Tests I need to remember Flashcards

Question

appropriation of right to publicity

Answer 1

when D: * (1) appropriates another's name and likeness, * (2) for the Ds advantage (exploititave), * (3) w/o consent and * (4) that causes injury

Answer 2

D: * (1) publicizes a matter * (2) concerning the private life of another * (3) matter is: * (i) highly offensive to RP and * (ii) not of legit concern to the public

Answer 3

P must prove: * (1) D made a false representation of a material fact * (2) [scienter] w/ knowledge or with reckless disregard of truth * (3) with the intent to induce P to act or refrain in reliance on it * (4) it caused actual reliance * (5) reliance was justified (not justified if obvi false or clear D stating opinion) * (6) damages -- actual, economic, pecuinary loss no nominal

Answer 4

* (i) the defendant provided false information, * (ii) as a result of the defendant’s negligence, * (iii) during the course of his business or profession, * (iv) causing the plaintiff to justifiably rely upon the information, and * (v) the plaintiff either is in a contractual relationship with the defendant or is a third party known by the defendant as one for whose benefit the information is supplied. * (vi) damages -- reliance and consequential possible

Answer 5

(A) Interference with K -- Must prove: * (1) a valid contract existed between P and 3P * (2) D knew of the contractual relationship, * (3) D intentionally interfered with the contract, causing a breach, and * (4) the breach caused damages to the P (B) Interference with performance other than inducing breach (no K) -- d only liable if prevent party from fulfilling K obligations or substantially ads to burden of performance, D conduct must exceed the bounds of fair competition (C) Interference with Prospective Economic Advantage - D intentionally interferes with prospective biz relationship or benefit b/t P and 3P, in absence of K

Answer 6

(1) P owns valid trade secret (2) not generally known (3) reasonable precautions taken to protect (4) D took secret by improper means

Answer 7

Trade Libel: * (i) publication of a false or derogatory statement * (ii) with malice relating to the Ps title to his biz, quality of biz, or quality products and * (iii) causes special damages as a result of interference w. or damage to biz relationship (need not necessarily damage biz reputation) Slander of title * (i) publication * (ii) of a false statement * (iii) derogatory to the P title * (iv) w malice * (v) causing special damages * (vi) dminishes value in eyes of 3Ps

Answer 8

(1) Person intentionally and maliciously (2) institutes or pursues a legal action (3) for an improper purpose without PC and (4) the action is dismissed in favor of the person against whom it was brought

Answer 9

(1) use of legal process against a P (2) in a wrongful and intentional manner (3) to accomplish a purpose other than that for which the process was intended (4) proof of damages required

Answer 10

act with reckless disregard to high risk of harm, malice only requires act w.o excuse, justification or mitigation, intent can be inferred from accomlishment of the act

Answer 11

Unlawful killing of another with malice aforethought * (1) intent to kill * (2) intent to do serious bodily injury * (3) depraved heart -- unintentional killing resulting from reckless indifference to an unjustifiably high risk to human life * (4) intent to commit felony murder -- unintentional, foreseeable killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony (BARRK)

Answer 12

(1) Voluntary -- homicide with malice aforethought, but with mitigating circumstances * (A) heat of passion (in response to a situation that would inflame a RP, not sufficient time for RP to cool down) * (a) cool down [o/s] * (b) provoked [o/s] * (B) imperfect SD (if D start altercation or unreasonably thinks deadly force necessary * (1) kill on basis of SD + (2) belief in need of SD unreasonable * OR -- D started altercation that lead to need for deadly force (2) Involuntary MS -- is a criminally negligent killing OR a killing of someone while committing a crime that does not rise to the level of felony murder; a killing committed during the commission of a malum in se misdemeanor (if malum prohibitum only if willful). A defendant who engages in criminally negligent conduct and causes a death is guilty of involuntary manslaughter. Criminal negligence is grossly negligent action (or inaction when there is a duty to act) that puts another person at a significant risk of serious injury or death. Requires more than tort neg, but less than depraved heart. For criminal negligence, the ultimate question is – was the defendant’s conduct a gross deviation from standard of care that a RP would have exercised in the situation. (3) MPC -- Under MPC, D must have acted recklessly, which is a gross deviation from the standard of conduct that a law abiding person would observe in the actors situation, and must have been actually aware of the risk his conduct posed

Answer 13

tresspassory taking and carrying away of the PP of another with the SI to permanently deprive the owner w/o thier consent

Answer 14

larceny using fraud/deciet that results in conversion of property of another

Answer 15

Requires: (i) obtaining title to the property; [title can incl $] (ii) of another; (iii) through the reliance of that person; (iv) on a known false representation of a material past or present fact; and (v) the representation is made with the intent to defraud. It is not a false representation if the statement made is an opinion, such as sales talk or puffing. The mens rea requires that the D (a) know the representation is false and (b) specifically intend to defraud. Most courts find that a defendant acts knowingly and has knowledge of a particular fact when the defendant is aware of a high probability of the fact’s existence and deliberately avoids learning the truth. Other states require actual knowledge by the D of a particular fact. A defendant has the intent to defraud required to establish false pretenses when the defendant intends that the person to whom the false representation is made will rely upon it.

Answer 16

(i) larceny, (ii) from the person or presence of the victim, (iii) by force or intimidation

Answer 17

(i) fraudulent conversion (the inappropriate use of property, held pursuant to a trust agreement, which causes serious interference with the owner’s rights to the property) (ii) of the property of another (iii) by a person who is in lawful possession of the property (iv) and the D has the intent to defraud the owner of the property

Answer 18

(i) receive control of stolen property (Property that is unlawfully obtained through larceny, embezzlement, or false pretense is stolen property) (ii) have the knowledge that property is stolen (must coincide with the act of receiving the property, some Jx require subjective knowledge others objective (i.e. infer from facts/circumstances) (iii) have the intent to permanently deprive the owner of the property.

Answer 19

@ CL (i) breaking * “Breaking” is accomplished by using force to create an opening into a dwelling. Even if a door or window is ajar, if the defendant enlarges it, it will satisfy the breaking element (ii) and entering * “Entering” occurs when any portion of the defendant’s body crosses into the dwelling without permission through the opening created by the breaking. [entering to retrieve your own thing = not a felony] (iii) of a dwelling of another (iv) at nighttime (v) with the specific intent to commit a felony therein.

Answer 20

@ CL -- malicious burning of the dwelling of another

Answer 21

@ CL unlawful sexual intercourse with a female against her will by force or threat of immediate force

Answer 22

Accomplice Liability if: 1. intentional aids/abets P before or during crime 2. with the SI that the crime be completed liable for other crimes if natural and probable consequence @CL only could be convicted if the principal was modern -- can be even if p not tried/convict/given immunity to w/draw must (1) repudiate prior aid (2) do all possible to countermand assistance (3) before a chain of events set in motion/unstoppable accessory after the fact not an accomplice, liable for a separate crime

Answer 23

Solitiation is (i) enticing, encouraging, requesting, or commanding of another person, (ii) to commit a crime, (iii) with the intent that the other person commits the crime. SI defenses avail factual imposs not a defense Under the MPC, voluntary renunciation may be a defense, provided the defendant thwarts the commission of the solicited crime solicaition merges

Answer 24

An attempt requires a specific intent to commit a criminal act coupled with a substantial step taken toward the commission of the intended crime. @ CL once the defendant has taken a substantial step toward the commission of the offense, the defendant may not legally abandon the attempt to commit the crime because of a change of heart. Upon the completion of a substantial step, the cri me of attempt is completed; there can be no abandonment or withdrawal. Some Jx recognize defense where abandonment is voluntary (not voluntary if motivated by avoiding detection, the decision to delay till more favorable time etc) SI defenses avail factual imposs not a defense, but legal imposs could be (i.e. intended act not a crime) attempt merges

Answer 25

@ CL -- Conspiracy is an agreement between two or more persons to accomplish an unlawful purpose with the intent to accomplish that purpose. When only one conspirator has the intent to agree, such as when the other conspirator is a governmental agent there is no conspiracy unless another participant is involved; (MPC) allows for unilateral conspiracy Other Jx -- require an overt act as well; when an overt act is required, the conspiracy crime is not complete until the overt act is performed in furtherance of the conspiracy. The overt act can be performed by any co-conspirator, with or without the knowledge of all co-conspirators Misc rules: * D can be convicted even if others not * A conspirator may be convicted of all substantive crimes committed by his co-conspirator in furtherance of the conspiracy * withdrawl: * (@CL) cant w/draw but can limit liability by informing co conspirators of w/drawl and timely advising law enf; * (fed/MPC) can w/draw prior to overt act by communicating intent to withdraw and timely advising law enforcement , after overt act can only help thwart success * Wharton Rule, if a crime requires two or more participants (e.g., adultery) there is no conspiracy unless more parties than are necessary to complete the crime agree to commit the crime. * factual imposs not a defense; legal might be

Answer 26

A mistake of fact is a defense to a * (1) specific-intent crime, even if the mistake is unreasonable, because it negates the element of mens rea; * (2) general intent if reasonable; MPC -- mistake that negates a required state of mind for material element Mistake of law -- generally not defense except if: * (1) reliance on official decision later erroneous * (2) lack notice * (3) SI + mistake reasonable and honestly holds belief (i.e. intend to do something that isnt against the law) * (4) MPC honest mistake of law that negates mental state (purposefullly) for material element (i.e. intend to do something that isnt against the law)

Answer 27

Involuntary intoxication is a defense when the intoxication serves to negate an element of the crime, including general as well as specific-intent and malice crimes. To be considered involuntary, the intoxicating substance must have been taken without knowledge of the intoxicating nature of the substance, including substances taken pursuant to medical advice. Voluntary = intentional taking of a substance knowing it is intoxicating Is a defense to: (1) SI if intox prevent intent (2) MPC not a defense: (1) SI if intent to do crime before intox (2) GI (3) SL

Answer 28

A person who is not the aggressor is justified in using reasonable force against another person to prevent immediate unlawful harm to himself. (the person (1) had a _reasonable belief_ of i_mminent danger of unlawful bodily harm_ and (2) used the amount of force _reasonably necessary_ to prevent such harm) * Deadly force is force that is intended or likely to cause death or serious bodily injury. * Deadly force may be justified in self-defense only when it is _reasonably necessary_ to _prevent_ * (A) **death or serious injury** or * (B) to **prevent the commission of a serious felony involving a risk to human life.** An initial aggressor gains the right to act in self-defense when an aggressor using nondeadly force is met with deadly force or the aggressor, in good faith, completely withdraws from the altercation and communicates this fact to the victim. Defense of property -- only non deadly, gotta rsnb believe RP in imediate danger of unlawful tresspass or PP in immediate danger + force necessary to protect; deadly only if forcible entry into dwelling and reasonble belief intended felony inside

Answer 29

A third party’s unlawful threat that causes a defendant to reasonably believe that the only way to avoid death or serious bodily injury to himself or another is to violate the law, and that causes the defendant to do so, allows the defendant to claim the defense of duress.

Answer 30

necessity can be used as a defense if forces of nature cause the defendant to commit what would otherwise be a crime

Answer 31

(a) Exigent Circumstances -- based on the TOC Exigent circumstances exist if: * (i) evidence is evanescent (evidence would dissipate or disappear in the time it would take to get a warrant); * (ii) necessary to prevent imminent destruction of evid; * (iii) police are in hot pursuit of felon and evidence in PV; ( * iv) emergency aid exception applies – to render emergency assistance to injured person or protect a person from imminent injury (b) Search incident to Arrest -- at time of lawful arrest or contemporaneous with it officer may conduct certain searches of arrestee that is reasonable in scope (including person, clothing, wingspan or immediately surrounding area to: keep officer safe +/or preserve evidence. * If arrest in a home can do a protective sweep * If a suspect is arrested in an automobile, the police may also search the entire interior or passenger compartment if * (a) officer has reason to believe evidence relevant to crime/offense arrested for might be discovered or * (b) arrestee is in reach of the passenger compartment and as a result, there is an actual threat to PO safety or protection of evidence (i.e. that the arrested person is unsecured and could gain access to vehicle at time of the search) (c) Automobile Exception -- officer can search auto if have PC to believe the evidence, instrumentalities, or fruits of crime exist in it (includes trunk if PC in trunk) (d) Consent -- must be given voluntarily. if 3P give consent + its thier prop that is ok; if it is D prop, 3P cant give consent unless agency relationship or D gave 3P rights to consent such that D AOR they might consent; if Joint O'ship if D present, cant rely on 3P consent, but if D not present, 3P can consent, but cotenent can only consent to a search of areas over which he has control (i.e. common spaces his private area) (e) Plain View (and feel) -- an officer, who is lawfully present in the area that he is in, may seize an item if it is immediately apparent that it is contraband or evidence of a crime. In public could seize w/o warrant (f) Admin Search -- (1) officer can search arrestee and impounded vehciles (2) public school officials can search students + personal fx if RS (3) random drug testing permitted for public school kids involved in any extracirric (4) need no wrrant for fire/health code inspections (regulatory inspections) (g) Stop and Frisk -- to stop only need RS that criminal activity is afoot needed for officer, to frisk need rsnb relief suspect armed and dangerous

Answer 32

blockburger test -- if each crime contains an element that the other does not, they are not considered same offense; but if only one contains an element that the other does not they are lesser included offenses

Answer 33

neutral and detached magistrate based on PC describes the objects, property and place to be searched w particularity supported by oath/affidavit D can attack only if -- knowingly contains false info from affiant (that PO aware of or reckless wrt) + false info was necessary for PC

Answer 34

(A) D must show * (1) counsel's rep fell below an objective strd of reasonableness * (2) that prejudcied the D (there is a reasonable prob that had counsel performed effectively there would have been a different result) (B) COI -- must show (1) actual conflict and (2) COI affected atty performance

Answer 35

evidence obtained in violation of 4/5/6 CANNOT be introduced at trial to prive D guilt + applies to fruit of poison tree * 4th-- regular rule S2 below exceptions * 5th -- can be used for impeachment, but if lead to fruits they can be admitted 6th * 14th -- involuntary confession -- both confession and fruits not admissible for ANY purpose However, evid (primary or deriv) may still be admissible if: * (1) independent discovery rule -- P can prove evid would have inevitably been disco thru lawful means * (2) independent source rule -- relevant evid disco on basis of indep source unrelated to taint * (3) attenuation in the causal chain -- intervening events and passage of time can remove taint (e.g. uncon stop but find warrant bc of it) * (4) good faith -- if PO act in GF (objective of RPO) on either a facially valid warrant later determined invalid or existing law later found unconstitutional, evid seized as a result can come in unless: * (i) no RPO would have relied on the affidavit underlying it (bare bones) * (ii) warrant defective on its face * (iii) obtained by fraud (iv) magistrate wholly abandoned judicial role * (iv) warrant improperly executed * (5) K+A -- exclusionary rule does not apply to evid disco from valid warrant but violates K+A rule * ~(6) isolated police negligence -- will not necessarily trigger exclusionary rule, to trigger, police conduct must be sufficiently deliberate such that exclusion can meaningfully deter it (requires deliberate reckless gross negligence or sometimes systematic neg)

Answer 36

The Fourth Amendment limits governmental action; it does not restrict the acts of private parties unless the private person is acting as an “instrument or agent of the government.”

Answer 37

The general rule is that evidence must be relevant to be admissible, and all relevant evidence is admissible unless excluded by a specific rule or law. Relevant evidence can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Answer 38

impeachment -- ok Civil In a civil case, evidence of a person’s character (or character trait) generally is inadmissible to prove that the person acted in accordance with that character (or character trait) on a particular occasion. However, character evidence is admissible,, when * (1) character is an essential element of a claim or defense, rather than a means of proving a person’s conduct. * Character is most commonly an essential element in defamation cases (character of the plaintiff) * When character evidence is admissible as evidence in a civil case, it may be proved by specific instances of a person’s conduct as well as either by testimony about the person’s reputation or by testimony in the form of an opinion. * (2) case based on D sexxual misconduct Criminal In a criminal case, the prosecution is not permitted to introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question. * (3) In a criminal case, the D is permitted to * (1) introduce evidence of his good character as being inconsistent with the type of crime charged, as long as the evidence is in the form of the Ds reputation in the community or opinion testimony by another witness. The community includes people that the defendant engages with on a regular basis. Opens the door for prosecution to call own witness R/O to contradict or cross about R/O/A * (2) introduce evidence of R/O of the victim's character/pertinent trait when relevant to a defense asserted. Opens door for pros to call witnesses to give R/O rebuttal or introduce evid that D has same trait he accuse vic of having

Answer 39

(1) Character for Truthfulness/Untruthfulness * (a) R/O * (b) Criminal Convictions * (c) Prior Inconsistent Statements - litigant is generally allowed to impeach a witness’s credibility by introducing a prior inconsistent statement, as long as the inconsistency involves an issue relevant to the facts of the case. Ext ev of the prior inconsistent statement used to impeach a witness’s credibility may be admitted only if the witness is given an opportunity to explain or deny the statement and the opposing party is given the opportunity to examine the witness about it. If that extrinsic evidence is a writing, then it must be admissible w/r/t to the hearsay rules. (2) Bias/Interest (3) Sensory Competence (4) Contradictory Evidence Once your witness has been attacked you can bolster with character for truthfulness, prior consistent statment, or give witness chance to clarify explain

Answer 40

A criminal defendant has no obligation to testify under his right against self-incrimination. If he does, however, he is subject to cross-examination and impeachment, which can include questions about his past crimes, under certain circumstances. A witness may be impeached with evidence that he has been convicted of a crime, subject to certain limitations. * Any crime involving dishonesty or a false statement, whether a felony or a misdemeanor, may be used to impeach if it is less than 10 years old. * Any crime not involving dishonesty that is less than 10 years old may be used for impeachment only if the crime is a felony. * [If witness CD] evidence of a felony is admissible only if its PV outweighs the prejudicial effect to that D. * [If regular witness] generally admissible S2 regular 403 balancing * If more than 10 years have elapsed since a conviction, or release from imprisonment (whichever later) evidence of the crime is not admissible unless the court determines that the probative value substantially outweighs its prejudicial effect. A conviction may not be used for impeachment purposes if the witness has been pardoned, provided that either (i) the action was based on a finding of innocence; or (ii) the witness has not been subsequently convicted of another felony. In this case, the witness was pardoned and has not been subsequently convicted of another felony, so the conviction would be inadmissible. Juvenile Adjudication * Civil Case -- Under FRE 609(d), evidence of a juvenile conviction is never admissible in a civil case. * Criminal Case --- never can use against CD, other witness: even in criminal cases, evidence of juvenile convictions has limited admissibility. Evidence of a juvenile conviction may be used to impeach a witness other than the defendant only if (i) it is offered in a criminal case, (ii) an adult’s conviction for that same offense would be admissible to attack the adult’s credibility, and (iii) admitting the evidence is necessary to fairly determine guilt or innocence. arrest only cant use appeal pending can

Answer 41

Civil Evidence offered to prove a victim’s sexual conduct or predisposition is generally not admissible in a civil proceeding involving alleged sexual misconduct, such as a sexual harassment action. * Such evidence may be admitted, however, when the court determines at an in camera hearing that the probative value of the evidence substantially outweighs the danger of harm to the victim and unfair prejudice to any party. Victim=victim of sexual misconduct (includes title 9, not defamation) * Generally reputation ok only if the victim puts it at issue. Criminal In general evidence of vic past sex behavior not admissible in criminal proceeding involving sexual misconduct unless: * (i) to rove someone other than CD is source of physical evidence * (ii) vic past sex conduct with CD to show consent ( * iii) certain circumstances where as a constitutional matter unfair to limit evidence presented If it is about Ds sexual conduct + accused of sex crime, can admit any evidence on any relevant matter s2 403, not limited to convictions, can do acts not just R/o; but if going to use must disclose to other side at least 15 days before trial unless apply to court for good cause

Answer 42

Present Recollection Refreshed * A witness may examine any item (e.g., writing, photograph) in order to refresh the witness’s present recollection, * but the witness’s testimony must be based on the witness’s refreshed recollection, not on the item itself. * When the item used to refresh a witness’s recollection is a writing or other record, the adverse party is entitled to have the document produced, to inspect the document, to cross-examine the witness about it, and to introduce any relevant portion into evidence. * When an adverse party seeks to introduce a writing used to refresh a witness’s memory, the writing typically will be admissible for only the purpose of impeaching the witness’s credibility. Past Recollection Recorded If a witness is unable to testify about a matter for which a record exists, the substance of the record may be admitted into evidence if * (i) the record contains a matter about which the witness once had knowledge, * (ii) the record was prepared or adopted by the witness when the matter was fresh in her memory, * (iii) the record accurately reflects the witness’s knowledge, and * (iv) the witness states that she has insufficient recollection of the event to testify fully and accurately, even after consulting the record while on the stand. * --\> Even if all of these elements are satisfied, it may be read to the jury, it may not be introduced as an exhibit unless it is offered by the opposing party. Comes in under hearsay exception

Answer 43

If the opinion * (i) is rationally based on the witness’s perceptions and * (ii) would be helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.

Answer 44

Can testify if * (1) SM is sci/tech/specialized * (2) it will help trier of fact understand evidence or determine fact in issue As long as reliable and relevant expert can testify if: * (a) qualified as an expert by skill/edu/experience/traininng * (b) testimony based on sufficient facts/data * (c) testimony based on reliable princples/methods * (d) experts applied those principles/methods to the facts of the case Expert must base opinion on: personal observation; evid @ trial; info experts in the field reasoanbly rely on even if not admissible

Answer 45

Spouse of a criminal defendant may not be called as a witness by the prosecution. Nor may a married person be compelled to testify against his spouse in any criminal proceeding. In federal courts (and a majority of states), the witness-spouse holds the privilege and may choose to testify but cannot be compelled to do so. Minority -- party spouse holds (and so can prevent spouse from testifying) Timing -- if no longer married does not apply exceptions -- if spouse charged with crime against spouse/kids

Answer 46

protects: * (a) a communication made between spouses * (b) while they were married * (c) if the communication was made in reliance on the sanctity of marriage. Held by both spouses and applies in both civil and criminal cases. * Maj view - either spouse may assert the privilege and refuse to testify about the communication or prevent the other spouse from testifying. The time for asserting this privilege extends beyond the termination of the marriage, continues to apply even after the termination of the marriage to communications made during the marriage. Furthermore, a legal separation does not terminate a marriage; there must be an annulment or divorce. exceptions -- spouse suing e/o, charged w/ crime against other spouse/kids

Answer 47

Although there is no CL priv covering statements made by a patient to a physician, most states protect such communications by statute, so long as communications were made for the purpose of obtaining medical treatment. However, in many states, a patient is deemed to have waived the priv by placing her condition in issue in a personal injury lawsuit

Answer 48

(1) Certain Prior Statements of Testifying Witnesses * (a) Prior Inconsistent Statements -- Under FRE prior inconsistent statement, which otherwise would qualify as hearsay, is treated as non-hearsay. A prior inconsistent statement may be used to impeach a witness. Further, if a prior inconsistent statement is made under oath at a trial, hearing, or deposition, it is admissible both to impeach the declarant’s credibility and as substantive evidence, so long as the witness testifies at the present trial or hearing and is subject to cross-examination concerning the statement. The witness need not actually be cross-examined, so long as she is subject to cross-examination at the present trial. * (b) Prior Consistent Statements -- oath or not admissible to rehab credibility or rebut charge that recently fabricated (if made before reason 2), can be substantive evid? * (c) Prior Statement of ID - A previous OOC id of a person after perceiving that person is not hearsay and may be admissible as substantive evidence. Even if the witness has no memory of the prior identification, it will be admissible because the witness is subject to cross-examination about the prior identification (2) Opposing Party Statement -- A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party. Unlike with the statement against interest hearsay exception, an opposing party’s statement need not have been against the party’s interest at the time that it was made. (if admission made in this lit = conclusive, but prior one, admissible but rebuttable) * Adoptive admissions -- An adoptive admission is a statement of another person that a party expressly or impliedly adopts as his own Silence in response to a statement is considered an adoptive admission if: * (i) The person was present and heard and understood the statement; * (ii) the person had the ability and opportunity to deny the statement; and * (iii) a reasonable person similarly situated would have denied the statement. Vicarious Statements - * EE/agent, authorized party, co conspirators statement made during and in furtherance of conspiracy

Answer 49

Unavailable if: * cant bc priv, * refuse testify, * lack memory statement, * unable to testify (death/sick/disabled), * absent and cant be subpoenad not unavil if party wrongfully made person unavail

Answer 50

Testimony that was given as a witness at a trial, hearing, or lawful deposition is not excluded as hearsay if * (i) declarant unavailable and * (ii) the party against whom the testimony is being offered (or, in a civil case, a party’s predecessor-in-interest) * (iii) had an opportunity and similar motive to develop the testimony by direct examination, redirect examination, or cross-examination

Answer 51

A statement qualifies as a “dying declaration” if * (1) Declarant unavailable in current lit * (2) the declarant believes that her death is imminent, * (3) person believes dying * (4) and the statement pertains to the cause or circumstances of the death * (5) Only admissible in homicide or civil

Answer 52

The general rule for statements against interest made by an unavailable declarant is that a statement qualifies as a hearsay exception if, at the time it was made, * (i) it was against the declarant’s pecuniary, proprietary, civil, or penal interest, and * (ii) the statement was of a nature such that a reasonable person would not have made it unless she believed it to be true * ~(iii) if criminal liability exposed to, not admissible unless corroborating circumstances indicate the trustworthiness

Answer 53

A statement describing or explaining an event that is made while the declarant is perceiving the event, or immediately thereafter, is admissible under the present sense impression exception to the hearsay rule, regardless of whether the declarant is available to testify

Answer 54

A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused is not excluded as hearsay. The event must shock or excite the declarant, and the statement must relate to the event.

Answer 55

statement of the declarant's then existing state of mind admissible to rove existence of a condition A statement of present intent, motive, or plan can be admissible as a hearsay exception to prove conduct or conformity with that state of mind.

Answer 56

A business record (a record or other writing of any act or event) is not excluded as hearsay if: * (i) the record was kept in the course of a regularly conducted activity; * (ii) the making of the record was a regular practice of that activity; and * (iii) the record was made at or near the time by someone with knowledge of its contents * (iv) a custodian or someone with knowledge can authenticate medical records count (x) if made in anticipation of lit

Answer 57

A statement that is made for the purpose of describing medical history or past or present symptoms, pain , or other sensation is admissible if it is made to a physician or other medical personnel (or other person) for the purpose of a medical diagnosis or treatment. A statement of the cause of the condition is admissible if it is reasonably pertinent to the diagnosis or treatment. Statements of fault are not ordinarily admitted under this exception because the identity of the person is not pertinent to the treatment being given.

Answer 58

A statement contained in a treatise, periodical, or pamphlet is not excluded as hearsay if: * (i) an expert witness relied on the statement during direct examination or it was called to the expert’s attention on cross-examination; and * (ii) the publication is established as a reliable authority by admission or testimony of the expert witness, by another expert’s testimony, or by judicial notice. If admitted, the statement is read into evidence, but the publication itself may not be received as an exhibit.

Answer 59

record or statement of public official agency that sets out: * (1) activity of the agency * (2) observations of persons with duty to report (except for law enf in criminal) * (3) factual findings of legal investigation (again except criminal)

Answer 60

FJ conviction not excluded if: * (1) trial/guilty plea (not no contest) * (2) felony * (3) offered to prove fact essential to the judgement if offered for anythign but impeach has to ahve been against CD

Answer 61

NON-FLIPS ## Footnote newspapers official publications by public authorities notarized foreign public records if custodian sig is cert by US ebasy products id By LABEL or tm affixed in RCB negotiable INSTRUMENT or comm paper copies of PUBLIC documents/records docuements with SEAL

Answer 62

D may remove a case to federal court (in the district where the state court case was originally filed) if: * (i) federal court has SMJ; * (ii) all Ds agree * (iii) removal sought within 30 days of service of summons or receiving initial pleading (whichever is shorter) + * [if div citz] (iv) no D is resident of the forum state (if SMJ is DivCitz)

Answer 63

Venue is proper in any district where: * (a) any D resides (if all Ds are residents of the forum state) * [D-Corp resides in any district in which it is S2 PJx (incorporated or PPB)] * (b) a substantial portion of the events or omissions of the claim occurred * (c) a substantial portion of the property is located; or * (d) if none of the above, then were any D is S2 PJx * (SOP, Consent, SJx-min contacts, GJx-domicile Special Rules * FTCA – venue proper in either where P reside OR where act/omission occurred Action * Against US/Fed Officer/EE acting in official cap/under color of law – (a)-(d) but also where P resides D not rez of US - * A defendant who is not a resident of the United States may be sued in any judicial district, so because venue is proper where the defendant resides, for a defendant who is not a resident of the United States, the defendant is deemed to be a resident of any judicial district.

Answer 64

If venue was PROPER when the case was filed Ct MAY transfer it if: * (i) Needed for the convenience of the witnesses or in interest of justice AND * (ii) the case could have initially been brought in the receiving court (venue) OR if all parties consent to a division Choice of Law * Div Citz (transferee court must apply the law that would have been applied in the OG dist ct (transferor court * FQ (If transferred to dist ct in another appellate cir, transferee court must apply fed law as interpreted by the transferee fed COA not by the OG/transferor fed COA * FSC (transferee ct must apply the law, incl COL rules of state in which it is located (not transferor bc parties K waived the right to the application of that law by agreeing to transferee venue) If venue was IMPROPER when case was flied Ct MUST either: * (a) dismiss the case; OR * (b) transfer the case to a proper court if the interests of justice require it Choice of Law * Div Citz Jx (Transferee court applies law (incl COL) of the state in which it is located, not the OG/transferor * FQ Jx (Transferee ct applies interpretation of FCL by its COA) ---FSC same as above

Answer 65

Method of Service [gotta meet DP and applicable statute] DPC  service must be reasonably calculated, to make the parties aware of the action and give them an opportunity to be heard Individuals: * (a) personally; * (b) left w/ someone of suitable age and discretion at the individuals current dwelling or usu place of abode * (c) via agent (by appointing or by law); or ( * d) in accd w/ state law of the forum state or wherever service made Corporations, P’ship, Ass’n: * (a) accd w/ state law of forum state where service made OR * (b) officer or managing/general/authorized agent Foreign Country ~ any manner not prohibited by int’l agreement

Answer 66

(A) Voluntary Presence  if D is voluntarily present in forum state + served with process there then ct has Jx over D (B) Domicile  if authorized by statute, state has Jx over person domiciled in state, even if person is temporarily absent from the state (C) Consent  PJx can be established through party consent. (D) Long Arm Statute

Answer 67

In general, DP satisfied if nonresident D has sufficient * (a) minimum contacts with forum state such that maintenance of the action does * (i) Purposeful Availment * (ii) Relatedness (Ds conduct in relation to the action) SJx or GjX * (b) not offend traditional notions of fair play and substantial justice ( * (i) interest in forum state in adjudicating matter * (ii) burden on D of appearing in the case * (iii) interest of judicial system in efficient resolution of controversies * (iv) shared interests of the states in promoting common social policies

Answer 68

Standard: May be issued to P if: • 1) P likely to succeed on merits; • 2) P likely to suffer irreparable harm in absence of relief • 3) Balance of equities is in P favor; and • 4) Injunction is in the public interest Perm Inj same except gotta show actual success

Answer 69

Necessary Party = a person whose participation in the lawsuit is necessary for a just adjudication It is a person who * i) complete relief cannot be provided to existing parties in absence of that person; * ii) disposition in the absence of that person may impair that person’s ability to protect his interest; or * iii) the absence of that person would leave existing parties S2 substantial risk of multiple or inconsistent obligations Indispensable Party = R. 19(b), if the necessary party cannot be joined bc of Jx or venue concerns, then ct must determine whether, in equity and good conscience, the action should proceed among the existing parties (typical) OR dismiss. Ct considers: * Extent to which judgment rendered in absence might prejudice that person or existing parties * Extent to which any prejudice could be reduced/avoided by protective provisions in the judgment, shaping relief, or other measures * Whether judgment rendered in persons absence would be adequate; and * Whether the P would have an adequate remedy if action were dismissed for nonjoinder

Answer 70

Requirements for joinder of parties is that * (1) there be a common question of law or fact and * (2) any right to relief must arise out of the same transaction, occurrence, or series of transactions or occurrences

Answer 71

(A) _As of Right_ Non party has right to intervene in action when fed statute confer right + nonparty timely moves to intervene. [if not thru fed statute] upon timely motion, nonparty has right to intervene when: * (a) Nonparty has ***interest*** in property or txn that is SM of action * (b) Disposition of action ***may impair nonparty interest;*** and * (c) Nonparty interest not adequately represented by existing parties BOP on person seeking intervention (B) _Permissive Intervention_ [R.24(b)] Ct may allow intervention, upon timely motion, when either: * (i) Movant has conditional right to intervene under federal statute; or * (ii) Movant claim/defense and OG action share c***ommon question of law or fact*** * In exercising discretion, ct must consider whether intervention will unduly delay or prejudice adjudication of the rights of the OG parties

Answer 72

Third party claims (impleader) are claims made by a defending party against a nonparty for all or part of the defending party’s liability on an original claim. * The impleaded party _must relate to the original claim_ against the defending party. * In judging whether the claims are related, the test is whether they arise out of same CNOF such that the claims should be tried together in a single proceeding (i.e. did the impleaded party have something to do with the situation that formed the main claim; indemnification; contribution) * Can use bulge can be asserted any time after complaint filed, but defending party/3pp must get ct permission if filed more than 14 days after service of OG answer

Answer 73

Basic Reqs [R. 23(a)] * (1) Numerosity – class must be so numerous that joinder of all members is impracticable * (2) Commonality – there must be questions of law or fact that are common to the class * (3) Typicality – the claims or defenses of the reps must be typical of the class * (4) Adequacy – the representatives must fairly and adequately protect the interests of the class Also need one of these 3 Situations [R. 23(b)] * (1) risk of prejudice – separate actions would create risk that class opponent would be S2 inconsistent adjudications or if separate actions would impair the interests of CMs ( * 2) final equitable relief – the class shares a general claim and injunctive or declaratory relief is sought; only available where a a single indivisible remedy would provide relief to each CM (therefore $$ dam not avail) * (3) common legal/factual questions – must predominate over questions affecting individual CMs and CA superior method for bringing about fair and efficient adjudication of the controvery. Ct considers (among other things): CM interest in individual controlling pros/defense of separate actions; extent and nature of any litigation concerning controversy already begun by or against CMs; desirability or undesirability of concerning the controversy already begun by or against CMs; the desirability or undesirability of concentrating lit of claims in particular forum; likely difficulties in managing CA. CM need not establish likelihood success on common question of law; notice only required for (3) CAFA – SMJ met if: CA involve at least 100 ppl; primary D not states/officials/gov entities; action not securities related cases or litigation about internal affairs or governance of corp; AIC more than 5 mil exclusive of interest and costs; minimum diversity exists - Under CAFA any D can remove case to fed ct Limitation on Jx: Ct is required to repudiate Jx when primary injuries were incurred in sate in which action was filed, when more than 2/3 proposed Ps are citz of the state where case filed and when sign relief is sought from D who is citizen of state in which case was filed; If 1/3 – 2/3 proposed Ps and primary Ds are citz of state where case filed  ct has the discretion to decline Jx

Answer 74

3 instances can immediately impose sanctions immediately * (1) Failure to attend own depo Will not be excused on groudns that disco sought was objectionable unless party failing to act has pending motion for protective order * (2) Failure to respond interog (3) Failure to respond to request for doc/thigns otw motion to compel

Answer 75

Under 12(b)(3) claim for relief can be dismissed if either * (a) fails to assert a legal theory of recovery that is cognizable at law OR * (b) fails to allege sufficient facts to support a cognizable claim In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the court may consider only the allegations in the complaint, any exhibits attached to the complaint, and any matters subject to judicial notice. * When a defendant files a motion to dismiss for failure to state a claim upon which relief can be granted and attaches materials outside the pleadings to the motion, the court must treat the motion as a summary judgment motion if the court considers such materials in reaching its decision on the motion

Answer 76

Must be granted if the pleadings, disco, and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant id entitled to JMOL. A genuine dispute of material fact exists when a reasonable jury could return a verdict in favor of the nonmoving party In ruling on SJ ct must construe all evidence in light most favorable to nonmoving party and resolve all doubts in favor of nonmoving party

Answer 77

Once a party has been fully heard on an issue at a jury trial, any time before case submitted to jury. The court may grant a motion for JMOL to resolve the issue, claim, or defense against a party if the court finds that there is insufficient evidence for a jury reasonably to find for that party The ct must view the evidence in light most favorable to opposing party and draw all reasonable inferences from the evidence in favor of opposing Cant consider credibility of witnesses or evaluate weight evidence, must disregard all favorable evidence to moving aprty that jury not required to believe

Answer 78

ct may on motion by party or its own motion grant a NT, in its discretion, on all issues or only certain issues or parties, no specific list grounds but in practice overarching theme is that ct can grant NT to prevent miscarriage of justice * Like error at trial render judgment unfair • * Newly disco evidence that existed @ time trial but was excusably overlooked and would likely alterd outcome • * Prejudicial misconduct of party counsel judge juror * Verdict against clear weight evid * Verdict based on false evid * Verdict excessive or inadequate ct must disregard all errors and defects that do not affect any partys substantial rights (HER rule) MUST BE FILED W/in 28 days after entry judgement If NT on basis that it was seriously excessive, ct can offer remittitur to reduce verdict and grant NT on condition that it is not accepted If ct thinks verdict inadequate – only can do NT

Answer 79

The doctrine of claim preclusion (res judicata) provides that a valid final judgment on the merits of an action precludes the parties from successive litigation of a sufficiently identical claim in a subsequent action (federal courts apply a transactional approach under which they bar a subsequent claim with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose) amongst sufficiently identical parties -- claim preclusion is limited to the parties or their privies., must be the same P and D in same roles (1) [VFJM] (2) [same claim] (3) [same parties]

Answer 80

The doctrine of issue preclusion (collateral estoppel) precludes relitigation of issues of fact or law that have been necessarily determined by a judge or jury as part of an earlier claim. Elements necessary for issue preclusion to apply are that * (i) [same issue] the issue sought to be precluded must have been the same as that involved in the prior action, * (ii) [actually litigated] the issue must have been actually litigated in the prior action, * (iii) [determined by VFJ] the issue must have been determined by a valid and binding final judgement, * (iv) [essential] the determination of the issue must have been essential to the prior judgement and * (v) the party against whom the issue is to be precluded (or one in privity with that party) must have been party to the original action. A court, in it's discretion can decline to allow offensive IP when applying IP would not be fair; this may be so where the person asserting IP could have easily joined the claim.

Answer 81

S * elements of claim defense (in K or tort) * SOL and tolling * BOP Procedural * judge/jury allocation * assessment atty fee * whether issue is equitable v. legal

Answer 82

S * PER * SOF * Damages Cap * ~[if SOL limits statutory right rather than just remedy, SOL vest bc prescription/AP] SOL substantive * Statutes of Repose (those that cut off the right to COA before it accrues) P * SOL unless limit statuory right * proper ct to bring action * form of action to be brought * sufficiency pleadings * effect of splitting COA * proper/necessary parties * whether CC can be brought * venue * disco rules * right to JT * SOP * BOP * trial procedure * method enf judgement * admiss evidence * existence or validity of priv [RST1], but RST2 = MSR, gov int weigh interest

Answer 83

(A) OGJx – ambassadors/public ministers/consuls + cases where state is a party (cases b/t two or more states exclusively OGJx, rest are concurrent) [cant be modified by statute] (B) Appellate – 2 ways to establish [can be modified] * (1) Certiorari: discretionary review, 4 justices have to say yes SCOTUS can review only if the case turned on federal grounds, has no Jx if AISG * Adequate – state law grounds fully resolve the matter, * Independent – do not incorporate a federal standard by reference; state law does not depend on an interpretation of federal law; no AISG is state law adopts/follow federal law * By statute, Congress has granted federal district courts concurrent original jurisdiction over all controversies over which the Constitution granted the U.S. Supreme Court original jurisdiction, except for a controversy between two states * (2) Direct Appeal – mandatory to hear, limited by statute (those that come from a decision on injunctive relief issued by a special three-judge district court pane – not common anymore)

Answer 84

The equal protection clause of the 14th amendment applies only to government action. To trigger constitutional protections, state action is required. * A private entity’s conduct must constitute state action in order for these protections to apply. * State action may be considered to exist when private parties carry out traditional governmental functions or if there is significant state involvement in the activities. * To be significantly involved, the state must act affirmatively to facilitate, authorize, or encourage the private activity or must have intertwined its actions with those of the private entity such that the state and private party mutually benefit from the involvement (e.g. joint venture). * Simply licensing or regulating a private party, does not amount to state involvement significant enough to trigger the protections of the EP of 14th.

Answer 85

Bill of Attainder [only criminal/penal; fed and state] – A bill of attainder is a legislative act that declares a person or group of persons guilty of some crime and punishes them without a trial. Ex Post Facto [only criminal/penal or or a civil law with an overriding punitive effect); fed and state] – retroactivity Separation of Powers

Answer 86

Laws regulating EXPRESSIVE CONDUCT (symbolic speech) upheld if: * (i) regulation is within government power to enact; * (ii) regulation furthers an important gov interest; * (iii) government interest is unrelated to suppression of ideas * (iv) the burden on speech is no greater than necessary If interest is unrelated to suppression of message, ct will uphold application of the law if law is narrowly tailored to further a substantial government interest

Answer 87

Statutes designed to punish speech that expresses certain viewpoints are unconstitutional Content Based Reg on its face/in application/intent is generally subject to SS (gov must id actual problem and regulation of speech must be necessary to solve the problem) CAN regulate: obscenity, fighting words, incitement violence, commercial speech, defamation

Answer 88

the average person, applying the contemporary community standards must find on whole that the speech: * (i) appeals to prurient interest [sexy not violent]; * (ii) depicts sexual conduct in a patently offensive way; * (iii) lacks serious literary artistic political or scientific value

Answer 89

can forbid speech that advocates for use of force/unlawful action if: * (i) speech is directed to inciting/producing imminent lawless action (language reasonably calculated to incite persons to action) * (ii) the speech is likely to incite or produce such action (i.e. create clear and present danger)

Answer 90

Speaker can be criminally punished for fighting words (words that by nature are likely to incite imminent breach of peace + genuine likelihood of imminent violence by a hostile audience, cant be simply annoying or offensive)

Answer 91

Regulation of Commercial Speech ok if: * (i) speech concerns a lawful activity and is not false or misleading (SCOTUS precedent establishes that the First Amendment does not protect commercial speech that is false or misleading. Fraudulent commercial speech may actually be prohibited on the basis of content) * (ii) asserted government interest is substantial * (iii) asserted reg must directly advance that interest * (iv) regulation must be narrowly tailored to serve that interest (i.e. reasonable fit between means chosen and ends) A restriction on commercial speech is subject to a form of intermediate judicial scrutiny, requiring the government to show that the restriction directly advances an important or substantial government interest and that the restriction is not substantially more extensive than necessary to protect that interest.

Answer 92

TPF – restriction must be content neutral on SM and viewpoint on its face and as applied and * (1) be narrowly tailored for a significant government interest * (2) leave open ample alternative channels for the communication of the info NPF [public property not a public forum] – gov can regulate speech as long as: (1) viewpoint neutral [cant favor one viewpoint] * (3) reasonably related to a legitimate government interest Need not be least restrictive means

Answer 93

Government employees do not give up their right to free speech solely by virtue of being a government employee. When a government employee contends that his rights under the Free Speech Clause of the First Amendment have been violated by his employer, the employee must show that he was speaking as a citizen on a matter of public concern. In determining whether a government employee is speaking pursuant to his official duties, the critical question is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties (i.e. a general statement more likely protected than something said found out from scope of duties) When a public employee is speaking about a matter of public concern as a citizen rather than as employee, the First Amendment interest of the employee must be balanced against the interest of the state, as an employer, in effective and efficient management of its internal affairs.

Answer 94

Generally, media has no greater rights for 1st amend But the press has the right to publish information about matters of public concern, and the viewers have a right to receive it. The First Amendment shields the media from liability for publishing information that was obtained illegally by a third party as long as the information involves a matter of public concern and the publisher did not obtain it unlawfully.

Answer 95

Establishment (when a government action shows preference to religion to another or relig \> non relig) if Preferential Statute --\> [SS] If Facially Neutral--\> Government action that benefits religion is valid/not violate Est. Cl. If: * (a) law has a secular purpose * (b) its principal/primary effect neither advances nor inhibits religion; and * (b-1) it does not result in excessive government entanglement with religion

Answer 96

Free Exercise * (1) The freedom to believe any religion or none at allis protected absolutely and cannot be restricted by law * (2) religious conduct is protected qualifiedly * (a) Laws that intentionally target religious conduct --\> [SS] * (b) Neutral laws that are generally applicable but have fx on religious conduct--\> [Rat Basis], ok unless: * (i)Under RFRA they substantially burden the free exercise of religion --\> [SS] * (ii) Ministerial Exception Applies – religious org ability to select

Answer 97

Congress has the power to regulate the * (i) channels of interstate commerce; * (ii) the people and instrumentalities of interstate commerce; and * (iii) any activity that substantially effects interstate commerce, so long as the regulation does not impinge on another constitutional right * If clear/direct econ fx --\> congress can regulate * If not clear/direct econ fx (i.e. intrastate/private consumption) --\> as long as there is (1) a rational basis (2) to conclude that the total incidence of the activity in the aggregate would affect interstate commerce congress can regulate * If intrastate activity not obviously economic + traditional area of state concern --\> congress can regulate only if it has a substantial effect on IC

Answer 98

Protects OOS individuals + alien + corp from state reg COMMERCE If congress has not enacted legislation in a particular area of interstate commerce state is free to regulate + regulation valid so long as it does NOT: * (a) discriminate against OOS commerce; i.e. protecting in state interest @ expense OOS competitors * Exception – law that is facially dicrim or has discrim impact could still be upheld if: * (i) important to local interest being served * (ii) no other means available to achieve purpose * (b) unduly burden interstate commerce * (Ct balance purpose w/ whether least restrictive means used; if burden grossly \> benefit then could be unconstitutional); or * (c) regulate extraterritorial (wholly outside state) conduct exceptoins: * (1) Market participant exception – state buying and selling G+S can choose to benny own citizens (i.e. not acting as a market regulator) * (2) Subsidies – state can subsidize own citizens * (3) Fed/Congressional Approval – If congress says it is ok for state to regulate even if they already said shit on the matter – then nothing state does will violate even if discriminate against OOS * (4) Traditional government function exception – applies only when the activity is conducted by the local * (5) Necessary to imp state interest and no other ND means available (same as exception in a above)

Answer 99

Congress has the power to spend for the common defense and the general welfare Congress may attach restrictions or conditions on States receiving federal funds, but must satisfy the following: * (i) must be for general welfare * (ii) condition must be imposed unambiguously * (iii) condition must be related to the federal interest in national projects or programs * (iv) cannot induce uncon activity * (v) and cant be so coercive as to turn pressure into compulsion

Answer 100

Generally state may tax ICC only if congress has not acted in the area and not discriminatory to OOS commerce or unduly burden ICC 4 part test (Complete Auto) State can do a ND tax on ICC when: * (1) must be substantial nexus between act being taxed and taxing state; * (2) the tax must be fairly apportioned according to a rational formula * (3) the tax must be non-discriminatory – i.e. it cannot provide direct commercial advantage to local interests over interstate competitors even if neutral on face * (4) the tax must have a fair relationship to the services provided if taxing foreign - also must not * (i) create a substantial risk of international multiple taxation or * (ii) prevent the federal government from "speaking with one voice" regarding international trade or foreign affairs issues

Answer 101

protects OOS INDIVIDUALS from STATE disrimination Prevents a STATE from treating citizens of another state in a discriminatory matter w/r/t FRs or essential activities, unless the state can show a substantial reason for the difference in treatment * Substantial reason = (i) non citizen resident part of the issue/what the state is trying to resolve + (ii) no less restrictive means to solve * Essential activities = employment; transfer of property; access to state court; engaging in political process; discrimination against OOS commercial person for license or fee (but not recreational if rational basis exists)

Answer 102

P or I 14th Amendment – protects INDIVIDUALS no state shall make/enforce any law that abridges the P or I of National Citizenship generally only applies to right to interstate travel

Answer 103

State Sov Immunity – 11th prohibits a party from suing a STATE (or state agency/official) in FEDERAL court, UNLESS: * (a) state explicitly consents to waive the protection * (b) lawsuit pertains to fed laws adopted under 14th amend § 5 (enforcement of 14th amend rts); * (c) lawsuit seeks only injunctive relief against state official (prevent the enforcement of an unconstitutional state statute/compel to act in accd fed law); * \*\*Note that 11th amendment will bar injunction that is just seeking to enforce a state law \*\* or * (d) lawsuit seeks money damages from a state official personally

Answer 104

A tenancy in common is any tenancy with two or more grantees with equal rights to possess or use the property, but no right of survivorship

Answer 105

A joint tenancy exists when two or more persons own property with the right of survivorship. The joint tenancy must be created with each joint tenant having the equal right to : (i) possess or use the property, (ii) with each interest equal to the others, (iii) at the same time, and (iv) in the same instrument. In most states, there is presumption that a conveyance to two or more persons creates a tenancy in common rather than a joint tenancy. To determine if a joint tenancy was created, modern law calls for a clear expression of intent and survivorship language. But the presumption of a tenancy in common can be rebutted by evidence the grantor intended to create a joint tenancy.

Answer 106

Converts JT to TiC (only dying extinguishes the right) leases -- Jx split judicial lein usu not mortgage (lein title) conveyance

Answer 107

A life tenant has the right of possession, the right to all rents and profits during possession, and the right to lease, sell, or mortgage his interest in the property (right of alienation Life tenants have the obligation to pay all ordinary taxes (incl prop tax) on the land and interest on the mortgage to the extent he receives a financial benefit from the property. His financial benefit is measured by the fair market rental value of the property. Not obligated to get insurance or for damage damage by 3Ps. Obligation to make reasonable repairs.

Answer 108

4 unities + unity of person neither spouse can alienate or encumber w/o consent of other where TiE recognized, creates a rebuttable presumption that convey to married couple = TiE + diivroce --\> TiC

Answer 109

In states that apply the doctrine of worthier title, the doctrine cuts off remainders in the heirs of the transferor. In such states, the conveyance of a LES followed by a remainder to the "grantor's heirs" is treated as creating a reversion in fee simple in the grantor, instead of a remainder interest in the grantor's heirs. (prevents remainder in grantor heirs, just makes it a reversion)

Answer 110

Possession -- right to possess equally, not required to pay rents or share profits derived from, if one refuses to let other in cas bring action for ouster (value of time outsted and/or injuries) 3P rents -- CTs must split rent but can decrease rent by operating expenses paid including necessary repairs operating expenses -- CT can collect contribution from ther CT for paying more than own share of necessary expenses (taxes/mortgage); if only 1 CT in possession can only collect if amout expended \> FMV repairs/improvements -- cant compel to share unless necessary or partition action (no right to reimburse but can get credit in partition) Partition -- CT right to unilaterally partition the property. This can be either voluntarily through the parties’ agreement or involuntarily through court action. Courts prefer a partition in kind if the division is practical and fair. If the facts indicated impracticality or unfairness, the court would sell the property at a public auction and split the proceeds equally. (TiE cant partition) generally no fid duties owed but can be if jointly purchase in reliance on EO or get from common source (devise/gift)

Answer 111

Possession -- right to possess equally, not required to pay rents or share profits derived from, if one refuses to let other in cas bring action for ouster (value of time outsted and/or injuries) 3P rents -- CTs must split rent but can decrease rent by operating expenses paid including necessary repairs operating expenses -- CT can collect contribution from ther CT for paying more than own share of necessary expenses (taxes/mortgage); if only 1 CT in possession can only collect if amout expended \> FMV repairs/improvements -- cant compel to share unless necessary or partition action (no right to reimburse but can get credit in partition) Partition -- CT right to unilaterally partition the property. This can be either voluntarily through the parties’ agreement or involuntarily through court action. Courts prefer a partition in kind if the division is practical and fair. If the facts indicated impracticality or unfairness, the court would sell the property at a public auction and split the proceeds equally. (TiE cant partition) can agree not to partition if clear and limit reasonable generally no fid duties owed but can be if jointly purchase in reliance on EO or get from common source (devise/gift)

Answer 112

prohibits discrimination in sale, rental, financing of homes and housing and related activities/txns need proof of discrimination -- racial only disparate impact, not intent but must show P action caused disparate impact) exemptions: (1) owner occupied w/ less than 4 units (incl owner) (2) single fam housing sold/rented w/o broker (3) religious org/private club (4) elderly comms -- but (1) and (2) not exempted from discrimination in ads Protected classes: race/color/relig/nat origin/sex disability/fam status

Answer 113

A tenancy for years is an estate measured by a fixed and ascertainable amount of time. Termination occurs automatically upon the expiration of the term; no notice is required. Any right to renew the agreement must be explicitly set out in the lease. Notice by the tenants that they are leaving the premises early does not terminate the tenancy

Answer 114

repetitive, ongoing estate measured by a set period but no termination date. term -- can be fixed by parties or determined by actions; auto renews until one party gives notice creation: express agreement, implicit, operation of law (holdover), SOF applies if initial term is 1 yr termination/notice -- notice required to terminate bc renewal is automatic (must be given B4 beginning of last intended period; if year to year - Six months’ notice is required) if notice is late terminates next period oral notice sufficeint @cl, some statues require writing

Answer 115

A tenancy at will is a leasehold estate that may be terminated by either the landlord or the tenant. Term -- no specific term, as long as they desire creation -- express agreement of parties or by implication if owner allows T to occupy; unless express, payment by T and acceptance by LL transforms it into periodic termination-- by LL or T at any time for any reason, terminates by law at either death, waste/assignment by T, or transfer to 3P by L If only one party is expressly given the right to terminate the leasehold, the lease may, when taking into account all other circumstances, be unconscionable. If only LL has right, T also gets right by implication but not vice versa notice -- @CL any party can end w/o notice but T need reasonable time to vacate; now usu 30 days

Answer 116

holdover tenancy, exists only after the expiration of lease when T remains on premises w/o LL permission creation -- actions by T termination -- T vacate or LL evict or binds to new tenancy T owes LL rsnb value of daily use (usu measured by old lease) and foreseeable damages

Answer 117

(1) Pay Rent -- duty to pay rent unless: (i) premises destroyed; (ii) LL evicts (complete or partial) as long as T not at fault; (iii) material breach by LL (violate CQE can terminate early and cease payment; IWH violation has options) (2) Avoid Waste -- aff permissive (must keep at pre rental condition unless normal wear and tear) ameliorative (but can do smth if reasoanbly necessary for T to use property in reasoanble manner) cts reluctant to imply LL duty to repair in a residential lease bc no IWH in residential if tthere is a K provision that says tenant must repair --\> T can be liable for damages unless LL caused it, modern trend is if damage significant and T not caused T not liable (3) [if non-residential] repair (4) any obligations in lease

Answer 118

(1) Failure to Pay Rent (maj) L can sue for damages + evict + terminate lease in most states no AR, so LL not entitled to future rent (@CL) could only sue for damages in states that AR applies damages = future rent - (rsnb rental value OR actual rent collected from re letting) late rent -- LL damages; whether can sue to remove depends if material breach or if L waived right to evict by accepting late rent (2) Abandonment -- treated as an offer to surrender rights under the lease LL can either (A) accept -- L terminates and T liab for future rent over, taking back property and reletting treated as acceptance or (B) reject -- T remain liable for rent, most Jx must mitigate damages, LL must give notice (3) Holdover L can accept as periodic OR evict (after T remain post written notice to vacate)

Answer 119

(1) Give Possession -- (most states) no obligation to pay rent if LL fail to give actual possession; (some) legal is enough (2) Duty to Repair Residential-- except for T damages, L must repair residential, not commercial (3) IWH (residential) -- LL has obligation to maintain the property such that it is suitable for residential use (health/saftey); T not required to vacate if breach T can (i) refuse to pay rent (if given reasonable time to fix + notice) (ii) fix it and deduct or (iii) defend against eviction (4) CQE -- T has right to quiet use and enjoyment of land without interference from L breached when conduct of LL or someone with superior title prevents T from possessing (not liable for acts of other Ts, except for nuisance in common area); no duty to repair implied (i) Actual Eviction -- L excludes T from premises, lease terminated and T obligation to pay rent ends (ii) Partial -- prevented from possession/use of a portion -- T can seek relief, depends on who caused: (a) if LL--T completely excused from the obligation to pay rent =; (b) if 3P with superior claim -- resonable rental value of premises; (c) if AP'er T not excused from paying rent (iii) Constructive Eviction -- substantial interference caused by L act/fail to act that makes the premises wholly or substantially unusuable for intended purpose --\> T obligation to pay rent excused if : (1) T gives notice (2) adequate time to fix and (3) Vacates within a reasonable time

Answer 120

SOF applies so * (1) must be in writing * (2) signed by party to be charged and * (3) all essential terms (parties named, description of property, price, payment) exception: 2/3 (1) payment of all or part of purchase price; (2) possession (3) substantial improvements [also applies to promise to create interest in RP, assignment rt to purchase RP, option K for sale land, promise to give mortgage lein]

Answer 121

Implied in a real property contract unless it is specifically disclaimed, means title free from defects or unreasonable risk lit (test is whether rsnb buyer would ahve concerns abt mktb) generally not have to deliver MT till closing remedies -- if fail to deliver MT not auto material breach, B must give S reasonable time to cure unless time of essence and defect cant be cured by closing * damages (some Jx limit to out of pocket expenses) some say KP - MV on date of perforance * SP or Recission * SP -- sue for SP with abatement of PP * Recisssionr Liquidated Damages * A non-breaching seller may collect liquidated money damages for costs relating to reselling the property, as long as the seller actually suffered a loss and the liquidated damages are *reasonable*. If K silent, generally assume B get deposit back * Traditionally, many courts have found that a deposit of no more than 10 percent of the purchase price to be reasonable as a liquidated damages amount. (but % is not determinative of reasonableness) * Ct may consider factors such as the * sophistication of the buyer * the nature of the transaction (commercial v. residential) * In addition, a court may refuse to enforce a liquidated damages clause when the seller suffers no actual loss * A non-breaching seller may collect liquidated money damages for costs relating to reselling the property, as long as the seller actually suffered a loss and the liquidated damages are reasonable

Answer 122

_time of essence_ -- not enforced unless part of K or circumstances indicate intent, or other party knows time of essence (so being late generally not groudns to rescind, but liable for breach and can sue for SP) _implied warranty of fitness suitability_ (only new build) -- implied against builder, developer, contractor etc; must be brought w/in reasonable time (several years might be unreasonable); can be waived if clear and unambiguous (cant just waive by saying as is); damages = cost repairs or diff in MV of warranted and what you got if cant fix w/o destroying; can be breached by intentional or neg cond * Most Jx -- warrants use of adequate materials and workmanship, generally covers latent defects * subsequent purchasor can get damages * Minority -- focus on whether defect significantly affects ability of buyer to live * only OG buyer can bring suit _Duty to Disclose Defects_ (all homes); generally cant waive by saying as is * Maj Jx -- duty on seller to tell of all known material defects not readily observable to buyer that would substantially affect value, impact H/S or desirability of residence * if fail to disclose B can rescing or get damages * Other -- misrep/fraud/conceal *

Answer 123

Under the doctrine of equitable conversion, equitable title to RP passes to the buyer upon entering the contract, even though the seller retains legal title, regardless of whether buyer takes possession. Sellers interest is converted by the K into interest in proceeds of the sale, not RP. Absent an agreement or statute to the contrary, the doctrine of equitable conversion applies. Equitable conversion places the risk of loss between the execution of the contract and the closing date on the buyer, regardless of whether the buyer takes possession of the property. * exception when the loss is attributable to the intentional or negligent acts of the seller. * if the seller has casualty insurance on the property, the seller must give the buyer credit in the amount of insurance proceeds against the purchase price. A minority of jurisdictions have adopted the Uniform Vendor and Purchaser Risk Act. Under this act, the risk of loss falls upon the seller when the buyer does not have possession (?)

Answer 124

Valid deeds are governed by the Statute of Frauds and include all necessary terms, such as * the grantor’s signature, * a named grantee, * words of transfer, and * a description of the property. Unlike in a contract, consideration is not required. Fraudulent documents are ineffective to convey title, even if bona fide purchasers rely upon them Physical transfer of a deed is not required and is not conclusive evidence of the grantor's intent. The execution and recording of a deed creates a rebuttable presumption that the deed is to be presently operative. Agent can execute deed, but equal dignities rule applies

Answer 125

In order to acquire ownership of land by adverse possession, the possession must be: 1. **Continuous** * uninterrupted for a specific time, seasonal is fine if consistent with usual use of land * has to be continuous as a TO would do * can tack to previous AP'ers time if in privity (non hostile descent/devise/K/deed) * SOL wont run against disabled person if disab existed at time when entered 2. **Open and notoriou**s * use is such that the reasonable O would be aware * must make use of property as if true owner * not hidden use 3. **Actual** * ****actual entry giving exclusive possession that is O/N, even if only possess part CAP can give you title to whole 4. **Exclusive** * means possessor cannot share the land with the actual owner. 5. **Hostile** * w/o owner permission/adverse to TOs interst * (A) _Most Jx_ -- objective intent to claim land is all needed (“hostile” merely means without the owner’s permission; it does not require that the possessor purposefully seeks to defeat the owner’s title because the intent of the possessor is irrelevat) * (B) _Other J_x -- subjective, two versions * (1) -- need to believe in good faith you have legal right to possess (i.e. some will grant title to a possessor who, in good faith, thought he had the legal right to possess (i.e., believed that the property was not owned or thought that he owned the property) * (2) -- require bad faith (require the intent to be based on bad faith (i.e., aggressive trespass)) 6. **Done for the statutory period** **Other notes:** * AP clock not run against FI holder * title relates back to day entry * Construtive AP -- when you enter under a facially valid will or deed * even if you only posses a portion, CAP can give you title as to the whole if it is reasoanble as to the whole * can get an easment by AP

Answer 126

to transfer RP interest grantor must: * **(1) have present intent to transfer interest** * usually evidenced by delivery of deed --\> presume intent; PER allowed to show lack intent * Physical transfer of a deed is not required and is not conclusive evidence of the grantor's intent. The execution and recording of a deed creates a rebuttable presumption that the deed is to be presently operative. * If grantor keeps deed --\> PER allow in evidence to establish intent * Transfer to #P * transfer to grantor agent is not delivery but transfer to grantee agent is * transfer to 3P with condition not delivery if grantor keeps absolute right to recover deed, but if not, treated like future prop interest * if conditioned upon death, grantor must intend to make present gift * **(2) grantee must accept** * acceptance presumed for beneficial conveyance for value * Acceptance relates back to time deed transfered * if reject, grantor auto gets title back, even if grantee changes mind right after * **(3) SOF** * ID grantor and grantee, grantor signed, words of transfer, description of property

Answer 127

A recording act, regardless of the type of act, protects a grantee who promptly records his interest, regardless of whether the grantee is a purchaser for value or one who acquires title to the property by gift, intestacy, or devise, against persons who acquire an interest in the property after the grantee has recorded his interest * However, no type of recording act protects a subsequent taker for value from a property interest acquired by operation of law, such as property acquired by adverse possession @ CL -- first in time = first in right (race Jx) All of the recording acts require that the later grantee acquired the property for value in order to be protected by the act (not lien/judgment creditor) (1) _Race Jx_ -- first to record prevails, regardless of knowledge of prior conflicting interests (2) _Notice Jx_ -- subsequent purchasers need to only have purchased without notice (at the time they purchased) to prevail, these types protect a subsequent purchaser against interest holders who could have, but failed to, record thier interests * Types of Notice: * (a) Actual -- @ time of conveyance subjective knowledge of prior interest cant prevail in N or RN Jx * (b) Inquiry -- if a reasonable investigation would have disclosed the prior claim said to ahve notice, what would reasonable inspection show (generally tenant on land or documents referenced in chain of title) * (c) Constructive -- properly recorded and appears in chain of title (2) _Race-Notice_ -- requires a subsequent purchaser to take the interest without notice of a prior conflicting interest and be the first to record Shelter Rule -- Under the shelter rule, a grantor who is protected by the act can pass that protection on to a grantee who would otherwise be unprotected (i.e. if first taker took w/o notice)

Answer 128

Under the “estoppel by deed” doctrine, a grantor who conveys a real property interest by warranty deed before actually owning it is estopped from later denying the effectiveness of his deed. Consequently, when the grantor does acquire ownership of the land, the after-acquired title is transferred automatically to the prior grantee. Under this doctrine, title to property acquired by a person who previously had purported to convey the property to another automatically passes to that person; it doesn’t apply if the person gets title before closing.

Answer 129

1. General Warranty - has 6 cov of title; warrants against all possible defects, even those not caused by grantor 1. SAD CRYING ELVIS WANTS QUEEN ANN * Present Covs:(breach is at conveyance) * a) seisin -- owns land as described in deed * b) right to convey -- has rt to transfer title * c) against encumberances -- no unddeclared encumberances against land * Future Covs (run w/ land can be enf by remote grantees) * d) CQE -- right to possession not interfered w by 3P claim to title * e) warranty -- grantor will defend against 3P lawful claim to title * f) further assurances -- will do whatever future acts rsnb necessary to pass title later if detertermine it is imperfeft 2. Special Warranty -- same as general, except grantor only warrants against defects arising from the time he had title 3. Quitclaim -- no cov title, gets no better title than what G had

Answer 130

Under the doctrine of ademption, a devise fails (or is “adeemed”) because the testator no longer owns the property upon death. Under the doctrine of ademption, the transfer of property by a testator subsequent to the execution of a will removes the property from his estate and the devise of the property is adeemed.

Answer 131

the doctrine of lapse applies when a designated beneficiary in a will dies before the testator. The doctrine prevents the devise from passing to the beneficiary's descendants. When the valid portion of the will does not specify a taker of certain property, it passes under the applicable intestacy statute or to residuary if there is one. many states have anti-lapse that saves gift if close relationship + predeceased left issue

Answer 132

Under EoL the devisee of real property is entitled under the common-law doctrine of exoneration of liens to have any outstanding balance of a mortgage or other encumbrance on the property to be paid from the remaining assets of the testator's estate. Note that today, most jurisdictions have abolished this doctrine and property passes subject to any encumbrance.

Answer 133

Deed of Trust -- trustee holds the title for benef (lender), if borrower does not pay or defaults the beneficiary instructs the trustee to sell land and repay the note * MEE-lender cannot purchase property at non-judicial foreclosure sale, but beneficiary-lender can (i.e. bank can buy) Installment Land K -- seller retain title until make last payment * Modern view -- if buyer in default some state treat as mortgage requiring seller to foreclose to clear title * others -- let seller retain o'ship property but restitution to buyer Absolute Deed [MGOR transfers deed to MGEE instead of sec int] -- transfers unrestricted title to RP (may actually be disguised mortgage if obligation created contemporaneously with the transfer, grantor/borrower may prove by CCE, PER ok to establish but can't use oral evidence?) Conditional Sale + Repurchase [O sells property to lender who leases back to owner in exchange for loan and gives buyer option to purchase after loan paid] - RP sold and then leased back to seller; if lease for long time with option to repurchase, may be disguised M. Ct considers (equivalency of lease payment to FMV of prop, liklihood seller leasee will excercise right of repurchase at end If smth is effectively a mortgage, the court is likely to treat it as an equitable mortgage subject to the jurisdiction’s law governing the foreclosure of a mortgage.

Answer 134

By MGOR -- can transsfer by deed/will/sale/intestate * liability-- unless MGEE agrees to release from liability (can be done thru modify loan term, release T of liab, or lender release of impairs RP s2 mortgage)) * (1) T takes S2 * MGOR PL to pay loan obligation * T is not personally liable upon default, but the property may be sold at a foreclosure sale to satisfy the outstanding mortgage loan obligation. * If there is a deficiency after distribution of the sale proceeds, only the MGOR is personally liable for it * (2) T ASSUMES * T+ MGOR liable, but MGOR is secondarily liable (could seek reimbursement from T, if make payment) * If deficiency, MGEE can go after both Generally * a person who acquires property that serves as security for an obligation takes the property subject to the loan * if a deed is silent or ambiguous about the Ts liability on the mortgage, then the buyer is considered to have taken the property subject to the mortgage obligation. * However, if the purchase price reflects the assumption of the mortgage, the purchaser of a mortgaged property who assumes the mortgage cannot assert the defenses of the mortgagor-seller against the enforcement of the mortgage * Due on Sale Clause -- lender can demand immediate payment of full amount due * exceptoins: residential + JT death, will/intestacy, transf to ex spouse divorce, transfer to living trust * Due on Encumbernce -- lender can accelerate M on second M taking out

Answer 135

Equity -- After default on a mortgage obligation, but before a foreclosure sale, the mortgagor may regain clear title to the property under the doctrine of equity of redemption. The mortgagor must pay the amount of the loan obligation currently owed, which, if there is an acceleration clause, can be the full amount of the unpaid loan obligation, plus any accrued interest. * While this right may be waived after the borrower has defaulted, the terms of the mortgage or deed of trust cannot waive this right as a matter of course. Cts dont like clogging this right * equitable right of redemption is not limited to purchase-money mortgages or deeds of trust. Statutory -- A jurisdiction may provide this right by statute to allow additional time for the mortgagor to compensate the party who purchased the property at the foreclosure sale and reclaim the property.

Answer 136

MGEE takes RP when MGOR defaults methods-- judicial supervised sale (most Jx), private supervized sale ( some Jx allow if power of sale clause), or Strict foeclosure most jx allow MGEE to decide to go after MGOR personally or to foreclose, Priorty -- if 2+ Mortgages, foreclosure terminates jr interest and has no effect on senior * senior -- first in time first in right (interest acquired b4 one being foreclosed) * Junior -- all other ones (interest acquired after the one being forclosed * exceptoins * PMM -- mortgage used to get RP has priority over others * recording act exceptoin -- Ms S2 rec act, so recorded int may take over unrecorded one * subordination agreement * M mods and replacements * future advance mortgages (Obligatory Future Advance Mortgage have priority over amounts lended before and after notice of subsequent mortgage) * after acquired property Fx on parties * eliminates MGOR interest except for stat right redemption * purchasor takes free and clear of title except senior M * seniro M not affected * junior interst destroyed, unless they didnt have notice of the sale Generally, upon default of an obligation, a mortgagee may foreclose on any and all parcels of real property of the mortgagor that serve as security for the obligation. If there are junior security interests with respect to some of those parcels of real property, however, those junior interests may petition the court for protection of their interests under the doctrine of marshaling of assets. Under this doctrine, the holder of a senior security interest must first proceed against the property on which there are not any junior security interests, and then against the property on which the junior interest was more recently created, before proceeding against property on which the junior interest was more remotely created. Proceeds (1) costs of sale (2) M being forclosed (3) junior interest holders, if not enough can bring deficiency action unless non recourse loan A person who pays off a loan that is secured by a mortgage in order to protect her own interests acquires the rights of the original mortgagee-lender and may therefore enforce the mortgage. This concept is called “subrogation.” * i.e. so if 2 peeps TICs and one pays entire thing off, then can get contribution from the other * not permitted when full obligation not discharged, if partial Defenses -- M s2 same defenses as underlying obligation secured by M * If T assume --\> cant raise defenses MGOR could have raised

Answer 137

An express easement arises when it is affirmatively created by the parties in writing that is in compliance with the Statute of Frauds (grant or reserve easement in sale) Termination -- In addition to any express terms in the written instrument that allow for termination of the easement, an express easement may be terminated by * an express written release SOF, * merger, * severance (convey apperturant easement separate from land -- extinguish), * abandonment (owner of E acts in way showing aff intent to relinquish right, statement/nonuse not enough), * end necesssity * prescription (holder fail to protect against tresspasser) * estoppel (servient owner changes position to detriment and in reliance on statment of E holder --\> E abandoned) * sale to BFP (E not recorded). Although the expanded use of an easement may be enjoined by the owner of the servient estate if such use is not in conformity with the express terms of the easement or is otherwise unreasonable, however expanded use is not an independent ground for termination of an easement. An express easement need not be supported by consideration. Once created, the easement cannot unilaterally be revoked by the owner of the servient estate.

Answer 138

.In order for an easement by necessity to exist, there must be * a necessity -- prop virtually useless without E * the dominant and servient estates must have once been owned by the same person, and * the necessity must have arisen at the time that the property was severed and the two estates were created. * no prior use needed ends when no longer necessary

Answer 139

(a) prior use/quasi easment * owner of 2 parcels previously used one to benefit the other court can find that upon a transfer the use continues if: * (i) use was continuous/apparent/known * (ii) reasonably necessary to dominant land's use and enjoyment * (iii) common ownership * (iv) quasi-easement used at time of severance (b) recorded plat

Answer 140

1. continuous 2. actual 3. open 4. hostile for statutory period (20 yr at CL) Scope = nature and extent of adverse use

Answer 141

1. good faith 2. reasoanble 3. detrimental reliance on permission (license) by servient estate holder issued to prevent unjust enrichment; look for facts like investing money

Answer 142

priv to use land for specific purpose, freely revocable unless estoppel easement created; can be made w/o consideration or writing, revoked if grantor dies or servient estate transfered

Answer 143

[you need a writing and a PINT for burden to run] In order for a covenant to be enforceable (i.e. burden run, against later person) it must be: 1. Writing (must be in writing) 2. Intent -- with the intent that the duties and rights run with the land, 3. Touch and Concern -- must touch and concern the land, s 4. Notice * Subsequent purchasers must have notice of the covenant (either actual, constructive, or inquiry notice); purchasors w/o notice not bound if protected by recording act 5. Privity * Horizontal Priv -- the parties must have horizontal privity (the estate and the covenant are contained in the same instrument; at time cov entered into some shared property interest apart from cov * Vertical privity (an unbroken chain of ownership from the original parties -- strict VP, takes same estate) For just benefit to run: only need 1, 2, 3 and VP

Answer 144

1. writing (except implied recip serv) 2. intent 3. touch and concern 4. if serv is to be enforced against purchaser: Notice (actual, record, inquiry)

Answer 145

changed circumstances -- restriction no longer makes sense bc drastic change to area since restriction put in laches uncelan hands acquiesence estoppel

Answer 146

(1) purposely -- concious objective to engage in conduct or to cause a certain result (2) knowingly or willfully requires D aware conduct is of nature required by the cfrime or that cirucmstances required by crime exist --\> i.e. aware or know the result is practically certain to occur (3) recklessly -- act with concious disregard of substantial and unjusdifiable risk (4) negligently - D act negligently when D should have been aware of substantial and unjustifiable risk if no mens rea in statute, established if the D acted at least recklessly if mens rea only applies to one element, apply it to all

Answer 147

_Implied Warranty for a Particular Purpose_: A warranty that the goods are fit for a particular purpose is implied whenever the seller has reason to know (from any source, not just from the buyer) that the buyer has a particular use for the goods, and that the buyer is relying upon the seller’s skill to select the goods. Seller need not be a merchant who deals in goods of the kind. * Disclaimer -- may be excluded by general language, but only if it is in writing and conspicuous _Implied Warranty of Merchantability_: a warranty of merchantability is implied whenever the seller of goods is a merchant who deals in goods of the kind sold. To be merchantable, goods must be fit for their ordinary purpose and pass without objection in the trade. A breach of this warranty must have been present at the time of the sale. * Disclaimer: must use the term “merchantability” and be conspicuous, may be disclaimed orally (need not be in writing) Unless the circumstances indicate otherwise, an implied warranty can also be disclaimed by stating that the goods are sold “as is,” “with all faults,” or by using similar language that makes plain that there is no implied warranty IF the buyer, before entering into the contract, has examined the goods or a sample or model as fully as the buyer desires, or has refused to examine the goods, then there is no implied warranty with respect to defects that an examination ought to have revealed to the buyer. An implied warranty can also be excluded or modified by course of dealing or course of performance or trade usage

Answer 148

_Rule_ -- The best evidence rule (also known as the original document rule) requires that the original document (or a reliable duplicate) be produced in order to prove the contents of a writing, recording, or photograph, including electronic documents, x-rays, and videos. A “writing” is defined as “letters, words, numbers, or their equivalent set down in any form.” A “recording” and “photograph” are similarly broadly defined _When does it apply_ -- The best evidence rule applies only when the contents of the document are at issue or a witness is relying on the contents of the document when testifying. The contents of a document are at issue when the document is used as proof of the happening of an event, the document has a legal effect, or the witness is testifying based on facts learned from the writing as opposed to based on personal knowledge _When do you not need OG?_ -- The original is not required, and other evidence of the contents of a writing is admissible if: * (1) All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; * (2) no original can be obtained by any available judicial process or procedure; * (3) the original is in the possession of a party opponent; or * (4) the writing is not closely related to a controlling issue.

Answer 149

Pursuant to FF+C and DPC, state may apply its own substantive law to an issue only if the state has significant contact OR aggregation of contacts with the issue such that the application of its own law is neither arbitrary or fundamentally unfair

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