the mistake.
11
Q
Are licenses revocable? (UWorld)
A
Yes. A license (e.g. ticket to an event) is revocable at any time and for any lawful reason. But if the licensee paid value for the license, the licensor may be required to pay damages for revoking it.
12
Q
What happens if someone transfers their interest in a joint tenancy with right of survivorship during their life? (UWorld)
A
A lifetime transfer of a joint tenant’s interest severs that interest from the joint tenancy relationship, and it becomes a tenancy-in-common ownership interest.
13
Q
What are a life tenant’s duties regarding property? (UWorld)
A
Life tenants have the duty to pay current charges, duty to prevent waste, and duty to make ordinary repairs.
14
Q
What is the life tenant’s duty to pay current charges? (UWorld)
A
Life tenant must pay all current charges due during life tenancy (eg, property taxes, mortgage interest) up to financial benefit received from property
15
Q
If a contract violates a law, may it still be able to be enforced? (UWorld)
A
Yes. When a contract violates a law that was designed to protect the party seeking to enforce the contract, the contract can be enforced to avoid frustrating the public policy behind the statute.
16
Q
What is an exception to the Mrs. Murphy Law for Property? (UWorld)
A
Although owner-occupied dwellings with up to four units (Mrs. Murphy Exception) are generally excepted from the FHA, this exception does not apply to advertisements stating a preference for a protected class (White Male Preferred = Bad).
17
Q
In Contracts, what is duress? (UWorld)
A
Duress occurs when a party’s assent to a contract is compelled by physical force or imminent threat of death or serious bodily harm. Duress also occurs when a party receives an improper threat and has no reasonable alternative but to succumb.
18
Q
When is zoning cumulative? (UWorld)
A
Zoning is cumulative when it allows a higher use to exist in a lower use zone, as illustrated above.
19
Q
What is the order of high to low cumulative zoning? (UWorld)
A
Single-family, multi-family, commercial, light industrial, and heavy-industrial.
20
Q
How may a nonconforming use continue? (UWorld)
A
A nonconforming use may continue until (1) the owner enlarges, changes, or abandons that use or (2) if provided in the zoning law, an amortization period has passed or the use has not been registered.
21
Q
Is notice required to effectively accept an offer by starting performance? (UWord)
A
No. Notice is not required to effectively accept an offer by starting performance unless the offer so requires. But if the offeree should know that the offeror has no convenient way of learning within a reasonable time that performance has begun, the offeree must notify the offeror. Otherwise, the offeror’s contractual duty will be discharged.
22
Q
Under the UCC, what happens if the buyer fails to timely select the assortment of goods for delivery? (UWorld)
A
If the buyer fails to timely select the assortment of goods for delivery and the delay materially impacts the seller’s performance, then the seller can (1) proceed in any reasonable manner or (2) treat the failure as a breach.
23
Q
What is a contract for deed? (Uworld)
A
A contract for deed (i.e. an installment land contract) allows a buyer to take immediate possession of the property while the seller retains title until the final installment payment is made. The seller could traditionally keep all installment payments and retake possession upon default. But states now assist buyers in default by requiring a foreclosure, offering the equitable right of redemption, or granting the buyer restitution.
24
Q
When does inquiry notice exist? (UWorld)
A
Inquiry notice exists if a buyer knows, or should know, of circumstances that would prompt a reasonable person to investigate (eg, visible use of the property - like operating a farm).
25
When are nonjudicial foreclosures allowed? (UWorld)
Nonjudicial foreclosures are allowed in most states if the mortgage or deed of trust contains a power-of-sale clause. However, the court can overturn the foreclosure if the auction or sales process violated due process or the purchase price was grossly inadequate.
26
What is the difference between the coneyance of a defeasible fee and a fee simple absolute? (UWorld)
Defeasible fees are limited by specific durational or conditional language. Language that limits only the purpose of the transfer instead creates a fee simple absolute.
## Footnote
"My church for the purpose of erecting a church building thereon." Still a FSA even if the church does not build a church.
27
Does an artbitration clause (as a new provision) materially alter a contract? (UWorld)
Jurisdictions are split on whether the addition of an arbitration term materially alters a contract, so the court would need to decide this issue to determine whether the arbitration term became part of the contract.
28
What is a builder entitled to when an owner breaches a construction contract before or during construction? (UWorld)
When an owner breaches a construction contract before or during construction, the builder's damages are equal to the builder's lost profits plus costs incurred, minus any costs saved or otherwise avoided.
29
What is impracticability? (UWorld)
Contractual obligations can be discharged if they become impossible or impracticable to perform due to unforeseen circumstances.
## Footnote
Even though the truck ran out of mosquito repellent that day, the truck could have sprayed the homeowner's yard on another day. Impracticability = never or impracticable. Refilling the truck is not impracticable.
30
When can a seller recover the contract price of goods? (UWorld)
When buyer fails to pay for goods, seller can recover contract price of goods if:
* buyer accepted goods
* goods were lost/damaged within commercially reasonable time after risk of loss passed to buyer or
* buyer returned or rejected goods & seller was unable after reasonable efforts to resell them
## Footnote
*Seller can also recover incidental damages
31
When does a landowner have a right to light? (UWorld)
A landowner only has a right to light if (1) this right is protected by statute or (2) the landowner enters into an express agreement with the other landowner to create a negative easement or covenant.
32
When is an easement by necessity implied? (UWorld)
An easement by necessity is implied if (1) there was a unity of estates, (2) common ownership was severed, and (3) an easement is absolutely necessary to use and enjoy the land.
33
Does the ability to create alternative access to a landlocked parcel by purchase of an easement over a neighbor's land defeat the creation of an easement by necessity? (UWorld)
No. The ability to create alternative access to a landlocked parcel by purchase of an easement over a neighbor's land does not defeat the creation of an easement by necessity.
34
When is an offer to form an option contract revokable and how can revocation occur? (UWorld)
An offer to form an option contract is revocable before the option is accepted. Revocation occurs when (1) the offeror directly communicates the revocation to the offeree or (2) the offeree obtains reliable information that reasonably indicates the offer was revoked.
35
What is the doctrine of Emblements? (UWorld)
Under the doctrine of emblements, a tenant has the right to reenter land to remove, harvest, and cultivate crops that the tenant planted before the tenancy terminated if the tenant's lease was for an uncertain duration and terminated through no fault of the tenant.
36
Under the UCC PER, what can be added in to a writing that is completely integrated? (UWorld)
The UCC parol evidence rule always allows course of performance, course of dealing, and trade usage to be used to explain or supplement the terms of a final written agreement—even one that is completely integrated.
37
Is a party's promise to pay money received pursuant to a contract to a third party is an assignment of the party's contractual rights? (UWorld)
No. A party's promise to pay money received pursuant to a contract to a third party is not an assignment of the party's contractual rights, but a promise of future payment.
38
May the servient-estate owner relocate the easement at his/her own expense to permit normal use or development of the servient estate? (UWorld)
Yes. The servient-estate owner may relocate the easement at his/her own expense to permit normal use or development of the servient estate. But this right has limitations—eg, relocation cannot significantly lessen the easement's utility.
39
What is the difference between a negotiable and nonnegotiable promissory note? (UWorld)
Although a negotiable promissory note can be transferred by endorsing and delivering the note to another, a nonnegotiable promissory note requires that a separate document of assignment be executed to transfer ownership.
40
What happens in a lifetime transfer of a joint tenant's interest in a joint tenacy? (T)
A lifetime transfer of a joint tenant's interest severs that interest from the joint tenancy. The transferee holds that interest as a tenant in common with the remaining joint tenant(s). If two or more joint tenants remain after the transfer, then they retain a joint tenancy with respect to each other.
41
When is a vested remained subject to complete divestment? (T)
A vested remainder is subject to complete divestment if the occurrence of a condition will eliminate the remainder interest.
42
What is a fixture?
A fixture is a chattel that is (1) attached to real property in such a manner that it is treated as part of the realty and (2) used for some larger component or function of the land (e.g., a wall separating adjoining properties). A fixture automatically transfers with the land unless the conveying instrument (e.g., deed) provides otherwise.
43
What is a public nuisance? (T)
A public nuisance interferes with a public right - eg, health, safety, peace, property.
44
What is a private nuisance? (T)
A private nuisance interferes with use and enjoyment of property.
45
When is a public nuisance unreasonable? (T)
A public nuisance is unreasonable when its interference is significant or violates a law.
46
When is a private nuisance unreasonable? (T)
A private nuisance is unreasonable when the severity of the harm outweighs the utility of interference.
47
When is a harm caused by a public nuisance? (T)
Special harm—harm different from that of public at large*
## Footnote
*Proof of harm not required when plaintiff is public entity or government actor.
48
When is harm caused by a private nuisance? (T)
Substantial interference—offensive, annoying, or intolerable to normal person
49
What is the lein theory of mortgages? (T)
Under this theory, the debtor is treated as the owner of the real property interest, and the lender is treated as the holder of a lien on that interest. But this has no bearing on whether the bank can foreclose.
50
In property, when is the issue of notice determined? (T)
The issue of notice is determined at the time the subsequent purchaser acquires an interest in the property.
51
Can termination rights in at-will tenancies be limited if they are not unconscionable? (T)
Yes. Termination rights in at-will tenancies can be limited if they are not unconscionable.
## Footnote
For example, if a lease gives a tenant the sole right to terminate but is silent as to the landlord, courts typically will not imply a right of termination for the landlord.
52
When is a third-party owner of subsurface rights strictly liablefor any failure to support the land and buildings? (T)
A third-party owner of subsurface rights is strictly liable for any failure to support the land and buildings that predate the conveyance of those rights, provided that the damage would have occurred in the land's natural state.
53
What happens under the common-law exoneration-of-leins doctrine? (T)
Under the common-law exoneration-of-liens doctrine, the recipient of a specific devise of real property can use the remaining assets in the testator's estate to pay off any encumbrances on that property.
54
What is the doctrine of ademption by extincion? (T)
The doctrine of ademption by extinction causes a devise of a specific asset to fail if a testator does not own it at the time of death. Proceeds from the sale of the asset, or property purchased with those proceeds, then become part of the general estate.
55
What is superior in terms of repayment, a purchase-money mortgage or a regular mortgage? (T)
A purchase-money mortgage (PMM) has superpriority over all other liens that arose prior to the PMM—regardless of whether the PMM or those liens are recorded.
56
If the assumption of the mortgage was part of the purchase price, can the buyer raise defenses that the debtor could have raised? (T)
If the assumption of the mortgage was part of the purchase price, then the buyer may not raise defenses that the debtor could have raised against enforcement of the mortgage obligation.
57
Who do recording acts protect? (T)
Recording acts protect purchasers—not donees.
58
What is the shelter rule? (T)
The Shelter Rule gives donees who acquire property from a grantor protected by a recording act the same protection as the grantor under the recording act. Otherwise, the "first in time, first in right" rule applies.
59
How can titles be rendered unmarketable? (T)
* Future interest if future-interest holder has not agreed to transfer title
* Private encumbrance (eg, mortgage, covenant, option, easement)
* Significant physical defect (eg, incurable encroachment)
* Title acquired by adverse possession & not quieted by judicial decree
* Zoning-ordinance violation
60
What is a defeasible life estate? (T)
A defeasible life estate is a present possessory interest that terminates upon the end of the measuring life or the happening of a stated event.
61
What happens if title passes to someone other than the grantor when the present interest terminates? (T)
If title passes to someone other than the grantor (a third-party) when the present interest terminates, then the estate is followed by a remainder and an executory interest.
62
Termination of Easement by Merger
An easement is terminated if the owner of the dominant or servient estate acquires fee title to the other estate. The easement is said to “merge” into the title. The merger of property interests results in the extinguishment of the property right.
63
Implied Easement
If the owner of two parcels of land previously used one parcel to benefit the other, then the court may find that, upon the transfer of one parcel, the parties intended the use to continue if that use was continuous, apparent or known, and reasonably necessary to the dominant land’s use and enjoyment (as distinguished from an easement by necessity, which requires strict necessity).
64
Mortgages Rule (Junior + Senior)
When multiple interests must be paid out of the proceeds of a foreclosure sale, generally, the earliest mortgage placed on the property has priority over the other interests. Further, obligatory payments under a senior future-advances mortgage paid out after a junior lender remits its loan amount and records its lien have priority over amounts loaned by the junior lender.
65
Must the foreclosing mortgagee give notice to the holders of any junior interests in the property to eliminate those interests? (T)
Yes. For a judicially supervised foreclosure sale, the foreclosing mortgagee must give notice to the holders of any junior interests in the property to eliminate those interests. Any others who have an interest in the property or are liable on the debt may be joined as proper but unnecessary parties.
66
What is a vested remainder? (T)
A vested remainder is a remainder not subject to condition precedent & held by identifiable living person.
67
What is the rule of convenience? (T)
Under this rule, membership in a class closes whenever any member of the class is entitled to immediate possession of a share of the class gift.
## Footnote
The class technically “closes” when one of the kids is able to take immediate possession (here, becoming 21 vests their interest). This is thanks to the rule of convenience. If not for the rule, the class would be subject to open and could not vest, as it would be considered contingent.
68
What are some exceptions to the enforceability of due-on-sale clauses? (T)
* Devise, descent, or transfer to joint tenant upon death
* Transfer to spouse or child
* Transfer to ex-spouse in divorce
* Transfer to borrower's living trust
* Creation of subordinate lien without occupancy rights
* Granting leasehold interest of less than 3 years without option to purchase
69
What is the right of first refusal and how can it be valid? (T)
A right of first refusal (ROFR) gives its holder the opportunity to acquire property from a seller before it is transferred to a third party. To be valid, a ROFR must comply with the statute of frauds and its terms must be reasonable.
70
Does an express easement need to be supported by consideration? (T)
No. An express easement need to be supported by consideration. And once created, an easement cannot be unilaterally revoked by the owner of the servient estate.
71
What are the rights of an easement holder? (T)
An easement holder may increase the manner, frequency, or intensity of an easement's use so long as that increase does not unreasonably damage or interfere with the use or enjoyment of the servient estate.
72
Does a party that fails to perform on the closing date breach the contract? (T)
Yes. However, If time is not of the essence, then strict adherence to the set closing date is not required in equity.
73
Is the right of entry alienable during life? (T)
In most jurisdictions, the right of entry is freely alienable during life, and it is devisable by will, or, alternatively, descendible through intestate succession upon death.
74
Is a fee simple subject to condition subsequent automatically terminated? (T)
Unlike a fee simple determinable, an FSSCS is not automatically terminated. Upon the occurrence of the stated condition, the FSSCS will terminate only if the holder of the right of entry (here, the friend) affirmatively demonstrates an intent to terminate—e.g., by bringing an eviction action.
75
Are judgment creditors considered purchaser's for value? (T)
No. Judgment creditors are not purchasers for value since the attachment of a judgment lien to a debtor's property is merely security for a preexisting debt—not payment of value.
76
PINTS for real covenants
P – PRIVITY of estate
I – INTENT by original contracting parties that covenant attach to land & run to future
assignees (Horizontal Privity)
N – CIA NOTICE of Restrictive Covenant
T – Must TOUCH & concern the land
S – Must satisfy the SOF
77
Is the right of first refusal subject to the rule against perpetuities? (T)
Mostly Yes. RAP renders such interests void if there is any possibility that they could vest or fail more than 21 years after the end of some life in being at the creation of the interest (here, the grandmother's life). Therefore, RAP will help determine whether the grandmother will be able to enforce the right-of-first-refusal clause.
## Footnote
RAP does not apply to a right of first refusal (1) granted in a lease to a current leasehold tenant or (2) in most jurisdictions, created in a commercial transaction.
78
What is a wild deed? (T)
A recorded deed that falls outside the chain of title is a "wild deed" that is considered not properly recorded and consequently fails to give constructive notice to subsequent purchasers.
79
What do the six covenants in every general warranty deed protect? (T)
The six covenants of title contained in every general warranty deed only protect the buyer from defects in title, not defects in the condition of the home.
80
What a seller of residential property's duty to disclose? (T)
A seller of residential property has a duty to disclose any known material defects—i.e., defects that (1) substantially affect the value of the residence, (2) impact the health or safety of a resident, or (3) affect the desirability of the residence to the buyer—that cannot be reasonably discovered by the buyer.
81
Joint Tenancy Lifetime Conveyance with More Than One Other Joint Tenant
A lifetime conveyance of a joint-tenancy interest destroys unity of title and severs the joint tenancy with respect to that interest. If there are more than two joint tenants, then severing one tenant's interest does not affect the joint tenancy between the remaining tenants. And unlike a tenancy in common, a joint tenancy is not devisable.
82
What is the difference between a negotiable promissory note and a non-negotiatble promissory note? (T)
A negotiable promissory note can be transferred by endorsing and delivering the note to another, but a nonnegotiable promissory note requires that a separate document of assignment be executed to transfer ownership. Once properly assigned, the mortgage automatically transfers with the note.
83
What is the doctrine of equitable conversion? (T)
Under the doctrine of equitable conversion, a buyer receives equitable title to real property upon entering a land-sale contract. In contrast, the seller retains legal title and acquires the equitable right to receive the purchase price upon closing. As a result, a judgment obtained against the seller after the execution of the land-sale contract is not enforceable against the real property—even if the claim arose before the contract was executed.
84
When is a deed effective to convey a real property interest? (T)
A deed is effective to convey a real property interest when it (1) is in writing and signed by the grantor, (2) identifies the grantor and grantee, (3) describes the property being transferred, and (4) contains words of transfer.
## Footnote
Deed = document to transfer property interest from one person to another
85
What happens when a deed purporting to transfer real property transfers to a nonexistent cotenant? (T)
A deed purporting to transfer real property to a nonexistent cotenant is void as to the nonexistent cotenant and creates a tenancy in common between the grantor and the other cotenant(s) named in the deed.
## Footnote
Nonexistent can also mean dead
85
What happens if a seller cannot convey marketable title? (T)
If a seller cannot convey marketable title, the buyer can rescind the land-sale contract. But if the buyer accepts the land with the defect and the seller refuses to perform, then the buyer can (1) rescind the contract and seek restitution, (2) seek specific performance with an abatement of the purchase price, or (3) sue for damages.
86
What is the doctrine of subrogation? (T)
Under the doctrine of subrogation, a third party (subrogee) who pays another's mortgage loan in full becomes the owner of the loan and the mortgage. The subrogee may therefore seek reimbursement from the debtor or enforce the mortgage.
87
What statements are excepted from hearsay? (Uworld)
Statements excepted from hearsay include statements
(1) related to a startling event or condition made while the declarant is still under stress from it (ie, excited utterances) and
(2) describing or explaining an event or condition made while or immediately after the declarant perceived it (ie, present sense impressions).
88
Injuries to Rescuers
Injuries to rescuers are sufficiently foreseeable to satisfy proximate cause. As a result, a rescuer can recover for negligence if
(1) he/she was injured while attempting to rescue another and
(2) that person's peril was caused by the defendant's negligence.
89
Considerations for JMOL (UWorld)
When considering a motion for JMOL, the district court must
(1) view the evidence and draw all reasonable inferences in the light most favorable to the nonmovant,
(2) disregard any evidence favorable to the movant that the jury is not required to believe, and
(3) not consider the credibility of witnesses or evaluate the weight of evidence.
90
When is recission of a contract available due to mutual mistake? (UWorld)
Rescission is available due to a mutual mistake if
(1) the mistake relates to a basic assumption of the contract,
(2) the mistake materially affects the agreed-upon exchange of performances, and
(3) the adversely affected party did not assume the risk of the mistake.
91
When does an affirmative duty to disclose a material fact exist? (UWorld)
An affirmative duty to disclose a material fact exists if the plaintiff is
(1) in a fiduciary relationship with the defendant,
(2) likely to be misled by the defendant's prior statements, or
(3) mistaken about a basic fact of the transaction that the defendant is aware of and should disclose (minority of jurisdictions).
92
When does marketable title exist? (UWorld)
Marketable title exists when title is reasonably free from doubt and under no threat of litigation such that a reasonable person would accept and pay for it. Therefore, an existing zoning violation renders title unmarketable.
93
When does constructive eviction occur? (UWorld)
A constructive eviction occurs when the landlord breaches a duty to the tenant (eg, by failing to make a repair) that substantially interferes with the tenant's use and enjoyment of the leased premises.
94
What happens if a landlord accepts the tenant's surrender of the lease? (Uworld)
If the landlord accepts the offer, the lease is terminated and the tenant is not liable for any future rent. The offer can be accepted by:
* express agreement (not seen here) or
* retaking possession of the property coupled with
(1) the landlord's own use of the premises or
(2) re-renting the property to a third party.
95
When may a past recollection be read into evidence? (UWorld)
A past recollection recorded may be read into evidence if:
(1) the witness once knew the recorded information but cannot recall it at trial,
(2) the witness made or adopted the record when the matter was fresh in his/her mind, and
(3) the record accurately reflects the witness's personal knowledge at that time.
96
When may a past recollection be receieved as an exhibit? (UWorld)
Only an adverse party can do so.
97
When can a witness be impeached witha criminal conviction that is too remote? (UWorld)
A witness cannot be impeached with a criminal conviction that is too remote—ie, more than 10 years have passed since the conviction or release from incarceration—unless its probative value substantially outweighs its prejudicial effect.
98
What are the different types of verdicts a judge can pass down in a jury trial? (UWorld)
In a jury trial, the judge has complete discretion to decide which verdict to use—general verdict, general verdict with answers, or special verdict.
99
What is a special verdict? (UWorld)
A special verdict requires that (1) the jury answer questions in writing on specified factual issues and (2) the judge apply the law and enter a judgment consistent with those answers.
100
What is a quasi in rem type 1 action? (UWorld)
In a quasi in rem type 1 action, minimum contacts almost always exist because the action relates to the defendant's interest in property in the forum state. And the exercise of personal jurisdiction complies with fair play and substantial justice so long as the plaintiff did not fraudulently bring the property into the forum state.
101
What are the rules for depositions? (UWorld)
A party may provide notice of and conduct an oral deposition without the court's leave or the parties' stipulation unless (1) the deposition exceeds the 10-deposition limit, (2) the deposition is sought before the initial planning conference, or (3) the deponent was already deposed in the case.
102
What is the two-dismissal rule? (UWorld)
Under the two-dismissal rule, a voluntary dismissal operates as an adjudication on the merits when the plaintiff (1) voluntarily dismissed an action in federal or state court without a court order and (2) filed a notice of voluntary dismissal in a second action on the same claim in federal court.
103
What is a motion for remittitur? (UWorld)
A motion for remittitur is used to challenge an allegedly excessive jury award of damages. If granted, the plaintiff must then choose between (1) a reduction in damages or (2) a new trial on damages.
104
What is a motion for additur? (UWorld)
Additur is a party's request that a trial judge increase an allegedly inadequate jury award of damages. Although additur is permitted in many state courts, it is not allowed in federal court because it violates the Seventh Amendment right to a jury trial.
105
Is a a defendant is strictly liable when his/her livestock foreseeably enter onto another's land and cause physical harm? (UWorld)
Yes. A defendant is strictly liable when his/her livestock foreseeably enter onto another's land and cause physical harm (ie, bodily harm or property damage) typical of livestock. However, a defendant is not strictly liable for a livestock intrusion caused by an unforeseeable act or force—eg, an unprecedented earthquake.
106
What is required for anticipatory repudiation? (UWorld)
The doctrine of anticipatory repudiation applies when a contracting party clearly and unequivocally indicates an unwillingness to perform. The nonrepudiating party may treat the repudiation as a breach or ignore it and demand performance pursuant to the contract.
107
Can a party present evidence to support an adverse inference against the opposing party, including evidence on the intentional destruction of relevant evidence? (UWorld)
A party can generally present evidence to support an adverse inference against the opposing party, including evidence on the intentional destruction of relevant evidence. And in civil cases only, a party can ask the jury to draw an adverse inference from the opposing party's invocation of the privilege against self-incrimination.
108
When can waiver of an express condition occur? (UWorld)
If the party who benefits from the condition waives the nonoccurrence of the condition—ie, indicates by words or conduct that the condition need no longer occur—then that party's performance will become due.
109
Must express conditions be strictly followed? (UWorld)
Yes. Express conditions such as the no-alcohol-use condition require strict compliance. However, they can be waived.
110
When can "payment in full" checks satisfy debts when the check does not equal the full amount owed? (UWorld)
If a debt is disputed in good faith, then the debtor can offer to satisfy the debt by giving the creditor a check with a conspicuous "payment-in-full" notation. But if the debt is liquidated (ie, certain and undisputed in amount), then it cannot be satisfied by a check for a lesser amount—even if the creditor cashes the check.
111
When can statements made by an opposing party be admitted into evidence? (UWorld)
A statement made by an opposing party is excluded from the rule against hearsay when offered against that party.
112
What is the rule of pure comparative negligence? (UWorld)
Under pure comparative negligence, a negligent plaintiff's recovery is reduced by his/her proportionate share of fault. And if multiple defendants cause the plaintiff indivisible harm, joint and several liability allows the plaintiff to recover the total amount of recoverable damages from any defendant.
113
When can an implied-in-fact contract be created? (UWorld)
An implied-in-fact contract can be created by a party's conduct or failure to act if the party (1) intentionally engages or fails to engage in conduct and (2) knows or has reason to know that assent can be inferred from that conduct.
114
What is the intermediate theory of mortgages? (UWorld)
Under the intermediate theory of mortgages, a mortgagor is entitled to possession until default, at which time the lender acquires legal title (ie, the right to own and possess) to the mortgaged property.
115
When does NIED liability arize under the zone-of-danger theory? (UWorld)
Negligent infliction of emotional distress (NIED) liability arises under the zone-of-danger theory when (1) the defendant negligently placed the plaintiff at risk of immediate bodily injury and (2) that risk caused the plaintiff serious emotional harm.
116
What are the requirements of the Multiparty, Multiforum Trial Jurisdiction Act (MMTJA)? (UWorld)
Under this act, original jurisdiction exists when there is minimal diversity—ie, at least one plaintiff and one defendant are citizens of different states—and one of the following is established:
* A defendant resides* in a different state from where a substantial part of the accident occurred, even if that defendant also resides in the same state as the accident
* Any two defendants reside in different states, even if the defendants also reside in the same state
* Substantial parts of the accident occurred in different states
117
Can a BFP rely on a forged or altered document to establish a priority in a recording act? (UWorld)
No. A BFP cannot rely on a forged or altered document to establish priority since that document is void.
118
What is the default negligence rule on the bar exam? (UWorld)
Pure comparative fault.
119
How does a plaintiff's contributory negligence impact their recovery of damages? (UWorld)
Under pure comparative fault (default rule), a plaintiff's contributory negligence may reduce his/her recovery of damages but will not absolve the defendant of strict liability.
120
How can a minor or legally incompetent defendantbe served with process? (UWorld)
Under Federal Rule of Civil Procedure 4(g), a minor or legally incompetent defendant can only be served with process by following the service rules of the state where service is made.
121
When will a court grant a protective order? (UWorld)
A court will grant a protective order if the movant (1) shows good cause for the order and (2) certifies that he/she conferred or attempted to confer in good faith with the party seeking discovery.
122
When an employer breaches an employment agreement, what can the employee recover? (UWorld)
When an employer breaches an employment agreement, the employee can recover the unpaid salary under the contract. That recovery is reduced by the compensation the employee earned or could have earned by making reasonable efforts to secure comparable employment.
123
What may a court do when a party fails to preserve electronically stored information? (UWorld)
A court may order measures no greater than necessary to cure prejudice caused by a party's failure to preserve electronically stored information that:
(1) should have been preserved in the anticipation or conduct of litigation,
(2) is lost because the party failed to take reasonable steps to preserve it, and
(3) cannot be replaced or restored.
124
What is the rescue doctrine? (UWorld)
The rescue doctrine allows a plaintiff-rescuer to establish a prima facie negligence case by proving that (1) he/she was injured while attempting to rescue another and (2) that person's peril was caused by the defendant's failure to use reasonable care.
125
When do an intended beneficiary's contractual rights vest? (UWorld)
An intended beneficiary's contractual rights vest when the beneficiary (1) detrimentally relies on the rights created, (2) manifests assent to the contract, or (3) files a lawsuit to enforce it. Any efforts to rescind or modify the contract after vesting are void unless the beneficiary agrees to the rescission or modification.
126
When is a A defamatory statement communicated to a third party privileged? (UWorld)
A defamatory statement communicated to a third party is privileged when the defendant reasonably believes that (1) the statement affects an important interest of the third party and (2) the communication is socially acceptable. This privilege is lost if the defendant knows that the statement is false or recklessly disregards that possibility.
127
When must a court extend the time for a plaintiff to serve the defendant with process? (UWorld)
A court must extend the time for a plaintiff to serve the defendant with process when the plaintiff provides good cause for failing to timely effectuate service. Good cause exists if service was delayed due to matters outside of the plaintiff's control.
128
How can the right of first refusal comply with the RAP? (UWorld)
To comply with the Rule Against Perpetuities, a right of first refusal must be set to vest or fail within the perpetuities period—ie, within 21 years after some relevant life in being at the creation of the interest.
129
When will a defendant's violation of an applicable statute or ordinance will be excused, and negligence per se will not apply? (UWorld)
A defendant's violation of an applicable statute or ordinance will be excused, and negligence per se will not apply, if the violation was reasonable in light of the defendant's childhood, physical disability, or physical incapacitation.
130
When can punitive damages be awarded in torts? (UWorld)
Punitive damages are imposed to punish and deter outrageous, malicious, or evil conduct. As a result, punitive damages may be awarded for torts involving intentional or reckless conduct. But these damages cannot be awarded for negligence, which involves mere unreasonable conduct.
131
When is defendant who makes a defamatory statement about a group of people is liable to an individual member of that group? (UWorld)
A defendant who makes a defamatory statement about a group of people is liable to an individual member of that group only if (1) the group is so small that a reasonable person would conclude that the statement refers to that member or (2) the circumstances of publication would cause a reasonable person to reach that same conclusion.
132
When does products liability based on misrepresentation arise? (UWorld)
Products liability based on misrepresentation arises when
(1) a commercial seller misrepresented a material fact about a product,
(2) the plaintiff justifiably relied on that misrepresentation, and
(3) the product caused the plaintiff physical harm.
133
When is a product defective by design? (UWorld)
A product is defective by design if
(1) the design creates a foreseeable risk of physical harm and
(2) that risk could have been mitigated by a reasonable alternative design (a safer design available at a reasonable cost).
134
What does trespass to chattels require? (UWorld)
Trespass to chattels by intentionally dispossessing the plaintiff of a chattel requires no proof of harm. However, intentional use of or intermeddling with the plaintiff's chattel requires proof of (1) actual harm to the chattel, (2) substantial loss of use of the chattel, or (3) bodily harm to the plaintiff.
135
When is an opposing party's silence in response to another's statement is considered an adoptive admission? (T)
An opposing party's silence in response to another's statement is considered an adoptive admission if (1) the party was present and heard and understood the statement, (2) the party had the ability and opportunity to deny the statement, and (3) a reasonable person similarly situated would have denied the statement.
136
Can you use Evidence of a juvenile conviction to attack a witness's character for truthfulness? (T)
Evidence of a juvenile conviction is never admissible in a civil case to attack a witness's character for truthfulness.
137
What is the hearsay exception for absent public records? (T)
Under the hearsay exception for absent public records, testimony by a public official that a diligent search failed to disclose a public record is admissible to prove that the record does not exist—if the public office regularly kept records for a matter of that kind.
138
What is the rule of completeness? (T)
The rule of completeness applies when a party introduces all or part of a writing or recorded statement. It then allows an adverse party to compel the introduction of any other part—or any other writing or recorded statement—that in fairness should be considered at the same time.
139
What is the recorded recollection hearsay exception? (T)
The recorded recollection hearsay exception allows a record to be read into evidence if it
(1) concerns a matter that a witness once knew but cannot recall at trial,
(2) was made or adopted by the witness when the matter was fresh in his/her mind, and (3) accurately reflects the witness's personal knowledge at the time it was made.
140
Are plea statements allowed to be introduced as evidence? (T)
FRE 410 bars evidence of (1) withdrawn guilty pleas, (2) nolo contendere pleas, (3) statements made during plea proceedings, and (4) statements made during plea negotiations that did not result in a guilty plea or resulted in a guilty plea that was later withdrawn.
141
What does the the marital-communications privilege protect? (T)
The marital-communications privilege protects confidential communications made between spouses during the marriage. Under the majority view, either spouse may assert the privilege—even after termination of the marriage—and (1) refuse to testify about the communication or (2) prevent the other spouse from testifying.
142
Under the best evidence rule is an original or reliable duplicate required? (T)
Under the best evidence rule, an original or reliable duplicate is not required, and other evidence of content is admissible, when the contents go toward a collateral issue.
143
What is the best evidence rule? (T)
The best evidence rule requires production of an original or reliable duplicate of a document when its contents are at issue—i.e., when
(1) the document is used to prove the happening of an event,
(2) the document has a legal effect, or (3) the witness is testifying based on facts learned from the document.
144
When is character evidence an essential element? (T)
Character evidence is admissible if a person's character is an essential element of a civil claim, criminal charge, or asserted defense.
145
What is the former testimony exception to hearsay? (T)
The former testimony exception allows an unavailable declarant's former testimony to be admitted if:
* the testimony was given at a trial, hearing, or deposition in the current case or a different proceeding that involved similar parties and issues and
* the party against whom the testimony is offered had an opportunity and similar motive to develop that testimony through direct or cross-examination of the declarant.
146
Does an affadavit fall under the former testimony exception? (T)
No. An affidavit does not fall under the former testimony exception because it is not given during a trial, hearing, or deposition and the other party has no opportunity to cross-examine the affiant.
147
What can habit evidence be used for? (T)
Evidence of a person's habit or an organization's routine practice is admissible to prove that the person or organization acted in accordance with that habit or practice on a particular occasion.
148
What is a habit? (T)
A habit is a person's routine reaction to a specific set of circumstances that is semiautomatic in nature and is considered highly probative of the person's conduct on a particular occasion.
149
Is a statement made by a party's coconspirator attributable to that party? (T)
Yes. A statement made by a party's coconspirator is attributable to that party, and excluded from hearsay, if it was made during and in furtherance of the conspiracy—i.e., was part of the flow of information intended to help each coconspirator perform his/her role.
150
Does an arrest qualify as a bad act that is admissible to attack a witness's character for truthfulness? (T)
An arrest alone does not qualify as a bad act that is admissible to attack a witness's character for truthfulness.
151
When is an expert opinion based upon otherwise inadmissible facts or data is admissible? (T)
An expert opinion based upon otherwise inadmissible facts or data is admissible if experts in that particular field would reasonably rely on the facts or data in forming an opinion on the subject.
152
When state law supplies the rule of decision for a claim or defense what should the court do regarding the presumption? (T)
When state law supplies the rule of decision for a claim or defense, the court should also apply state law to determine the effect of a presumption on the claim or defense.
153
When is the defense of lack of personal jurisdiction waived? (T)
The defense of lack of personal jurisdiction is waived if it is not asserted (1) in a pre-answer motion or (2) if no pre-answer motion is made, in the original answer or an answer amended as a matter of course. An answer can be amended once as a matter of course within 21 days of serving the answer or being served with a responsive pleading or Rule 12(b) motion.
154
When can a federal court impose sanctions? (T)
A federal court may impose reasonable sanctions on any attorney or party who (1) failed to attend a pretrial conference, (2) did not participate in good faith, or was substantially unprepared to participate, in the conference, or (3) failed to obey a pretrial order.
155
When can a motion for a JMOL be filed? (T)
This motion may be filed before the case is submitted to the jury but only after the nonmovant has had the opportunity to present its case.
156
When can a defendant move for an involtunary dismissial? (T)
A defendant can move for an involuntary dismissal if the plaintiff failed to prosecute the case or comply with a rule or court order.
157
During jury selection, what is each party entitled to? (T)
During jury selection, each party is entitled to (1) three peremptory challenges to strike potential jurors for any reason (other than race, ethnicity, gender) without an explanation and (2) an unlimited number of challenges for cause to strike potential jurors for bias or lack of impartiality.
157
What happens if an involuntary dismissal is granted? (T)
If the motion is granted, the case will be dismissed with prejudice (unless the court states otherwise) to prevent the plaintiff from suing the defendant on the same claim in the future.
158
What happens if the court orders a plaintiff to reply to a defendant's answer? (T)
If the court orders a reply, then the plaintiff must respond to allegations in the defendant's answer as directed.Any allegation in the answer that requires a response and is not denied in the reply is deemed admitted by the plaintiff. If no reply is ordered, then allegations in the answer are deemed denied by the plaintiff.
159
What is the final judgment rule? (T)
When an action involves multiple claims or parties, a district court may enter final judgment as to fewer than all claims or parties if it expressly determines that there is no just reason for delay. However, if this express determination is not made, any court order that disposes of those claims or parties is not immediately appealable.
160
What is the collateral order doctrine? (T)
A district court order that (1) conclusively resolves an important issue that is (2) separate from the merits of the claim and (3) effectively unreviewable on appeal from a final judgment.
161
When may a federal court grant a preliminary injunction? (T)
A federal court may grant a preliminary injunction when:
(1) the movant is likely to succeed on the merits,
(2) the movant is likely to suffer irreparable harm in the absence of relief,
(3) the balance of equities is in the movant's favor, and
(4) the injunction is in the best interests of the public.
## Footnote
AND, Need all
162
When may a plaintiff asser a third-party claim against a third-party defendant? (T)
A plaintiff may assert a third-party claim against a third-party defendant if:
(1) that claim arises out of the same transaction or occurrence as the plaintiff's claim against the defendant in the original complaint and
(2) the third-party claim satisfies original subject-matter jurisdiction.
163
How can process be served? (T)
Process can be served by:
(1) following the rules of the state where the court is located or where service is made,
(2) delivering the summons and complaint to the defendant personally (or to his/her authorized agent), or
(3) leaving the summons and complaint at the defendant's dwelling with a resident of suitable age and discretion.
164
When does an appellate court have discrtion to permit appeals? (T)
An appellate court has discretion to permit an appeal from an order granting or denying class action certification if the petition for such an appeal is filed with the clerk of the appellate court within 14 days after the order is entered.
165
What is the interlocutory appeals statute? (T)
The interlocutory appeals statute allows certain equitable orders to be immediately appealed as a matter of right—e.g., when a district court grants, modifies, refuses, or dissolves a preliminary injunction.
166
What law must a federal court sitting in diversity apply? (T)
A federal court sitting in diversity must apply state law to substantive issues and federal law to procedural issues. When it is unclear whether an issue before the court is substantive or procedural, the court must determine if there is a conflict between state and federal law with respect to the issue.
167
When is permissive joinder of parties appropriate? (T)
Permissive joinder of parties is appropriate when:
(1) the claims asserted by or against the joined parties arise from the same transaction, occurrence, or series thereof and
(2) a common question of law or fact will arise among them.
168
Does federal-question jurisdiction require the amount in controversy requirement? (T)
No.
169
What does the Erie Doctrine require? (T)
When an issue is not clearly substantive or procedural and no federal law directly applies, Erie requires that federal courts sitting in diversity apply state law if (1) it would be outcome determinative—i.e., failure to apply it would result in forum-shopping or inequitable administration—and (2) there is no contrary federal interest.
170
Where is venue proper? (T)
Venue is proper in any federal district where:
(1) any defendant resides so long as all defendants reside in the same state,
(2) a substantial portion of the events occurred,
(3) a substantial part of the property at issue is located, or
(4) any defendant is subject to personal jurisdiction—but only if the first three provisions do not exist.
171
When an action involves multiple claims or parties, may a district court may enter final judgment as to fewer than all claims or parties? (T)
When an action involves multiple claims or parties, a district court may enter final judgment as to fewer than all claims or parties if it expressly determines that there is no just reason for delay.
172
If an action involves multiple claims or parties and a district court entered a final judgment as to fewer than all claims or parties, when must a party appeal by? (T)
A party may then appeal that judgment if the notice of appeal is filed with the district court clerk within 30 days after the entry of final judgment.
173
What is the federal-rule analysis? (T)
Under federal-rule analysis, a federal court sitting in diversity must apply a valid federal law (e.g., federal rule) that directly addresses an issue so long as the law is arguably procedural and does not abridge, modify, or enlarge a substantive right.
174
When can collateral estoppel/issue preclusion be brought? (T)
Issue preclusion (i.e., collateral estoppel) bars the relitigation of issues that were actually litigated, determined, and necessary to a valid final judgment. This doctrine can only be asserted against parties to the first action because they have had an opportunity to fully and fairly litigate their claims/defenses.
175
Must a juror participate in a verdict if they are part of a trial? (T)
Yes. A juror must participate in the verdict unless excused by the court for good cause during trial or after jury deliberations have begun.
176
When does good cause exist to excuse a juror? (T)
Good cause exists when the juror has an illness or family emergency or has committed juror misconduct that might cause a mistrial.
177
Who can initiate sanction proceedings? (T)
Sanction proceedings can be initiated:
(1) by a party's motion or
(2) on the court's own initiative—so long as the judge issues an order to show cause.
178
May a court impose monetary sanctions for violtions of FRCP 11(b)? (T)
Yes.
179
What are the requirements to initiate impleader? (T)
To initiate impleader, the defendant must file a third-party complaint:
(1) within 14 days of serving his/her original answer or
(2) after this deadline with the court's leave (i.e., permission).
180
What can depositions be used for? (T)
Depositions can be used against any party who was present at or had reasonable notice of the taking of the deposition (1) to impeach or contradict the testimony given by the deponent at a hearing or trial or (2) for any other purpose permitted by the Federal Rules of Evidence.
181
Can party members stipulate to a jury of less than six members? (T)
Yes. A jury verdict must be unanimous and returned by a jury of at least 6 (but no more than 12) members unless the parties stipulate otherwise.
182
When can a district court correct a a mistake in a judgment, order, or other part of the record? (T)
Before an appeal is docketed in the appellate court, a district court can correct a mistake in a judgment, order, or other part of the record on its own initiative or pursuant to a party's motion. But after an appeal has been docketed, the district court can correct the mistake only with the appellate court's leave.
183
How can an amended complaint "relate back" to the date of the original complaint? (T)
An amended complaint will "relate back" to the date of the original complaint if:
(1) the same occurrence is at issue,
(2) the new party received notice of the suit within 90 days after the original complaint was filed, and
(3) the new party knew or should have known that it would have been sued but for a mistake about its identity.
184
What are the exceptions to the final-judgment rule? (T)
In Certain Circumstances, An Appeal Can Be Made Prematurely
Injunction (grant/denial)
Certification by district court
Class action certification
Appointment of receiver
Admiralty case
Collateral-order doctrine
Bankruptcy cases (certain orders)
Mandamus (petition for writ)
Patent infringement order (only accounting left)
185
Can the court exercise supplemental jurisdiction over another claim that would destroy complete diversity? (T)
No.
