The rules Flashcards
(228 cards)
1
Q
Authority of Agent to Bind Principal
A
An agent may bind a principal to a contract if the agent is acting within his actual or apparent authority or inherent agency power.
Once a principal is validly bound to a contract by his agent, the principal is liable under the terms if the contract
2
Q
Apparent authority
A
Apparent authority exists when:
(1) a third party reasonably believes that the person/entity has authority to act on behalf of the principal and
(2) The belief is traceable to the principal’s manifestations
a principal holds an agent out as having authority when he:
(a) gives the agent a position or title indicating certain authority
(b) has previously held the agent out as having authority and has not published a revocation of said authority or (c) has cloaked the agent with the appearance of such authority
Apparent authority is not applicable if the third party has actual knowledge that the agent did not have authority
3
Q
Erie doctrine
A
A federal court sitting in diversity jurisdiction Must apply the law of the forum state in which it sits regarding substantive issues. However federal courts are free to apply their own rules to procedural issues.
Choice of law issues are considered substantive; therefore, a federal court sitting in diversity MUST apply the forum state’s choice of law rules
4
Q
Choice of law theory: Traditional vested right approach
A
Under the traditional vested rights approach, the law of the state in which the transaction or event occurred is applied (i.e the place of wrong or injury, where the contract was formed or is to be preformed, or where the real property is located)
5
Q
Choice of law theories: Most significant relationship
A
Under the restatement (second) conflict of laws, the laws of the state having the most significant relationship to the transaction and the parties will govern the action. Under this approach, courts consider various factors dependent on the type of action (i.e torts) to determine the state hat has the most significant relationship to the action
6
Q
Choice of law theories: Interest analysis approach
A
Under the government interest analysis approach, the court weighs the interest of the states involved. Specifically the court
(i) examines the connections that each state has to the parties and events of the litigation
(ii) analyses the difference between the state laws,
(iii) pinpoints the underlying policies behind those state laws and
(iv) Then applies the facts to the law to determine which state has a greater interest in having its law applied
7
Q
Business judgment/duty of care (partnerhsip)
A
A partner owes a fiduciary duty of care to the partnership and the other partners, but this duty is limited. Under the RUPA, a parter is only in breach of the duty of care when he engages in:
(a) grossly negligent or reckless conduct;
(b) intentional misconduct;
(c) a knowing violation of law
if a partner breaches this duty, he may be held personally liable to the partnership for any losses suffered as a result
8
Q
duty of loyalty (partners)
A
Partners owe a fiduciary duty of loyalty to the partnership and the other partners, which requires partners to act in the best interests of the partnership.
Under RUPA, a partner must
(1) account for any property, profit or benefit derived by a partner from the partnership property or business
(2) not have an interest adverse (conflict of interest) to the partnership and
(3) not compete with the partnership (unless partnership agreement allows the partner to do so).
9
Q
Federal question jurisidiction
A
exists if a well pleaded complaint alleges. claim that arises under
(a) federal law
(b) U.S constitution; OR
(c) United states treaties.
The plaintiff must be enforcing a federal right and the federal question of law must be present on the face of the complaint. Raising a defense under a federal law is not sufficient to trigger federal question jurisdiction
10
Q
Citizenship
A
A parties citizenship is determined by their domicile.
A natural person domicile is determined by the party’s
(1) residence
(2) subjective intent to make the state their permanent home ( voter registration, vehicle registration, location of bank accounts and place of employment)
A corporation has dual citizenship and is deemed to be a domiciliary of:
(1) The state of its principal place of business (the corporation’s “nerve center” - where officers direct, control and coordinate the corporation’ activities.
(2) any state where it is incorporated
A partnership/ sole proprietorship, or unincorporated association is deemed to be a domiciliary of the state of every partner or member
11
Q
Diversity of citizenship jurisdiction
A
exists when
(1) There is complete diversity of citizenship between all plaintiffs and defendants (no plaintiff can be from the same state as any defendant)
(2) The amount in controversy exceeds 75,000
12
Q
State sovereign Immunity (11th amendment)
A
The Eleventh amendment prohibits a party from suing a state or state agency in federal court UNLESS:
(a) The state explicitly consents to waive its eleventh Amendment protections
(b) The suit pertains to federal laws adopted under section 5 of the fourteenth Amendment
(c) The suit seeks only injunctive relief against a state official.
The eleventh amendment does not apply to
(a) local government (counties, cities, towns)
(b) federal suits brought by one state against another state and
(c) suit by federal government against a state
13
Q
Governmental action (state action)
A
when alleging a constitutional violation, a plaintiff MUST show that the violation is attributable to government action (also known as state action), which applies to ALL levels of local, state and federal government.
Generally the conduct of private individuals or entities DO NOT constitute state action and is NOT protected by the U.S Constitution
courts will find “state action” for private conduct when the conduct involves either (a) a traditional public function - powers traditionally and exclusively reserved to the government or
(b) when significant government involvement exists to authorise, encourage, or facilitate private conduct that is unconstitutional
14
Q
dormant commerce clause
A
A state or local government may regulate intrastate commerce as long as Congress has not enacted laws on the subject matter. if congress has enacted laws in a particular matter, any state or local laws would be pre-empted by federal law
state and local laws generally cannot pass laws that
(a) discriminate against out of state commerce
(b) place an undue burden on interstate commerce
15
Q
when is a law deemed discriminatory?
A
A law is deemed discriminatory when it is either
(a) facially discriminatory
(b) the law has a discriminatory impact because it favours in state commerce over out of state commerce
state laws that discriminate against out-of-state commerce are Unconstitutional, unless:
(a) the burden on interstate commerce is narrowly tailored to achieve a legitimate, non protectionist state objective ( (there are no less- discriminatory alternatives available or
(b) the state or local government is a “market participant” rather than a regulator of economic activity.
16
Q
scope of article 9
A
Article 9 of the uniform commercial Code (UCC) governs any transaction regardless of its form that creates a security interest, including a security interests in personal property, consignments and a sale of accounts, chattel paper and promissory notes
17
Q
attachment of security interest
A
attachment requires that
(1) that the creditor extend value to the debtor;
(2) The debtor must have rights in the collateral;
(3) and there is a valid security agreement memorialising the security interest
18
Q
perfection of a security interest
A
perfection is obtained by the creditor filing a financing statement with the secretary of state that identifies the collateral and his security interest in it.
Perfection may also be obtained by taking possession or control of the collateral that is providing the security interest
consumer purchase money security interests (PMSI) are automatically perfected
19
Q
intestate succession
A
- if the decedent is survived by ONLY a spouse (no descendants), the surviving spouse will inherit the entire estate
- if the decedent is survived by a spouse AND descendants, the serving spouse will inherit one half or nine third of the decent’s estate with the serving descendants inheriting the rest. Under the UPC, the surviving spouse will inherit the entire estate if All of the descendants are descendants of the surviving spouse.
- in the most states, if the decedent is NOT survived by a spouse, the decent’s surviving descendants will inherit the entire estate equally.
- if the decedent is NOT survived by a spouse OR descendants, the decedent’s surviving parents will inherit the entire estate equally. If there are NO surviving parents, the descendants of the decedent’s parents will inherit the estate
20
Q
Incorporation by reference
A
Incorporation by reference deals with the incorporation of extrinsic documents into the will (rather than pages or portions s of original will). In most states, a document or writing may be incorporated into a will by reference if:
(1) The testator intended to incorporate the document into the will;
(2) The document was in existence at the time the will be executed; AND
(3) The document is sufficiently described in the will.
21
Q
Trustee duty of care
A
The trustee owes a duty to exercise the degree of care and skill as a person of ordinary prudence would exercise in dealing with his own property. In making this determination, the focus is on the trustee’s conduct, not the results of such conduct
22
Q
Premarital contracts
A
- Premarital agreements are contractual agreements that re executed by the spouses prior to the marriage. Generally, such agreements are enforceable UNLESS procured by fraud, duress or coercion.
- Under the Uniform premarital Agreement Act, a pre-martial agreement must be
(1) in writing, and
(2) signed by both parties. The agreement is enforceable without consideration
under the UPAA, a premartial agreement is Not enforceable if the spouse against whom enforcement is sought proves that:
(a) The agreement was made involuntarily
(b) it was unconscionable when executed and before the execution the spouse was
(i) no provided fair disclosure of the property and financial obligations of the other spouse;
(ii) did not waive disclosure in writing and
(iii) did not have knowledge of such information
23
Q
Child custody: best interests of the child Standard
A
Courts determine child custody under the Best interests of the child standard. This is a broad standard that gives discretion to the court.
in evaluating the best interests of the child, a court will evaluate the following
(1) the wishes of the parents
(2) the wishes of the child (for older children)
(3) the age, financial well being and mental/physical health of each parent
(4) the existence of new individuals in each parent’s life and who that person is;
(5) the effect custody will have on the child’s ability to foster relationships with extended family.
(6) history of domestic violence by either party
(7) stability of the child’s home and school environments
(8) anything else that the court believes will be equitable to evaluate
(9) A court cannot award or deprive custody based on a parent’s lifestyle, values or religious beliefs, but may take into account whether such behaviour or conduct would endanger the child
24
Q
division of property
A
In all states, a divorce may divide property without regard to which spouse has title to the property. Most states follow the equitable division of marital property approach, in which marital assets are to be divided by equitable distribution among the parties to a divorce. Other states apply either a community property or common law approach.
in a divorce, a court will divide all property owned by the two spouses into two categories
(1) separate property of each spouse and
(2) marital property owned jointly between the spouses
each spouse’s separate property will NOT be subject to equitable division. A court will pool all marital property and distribute that property between the two spouses. In distributing marital property, the court will look at factors such as duration of the marriage, age of the spouses, earning capacity, lifestyle, income of the spouses and the property which was deemed separate property.
in addition, the services provided by one spouse who stayed at home or put career on hold will be considered in order to reach an equitable vision.
25
Separate property
separate property includes
(a) property and assets acquired by each individual spouse before marriage
(b) gifts and bequests to each spouse as an individual during marriage
(c) property which the spouses agree will be separate property, and
(d) passive appreciation of assets in any of the above categories
26
Martial property
marital property includes all other property acquired during the marriage regardless of whose names on the title of property. In most states, marital property also includes the active appreciation of separate property. Active appreciation includes appreciation caused by the effort of one or both spouses
27
hearsay
hearsay is
(1) an out of court statement
(2) that is offered to prove the truth of the matter asserted.
hearsay is ONLY admissible if it falls under an exception.
A "statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person attended it as an assertion. However if the act DOES NOT assert or communicate anything (i.e crying), it is not deemed a statement fro hearsay purposes
28
non hearsay
if an out of court statement is offered to prove something other than the truth of the statement, it is non hearsay and is ADMISSIBLE.
common non-hearsay statements include
(1) verbal acts of independent legal significance
(2) statements offered to show the effect on the listener
(3) A prior inconsistent statement used to impeach
(4) circumstantial evidence of the speaker's state of mind
29
common law marriage
a valid common law marriage creates marital rights and obligations identical to a ceremonial marriage.
A common law marriage generally requires that the spouses:
(1) live together for a specified amount of time
(2) be legally able to marry
(3) have a present agreement that the two parties are married and
(4) hold themselves out as being married
once formed a common law marriage can only be dissolved through divorce or annulment
- most states will honour a valid common law marriage established in another state (even if not recognised within the state) however a court may refuse to honour a common law marriage when the spouses and marriage have limited contacts to the state where the common law marriage was allegedly established
30
relevancy
To be admissible, evidence must be relevant.
Evidence is relevant if
(1) it has a tendency to make a fact more or less probable than it would be without the evidence;
(2) the fact is of consequence in determining the action.
relevant evidence is admissible unless another rule or exclusion provides otherwise
31
Rule 403 exclusions
Under FRE 403, the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of
(a) unfair prejudice
(b) confusing the issues
(c) misleading the jury
(d) undue delay
(e) wasting time
(f) being needlessly cumulative
evidence is unfairly prejudicial when the evidence is
(1) unnecessary
(2) Might cause the jury to improperly sympathise or dislike a party
32
Negligence
A prima facie case for negligence requires
(1) a duty owed to the plaintiff by the defendant
(2) a breach of that duty
(3) the breach wad the actual and proximate cause of the plaintiff's injuries
(4) damages
to make a prima facie case, a party must offer sufficient evidence so that the tier of fact could reasonably find all the above elements have been met
33
Reasonable person standard
every person owes a duty to act as a reasonable prudent person would act under like circumstances
a reasonable prudent person takes appropriate measures to avoid foreseeable risks.
This duty is owed to all foreseeable plaintiffs.
A person with a physical disability must act as a reasonable person with the disability would act. However a person with below average intelligence or mental disability must act as a reasonable person without the disability would act.
34
Doctrine of Respondent Superior
Under the doctrine of respondeat superior, an employer is vicariously liable for an employee's negligent acts if the employee was acting within the scope of employment when:
(a) performing work assigned by the employer or
(b) engaging in a course of conduct subject to the employer's control
Factors to determine if conduct is within the scope of employment include whether:
(i) it is the kind the employee is employed to perform
(ii) it occurs substantially within the authorized time and space limits;
(iii) it is motivated (in whole or in part) by a purpose to serve the employer. Additionally, conduct is within the scope of employment if it is of the same general nature as that authorized, or incidental to the conduct authorized.
An employee's act is NOT within the scope of employment when
(1) it occurs within an independent course of conduct; AND
(2) is not intended by the employee to serve any purpose of the employer
35
Landlord duties: Duty to mitigate
At common law, a landlord had NO duty to mitigate his damages. However most states now impose a duty on the landlord to take reasonable steps to mitigate his losses.
- if a landlord fails to mitigate, some jurisdictions hold that the tenant is not liable for any rent or damages after the date of abandonment
- if the landlord leases the property to another tenant, the landlord would be able to sue for the difference between the original rent payments and the rent under the new lease as well as any incidental damages
36
Assignment
a lease may be freely assigned Unless a provision in the lease states otherwise. However an assignment can never be for a longer period of the time than the lessor's remaining lease term.
An assignment occurs when a tenant (the assignor) transfers all of his remaining interest in a lease to a third party (The assignee). The assignee is liable to the landlord for rent and all other covenants that run with the land because of privity of estate arises between the assignee and the landlord.
The assignor also remains liable to the landlord for any rent not paid by the assignee because privity of contract continues to exists with the landlord
37
Adverse possession
Adverse possession allows someone in possession of land owned by another to acquire title to that land when the possession of the property is
(1) continuous for the statutory period
(2) open and notorious (to put an owner on notice of adverse possession upon inspection of the land)
(3) exclusive
(4) actual (possess the property as the true owner would);
and
(5) Hostile and under a claim or right (without the true owner's consent)
38
common law v UCC
Article 2 of the Uniform Commercial Code (UCC0 governs all contracts for the sale of goods (goods are things that are movable at the time of identification to the contract, other than money).
The common law governs all other contracts (i.e service or construction contracts)
For mixed contracts, the predominant purpose of the contract determines which law governs. if the predominant purpose is the sae of goods, the UCC will apply. In some states, when a contract divides payment between services and goods, the UCC is applied to the goods section and the common law is applied to the services section
39
expectation damages
The general measure of damages for a breach of contract are expectation damages. Expectation damages arise directly from the breach, and are an attempt to put the non-breaching party in the same position it would have been in but for the breach
to recover, the damages must be
(1) caused by the defendant (actual cause)
(2) foreseeable (proximate cause)
(3) certain (damages cannot be speculative and
(4) unavoidable (the plaintiff must take reasonable steps to mitigate his losses)
40
requirements to form a valid contract
a traditional and enforceable contract is formed when there is
(1) mutual assent ( a vlid offer + valid acceptance)
(2) Consideration; AND
(3) No defenses to formation that would invalidate the otherwise valid contract
41
Larceny
Larceny is the
(1) Trespassory taking
(2) and carrying away
(3) of the personal property of another,
(4) with the intent to permanently deprive the owner of the property.
The intent to permanently deprive must exist at the time of the taking
larceny by trick occurs when one obtains possession of personal property of another by trick of deception
42
Embezzlement
(1) the fraudulent or wrongful,
(2) conversion,
(3) of personal property of another,
(4) by a person with lawful possession of the property
Intent to permanently deprive the lawful owner of the property is required
43
Miranda Analysis
Miranda rights - when a person is in custody, the police MUST inform the person of her miranda rights before subjecting her to a police interrogation.
This includes informing the subjection
(1) she has a right to remain silent
(2) Any statement she makes may be used agains her in court
(3) she has a right to consult an attorney and to have the attorney present during questioning AND
(4) she has a right to have an attorney appointed if she cannot afford one
waiver - a defendant may knowingly and voluntarily waive his miranda rights. the burden is on the government to demonstrate by a preponderance of the evidence that the waiver was made knowingly and voluntarily.
Invocation. The police MUST cease their interrogation if either of the following occurs
(1) the party being questioned affirmatively invokes her right to remain silent; OR
(2) The party being questioned affirmatively invokes her right to counsel
44
specific intent
- This requires that the crime be committed with a specific intent or objective.
- The existence of specific intent cannot be conclusively imputed from the mere doing of an act, but the manner in which the crime was committed may provide evidence of intent
- solicitation
- conspiracy
- attempt
- first degree murder
- assault
- larceny
- embezzlement
- false pretences
- Robbery
- Burgarly
- forgery
45
malice
The intent necessary for malice crimes requires a reckless disregard of n obvious or high risk that the particular harmful result will occur.
- common law murder
- Arson
46
General intent
general intent is a "catch all" category of intent. It requires that the defendant intend to commit an act that is prohibited by law (whether the defendant intended the act's result is irrelevant)
- Battery
- Rape
- Manslaughter
- Kidnapping; AND
- False imprisonment
47
strict liability
strict liability only requires that the defendant voluntarily commit the actus reus (regardless if the defedant's intent)
defences that negate the state of mind are NOT available
- Statutory rape
- selling liquor to minors AND
- Bigamy
48
purposely
a defendant acts "purposely" when his conscious objective is to engage in the conduct or to cause a certain result
49
knowingly or willfully
A defendant acts "knowingly or willingly" when the defendant is aware that his conduct is of nature required by the crime or that circumstance required by the crime exist
50
recklessly
A defendant acts 'recklessly" when the defendant acts with a conscious disregard of substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct. The risk must constitute a gross deviation from the standard of conduct of a law-abiding person.
51
Negligently
a defendant acts "negligently' when the defendant fails to perceive a substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct. The risk must constitute a gross deviation from the standard of conduct of a reasonable person in the same situation
52
14th Amendment Equal protection
The Equal protection Clause of the 14th Amendment (applicable to the states) and the 5th amendment (applicable to the federal government) prohibits the government from denying citizens equal protections of the law
to determine if a discriminatory classification against a group of people exsists, one of the following must be shown
(a) the law is discriminatory on its face
(b) the law is facially neutral, but it is applied in a discriminatory manner
(c) a discriminatory motive when the law is facially neutral but creates a disparate impact
53
Strict Scrutiny
The court will apply strict scrutiny when
(a) a classification is based on a suspect class (race, alienage or national origin)
(b) when the law infringes on a fundamental right for a class of people (i.e right to vote, exercise of religion, have access to the courts, and interstate travel).
under strict scrutiny: the government must show that the classification is necessary to serve a compelling government interest
54
intermediate scrutiny
When a classification is based on a quasi-suspect class (gender, non martital children), the court will apply intermediate scrutiny.
under intermediate scrutiny, the government must show that the classification is substantially related to an important government interest.
The supreme court has held that a state may treat men and women differently and provide separate facilities, BUT the state must demonstrate
(1) an exceedingly persuasive justification for separate treatment
(2) That the facilities are substantially equivalent
55
Rational basis
for all other classes (age, disability, wealth, undocumented aliens), the court will apply the rational basis test.
Under rational basis, the plaintiff must show that the classification is NOT rationally related to any legitimate government interest.
56
1st amendment
Freedom of expression (speech, press, assembly, & association).
The right to anonymous speech and the right not to speak is included within the 1st amendment protections
57
Content based restriction
Restriction based on the speech's subject matter; i.e. disagreement with the message it contains. Can be either content-based on its face or as applied.
⭐️ Subject to strict scrutiny ⭐️
58
Content neutral restriction
Applies neutrally to all content regardless of viewpoint or subject matter.
Ex. time, place, or manner restriction
⭐️ Subject to intermediate scrutiny
59
Public forum
Places historically open to the public for expression (e.g. parks and sidewalks). Can be either traditional or designated.
60
Distinguish traditional vs. designated public forum
Traditional: traditional public areas (e.g. sidewalks, parks, etc.) that cannot be changed into nonpublic forums
Designated: Designated as public forums during certain hours or in general (e.g. municipal meeting rooms). Can be changed into nonpublic forums
61
3 requirements needed for a valid time, place, or manner restriction in a public forum
Restriction is:
Content-neutral;
Leaves open ample, alternative channels of communication; and
Narrowly tailored to serve significant government interest (not compelling gov. interest)
62
non-public forum
Public property that is not open to speech (e.g. schools, jails, airports)
The government may regulate speech is a non-public forum if:
- Viewpoint neutral (**does not need to be content neutral); and
- Reasonably related to a legitimate government purpose
63
religious speech and public forums
The supreme court has held that in a public forum, religious speech is treated equal to non religious speech, and content neutral access rules do not violate the Establishment clause
64
Licensing requirements
Licensing requirements are permitted if:
(1) the government has an important reason for licensing
(2) specific, articulated standards are used to grant the licenses to remove the discretion of the licensing body
(3) procedural safeguards are in place, including assuring a prompt final judicial decision when a license is denied
65
personal jurisdiction
Court's power to exercise jurisdiction over parties or property in the case, limited by the Constitution or statute. Balances justice and fairness with individual rights.
jurisdiction over a defendant normally falls into two categories
(1) the traditional bases of jurisdiction
(2) A state's long arm statue
66
Where is venue proper?
1. District where D resides, if all D's are residents of the state in which the district is located; or
2. District where a substantial portion of events/ property giving rise to the claim occurred;
3. or, if none of these provide basis for venue then → Any district that has PJ over any D
67
Specific jurisdiction
Exists when the claim is related to D's contacts in the forum state. There MUST be a connection with the forum state and the underlying controversey.
Examples include:
- Committing a tortious act in a state
- Signing a contract in a state
68
general jurisdiction
Only exists when D's contacts with the forum state are so continuous and systematic as to render the D essentially at home.
⚠️ General jurisdiction is rare. It typically only exists for corporations in their state of incorporation or principal place of business.
69
Traditional bases of jurisdiction
(a) domicile
(b) transient jurisdiction (presence in the state when served)
(c) consent or
(d) waiver (appearing in the action without objecting to jurisdiction
70
long arm statue jurisdiction
To exert personal jurisdiction over a defendant who is not a resident of the forum state
(1) the forum state must have a long arm statue
(2) The constitutional requirements of due process must be met
Where a state's long arm statue allows personal jurisdiction to the same extent as the Constitution , then the long arm analysis is the same as the constitutional analysis, which requires
(1) that the defendant have sufficient minimum contacts with the forum state
(2) so as not to offend traditional notions of fair play and substantial justice
71
General partnership formation
A general partnership is formed when:
(1) two or more persons;
(2) Associate as co-owners
(3) To carry on a business for profit
- no written agreement or formalities are required
- A person's intent to form a partnership or be partners is not required.
- part ownership/ common ownership of property alone /joint venture is NOT enough to create a partnership
72
Contractual liability of the Partnership
Each partner is an agent of the partnership. Therefore, the actions of every partner that are made within the ordinary course of business to carry on the partnership's business bind the partnership
73
When does Dissolution of a partnership occur?
Unless there is an agreement to the contrary, dissolution occurs upon
(a) notice of the partner's express will to withdraw
(b) an event agreed to in the partnership agreement
(c) an event that makes it unlawful for all or substantially all of the business to continue
(d) judicial dissolution on application of a partner
(e) judicial dissolution on application of a transferee
Dissolution of a partnership does NOT immediately terminate the partnership. Rather the partnership enters a "winding up" phase, which continues until the winding up of the partnership is completed.
74
Choice of law application in Decedents' Estates
The disposition of the decedent's personal property is governed by the law of the jurisdiction of the decent's place of domicile. The disposition of the decedent's real property is governed by the law of the jurisdiction where the real property is located.
75
Full faith and credit
Courts must give full faith and credit to the judicial proceedings of every U.S state and territory, Unless there is a valid defense to recognition or enforcement. Such defenses include
(1) Lack of jurisdiction
(2) Fraud - courts judgment was procured by fraud
(3) Not on Merits - Judgment was not entered on the merits
(4) Lack finality - judgment was not final
76
Express Choice of law in contracts
If a contract does not contain a valid choice of law provision, courts will usually use the vested rights approach or the most significant relationship approach to determine which jurisdiction laws to apply
77
will execution requirement
A will is valid if the specific formalities provided by state law are met. Generally, these formalities require a valid will to be:
(1) in writing
(2) signed by the testator; AND
(3) signed by at least two witnesses.
78
revocation of will by physical act
Three physical acts can revoke a will:
(1) Subsequent Written Instrument. A will can be revoked by either
- A subsequent written instrument that is executed for the sole purpose of revoking the prior will; OR
- A subsequent will/codicil containing a revocation clause or provisions that inconsistent with those of the prior will (only revokes to the extent it conflicts with the poor will).
(2) Cancellation: A will is revoked if the testator, or another person in his presence and at his direction burns, tears, obliterates, or destroys the will WITH the intent to revoke the will. Under the common law, words of cancellation are valid ONLY IF they come in physical contact with the words of the will (e.g words of cancellation are written over the original terms of the will).
(3) Partial Revocation. In the most states, when marks of cancellation (e.g, putting a line through terms in will) are found on a will known to last have been in the testator's possession, a presumption arises that such marks were made by the testator with the intent to revoke. The burden to overcome this presumption is on the party claiming that the devise has not been revoked.
79
ademption
Under the doctrine of ademption, if the subject matter of a specific devise is NOT in the estate at the time of the testator's death, the devise to the beneficiary adeems or fails
At common law, the testator's intentions were irrelevant. However, in most jurisdictions today, a specific devise will adeem ONLY IF the testator intended the devise to fail. If the testator did not intend for a specific devise to fail, the beneficiary is entitled to:
(1) Any property in testator's estate, which the testator acquired as a replacement for a specific devise; OR
(2) A monetary devise equal to the value of the specific devise
80
Perfected vs Unperfected interests
A perfected interest has priority over a conflicting unperfected security interest in the same collateral (even if the unperfected interest is a purchase money interest in inventory
81
Multiple perfected creditors
a) Between multiple creditors, the first to file obtains priority (even if a party files before they perfect for priority purposes).
(b) Some collateral is not subject to the state filing system or cannot otherwise be filed. In these instances, the first to perfect obtains priority.
(c) Generally, knowledge of a prior unperfected interest will not prevent a potential secured party from filing first to obtain priority.
82
Purchase-Money security Interest (PMSI)
Generally, PMSI have priority over prior perfected security interests if the PMSI is properly executed. A PMSI is either:
(1) A security interest held by the seller of collateral to secure payment of all or part of the price; OR
(2) A security interest of a person that gives value to a debtor so that the debtor may acquire
83
Buyers in the ordinary course of business
Buyers in the ordinary course of business are protected even though their interest in the property is created after the attachment or perfection of a security interest.
Buyers in the ordinary course of business take the collateral free of the security interest created by the seller.
84
Modification of spousal support
in most states a spousal support can only be modified where there is a substantial change in circumstances of either party making the prior order unreasonable
- some courts will not permit a modification of spousal support if the change in circumstances was anticipated and voluntary
85
Modification of child support
in most states child support can only be modified where there is a substantial change in circumstances of either party making the prior order unreasonable
- some courts will not permit a modification of child support if the change in circumstances was anticipated and voluntary
- The state that originally issues the child support order has continuing exclusive jurisdiction to modify the order so long as the state remains the residence of the obligee, child or obligor
86
Modification of child custody
In order to modify child custody order, the parent must show that:
1) Circumstances have substantially changed; AND
2) The modification would be in the child's best interest
87
What are the 9 ways to terminate an easement?
1. Abandonment;
2. Destruction of servient estate;
3. Estoppel;
4. Expiration;
5. End of necessity
6. Merger;
7. Prescription;
8. Release; or
9. Severance;
88
What are the 3 types of deeds?
General warranty;
Special warranty; and
Quitclaim
89
Quitclaim deed
Buyer takes the property "as-is," with no warranties, covenants, or promises
90
General warranty deed
Contains 6 present and future covenants of title that cover the property's entire history
Present:
Seisin;
Right to convey; and
Against encumbrances
Future:
Quiet enjoyment;
Warranty; and
Further assurances
91
special warranty deed
Contains the same covenants of title as a general warranty deed, but only for the period of the seller's ownership of the land. Does not contain any warranties for what happened before the grantor took ownership
92
What are the types of recording statutes?
Notice*
Race-notice*
Race
* Most common
93
Shelter Rule
If a buyer receives property from a BFP, they will also be protected as a BFP.
⭐️Enables devisees, heirs, or anyone else who isn't a BFP to gain the same protection as BFP has
94
Name the type of statute: “No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice who shall first record.”
Race-notice
95
Who prevails in a race-notice jurisdiction?
First BFP to properly record
96
Name the type of jurisdiction: "No conveyance or mortgage of an interest in land is valid against any subsequent purchaser whose conveyance is first recorded."
Race jurisdiction
97
Who prevails in a race jurisdiction?
First grantee to record (regardless of whether they are a BFP)
98
Name the type of recording statute: "No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof, unless it is recorded."
Pure notice jurisdiction
99
Who prevails in a notice jurisdiction?
Subsequent bona fide purchaser (regardless of whether she records before the prior grantee)
100
logical relevance
Evidence that has logical tendency to prove or disprove a fact of consequence.
101
What is the hearsay exception for excited utterances?
statement is admissible if it:
Relates to a startling event or condition; and
Was made while the declarant was under the stress of excitement that it caused
Ex. "Oh my gosh, look, the house across the street is on fire!!"
102
What is the hearsay exception for statements made for purpose of medical diagnosis or treatment?
Statement is admissible if it:
Was made to medical personnel (doctors, nurses, anyone involved in treatment);
Was made for - and is pertinent to - medical diagnosis or treatment (e.g. describes medical history; past or present symptoms or sensations; their inception; or their general cause)
103
What are the hearsay exceptions if the declarant is unavailable?
Former testimony;
Statement against interest;
Dying declaration;
Statement of personal or family history; and
Statements against party that caused declarant to be unavailable
104
When is the declarant considered unavailable?
If declarant:
Is exempt because of a privilege;
Refuses to testify despite a court order to do so;
Incapacitated due to either death, physical or mental illness;
Has faulty memory of the subject matter; or
Cannot be subpoened or compelled to attend
105
negligence per se
Negligence that arises from violating a law that was designed protect a specific class of persons from a specific harm.
P doesn't need to show that D was negligent, only that D didn't follow the statute.
106
Elements for negligence per se
Statute imposed duty;
D did not perform duty;
P is a member of a class that the statute was designed to protect; and
Injury caused by D is the type of injury that the statute was designed to protect against
107
Actual cause
Factual cause of P's injuries.
Tests:
"But-for;"
Substantial factor; and
Burden-shifting test
108
What is proximate cause?
Legal limitation on actual cause. Asks: "Is it legally fair to impose liability on D?"
Holds that P's injuries must be foreseeable and a direct consequence of D's actions (i.e. no intervening or superceding causes)
109
"eggshell skull" rule
D is responsible for the full extent of harm he caused, even if extent of damages was not foreseeable.
110
offer
An outward, objective manifestation of willingness to enter into a bargain;
That creates the power of acceptance in the offeree (i.e. nothing left to do except say "yes")
111
Terms required in the offer
1. Parties
2. Subject matter
3. Price
4. Quantity
The only essential term is quantity
112
How and when can an offer be terminated?
1. Counter-offer;
2. Death;
3. Incapacity
4. Lapse;
5. Rejection; or
6. Revocation
An offer can be terminated any time before acceptance
113
Elements of common law murder
Unlawful killing;
Of a human being;
With malice aforethought
114
first degree murder
Killing that is premeditated and deliberate and some felony murders
⭐️ Specific intent crime
115
second-degree murder
Killing with malice but without premeditation and deliberation
116
voluntary manslaughter
An intentional killing that has been downgraded due to mitigating factors such as:
```
Adequate provocation ("heat of passion");
Imperfect self-defense; or
Diminished capacity
```
117
Elements needed to prove "heat of passion" manslaughter
1. D acted in response to provocation that would have lead an ordinary, reasonable-person to lose self control;
2. There was insufficient time to cool off (subjective standard); and
3. D had not cooled off and was "in the heat of passion" at the time of the killing
118
supplemental jurisdiction
Power for courts to hear a claim that does not have SMJ as long as the claim is substantially related to one for which SMJ does exist.
119
If the court has federal question jurisdiction, how do you determine whether supplemental jurisdiction exists?
Ask: Do the claims arise from the same transaction or occurrence? (i.e. share a "common nucleus of operative fact"?)
If yes, supplemental jurisdiction likely exists.
120
In what circumstances may a court decide not to exercise supplemental jurisdiction, even if the requirements are otherwise met?
When:
Claim raises a novel or complex issue of state law;
State law claim substantially predominates;
District court has dismissed all other claims over which it has original jurisdiction; or
In exceptional circumstances, if there are other compelling reasons for declining jurisdiction
121
removal jurisdiction
Allows federal courts to hear cases that are removed from state court to federal court in the same district where the suit is pending.
122
When can a case be removed? (generally)
When P could have filed original complaint in federal court.
⚠️ Federal court must have federal question, diversity, or supplemental jurisdiction over all claims
123
Which parties can seek to remove a case?
Defendants only. P's can never seek to remove, even if the D's filed a counterclaim.
124
When is removal based on diversity jurisidiction allowed?
D is not a citizen of the state in which the action was filed;
It is less than a year after filing; and
Diversity existed at the time of filing and when the notice for removal was filed (unless P dismissed the party who would have destroyed diversity jurisdiction)
125
What are the special requirements for removal based on federal question?
The well-pleaded complaint rule must be satisfied (i.e. the federal question must be presented on the face of the original complaint).
126
What is the rule for removal when there are multiple D's?
All D's must agree to removal, or else case must remain in state court.
127
How does a D seek to remove and within what time frame?
File a notice to remove with state and federal court within 30 days after grounds for removal became apparent (i.e. when D was served with process).
128
What can P do if the removal was improper?
Request remand to state court.
129
Where can a party transfer venue if:
Original venue was proper?
Original venue was improper?
Original venue proper: As long as the new district would also have proper venue, the transfer will be granted if the new district is more convenient for the suit. 28 USC § 1404.
Original venue improper: any district where venue would be proper.
130
If venue is transferred under 28 USC § 1404 (motion/consent of the parties, or convenience), the new court must apply the rules of which court?
The laws of the state of the transferor (original) court, including conflict of laws rules.
131
forum selection clause
Generally, a court will enforce a contractual forum selection clause to transfer venue, UNLESS special factors are present (i.e significant/usual hardships or inequality of bargaining power)
132
doctrine of claim preclusion (res judicata)
Prohibits relitigating the same claim once a final judgment on the merits has been issued.
133
In the pleading stage, when must claim preclusion be raised as a defense?
Since claim preclusion is an affirmative defense, it must be raised in D's answer or else it is considered waived.
134
What are the required elements of claim preclusion?
1. A valid final judgment on the merits;
2. Same parties (same P against same D); and
3. Same claims (arising out of same transaction or occurence)
135
What is issue preclusion ("collateral estoppel)
Prohibits relitigation of issues of fact or law that have been previously determined.
⚠️ Note: Much narrower than claim preclusion (which bars whole claim, not just the issue).
136
What are the requirements of issue preclusion?
1. Same issue was actually litigated and determined;
2. Issue was essential to the judgment (ie if decided on in the opposite way it would change the result of the case);
3. Valid final judgment on the merits;
4. Party against whom preclusion is asserted must have had a full and fair opportunity to litigate the issue in the first suit
137
When is a motion for summary judgment proper?
When, after the close of discovery, when the pleadings and evidence submitted show no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
138
Upon filing a motion for summary judgment, the moving party must:
Make a prima facie showing that:
1. No genuine issue of material fact exists; and
2. Moving party is entitled to judgment as a matter of law
139
After the moving party shows that summary judgment is proper, what is the second step?
Burden then shifts to non-moving party to present evidence showing that a genuine issue of material fact exists.
140
What is the deadline to file a motion for summary judgment?
30 days after discovery has ended.
141
When does no genuine issue of material fact exist?
NO GENUINE ISSUE OF MATERIAL FACT EXISTS WHERE PLAINTIFF'S UNSUPPORTED RECOLLECTIONS DIFFER FROM EVIDENCE PRESENTED BY DEFENDANT.
142
What 5 types of speech can be regulated on the basis of content? (i.e. unprotected speech)
```
Obscenity;
Incitement;
Fighting words;
Defamation; and
Commercial speech
⭐️ Can be regulated as long as statute is narrow, does not need to meet strict scrutiny
```
143
What is the 3-prong test to determine whether speech is obscene?
1. Appeals to "prurient interests;” (community standard)
2. Depicts or describes sexual conduct in a way that is patently offensive to community standards and applicable state law; and
3. Lacks serious artistic, literary, political, or scientific value as determined by national standards
144
When can the government regulate speech that is incitement to violence?
Regulation must be narrowly tailored and only aimed at:
Speech that promotes or directs imminent illegal action; and
Creates a "clear and present danger" of such action
145
fighting words
Substantially likely to provoke an immediate violent reaction (e.g. direct personal insult)
146
Are attempts to limit fighting words constitutional?
Limitations will almost always fail for being either overbroad, vague, or viewpoint-based and thus failing strict scrutiny
147
commercial speech
Speech whose primary goal is commerce (e.g. commercial or advertisement for a product or service)
148
What is the four-part test to determine whether regulation of commercial speech is constitutional?
Must satisfy Central Hudson Test:
1. Speech is not false, misleading, or illegal;
2. Regulation serves substantial government interest;
3. Regulation directly advances interest; and
4. Regulation is not more extensive than necessary to serve that interest
149
What is unprotected commercial speech?
Speech that is misleading, false, or unlawful and can be regulated freely by the government
150
What does the Commerce Clause give Congress the authority to regulate?
Two broad categories:
Interstate commerce:
- Channels (highways, waterways);
Instrumentalities (cars, ships, trucks, airplanes);
- Articles moving in interstate commerce; and
- Activities that substantially affect interstate commerce
Intrastate commerce:
- Economic activities: must substantially affect commercial activity in the aggregate
- Non-economic activities: must substantially and directly affect commercial activity (higher burden)
151
What does commerce mean?
The majority of activities between two states (e.g. TV, radio, traffic, crops, marijuana, etc)
152
Takings Clause
Prohibits government seizure of property without just compensation (Fifth Amendment). Also called "eminent domain."
Two types: possessory and regulatory.
153
Is the Takings Clause applicable to states?
Yes, via the Fourteenth Amendment
154
What types of property interests are protected by the Takings Clause?
Real property interests:
Fee simple
Easement
Leasehold estate
Mortgage/lien
Personal property:
Patent rights
Trade secrets
Contracts
155
What is a regulatory taking and what factors does the court weigh when determining if a regulatory taking occurred?
A government regulation that is so burdensome it essentially amounts to taking.
To decide if taking occurred, court weighs:
Economic burden on the owner;
Extent of interference with owner's reasonable use and enjoyment; and
Whether or not the taking benefits society
156
What are two brightline types of regulations that constitute a taking? ("per se" takings")
If regulation results in:
1. Permanent physical occupation (no matter how minimal); or
2. Deprivation of all economically viable use of the property
⚠️ Must deprive the owner of all economic value, a severe decline in value does not constitute a taking absent other factors (ex. prohibiting structures to be built on an island where you want to build your beach home probably constitutes an unconstitutional taking)
157
Takings for public use are subject to what level of scrutiny?
Rational basis review
158
What constitutes "just compensation" for a taking?
Fair market value of the property at the time of taking, measured in loss to the owner
159
Derivative claim
A derivative claim is a lawsuit brought by a shareholder on behalf of the corporation.
The shareholder is suing to enforce the corporation’s rights when the corporation has a
valid cause of action, but has failed to pursue it. This often occurs when the defendant
in the suit is someone close to the corporation (e.g., a director or officer).
160
demand prior to derivative action
Generally, a shareholder must make a written demand on the board before
commencing a derivative action. After submitting the written demand, the shareholder
must wait 90 days to file the derivative action, UNLESS the board rejects the demand
during the 90-day period.
(1) However, under the common law, and in some jurisdictions today, the plaintiff
shareholder does NOT have to make a demand on the board if it would be futile
to do so (e.g., the board is interested in the transaction being challenged).
161
Derivative claim damages
If a derivative claim is successful, the proceeds go to the corporation, not the
shareholder who brought the action. However, if the award to the corporation benefits
the defendants, the court may order that damages be paid directly to the shareholder.
162
Piercing the corporate veil
Courts allow for a creditor to pierce the corporate veil and hold a shareholder personally liable for the debts of a corporation when:
(1) The shareholder has dominated the corporation to the extend that the corporation may be considered the shareholder's alter ego
(2) The shareholder failed to follow corporate formalities
(3) The corporation was undercapitalized
(4) There is fraud or illegality present
163
Testamentary trusts
a testamentary trust is a trust that enters into existence upon the death of a person and disposes of their property. Such trusts must be executed with the same formalities as a will.
in order to create a testamentary trust:
(1) the will must state the essential trust terms (beneficiaries, purpose and trust property)
(2) intent to create a trust must be found from either (a) the express terms of the will or (b) incorporation by reference of a document/writing in existence at the time the will was created
164
Express trust
An express trust is created when a person who has the intent to create a trust and complied with the requisite formalities to create that trust
165
modification of trust by settlor
UTC: trusts presumed revocable and amendable unless terms expressly state otherwise.
Power to revoke includes power to modify
166
modification of trust by beneficiaries
may terminate or modify if
a. settlor and all beneficiaries consent, even if it conflicts with a material purpose or
b. all beneficiaries consent, and no material purpose would be frustrated.
- representative can be appointed to represent interests of minor, unborn or ascertained beneficiaries.
- in most states spendthrift trust cannot be terminated without settlor's consent
167
modification of trust by trustee
May terminate if trust property is less than 50,000 and is insufficient to justify administration costs
168
modification of trust by court
1. May modify if trust could have been modified if all beneficiaries had consented and interests of non-consenting beneficiaries will be protected
2. May terminate or modify if circumstances unanticipated by settlor threaten trust purpose
3. May modify if continuation of trust is impractical or wasteful
4. May modify or terminate if value is insufficient to justify administration cost or achieve tax objective
5. May reform to reflect settlor's intent if clear and convincing evidence shows settlor's intent and trust were affected by mistake
169
Collateral
Generally, in an article 9 transaction, personal property or fixtures secure the payment of a debt or insure performance of a contract obligation with the property serving as collateral
170
what are the different types of collateral?
Goods- things that are movable when a security interest attaches.
Consumer goods -Goods that are used mainly for personal, family or household purposes
Inventory - goods that are kept by a person for sale or lease
accounts - covers any right too payment of a monetary obligation, whether or not earned by performance, for property that has been or is to be self (i.e accounts receivable)
171
Right to dispose of collateral
Upon default, a secured party may sell, lease, license or otherwise dispose of any or all of the collateral in its present condition or in any commercially reasonable manner.
sale (Non-judicial Foreclosure)
Strict foreclosure (Purchase rules)
172
sale (Non-judicial Foreclosure)
Upon default, a secured party may dispose of collateral in its possession by the way of sale so long as it is commercially reasonable as to the method, manner, time, place and terms.
Article 9 requires the secured party to send reasonable notification of the time and place of any public to the debtor and any secondary obligor in a timely manner such that the debtor and any secondary obligor have sufficient time to take appropriate steps to protect their interests.
173
Strict Foreclosure (Purchase Rules)
Unless otherwise agreed, a secured party purchase the collateral at a public or public sale only if the collateral is a kind that is customarily sold on a recognized market
174
Elements of felony murder
1. Unintentional and foreseeable killing;
2. Proximately caused during the attempt, commission, or flight from;
3. An inherently dangerous felony (remember BARRK)
175
What are inherently dangerous felonies?
Felonies that create a substantial risk of death or serious bodily harm.
Common: "BARRK"
```
Burglary
Arson
Robbery
Rape
Kidnapping
```
Also, felonious escape (MPC only)
Inherently dangerous felonies can be identified by statute and/or through case law
176
involuntary manslaughter
- Killing committed with gross negligence (criminal); or
| - Killing during the commission of a misdemeanor or other unlawful act
177
gross negligence for the purposes of involuntary manslaughter
When D acts with conscious reckless disregard for serious bodily harm or death (more than ordinary negligence)
178
The 4th Amendment has 2 major parts, it:
Protects the right of the people to be secure from ______ and _______; and
States that warrants must be supported by _______.
The 4th Amendment:
1. Protects people to be secure from unreasonable searches and seizures in their home by the government; and
2. States that warrants must be supported by probable cause
179
What are 4 key questions you should ask when approaching a 4th Amendment question?
1. Was there a search or seizure?
- Was the search or seizure conducted by a government actor?
2. Was there probable cause?
3. Was there a valid warrant?
- Was the warrant defective or did the police act in bad faith?
4. Was there an exception to the warrant requirement?
180
When will actions by a private individual trigger the 4th Amendment?
If the individual acted at the direction of a government agent or pursuant to an official policy
181
What constitutes a seizure under the 4th Amendment
When an officer, by show of physical force or authority, intentionally restrains the liberty of the citizen so that they are not free to leave (objective standard).
In this context, a seizure is also called an arrest.
182
Child support calculation
Parents have an absolute obligation to support their children. Federal law requires every state to provide guidelines to determine the proper amount of child support owed by a non-custodial parent. These guidelines must:
(1) consider the income of the non-custodial parents
(2) provide for the child's healthcare needs; AND
(3) be based on a specifically descriptive numeric criteria
183
Establishing Paternity
Under the Uniform parentage Act, the father child relationship is established between a man and a child by:
(1) An effective acknowledgment of paternity by the man UNLESS the acknowledgment has been rescinded or successfully challenged.
(2) A valid adoption of the child by man; Or
(30 An adjudication of the man's paternity
184
Legitimation by petition
Legitimation is a legal action brought by a biological father to establish his rights concerning his child born out of wedlock.
To establish his rights, the father may file a petition seeking to legitimate his child.
generally, the father must show that he has:
1) Assumed parental responsibilities; AND
2) Established a substantial parent child relationship
185
Legitimation by Marriage
The marriage of the mother and biological father renders the non marital child legitimate so long as the father recognizes the child as his child. Upon valid legitimation (By petition or marriage) the father stands in the same position as any other parent regarding parental and custodial rights with respect to the child.
186
What is a leasehold (landlord/tenant) estate and what are the 4 types?
Estate created & governed by a lease signed between the parties.
Types:
Tenancy for years;
Periodic tenancy;
Tenancy at will; and
Tenancy at sufferance
187
tenancy for years
Tenancy with a fixed starting and ending date.
Also called a "term for years," "fixed term tenancy," or "estate for years"
188
When does a tenancy for years terminate?
Automatically at the end of the fixed period or end date
189
periodic tenancy
Automatically renews at the end of the period with no set end date (e.g. month-to-month lease)
190
How is a periodic tenancy created?
1. Express agreement;
2. Implication; or
- No explicit end date in agreement
3. Operation of law
- Holdover tenant
- Invalid lease
191
holdover tenant
Someone who overstays their lease without the landlord's consent. Also called a tenant-at-sufferance.
192
What is tenancy at will and how is it created?
Tenancy with no specific term that can be terminated at any time by either party.
Created by express agreement (if no express agreement, court will imply a period tenancy)
193
How do you terminate a tenancy at will?
Either:
```
Advance notice by either party; or
By operation of law upon:
- Death of either party
- Waste by tenant
- Assignment by tenant
- Transfer of title by landlord
-Transfer of lease to a third party by landlord
```
194
How do you terminate a periodic tenancy?
Give notice by words or conduct a full period in advance (e.g. if month-to-month, must give one month's notice). If period is one year, then six months notice is required.
Termination is effective on the last day of the period.
195
What actions can the landlord take if they have a holdover tenant?
Refuse to accept payment from holdover tenant (tenant becomes tenant-in-sufferance and landlord can evict); or
Bind the tenant to a periodic tenancy by either:
Accepting rent; or
Giving notice to holdover tenant
196
What actions can a landlord take if the tenant has materially breached their lease and has abandoned the property?
1. Treat as surrender and retake the premises;
2. Ignore & hold tenant responsible for unpaid rent (minority); or
3. Re-lease premises (majority)
197
What is the general rule regarding the admissibility of character evidence in civil cases?
Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. However, evidence may be admitted if the person's character is in issue (e.g. defamation case).
198
When admissible, what are the three ways character evidence can be introduced?
1. Reputation testimony;
2. Opinion testimony; and
3. Specific acts
199
Are prior bad acts admissible to prove D's character and that he acted in conformity therewith?
No, but they may be admissible to show:
- Absence of Mistake;
- Common Plan or Scheme;
- Identity;
- Intent;
- Knowledge;
- Motive;
- Opportunity; and
- Preparation
200
What is the hearsay exception for present sense impressions?
It describes or explains an event; and
Made during the event or immediately afterwards
Ex. "A red car is driving next to us"
201
In Torts, strict liability is only imposed in which 3 scenarios?
1. Abnormally Dangerous activities;
2. Wild Animals; and
3. Defective products
Remember "DAD"
202
Elements needed to establish a prima facie case for strict liability
1. D's activities impose an absolute duty to make safe;
2. Breach of duty;
3. Actual cause;
4. Proximate cause; and
5. Damages
203
Is assumption of risk a defense to strict liability?
Yes, bars recovery
204
Elements of a strict products liability claim
1. D is a commercial manufacturer or supplier of the product;
2. Product was defective;
3. Defect existed when D sold the item;
4. P used the product in an intended or foreseeable way; and
5. Defect was an actual and proximate cause of P's injuries
205
What type of seller cannot be sued on a strict products liability claim?
One-time or occasional seller
206
What are the 3 types of product defects?
Manufacturing defects;
Design defects; and
Warning defects
207
manufacturing defect
Exists when:
1. The product is not produced in an condition intended by the manufacturer; and
2. The condition makes it more dangerous than the ordinary consumer would expect
208
design defect
1. Consumer Expectation test; and
| 2. Risk-Utility test
209
When is there a failure to warn?
When there is an inadequate warning of foreseeable, non-obvious risks of harm
210
When are damages alllowed in strict products liability cases?
When there is either personal injury or property damage.
⚠️ Note: Recovery for only economic loss is not allowed
211
What are the defenses to strict products liability claim?
1. Unforeseeable user
2. misuse/alteration/modification
3. Assumption of risk; or
4. Product changed significantly after it left D's control
212
When is P considered to have "assumed the risk"?
1. P knew of the defect/danger;
2. P comprehended the consequences of the defect/danger; and
3. P voluntarily exposed himself to that danger
213
mirror image rule
| common law
Acceptance must be a mirror image of every single term of the offer.
If any part of the terms are different, it will function as a counter-offer and rejection.
214
Under UCC §2-207, what happens if an acceptance contains "additional or different" terms from the original offer if both parties are merchants?
The terms will automatically become part of the contract, unless:
the terms materially change the contract;
the offeror objects; or
the offer was explicitly limited to the original terms
215
Under UCC §2-207, what happens if an acceptance contains "additional or different" terms from the original offer if both parties are NOT merchants?
Additional terms are not incorporated, but the acceptance is still valid
216
How does one accept a unilateral contract?
1. Full performance; and
| 2. Notice to offeror that you accepted within a reasonable time frame after performance starts
217
Anticipatory repudiation
1. Party's definitive statement indicating it will breach; or
2. Party's voluntary act that renders the party unable to perform its contractual obligations
218
What 3 options does the aggrieved party have when faced with repudiation?
1. Treat repudiation as breach & bring action for damages or specific performace;
2. Ignore the repudiation and continue; or
3. Cancel contract and discharge all obligations and rights from it
219
When can a repudiation not be retracted?
When the other party has:
1. Acted in reliance upon the repudiation;
2. Accepted the repudiation by signaling their acceptance to the breaching party; or
3. Commenced a suit for damages or specific performance
220
Marital action jurisdiction
a) jurisdiction over marital actions is vested solely in the state courts
b) Annulment - under the majority view, a state where either party is domiciled has jurisdiction.
c) Divorce - under full faith and credit clause, a divorce is validly granted in one state is entitled to full faith and credit in other states.
(d) Divisible divorce - A state does not have jurisdiction to divide marital property that is located in another state in the absence of personal jurisdiction over the defendant spouse.
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COL: Substantive v Procedure
A state court will apply the law of the forum state to procedural issues, which include:
- Civil procedure rules
- statue of limitations
- burden of proof
- rebuttable presumptions
For substantive issues, the choice of law rules of the forum state determine which state substantive rule is applied. substantive issues include:
- Choice of law rules,
- Statue of frauds
- irrebutable presumptions
- damages
- statue of limitations that condition a substantive right
- Statue of limitations where a borrowing statue was enacted ( A statue stating that the shorter of two time period applies)
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Vested rights (Contracts)
Under the traditional vested rights approach, the court will apply the law of the jurisdiction where the contract was formed. If the court is examining issues involving the the performance of the contract, the court will apply the law of the jurisdiction in which the performance was due.
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Most significant relationship (Contracts)
Under the second restatement the court will apply the law of the jurisdiction that has the most significant relationship to the contract under the circumstances. In making this determination the court will consider the following factors:
(a) The place where the contract was formed
(b) the place where the contract was negotiated
(c) the place of performance
(d) the location of the subject matter of the contract; AND
(e) The connection of the parties to the forum
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Vested rights (Torts)
Under the traditional vested rights approach, the court will apply the law of the jurisdiction where the injury occurred.
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Most significant relationship (Torts)
Under the second restatement the court will apply the law of the jurisdiction that has the most significant relationship to the Tort claim under the circumstances. In making this determination the court will consider the following factors:
(a) The place of the injury
(b) the place where the conduct that caused the injury occurred
(c) The connection of the parties to the forum; AND
(d) The place where the relationship between the parties is centered.
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Exclusive state powers (10th Amendment)
Reserved powers: The 10th amendment provides that all powers not assigned by the Constitution to the federal government are reserved to the states, or to the people
Federal regulation: The federal government has virtually unlimited power to regulate the states. Generally, congress may regulate the states so as long as it is exercising an enumerated power.
while congress cannot command state legislature to enact specific legislation or administer federal regulatory programs, it may encourage state action through the use of its taxing and spending powers.
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Non-complying disposition of Collateral
When a creditor makes a non-complying disposition of collateral under Article 9, the debtor can:
(1) Recover actual damages:
(2) Recover statutory damages OR
(3) Be subject to judicially mandated disposition
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right to redemption
Generally, a debtor or any secondary obligor has the right to redeem (i.e reclaim) collateral until the secured party has disposed of it or entered into a contract for its disposition.
To redeem collateral, the debtor must:
(1) fulfil all obligations secured by the collateral; AND
(2) pay the reasonable expenses and attorney fees
