VIRGINIA EXAM RULES

Question 1

BIZ Closely held corporation

Answer 1

A closely held corporation is a corporation with only a few shareholders that in some states has distinctive characteristics. In Virginia, it does not represent a distinvely separate corportate form from a regular corporation.

Question 2

BIZ Corporation distributions

Answer 2

Under Virginia law, a distribution when the corporation is insolvent are wrongful. A corporation is considered insolvent for these purposes if its debts exceed its assets, or if making the distribution will prevent the corporation from meeting its liabilities. This rule holds true at any point in a corporation’s life, including during the winding up period after termination of the corporation.

Question 3

BIZ
Director liabiity
Excess distributions

Answer 3

Under securities law, directors are liable for wrongful distributions. If a director votes against or abstains from the vote on an illegal distribution, he/she will not be personally liable. While directors who approve illegal distributions can be held personally liable to the extent such distributions are illegal, they have the right seek indemnification by disgorging such illegal distributions from the shareholders who received them.

Question 4

BIZ BOD

liability defences

Answer 4

A director may avoid liability for corporate decisions by objecting to the action at the meeting at which the decision is made, and by abstaining or dissenting from the action.

Question 5

BIZ BOD

Director liability

Answer 5

Virginia follows the rule of joint and several liability with the right of contribution. Joint wrongdoers are liable severally for their share of the judgment and jointly for the entire amount, subject to the right of contribution.

Question 6

BIZ GP duty of loyalty

Answer 6

General partners owe a fiduciary duty of loyalty to the partnership. The duty of loyalty forbids secret self-dealing with the corporation by the GP.

Question 7

BIZ GP/LP

Definition

Answer 7

A limited partnership is an entity which limits the liability of the limited partners to their contribution to or investment in the partnership. In sharp contrast, however, general partners within a limited partnership remain personally liable for the partnership’s organization, as with a general partnership.

Question 8

CREDIT DISPUTE

Guarantor

Answer 8

A guarantor is liable on a particular obligation if he, for consideration, agrees to guarantee the loan.

A guarantor of collection is secondarily liable on the loan, while a guarantor of payment or a surety is primarily liable on the loan.

Question 9

BIZ LP

Derivative action

Answer 9

Limited partners in a limited partnership are entitled to file a derivative action to protect the rights of the partnership at large. In order to do so, the limited partners must have been limited partners both at the time of the alleged occurrence or transaction and at the time of the institution of the suit. They must also demonstrate that they made a demand upon the general partners to defend the partnership’s rights with regard to that particular transaction and that such a demand failed, or demonstrate why such an action would have been likely to fail if brought. If successful, the recovery from the derivative suit goes to the partnership itself, although the partners can recover reasonable fees and expenses from the partnership.

Question 10

BIZ LP

Liability of limited partners

Answer 10

in general, a limited partner is generally not personally liable for the obligations of the partnership, and is liable only in the amount of their contribution to the partnership.

A limited partner becomes personally liable, however, if he exercises dominion or control over the affairs of the partnership; in such cases, the limited liability ceases to exist.

The limited partner, however, only becomes personally liable to third parties who reasonably believed that he was a general partner and entered into transactions on such a basis.

Question 11

BIZ Partnership defintion

Answer 11

In Virginia, a partnership is an association of two or more persons to carry on as co-owners a business for profit formed under Virignia law, or comparable law of another jurisdiction, and includes, for all purposes of the laws of this Commonwealth, a registered limited liability partnership.

Question 12

BIZ Partnership liability in general

Answer 12

in Virginia, a partnership, whether a general partnership, a limited liability partnership, a registered limited liability partnership or a PLLP , the partnership has the ability to sue and be sued as well as the individual partners.

Question 13

BIZ Partnership Liability PLLP

Answer 13

Virginia law also recognizes professional limited liability partnerships in which professionals may form a partnership for purposes of providing professional services and an individual may limit their exposure to the malpractice of other individual partners in the professional partnership. The individual does not limit their liability with respect to their own malpractice. When converting from a general partnerhsip to a PLLP, a former general partner may only limit their personal liability prospectively from the time that the PLLP is formed. Finally, in Virginia, a partnership, whether a general partnership, a limited liability partnership, a registered limited liability partnership or a PLLP has the ability to sue and be sued.

Question 14

BIZ Liabiilty
Piercing Corporate Veil
Requirements

Answer 14

Under Virginia law, the stockholders and directors of a legal corporation may not be held personally liable for the obligations of the corporation unless:

(1) they agreed to be held liable;
(2) they caused the obligation by their own tort; or
(3) there are grounds for piercing the corporate veil and holding the stockholders liable.

Grounds for piercing the corporate veil include:

(a) abuse of the corporate structure and formalities such that the corporation is merely an alter-ego of one or more of the stockholders;
(b) undercapitalization of the corporation against foreseeable liabilities at the outset of its formation; or
(c) to otherwise prevent the stockholders from using the corporation to commit a fraud or other bad act.

Question 15

BIZ AGENCY

Principal Agent Relationship

Answer 15

In order to have an agency relationship there must be

(i) assent of the parties to be in the relationship;
(ii) a benefit to the principal; and
(iii) control excercised by the principal over the agent.

Question 16

BIZ CORP

Shareholder liability

Answer 16

A corporate creditor can enforce its claim against shareholders personally up to the amount of corporate assets distributed illegally to the individual shareholder.

Question 17

BIZ PARTNER Liability

Who to sue

Answer 17

With a general partnership, all of the individual partners are liable as well as the partnership.

With limited liability partnerships, the individual tort feaser partner can be sued as well as the partenrhship

Question 18

CON Does adding an arbitration clause materially alter a contract?

Answer 18

A Catholic University Law Review article of a half dozen cases in 2016 found that there was a slight bias towards consiering non-material, but the general rule is better described as it is a matter of facts and circumstnatc,es, heavily influenced by industry standards and local business preferences.

Question 19

CON Elements of consideration

Answer 19

Promisee must suffer legal detriment
Detriment must induce promise
Promise must induce detriment

Question 20

CONT FORM
Consideration
Forms of legal detriment

Answer 20

Performance
-Doing something not legally obligated to do

Forbearance
- Not doing something legally allowed to do

Promise to perform

Promise to forbear

Question 21

CONTRACT
Illusory Promise

What is an illusory promise?

Does it constitute consideration in exchange for another promise?

Answer 21

It is a promise in form, but not in substance

It is not consideration for the other promise

E.g., I will buy your house if I decide I want it

Question 22

CONTRACT SOF

What makes a surety contract subject to the statute of frauds?

Answer 22

A surety contract comes under the statute of frauds if it is a promise to the creditor (not the debtor) regarding a debt that is over $500 and does not come due for more than one year (not a promise to pay immediately)..

Question 23

CON FORM

What is the rule regarding moral obligations and consideration?

Answer 23

Modern approach (not in Virginia)

A moral obligation is not a substitute for consideration unless:

• The promisor requested the act
• The promisee expected to be paid

Traditional approach (Virginia)

A moral obligation is not a substitute for consideration

Question 24

CONT FORM

What is the rule regarding past consideration?

Answer 24

Past performance is not valid consideration to create an enforcible contract. An agreement based upon past performance is an unenforceable gratuitious promise

Question 25

CONTRACT When can acceptance be done by mail? When is it effective?

Answer 25

Acceptance by mail is reasonable if: - Offer is by mail - Customary in similar transactions at time and place Acceptance by mail is effective when posted (i.e., dropped in mailbox) (Mailbox rule)

Question 26

CONT CONSIDER | When is consideration adequate?

Answer 26

Courts generally do not inquire to the adequacy of consideration If the consideration is grossly inadequate, there may be some flaw in the bargaining process, such as: Fraud Duress Incapacity

Question 27

CONT FORM | Who lacks capacity to contract?

Answer 27

Infants (minors) - Persons under 18 years old Mental incompetents Person who is either: - Unable to understand in a reasonable manner nature and consequences of transaction - Unable to act in a reasonable manner in relation to the transaction Intoxicated persons - ​Other party has reason to know that by reason of intoxicationt the person is unable to either: - Understand in a reasonable manner nature and consequences of transaction - Act in a reasonable manner in relation to the transaction

Question 28

CONT FORM FORM | How does a party reject an offer?

Answer 28

Expressly Counteroffer (but not mere bargaining) Conditional acceptance Acceptance with additional terms (but not under UCC) Acceptance with conflicting terms (but not under UCC)

Question 29

CONT FORM | Is an advertisement an offer?

Answer 29

Generally, no. Exceptions: ``` An advertisement is an offer if it: Is specific to quantity Indicates who can accept ​An advertisement is an offer it it: Is in the nature of a reward ```

Question 30

CONT FORM CONDITIONS | a "true condition"

Answer 30

A condition that is outside the control of either party

Question 31

CONT FORM | Accepting an offer

Answer 31

By performance or promise Performance - Unilateral contract - performance must be complete - Bilateral contract - performance must begin Promise to perform

Question 32

CONT DISPUTE | Allowable parole evidence

Answer 32

Using the earlier agreement to: - Explain the writing - Establish a defense - Show the writing wouldn't be effective until a condition is met - Add to a writing that is only partially integrated

Question 33

CONT UCC | Are leases covered by the UCC?

Answer 33

Yes, Article 2A

Question 34

CONT LEASE WARRANTY | Are leases subject to the warranty of fitness for a particular purpose

Answer 34

Yes

Question 35

CONT UCC | Resolution of differing terms

Answer 35

Battle of forms in UCC | 8.2-207(b)

Question 36

CONT FULFILL | Buyer liabiity for rejected good

Answer 36

Must be held "with reasonable care" until returned

Question 37

CONT DAMAGE | Can a breaching party recover under quasi-contract?

Answer 37

Majority view YES, if: Not a willful breach For the party's own convenience and financial advantage Minority view NO

Question 38

CONT DISPUTE | Can a contract ever be enforced against a minor?

Answer 38

Yes, under the quasi-contract theory if the contract is for necessaries - i.e., items that the minor needs in order to live Whether soemthing is a necessary is a question of fact

Question 39

CONT DISPUTE | Can a court fill in vague or material terms in a contract?

Answer 39

No. Both common law and the UCC this makes the contract insufficiently definite and clear

Question 40

CONT ASSIGN Can an obligor continue to pay the assignor after an assignment? What if the assignment was gratuitous?

Answer 40

If he does so without notice of the assignment, obligor's debt is discharged If he does so with notice of the assignment, obligor still owes assignee If assignment is gratuitous, acceptance of payment by assignor revokes assignment

Question 41

CONT FORM | Can an offer be assigned?

Answer 41

No Only the person to whom the offer was made, and they must be aware of it So, the power to accept cannot be assigned But, an option can be assigned unless it says otherwise

Question 42

CONT DISPUTE | Can one get attorney's fees in UCC litigation?

Answer 42

Rarely

Question 43

CONT WARRANT | Can packaging create warranty

Answer 43

yes, mercantability warranty that item matches description | must conform to affirmations on container or label 8.2-313(2)(f)

Question 44

CONT FORM | Can silence be acceptance?

Answer 44

Generally, no. Exception: When reasonable to interpret silence as acceptance based on prior course of conduct/past dealings

Question 45

CONT DISPUTE | Can specific performance be invoked in requirements contracts?

Answer 45

Yes, if buyer does not have means to cover Change to UCC 8.2-716 Alternatively position as detinue as identified goods

Question 46

CONT ASSIGN | Can the obligor and assignor modify their contract if there is an assignment?

Answer 46

Yes, until obligor receives notice of the assignment

Question 47

CONT ASSIGN | Can you assign your rights in a requirements contract?

Answer 47

Yes. This does not substantially change the duties of the obligor because you are inherently required to have reasonably proportionate requirements`

Question 48

CONT DISPUTE | Can you retract anticipatory repudiation?

Answer 48

Yes, so long as the other party has not changes its position in reliance

Question 49

CONT DISPUTE | Choice of law details

Answer 49

Contract where contract was made Performance where performance occurred In Virginia, shortest relevant SOL applies

Question 50

CONT UCC DISPUTE | Claim for late delivery as substantial impairment

Answer 50

§ 8.2-612. "Installment contract"; breach. (1) An "installment contract" is one which requires or authorizes the delivery of goods in separate lots to be separately accepted, even though the contract contains a clause "each delivery is a separate contract" or its equivalent. (2) The buyer may reject any installment which is nonconforming if the nonconformity substantially impairs the value of that installment and cannot be cured or if the nonconformity is a defect in the required documents; but if the nonconformity does not fall within subsection (3) and the seller gives adequate assurance of its cure the buyer must accept that installment. (3) Whenever nonconformity or default with respect to one or more installments substantially impairs the value of the whole contract there is a breach of the whole. But the aggrieved party reinstates the contract if he accepts a nonconforming installment without seasonably notifying of cancellation or if he brings an action with respect only to past installments or demands performance as to future installments. !

Question 51

CONT collateral agreement

Answer 51

Admissible despite the parole evidence rule Either: Agreement made for separate consideration Agreement that would naturally be omitted from the writing under the circumstances (i.e., writing is only partially integrated)

Question 52

CONT Condition precedent

Answer 52

A condition precedent is an event or state of affairs that is required before something else will occur. In contract law, a condition precedent is an event which must occur, unless its non-occurrence is excused, before performance under a contract becomes due, i.e., before any contractual duty exists.

Question 53

CONT Condition subsequent

Answer 53

A condition subsequent is an event or state of affairs that brings an end to something else. A condition subsequent is often used in a legal context as a marker bringing an end to one's legal rights or duties. A condition subsequent may be either an event or a state of affairs that must either (1) occur or (2) fail to continue to occur In contract law: A contract may be frustrated on the occurrence of a condition subsequent: in a contract to provide a music hall for a musical performance, the burning down of the music hall may frustrate the contract and automatically bring it to an end.

Question 54

CONT FORM | Conditional gift

Answer 54

May not be a contract if donor gets no personal benefit - not a "bargained for exchange"

Question 55

CONT FORM | Conditions precedent and subsequest`

Answer 55

Contracts may include conditions precedent, the non-occurrence of which excuses performance because the contract duty never arises, thus there can be no breach. Conditions subsequent should be clear in the agreement of the parties. A party must act in good faith in seeking to bring about the condition subsequent, and it must be reasonable (that is, not a condition so unlikely as to make the promise illusory for lack of consideration)

Question 56

CONT DISPUTE SOF | Consequence of failing statute of frauds defense

Answer 56

Can still argue no contract exists on other grounds

Question 57

CONT DISPUTE SOF | Status of contract failing to satisfy statute of frauds

Answer 57

Contract is unenforcible but not illegal

Question 58

CONT DAMAGES | Consequential damages

Answer 58

Any of the following resulting from the breach: Injury to person Injury to property Lost profits

Question 59

CONT Contract construction

Answer 59

Virginia will construe all the agreements to be a single contract. Virginia construe the contract pursuant to the rule that ambiguities in contracts are construed narrowly against the drafter, especially when the drafter is a commercial seller and the buyer is not.

Question 60

CONT FORM | Contract fails for ambiguity

Answer 60

When: - Parties use a material term open to at least two reasonable interpretations - Each party attaches a different meaning - Neither party knows or has reason to know of the other's meaning

Question 61

CONT DISPUTE | Contract fails for mistake

Answer 61

- Both parties are mistaken - Regarding a basic assumption of fact - That materially affects the agreement - And is not a risk that either party bears No relief if mistake is just as to value

Question 62

CONT FORM | Contract formation vs change of entity

Answer 62

Different entity can accept offer

Question 63

CONT DISPUTE | contract provides that all modifications have to be in writing - enforcible?

Answer 63

common law - no | UCC - yes

Question 64

CONT DAMAGES | Damages when non-comforming goods are received

Answer 64

Buyer still entitled for losses after selling as best he can

Question 65

CONT TERM | Death does not terminate what contracts?

Answer 65

Option contract | Part performance of unilateral contract

Question 66

CONT WARRANT | disclaiming warranty of merchantability

Answer 66

requires explicit denial of merchantability | must be conspicuous

Question 67

CONT FORM | Do you need a writing to rescind a contract subject to the statute of frauds?

Answer 67

Generally, not unless: Land contract Sales contract

Question 68

CONT DAMAGES | Does a breach of one installment ever permit the buyer to reject the entire contract?

Answer 68

Only if the breach substantially impairs the value of the entire contract E.g., one beer delivery has e coli so nobody would drink beer from that supplier

Question 69

CONT DISPUTE | Does buying goods from a company in Virginia satisfy for personal jurisdiction

Answer 69

No. Due process minimum countacts is not satisfied by purchase alone.

Question 70

CONT WARRANTY | Does the UCC warranty of merchantability apply to used goods

Answer 70

Yes -

Question 71

CONT DISPUTE | Duress to void a contract

Answer 71

1. Personal duress (e.g., gun to head) | 2. Economic duress (e.g., caterer demands more money day before wedding)

Question 72

CONT DISPUTE | Duty to disclose bad facts

Answer 72

Limited to: Disclosure required by statute Active concealment of negative fact Partial disclosure would be misleading Changed circumstances make previous assertion false Party becomes aware that other party is operating under mistake as to a material fact Confidential or fiduciary relationship

Question 73

CONT WARRANTY | Effect of not ordering what is described

Answer 73

Voids claim of express warranty

Question 74

CONT FORM | Elements of an offer

Answer 74

``` Identity of the offeree Subject matter Price to be paid Time of payment, delivery, or performance Quantity involved Nature of work involved ``` Not all essential

Question 75

CONT FORM | Elements of quasi contract

Answer 75

P has conferred a benefit on D P reasonably expected to be paid D would realize unjust enrichment if P is not compensated

Question 76

CONT SOF FORM | Elements to satisfy statute of frauds

Answer 76

Writing that contains: - Identity of parties - Description of subject matter - All essential terms - Signature by party to be charged

Question 77

CONT SOF DISPUTE | Estoppel to plead statute of frauds

Answer 77

D told P he would draft agreement | P acted in reliance on this

Question 78

CONT DAMAGES | Excuse for failure to cover

Answer 78

Seller's promise of delivering soon

Question 79

CONT WARRANTY | express warranty

Answer 79

Must be a basis of the bargain Words - Must have natural tendency to induce reliance - Not mere puffing Conduct - Use of sample of model

Question 80

CONT FORM | External sources contract terms

Answer 80

Custom and usage Past dealings UCC (if sale of goods)

Question 81

CONT DISPUTE | Factors in parole evidence assessment

Answer 81

Merger or integration clauses How complete it looks How long negotiations were Whether the parties had lawyers

Question 82

CONT DISPUTE | Failure to reject after reasonable opportunity to inspect

Answer 82

Constitutes acceptance

Question 83

CONT INTRO | First line in any UCC essay

Answer 83

XXXXX are moveable goods and thus UCC applies

Question 84

CONT WARRANTY | Fitness for a specific purpose

Answer 84

Only holds if purpose adequately communicated

Question 85

CONT FORM | Fraud in the factum

Answer 85

Misrepresenting document - void

Question 86

CONT FORM | Fraud in the inducement

Answer 86

Lying about the contract contents or meaning or context - voidable

Question 87

CONT WARRANTY | Gaining good title to stolen goods

Answer 87

Not possible. No one in chain ever has good title Good faith purchaser gets void title, not voidable title. UCC 20-403(1)

Question 88

CONT FORM UCC | Goods vs services

Answer 88

"Predominant purpose" test ``` Factors: Price of goods v. services Amount of labor involved Sophistication of labor Does contract contains typical sales language? ```

Question 89

CONT ASSIGN | How can a gratuitous assignment be revoked?

Answer 89

Provided no exceptions apply: - Directly - Death of assignor - Bankruptcy of assignor - Acceptance of performance by assignor - Subsequent assignment by assignor So, last assignee under gift assignment wins

Question 90

CONT WARRANTY | How can a limited warranty fail

Answer 90

Repeated failed attempts results in failure of essential purpose.

Question 91

CONT DISPUTE | How do you determine whether a breach is material and therefore excuses the other party's performance?

Answer 91

Did you basically get what you bargained for? If so, breach is only minor.

Question 92

CONT DIPSUTE | How does a buyer reject goods?

Answer 92

Provide notice to the seller that is: Timely (so seller can cure or preserve the goods) Oral or written

Question 93

CONT FORM | How does a party revoke an offer?

Answer 93

Statement to the offeree indicating an unwillingness to contract Conduct of the offeror that is inconsistent with an intention to contract and - the offeree is aware of the conduct - Must be reliable

Question 94

CONT FORM UCC | If a buyer continues using the goods after rejection, is that always an acceptance?

Answer 94

Yes, unless the use was necessary

Question 95

CONT FORM | If a contract is silent as to what should be done first, what is the presumption?

Answer 95

Sale of goods Each party's performance is a constructive concurrent condition to the other Service contract Service is a constructive condition precedent to payment

Question 96

CONT DISPUTE If a seller's inventory is partially destroyed, how does he decide which orders to fill with the remaining inventory? What rights do the buyers have?

Answer 96

Allocate remaining inventory in a way that is fair and reasonable Buyers can refuse to accept partial delivery, but they then have no breach of contract claim

Question 97

CONT If before performance is due, a party says that he will not perform based on an erroneous belief that the other has breached, what is the result?

Answer 97

Anticipatory repudiation, so the other party is excused from performing and can sue for immediate damages

Question 98

CONT UCC DISPUTE | If buyer fails to pick up goods

Answer 98

Under UCC, after a commercially reasonable time the seller is no longer entitled to price (but still has breach of contract claim)

Question 99

CONT UCC DISPUTE If buyer has the right to reject, what is the effect on risk of loss?

Answer 99

Risk remains on seller until either: Defect cured Buyer accepts despite defect

Question 100

CONT UCC DISPUTE If buyer rightfully revokes, what is the effect on risk of loss?

Answer 100

Risk is on seller to the extent of deficiency in buyer's insurance coverage

Question 101

CONT DISPUTE Is delegation allowed if: Contract prohibits delegation? Contract prohibits assignment?

Answer 101

Yes Yes - prohibition of assignment is prohibition of both assignment and delegation

Question 102

CONT UCC DISPUTE ROL If seller hasn't shipped the goods, and buyer breaches, can risk of loss ever fall on buyer?

Answer 102

Only if seller has identified the goods (i.e., segregated them for delivery), risk is on buyer to the extent of deficiency in seller's insurance coverage

Question 103

CONT DISPUTE Define illegal contract

Answer 103

Subject is illegal (goods) | Purpose is illegal (activity)

Question 104

CONT UCC WARRANTY | Implied warranties of merchantability and fitness

Answer 104

Implied warranties of merchantability and fitness: To disclaim - -Must be conspicuous - -Must mention either: - -- Merchantability - -- General language removing implied warranty - --- E.g., "as is", "with all faults" Exceptions - Course of dealing, course of performance, trade usage - Defects that should have been revealed by examination that seller demanded buyer undertake

Question 105

CONT TPB DISPUTE In a third-party beneficiary relationship, who can sue whom?

Answer 105

TPB can sue promisor Promisee can sue promisor Creditor beneficiary can sue promisee But not regular TPB

Question 106

CONT TPB | In a third-party beneficiary situation, who is the promisor and promisee?

Answer 106

Promisor - Person who renders performance that benefits TPB Promisee - Person bargaining with promisor for TPB's benefit

Question 107

CONT UCC | In a UCC sale of goods contract, what can a party do if they are worried about the other's performance?

Answer 107

- In writing demand adequate assurance of performance - Suspend performance until assurance is received - Treat as repudiation if assurance not received in 30 days

Question 108

CONT UCC | In what form should the buyer make payment?

Answer 108

In the absence of agreement otherwise: Buyer must pay by either: Cash Check Seller can reject check, but must give buyer reasonable time to get cash

Question 109

CONT UCC | Inconsistent terms under UCC

Answer 109

Must be between merchants material differences knoock out - defer UCC default performance constitutes acceptance

Question 110

CONT FORM OFFER | Is a price quotation an offer?

Answer 110

Only if it is sent in response to an inquiry E.g., catalog sent after purchaser says, "I need ten of these, how much will you sell them for?"

Question 111

CONT SOF DISPUTE | Is a promise to pay debt barred by the statute of limitations enforceable?

Answer 111

Only if it is written, and only to the extent of the new promise, and not the original balance due

Question 112

CONT FORM | Is consideration required in a requirements contract

Answer 112

no

Question 113

CONT DISPUTE | Licensing impact on contract

Answer 113

When the license is required to protect public welfare, the contract is illegal When the license is required to raise revenue, the contract is not illegal

Question 114

CONT FORM | Mailbox rule exceptions

Answer 114

Rejection mailed first, rejection received first Acceptance is a counteroffer Acceptance mailed first, rejection received first If offeror relied on rejection, estoppel may apply Option deadline Acceptance must be received by deadline (i.e., mailbox rule does not apply)

Question 115

CONT UCC WARRANTY | Manufacturer warranty exposure personal injury

Answer 115

Anyone who might reasonably be expected to: Use Consume Be affected

Question 116

CONT UCC WARRANTY | Manufacturer warranty liability for consequential loss

Answer 116

Only parties in privity

Question 117

CONT FORM What is offer at auction? Effect of reserve price.

Answer 117

The bid, not the auctioneer asking for bids An auction is with reserve unless the terms state otherwise Auction without reserve Auctioneer obligated to accept highest bid

Question 118

CONT FORM | Partially vs fully integrated contract

Answer 118

Partially integrated - everything in here is final, but not everything is in here Completely integrated - everything in here is final, and everything is in here

Question 119

CONT FORM | Based on pre-existing duty

Answer 119

Common law Performing a pre-existing duty is not consideration for a new promise unless: - Duty owed to a third person (not promisor) - Unforeseen difficulty renders performance vitally different than was was originally agreed upon UCC Article 2 Additional consideration not required for modification if: The party modifying acts in good faith

Question 120

CONT SOF DEFENSES | Promissory estoppel statute of frauds

Answer 120

Modern trend D estopped from raising statute of frauds if: D makes oral promise to P P acts in reliance on this Virginia NO PROMISSORY ESTOPPE

Question 121

CONT UCC | Protection against arbitrary action

Answer 121

UCC standard of good faith and commercial fair dealing

Question 122

CONT UCC DISPUTE | Punitive damages for breach of contract?

Answer 122

No

Question 123

CONT UCC DISPUTE | Punitive damages under UCC

Answer 123

rare. only for willful or wanton conduct

Question 124

CONT FORM | Quasi-contract in Virginia

Answer 124

Under Virginia law, to recover unjust enrichment or "quasi contract" damages, a plaintiff must show that: (1) it conferred a benefit on the defendant; (2) with the reasonable expectation of payment; (3) the defendant knew or should have known of both the benefit conferred and the expectation of payment; and that (4) allowing the defendant to accept or retain the benefit without paying for its value would be inequitable.

Question 125

CONT UCC DISPUTE | Recovery purchase price (buyer)

Answer 125

§ 2-711. Buyer's Remedies in General; Buyer's Security Interest in Rejected Goods. (1) Where the seller fails to make delivery or repudiates or the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract (Section 2-612), the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid - - (a) "cover" and have damages under the next section as to all the goods affected whether or not they have been identified to the contract; or - - (b) recover damages for non-delivery as provided in this Article (Section 2-713). (2) Where the seller fails to deliver or repudiates the buyer may also - -(a) if the goods have been identified recover them as provided in this Article (Section 2-502); or - -(b) in a proper case obtain specific performance or replevy the goods as provided in this Article (Section 2-716). (3) On rightful rejection or justifiable revocation of acceptance a buyer has a security interest in goods in his possession or control for any payments made on their price and any expenses reasonably incurred in their inspection, receipt, transportation, care and custody and may hold such goods and resell them in like manner as an aggrieved seller (Section 2-706).

Question 126

CONT UCC DISPUTE | Rejection of non-conforming goods after sale

Answer 126

Acceptance can be revoked after discovery of defect in use

Question 127

CONT UCC DISPUTE | Remedies avaiable when party fails to perform under requirements contract

Answer 127

Temporary injunction | Detinue with pre-trial seizure

Question 128

CONT UCC DISPUTE Requirements | Seller protection rejected goods

Answer 128

Subject to statutory standard of good faith | Protects against arbitrary rejection of goods

Question 129

SECURED | Requirements to create security interest

Answer 129

give value debtor has rights in the collateral possess collateral or hold an authenticated security agreement

Question 130

CONT UCC DISPUTE revocation of acceptance vs compensatory damages

Answer 130

Can make claims under both. | This is a change from earlier times

Question 131

CONT FORM | Revocation of public offer

Answer 131

Equally publicized retraction

Question 132

SECURE | Rights superior to secured loan

Answer 132

Mechanics lien | up to $1,000 in Virginia

Question 133

CONT SOF FORM Satisfy statute of frauds by performance Real estate specfic

Answer 133

``` In real estate: 2/3 of the following: - Full or part payment - Possession - Improvements ```

Question 134

CONT Scope of Statute of Frauds

Answer 134

"MY LEGS" Contract in consideration of marriage Contract that cannot be performed within one year Promise creating interest in land​ Promise by executor or administrator to pay own funds Contract for the sale of goods $500 or more Promise to act as a surety for the debt of another

Question 135

CONT UCC FORM Shipment contract vs destination contract Which is default?

Answer 135

know this | shipment is default

Question 136

CONT FORM | Signature by email

Answer 136

Uniform Electronic Signatures Act | federal E-sign act

Question 137

SECURE | Signature requirement for financing statement

Answer 137

Only the lender, not borrower. | It is a notice (statement), not a right (loan)

Question 138

CONT SOF FORM | Significance of custom goods

Answer 138

``` Seller has no re-sale recourse Requires - oral order - custom product - performance ```

Question 139

CONT SOF FORM | Marriage contracts covered by SOF,

Answer 139

Must be a promise in consideration of marriage (not just a promise to marry), e.g,. exchange of property

Question 140

CONT SOF DEFENSE | What is the MAIN PURPOSE rule with respect to the statute of frauds?

Answer 140

If a promise to pay the debt of another is for the main purpose of the promisor, it is not within the statute of frauds E.g., main shareholder promises to act as a surety on the debt of the corporation

Question 141

CONT SOF FORM | When does the modification of a contract fall within the statute of frauds?

Answer 141

When both: Contract, as modified, falls within the statute of frauds Modified terms are essential to the contract

Question 142

CONT Statue of Frauds sale of goods

Answer 142

A contract for the sale of goods of $500 or more is within the statute of frauds and generally must be evidenced by awriting signed by the defendant to be enforceable.

Question 143

CONT SOF | Statue of Frauds Custom goods

Answer 143

An oral contract for the sale of goods is enforceable if the goods are specially ordered by the buyer, cannot be resold by the seller in the ordinary course of its business, and the seller has made a substantial beginning of performance.

Question 144

CONT Statute of Frauds

Answer 144

In Virginia, the writing need only establish evidence that an agreement existed.

Question 145

CONT Statute of Frauds Agency

Answer 145

A designation of an agent to execute documents in ones own name that pertain to a document that is subject to the Statute of Frauds is also subject to the Statute of Frauds.

Question 146

CONT Statute of Frauds Part Performance

Answer 146

First, an oral contract is enforceable to the extent that the goods have been received and accepted.

Question 147

CONT SOF UCC | General Requirements

Answer 147

Writing that contains: - Quantity (or output/requirements) - Indication that contract for sale was made - Signature by party to be charged Writing signed by party seeking enforcement - Under UCC 2-201(2), statute of frauds waived if: - - Both parties are merchants - - Writing claims there is a contract - - Writing is signed - - Writing included quantity - - Other party fails to object in 10 days of receipt Part performance of contract for sale of goods - Satisfied statute of frauds: - - To the extent of part performance ​​Specially manufactured goods - Statute of frauds waived if: - - Seller made substantial beginning of manufacture Judicial admission - Statute of frauds waived if: - - Party admits under oath there was a contract

Question 148

CONT DISPUTE WARRANTY | statute of limitations for breach of warranty?

Answer 148

4 years from tender of delivery, unless: Explicitly extended, in which case: 4 years from when breach is discovered or should have been discovered

Question 149

CONT UCC | Statute of limitations warranty UCC

Answer 149

four years 8.2-725(1)

Question 150

CONT UCC DISPUTE | Sue manufacturer as well as seller?

Answer 150

Yes, but limited to x warranty | Must then give separate notice of warranty failure and opportunity to cure

Question 151

CONT FORM TERM OFFER | Termination of offer - causes

Answer 151

Lapse of time Revocation Rejection Death

Question 152

CONT UCC defenses

Answer 152

Not a merchant - infrequent sales | Tardy notice

Question 153

CONT UCC | Defnition of merchant

Answer 153

A person who either: Deals in good of the kind Holds himself out as having knowledge/skill particular to the goods

Question 154

CONT UCC Firm offer duration

Answer 154

3 months unless otherwise stated or less is reasonable

Question 155

CONT SOF UCC

Answer 155

$500 But remember performance - accepting goods validates Also, actual manufacture of custom goods does not require a writing

Question 156

CONT UCC | statute of limitations

Answer 156

4 years

Question 157

CONT UCC FORM | Under the UCC, what happens when conflicting terms are added to a contract?

Answer 157

Majority (including Virginia) Knock out doctrine The conflicting terms cancel each other out, and the UCC fills in the gaps Minority Offeror's terms control and offeree's conflicting terms drop out

Question 158

CONT UCC FORM | Under the UCC, when do additional terms become part of the contracts?

Answer 158

When: Both parties are merchants Additional terms do not materially alter the contract Offeror does not object within reasonable time Otherwise: Agreed terms become part of the contract Disagreed terms are left out

Question 159

CONT UCC DISPUTE | vendor right to cure

Answer 159

tender or delivery by the seller is rejected the time for performance has not yet expired seller may seasonably notify the buyer of his intention to cure and may then within the contract time make a conforming delivery. buyer rejects a non-conforming tender which the seller had reasonable grounds to believe would be acceptable with or without money allowance the seller may have a further reasonable time to substitute a conforming tender. if he seasonably notifies the buyer

Question 160

CONT UCC DISPUTE | vendor right to notice

Answer 160

If not notified promptly, vendor has defense against claim

Question 161

CONT UCC WARRANTY | Implied UCC warranties

Answer 161

Merchantability Fitnesss for purpose Title

Question 162

CONT DISPUTE FORM | Unconscionable contract

Answer 162

judge decides whether at the time of the contracting, there was both: - Procedural unconsionability (i.e., unfair bargaining power) - Substantive unconscionability (i.e., unfair terms)

Question 163

CONT FORM | Under common law, what can you not delegate?

Answer 163

Duties that arise from: Special skills Special reputation

Question 164

CONT FROM | Undue influence in contracts

Answer 164

unfair persuasion rather than coersion

Question 165

CONT FORM | unilateral contract

Answer 165

Contract formed from an offer that requires performance as the method of acceptance Two examples on bar exam: Offer that expressly requires performance Offer of a reward

Question 166

CONT FORM | Usage of trade as part of contract

Answer 166

Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented (a) by course of performance, course of dealing or usage of trade (§ 8.1A-303); and (b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.

Question 167

CONT DISPUTE | valuing quasi contract

Answer 167

Reasonable value of the services rendered (i.e., quantum meruit) Extent to which other party's property increased in value or his other interests were advanced

Question 168

CONT DISPUTE FORM | Voiding contract for unilateral mistake

Answer 168

Generally never, unless: - The mistake was obvious (i.e., the other party knew or should have known about it) - The mistaken party seeks avoidance before the other party relies on the contract (limited to bid situations)

Question 169

CONT ICC WARRANTY | Warrangty of Fitness

Answer 169

Applies to all sellers, not just merchants Goods fit for particular purpose for which buyer relied on person selling Purpose must have been communicated

Question 170

CONT UCC WARRANTY | Warranty of Merchantability

Answer 170

Only by merchants with respect to goods of the kind Goods fit for ordinary purpose for which used

Question 171

CONT WARRANTY | Warranty of Title

Answer 171

Applies to all sellers | Seller has good title

Question 172

CONT WARRANTY | Basic warranty types

Answer 172

1. 1 Express warranty. 1. 2 Implied warranty. 1. 3 Defects In Materials and Workmanship. 1. 4 Satisfaction guarantee. 1. 5 Lifetime warranty. 1. 6 Breach of warranty.

Question 173

CONT What are "goods"

Answer 173

Moveable property 8.2-105(1)

Question 174

CONT DISPUTE | What are incidental damages?

Answer 174

Costs incurred in a reasonable effort to avoid loss resulting from the breach

Question 175

CONT DIPSUTE | What are the consequences of incapacity?

Answer 175

The contract is voidable - i.e., incapacitated party can disaffirm

Question 176

CONT DISPUTE | What are the elements of promisorry estoppel?

Answer 176

Promise Reliance that is both: - Foreseeable - Justifiable Enforcement is necessary to avoid injustice NOT RECOGNIZED IN VA FOR AFFIRMATIVE RELIEF

Question 177

CONT ASSIGN | What are the limits on assignment?

Answer 177

Assignment cannot substantially change the duties of the obligor

Question 178

CONT ASSIGN | What are the requirements for assignment?

Answer 178

Must have language of present assignment I assign, not I promise to assign Must be in writing if: - Wage assignment - Assignment of interest in land - Assignment of choses in action > - -- $5,000 - Assignments intended as security interests

Question 179

CONT ASSIGN What are the requirements for delegation? (Actually, what is not required)

Answer 179

Consent of obligee not required (unlike novation) Consideration not required But: No consideration -Delegate can't be liable Consideration -Delegate can be liable

Question 180

CONT DISPUTE | What are the requirements for revocation?

Answer 180

Noncomformity substantially impairs value to buyer Excusable ignorance of grounds for revocation, or reasonable reliance on seller's assurances Revocation within reasonable time after discovery of noncomformity Revocation before substantial change in condition of goods not caused by defect

Question 181

CONT DISPUTE | What are the ways in which performance can be excused by agreement of the parties?

Answer 181

Modification - Changes duties under the contract - Original duties are discharged immediately - - E.g., paint house three days later Accord and satisfaction - Substitution of performance under the contract - Original duties remain until new performance - - E.g., paint house instead of paying cash Rescission - Discharges all duties under the contract - Some performance must remain on both sides, otherwise no consideration Novation - Substitution of parties under the contract - Original party is excused immediately - Requires agreement of: - - Both parties to original contract - - New party

Question 182

CONT DISPUTE | What happens when a TPB's rights vest?

Answer 182

The promisor and promisee can no longer terminate the TPB's rights

Question 183

CONT What happens when someone without title (i.e., thief) sells or entrusts goods to a merchant, who then sells them to a customer?

Answer 183

The customer does not have good title, and cannot keep the items even if the customer was a buyer in due course

Question 184

CONT DISPUTE What happens when you give goods to a merchant who deals in goods of that kind, and the merchant sells those goods without your permission?

Answer 184

The merchant has the power to transfer all rights of the entruster to a buyer in due course (i.e., good faith purchaser) You just sue merchant for conversion

Question 185

CONT ASSIGN | What if a subsequent assignee notifies the obligor of his rights first?

Answer 185

Majority (American rule) - Does not matter Minority (English rule) - Subsequent assignee gets priority

Question 186

CONT TPB | What if a third party was already a creditor of a promisee when the third-party beneficiary contract was entered?

Answer 186

The third party is a creditor beneficiary

Question 187

CONT DISPUTE | What if one uses goods after revocation of acceptance?

Answer 187

Not proper, but might commecially reasonable Must adjust damages for value of unauthorized use. Create a rental fee as a setoff?

Question 188

CONT DISPUTE | What if P's expectation damages are too speculative to measure?

Answer 188

Reliance damages may be recovered to return the party to the status quo - i.e., costs spent in preparation for performance E.g., profit that would have been earned had the contract been performed may be very speculative, so reimburse the party for costs incurred

Question 189

CONT FORM | What is a condition coupled with a covenant?

Answer 189

Condition that is in some way within the control of one party, and therefore creates an obligation on that party to make a good faith effort to cause the event to occur E.g., obtaining financing

Question 190

CONT FORM | What is a constructive condition?

Answer 190

A condition by operation of law E.g., each party's substantial performance of the contract

Question 191

CONT FORM | What is a force majeure clause?

Answer 191

Excuses performance on the occurence of specific types of events

Question 192

CONT DAMAGE | What is a lost volume seller?

Answer 192

Seller whose supply was greater than demand So, if there is a breach, seller could have sold the original item and another So, seller gets lost profits

Question 193

CONT FORM | What is a sale on approval?

Answer 193

When a buyer takes possession of goods for a trial period Risk does not shift until the buyer formally accepts

Question 194

CONT FORM | What is an installment sales contract?

Answer 194

Requires or authorizes: Delivery in separate lots To be separately accepted

Question 195

CONT DISPUTE What is anticipatory repudiation? What is the effect?

Answer 195

When one party manifests before his performance is due that he cannot or will not perform his duty Effect: Excuses other party's duty to perform Provides an immediate claim to damages for breach Unless non-repudiating party fully performed In which case, must wait until actual breach

Question 196

CONT DIPSUTE | What is negative specific performance?

Answer 196

When a court of equity prevents a party from working for someone else because he breached a service contract

Question 197

CONT UCC WARRANTY | What is required to waive a UCC warranty

Answer 197

Prominent type - bold - capital letters - two sizes larger Specificity as to what waiver is being waived Phrase SOLD AS IS

Question 198

CONT What is the difference between creating a third party beneficiary and assigning your rights?

Answer 198

Assignment substitutes a party, TPB adds someone who can sue

Question 199

CONT DIPSUTE What is the difference between intended and incidental beneficiaries? How can you tell?

Answer 199

Only intended beneficiaries have contract rights as TPB Look at the intention of the parties, including: - Whether TPB is expressly designated in contract - Whether performance by promisor is directly to TPB - Whether TPB has rights under the contract - Relationship between promisee and TPB

Question 200

CONT FORM | What is the difference in terms of the effectiveness of acceptance and revocation?

Answer 200

Revocation - effective when received Acceptance - effective when posted

Question 201

CONT ASSIGN What is the distinction between prohibition and invalidation of assignments?

Answer 201

If the contract only prohibits assignments, the assignor is in breach after assigning, but the assignment is still valid The contract must specifically state that assignments are invalid for that to be the case

Question 202

CONT SOF FORM | What is the equal dignity rule with respect to the statute of frauds?

Answer 202

If a contract is subject to the statute of frauds, and therefore must be in writing, you must have a writing in order to authorize someone else to sign it for you

Question 203

CONT DISPUTE | What is the general measure of damages for ordinary contracts?

Answer 203

Expectation damages - i.e., put the non-breaching party in as good a position as if the contract had been performed

Question 204

CONT ASSIGN | What is the general rule regarding the priority of assignments for consideration?

Answer 204

First in time, first in right, unless: Subsequent assignee takes assignment without notice of prior assignments and it either: Is first to obtain payment from obligor Is first to obtain judgment against obligor Enters into new contract with obligor by novation Gets a token or writing from obligor, surrender of which is required by obligor's contract It can use estoppel against first assignee

Question 205

CONT DISPUTE | What is the remedy for promissory estoppel?

Answer 205

The remedy is limited to what justice requires So, it may be limited to the extent of reliance NOT RECOGNIZED IN VA FOR AFFIRMATIVE RELIEF

Question 206

CONT DISPUTE | What is the rule regarding mitigation?

Answer 206

A party cannot recover damages that could have reasonably been avoided However, a party is not required to take steps that involve: Undue burden Risk Humiliation

Question 207

CONT DISPUTE DAMAGES | What is the standard for determining the reasonableness of damages?

Answer 207

Damages must be reasonably certain (i.e., mathematical precision not necessary)

Question 208

CONT UCC FORM | What is the standard for the performance of sale of goods contracts under UCC Article 2?

Answer 208

Perfect tender - i.e., seller must deliver perfect goods If not, buyer can reject whole, accept, whole, or accept part

Question 209

CONT DISPUTE | What is the standard used if an express condition involves personal taste?

Answer 209

Subjective good faith (i.e., objective reasonable person irrelevant)

Question 210

CONT DISPUTE | What is the standard used to determine if a party satisfied a condition?

Answer 210

Express condition - Strict compliance Constructive condition - Substantial performance

Question 211

CONT SOF FORM | What makes an executor promise subject to the statute of frauds?

Answer 211

Must be a promise by executor to pay his own funds for an obligation of the estate

Question 212

CONT FORM | When are liquidated damages valid?

Answer 212

Liquidated damages are enforceable if: At time of contract, damages difficult to estimate At time of contract, provision reasonable forecast of possible damages

Question 213

CONT DISPUTE | When can a buyer get specific performance for the sale of goods?

Answer 213

Either when: Goods are unique Other circumstances apply - e.g., inability to cover

Question 214

CONT When can a gratuitous assignment not be revoked?

Answer 214

Obligor already performed Assignee obtained a judgment against obligor Assignee entered a new contract with obligor by novation Assignee reasonably relied on assignment

Question 215

CONT When can a party revoke offer

Answer 215

Anytime before acceptance, unless: ``` Option contract Promise to keep offer open Supported by consideration UCC firm offer Contract for the sale of goods Written promise to keep offer open Made by a merchant Reliance Must be reasonably foreseeable Performance ​Must be on a unilateral contract only Must be more than mere preparation ```

Question 216

CONT When can a seller cure an imperfect tender?

Answer 216

Limited remedy clause gives contractual right to cure Time for performance not expired Time for performance expired, but reasonable basis for believing improper tender was acceptable

Question 217

CONT DISPUTE | When can a seller retain rights in goods it sells if it is not paid?

Answer 217

If the seller has either: A security interest A right to reclamation

Question 218

CONT When can partial payment be consideration for a promise to forgive the balance of debt?

Answer 218

Only when the debt is either: Not yet due Disputed E.g., the release of the remaining balance is enforceable if the promisor pays any amount that is either disputed or not due

Question 219

CONT When can price be left out of a contract? When is it required?

Answer 219

Real estate contract Required Because real estate is unique UCC sale of goods Not required Because goods are fungible

Question 220

CONT When do a TPB's rights vest?

Answer 220

Either: When the TPB brings suit to enforce the promise When the TPB materially changes its position in justifiable reliance on the promise When the TPB manifests assent to the promise in a way invited or requested by the promisor and promisee

Question 221

CONT When does an offer terminate?

Answer 221

After a reasonable time under the circumstances 2 years - yes 2 weeks - probably 2 days - no

Question 222

CONT DISPUTE | When does an unpaid seller have a right to reclamation?

Answer 222

When: Credit sale Buyer insolvent when received goods Demand for return made either: - Within 10 days of buyer's receipt - Within reasonable time if buyer lied about solevency

Question 223

CONT When does revocation become effective?

Answer 223

When the revocation is received (i.e., mailbox rule does not apply)

Question 224

CONT When does risk of loss shift when a buyer takes goods on consignment?

Answer 224

Same rules as normal goods (i.e., merchant - receipt; non-merchant - tender)

Question 225

CONT When has a buyer accepted goods?

Answer 225

When, after reasonable opportunity for inspection, buyer indicates that either: - The goods conform - She will keep them even if they don't conform Buyer fails to make an effective rejection Buyer acts inconsistent with seller's ownership

Question 226

CONT When is a party excused by reason of frustration of purpose?

Answer 226

Post-contract occurrence Not reasonable foreseeable at time of contracting Totally or nearly destroys purpose or value of contract Purpose was known to both parties at contracting

Question 227

CONT When is a party excused by reason of impossibility or impracticability?

Answer 227

Post-contract occurence Not reasonably foreseeable at time of contracting Not a risk assumed by either party Renders performance impossible or impracticable Without fault of party seeking to be excused

Question 228

CONT When rejecting goods, does a buyer have to explain why he is rejecting?

Answer 228

Generally, no but he probably should. If the buyer doesn't, the buyer cannot rely on an unstated defect to justify rejection to establish breach: If seller could have cured If both parties are merchants and seller requested in writing for a full and final written statement of defects

Question 229

CONT When the person is specific to the contract E.g., person is necessary to the contract

Answer 229

When the person is specific to the contract E.g., person is necessary to the contract

Question 230

CONT When will a condition be excused?

Answer 230

Look to see if the person protected by the condition (i.e., person who benefits from it) has done or said anything to justify taking it away Failure to make good faith effort to satisfy condition - E.g., obtain financing Estoppel - Person says something before condition arises - Other person changes position in reliance Waiver - Person says something after condition arises

Question 231

CONT When will the courts imply the quantity for a contract?

Answer 231

Requirements contract: -Buyer agrees to buy all of its good faith requirements Output contract: - Buyer agrees to buy all of the seller's good faith output Limitations: - Must be reasonably proportionate to either: - - Stated estimate - - Normal or comparable prior requirements/output

Question 232

CONT Where is a financing statement filed

Answer 232

State Corporation Commission (Richmond) unless there is an exception. Different for a fixture attach property

Question 233

CONT Who has the burden to plead: Condition precedent Condition subsequent

Answer 233

Precedent - plaintiff Subsequent - defendant

Question 234

CONT Why is it necessary to identify installment sales contracts?

Answer 234

Buyer can only reject an installment if there is: Substantial impairment That cannot be cured

Question 235

CONT Wrongful exercise of ownership

Answer 235

constitutes conversion, liable for value not price

Question 236

CREDIT COLLECT | Attachment joint bank accounts

Answer 236

In Virginia, creditors are allowed to attach to bank accounts held in common. If the holders are H/W, each is rebutably presumed to hold 50%. Otherwise, relative ownership is determinied by the net of individual contributions and withdrawals

Question 237

CREDIT | Define Insolvency

Answer 237

In Virginia law, "insolvent" or "insolvency" means incapable of meeting the current demands of creditors or having liabilities which, in total, exceed the book value of assets.

Question 238

CREDIT COLLECTIONS | Filing a Claim - Process

Answer 238

In Virginia, in order for a judgment that has been rendered in favor of a creditor to become enforceable, the creditor must file the judgment in the circuit for which it was rendered for it to be docketed. The judgment is valid and may attach a lien on the debtor's property even if located in a different jurisdiction, however the creditor must enforce through the circuit court in which the debtor's property is located. A creditor may do this through an abstract of judgment in the circuit court where the debtor's property is located. That jurisdiction may then issue a writ of execution for property of the debtor's to be seized in order to pay off the judgment.

Question 239

CREDIT Gratuitious transfer by insolvent

Answer 239

In Virginia, a gratuitious tranfer of assets to antoher party by an insolvement is a voidable transfer, but does not automatically constitute fraud against the creditor.

Question 240

CREDIT Joint Assets

Answer 240

Virginia recognizes tenancy by the entirety which is the co-ownership of property that is reserved exclusively for married couples. In addition, marital property that is owned by both husband and wife is exempt from the claims of individual creditors. Meaning, that creditors of either only the husband or only the wife may not receive payment through a lien on property owned by both husband and wife jointly. The only creditors who may go after the marital property are creditors of the husband and wife jointly.

Question 241

CREDIT Joint Bank Accounts

Answer 241

In Virginia, jointly owned bank accounts may be subject to the individual creditor of one owner if the funds in that account can be reasonably separated from the funds of the other owner. If such funds can be traced to the debtor, the creditor may place a lien on that account despite the joint ownership. there is a rebuttable presumption that the spouses contributed equally to the account,

Question 242

CREDIT Legal status of funds deposited w law firm

Answer 242

Funds deposited with a law firm as credits against future legal fees and expesnese remain property of client until fees earned and expenses incurred. As such the deposit is subject to garnishment by creditors.

Question 243

CREDIT Reaching LLC owned by debtor

Answer 243

A creditor seeking to collect from a debtor can get a charging order against income and distributions to the debtor from an LLC controlled by the debtor, but not against LLC itself.

Question 244

CREDIT Reaching property held tennants in common

Answer 244

If takes more that five years to get satisfcation, can seek partition and sale

Question 245

CREDIT Sale for fair value by insolvent

Answer 245

A sale by of property for fair value by a debtor is not voidable by the creditor if the value of the property is stil held by the debtor in a different form (e.g., cash).

Question 246

CREDIT PRIORITY | Secured Asset PMSI

Answer 246

Under UCC article 9 as applied by Virginia, a purchase money security interest takes priority over a judgment lien if it attaches before the lien and is perfected. A PMSI is created when a secured party gives the debtor value in order to purchase the collateral. Perfection for consumer goods, those used for household or personal use, is automatic upon the attachment of the security interest and is also permanent. However, in Virginia there is a special requirement for cars which require that a lien be registered in the title office in which the car is registered (the Department of motor vehicles).

Question 247

CREDIT COLLECTIONS | Transfers when insolvevent

Answer 247

Transfers by an insolvent to a creditor whose claim predeeded the onset of insolvency are not presumptively fraudulent.

Question 248

CREDIT DISPUTE | Standard of proof for civil fraud

Answer 248

To prove fraud in a civil case requres clear and convincing evidence, a higher standard than the presponderance of the evidence more typical in civil proceedings.

Question 249

CRIM capital murder

Answer 249

willful, deliberate,premeditated | 14 specific situations

Question 250

CRIM Accelerating cause

Answer 250

can change "actual" cause

Question 251

CRIM accessory before the fact – .

Answer 251

one who was not present at the time of the commission of the crime but who encouraged, incited, or aided in its commission, with knowledge of the intent of the principal

Question 252

CRIM accessory before the fact – .

Answer 252

accessory before the fact – . punishable as if a principal in the first degree [Va. Code §18.2-18].

Question 253

CRIM Accomplice liability elements

Answer 253

aiding or abetting | with intent that crime be committed

Question 254

CRIM Accomplice withdrawal

Answer 254

discouraging negated encouraging negating aid required - neutralizing the aid - preventing the crime (call police)

Question 255

CRIM actual causation

Answer 255

"but for" test of relevance of defendant conduct

Question 256

CRIM AGGRAVATED assault and battery

Answer 256

use of a weapon' involves child, elderly, handicapped (vulnerable) intent to commit robbery or rape

Question 257

CRIM Agreement to search vehicle implications

Answer 257

Officer can look anywhere, including glove box and floorboards. Trunk?

Question 258

CRIM Alford plea

Answer 258

an accused to consent to being convicted without admitting that he committed the offense, but acknowledging his awareness of the quantity of evidence against him and that he did not want to take a chance on a jury trial.

Question 259

CRIM alternative insanity defenses

Answer 259

M'Naughten Irresistable impulse Product MPC

Question 260

CRIM an accessory after the fact

Answer 260

learned of the plan and the act only after the fact.

Question 261

CRIM appliction of continuing trespass

Answer 261

relevant to larceny | no relevant to burglary

Question 262

CRIM CRIME Attempt | Elements

Answer 262

Attempt in an inchoate crime. By definition, the crime of attempt is not completed. In the Commonwealth, an attempt occurs when someone 1) has the specific intent to commit a crime and 2) takes a direct act that falls short of committing the ultimate crime.

Question 263

CRIM classes of felonies in Virginia

Answer 263

``` F1: death or life in prison F2: 20 years to life F3: 5-20 years F4: 2-10 years F5: 1-10 years, or up to 1 year and/or up to $2,500 F6: 1-5 years, or up to 1 year and/or up to $2,500 ```

Question 264

CRIM common law arson elements

Answer 264

malicious burning (material wasting)

Question 265

CRIM common law catergories accomplice liability

Answer 265

``` principal first degree principal second degree - present and -- assisting and/or encouraging accessory before the fact accessory after the fact - separate crime after the crime - avoid arrest or conviction ```

Question 266

CRIM common law homicide types

Answer 266

murder voluntary manslaughter involuntary manslaughter

Question 267

CRIM common law mental states

Answer 267

specific intent malice general intent strict liability

Question 268

CRIM Common law theft crimes

Answer 268

``` larceny embezzlement false pretenses larceny by trick robbery ```

Question 269

CRIM CRIME Conspiracy

Answer 269

Conspiracy is an inchoate crime. It is an agreement between two people to commit a felony. It does not matter if the crime is ultimately committed because crime of conspiracy is committed once the agreement is formed. In Virginia, a conspiracy can only be formed between two guilty minds. Additionally, in Virginia, a conspiracy does not require an overt act

Question 270

CRIM Continuing trespass

Answer 270

Wrongful taking of property without intent to steal

Question 271

CRIM "control" of contraband

Answer 271

constructive possession = | close enough to exercise dominion and control

Question 272

CRIM CRIME bribery

Answer 272

giving or receiving a corrupt gift or other offer to/as public official/candidate with intent to influence official acts

Question 273

CRIM CRIME concealing/compounding offences

Answer 273

taking money to compound, conceal, or not presecute | concealing or destroying evidence with intent to hinder prosecution

Question 274

CRIM CRIME elements of common law felony murder

Answer 274

``` guilty underlying felony felony inherently dangerous felony separate from the killing killing during felony or immediate flight must be in furtherance of the felony must be forseeable victim is NOT a co-felon ```

Question 275

CRIM CRIME false imprisonment

Answer 275

unlawful confinement of a person without that person's consent

Question 276

CRIM CRIME False reports

Answer 276

taking money to compound, conceal, or not presecute | concealing or destroying evidence with intent to hinder prosecution

Question 277

CRIM CRIME Homicide - involuntray manslaughter

Answer 277

accidental killing, contrary to intentions, during - the performance of a non-felony - improper performance of lawful act w criminal negligence

Question 278

CRIM CRIME Homicide - Manslaughter

Answer 278

``` unlawful killing without malice (heat of passion) ```

Question 279

CRIM CRIME Homicide Involuntary Manslaughter elements of common law involuntary manslaughter

Answer 279

killing with - criminal negligence - during a crime if not felony murder

Question 280

CRIM CRIME Kidnapping

Answer 280

false imprisonment plus - moving the victim - concealing the victim in a secret place aggravated if purpose is - colllect ransom - commit robbery of rape or if victim is a child

Question 281

CRIM CRIME Kidnapping

Answer 281

``` by force, intimidation, or deception without legal justification or excuse seize, detain, take, transport, secret another person with intent to either - deprive such person of liberty - withold or conceal person from another person, authority, or institution lawfully entitled to his charge ```

Question 282

CRIM CRIME obstruction of justice

Answer 282

attempt to intimidate - witness - officer of the court - law enforcement officer willful false statement or representation - to law enforcement - in the course of an investigation

Question 283

CRIM CRIME perjury and consequence

Answer 283

willful false swearing under oath of material matter OR subsequently giving conflicting testimony under oath on same matter (doesn't matter which is untrue) Added consequences - can not hold public office - can not serve as juror

Question 284

CRIM CRIME resisting arrest

Answer 284

preventing a law enforcement officer, with or without a warrant, from making a lawful arrest

Question 285

CRIM CRIME subornation of perjury

Answer 285

inducing another to give false facts | inducer can be punised as perjurer

Question 286

CRIM CRIME Attempt Common law attempt elements

Answer 286

MPC - substantial act AND corroborative of criminal purpose Common law - "dangerously close" to commission of crime Virginia - like MPC - direct act - with intent to commit crime - but falling short of crime itself

Question 287

CRIM CRIME Attempt Crime not subject to attempt

Answer 287

Reckless crimes Negligent crimes Felony murder

Question 288

CRIM CRIME Conspiracy conspiritor vicarious liability

Answer 288

all acts of co-conspirators related to conspiracy are forseeable as a consequence

Question 289

CRIM CRIME | elements of voluntary manslaughter

Answer 289

``` intentional killing in the heat of passiion after adequate provocation - to arrouse intense passion - without time to cool off ```

Question 290

CRIM CRIME Failure to Act Criminal liability for failure to act

Answer 290

``` legal duty to act - statute - contract - relationship (spouse, child) - assumption of duty - creation of peril knowledge of the facts ability to help ```

Question 291

CRIM CRIME Homicide Degrees of murder - majority view

Answer 291

First degree - any killling with premeditation and deliberation - plus felony murder (enumerated felonies) Second degree - all others

Question 292

CRIM CRIME | inchoate offenses

Answer 292

solicitation conspiracy attempt

Question 293

CRIM CRIME Principals accessory after fact and principal in second degree in felony cases

Answer 293

treated as principals

Question 294

CRIM CRIME Punishment death penalty

Answer 294

actual murderer principals and accessories - murder for hire - terrorism

Question 295

CRIM Crimes attributablle to accomplice

Answer 295

Crimes - aided - encouraged - reasonably should have foreseen

Question 296

CRIM crimes sufficiently specific

Answer 296

crimes against person | crimes against property

Question 297

CRIM Crimes that do not merge

Answer 297

when each crime has an element the other crime does not have

Question 298

CRIM CRIME Solicitation elements of solicitation

Answer 298

asking someone else to commit crime | with intent crime be committed

Question 299

CRIM CRIME Virginia Bad Check "present consideration" versus post-dated check

Answer 299

Post-dated check is not present check

Question 300

CRIM CRIME Virginia Bad Check "present consideration" versus making payment on an existing debt

Answer 300

Can't "take" something you already have

Question 301

CRIM Criminal Generic Answer

Answer 301

Elements | Felony vs Misdemeanor

Question 302

CRIM Deady weapon inference

Answer 302

initional use of deadly weapon creates inference of intent to kill

Question 303

CRIM DEFENSE duress

Answer 303

``` crime committed caused by a third party forced to commit crime under threat of - death - serious physical injuct can not excuse homicide ```

Question 304

CRIM DEFENSE entrapment defense in Virginia

Answer 304

only if - criminal design was originated by government - defendant not predispsed to commit crime in Virginia, can use prior crimes to show predispostion if prior crimes - close in time - similar - probabtive value outweighs prejudice

Question 305

CRIM DEFENSE Insanity Virginia test for insanity

Answer 305

defendant can argue on of these - M'Naughton - Irresistable impulse

Question 306

CRIM DEFENSE Insanity procedural requirements for insanity

Answer 306

Notice to state of intent to plead - at least 60 days prior to trial Burden of proof - prove insanity to the satisfaction of the jury

Question 307

CRIM DEFENSE intoxication in Virginia

Answer 307

involuntary intox a defense to anything - follow insanity rules voluntary intoxication - can be a defense to premeditation

Question 308

CRIM DEFENSE necessity

Answer 308

crime committed to prevent greater harm based on reasonable belief conduct was ncessary, but can not excuse homicide

Question 309

CRIM defense of dwelling

Answer 309

non-deadly - reasonably believed needed to - - prevent unlawful entry - - terminate unlawful entry deadly - reasonably beleived necessary to prvent - - personal attack on self or other - - entry by someone who plans to commit felony Virginia - deadly force only when fearing great bodily injury

Question 310

CRIM defense of others

Answer 310

common law - only if defendant reasonably believed victim had right to self defense Virginia - only if defendant actually had legal right to use self-defense

Question 311

CRIM defense of property

Answer 311

non deadly - need is imminent - while in immediate pursuit deadly - never

Question 312

CRIM DEFENSE | capacity defenses

Answer 312

insanity intoxication infancy

Question 313

CRIM DEFENSE | Impossibility defense

Answer 313

Factual impossibility does not count as defense - pocket has no wallet in it. Legal impossibility does count - baby powder is not heroin no matter what you think

Question 314

CRIM DEFENSE Insanity MPC test insanity

Answer 314

lacked the capacity to either - appreciate the criminality of his conduct - conform his conduct to the law

Question 315

CRIM DEFENSE Insanity test Irresistable impluse test

Answer 315

test xxx

Question 316

CRIM DEFENSE Insanity test product test insanity

Answer 316

was crime a product of his insanity

Question 317

CRIM DEFENSE Insanity Differentiate insanity vs incompetence

Answer 317

commit crime versus stand trial

Question 318

CRIM DEFENSE Insanity M'Naughton test

Answer 318

either: - did not know act was wrong - did nou understand the nature of the act

Question 319

CRIM DEFENSE Involuntary Act Physical act requirement exceptions

Answer 319

``` sleepwalking reflex or convulsion - blackout on meds once, not an act - after that, on notice, so responsible for controlling someone else moves defendant ```

Question 320

CRIM Defenses to accomplice

Answer 320

Mere presence Mere knowledge Victim

Question 321

CRIM DEFENSE Withdrawal Withdrawal from incohate crime

Answer 321

common law - protects only from after-withdrawal crimes MPC - requires - voluntary and complete renunciation - based on change of heart not fear of apprehension

Question 322

CRIM Definitiion of murder

Answer 322

killing with malice.

Question 323

CRIM detaining all persons in stop

Answer 323

always permitted

Question 324

CRIM doct􏰀rine of 􏰀ransferred int􏰀en􏰀t

Answer 324

mens rea remains even though the actus reus was suffered by unintended victim

Question 325

CRIM eggshell victim doctrine

Answer 325

defendent takes his victim as he finds him | pre-existing weakness in victim not a defense in criminal law

Question 326

CRIM element of malicious mischief in Virginia

Answer 326

destroying or damaging the property of another

Question 327

CRIM elements of conspiracy in Virginia

Answer 327

proof beyond a reasonable doubt of 1. an agreement to commit a felony, and 2 the intent by the defendant to commit that felony No overt act required

Question 328

CRIM elements of common law assault

Answer 328

Attempted battery (swing and miss) Fake punch - intentional creation - beyond mere words - reasonable apprehension - imminent bodily harm

Question 329

CRIM Elements of abduction

Answer 329

CRIM \when a person by force or intimidation seizes, takes, transports or detains another person with intent to deprive that person of liberty. Va. Code §18.2-47

Question 330

CRIM elements of common law battery

Answer 330

``` unlawful application of force to another resulting in - bodily injury, or - offensive touching ```

Question 331

CRIM elements of common law burglary

Answer 331

``` breaking entering (some part of body) dwelling (where someone sleeps) of another at night with intent to commit a felony inside ```

Question 332

CRIM elements of common law embezzlement

Answer 332

conversion property of another by person already in lawful possession with intent to defraud

Question 333

CRIM elements of common law murder

Answer 333

``` causing death' of another with malice aforethough - intent to kill - intent do great physical harm - extreme recklessness (depraved heart) - felony murder ```

Question 334

CRIM elements of common law possession

Answer 334

1. control for a long enough period of time to be able 2. to terminate possession 3. of contraband that is specifically criminalized

Question 335

CRIM elements of common law robbery

Answer 335

larceny from a person or in person's presence by force or threat of immediate injury

Question 336

CRIM CRIME | elements of conspiracy

Answer 336

``` agreement between two or more persons to commit a crime plus an overt act in furtherance of the crime (No overt act in Virginia) ```

Question 337

CRIM Elements of embezzlement

Answer 337

Entrustment of possession Taking Intent to permanently deprive

Question 338

CRIM Elements of extortion

Answer 338

Threaten injury in exchange for acquision less that fair value

Question 339

CRIM Elements of extortion in Virginia

Answer 339

Either: - threatening injury to another - accusing another of an office in order to extort money, property, benefit, note - sending note or email threatning to kill or do great bodily harm to victim or family.

Question 340

CRIM elements of false pretenses

Answer 340

``` obtaining TITLE (rather than possession) to the property of another by intentional false statement with intent to defraud ```

Question 341

CRIM Elements of false statement in false pretenses

Answer 341

knowingly false statement regarding | past / present / (future) event

Question 342

CRIM elements of felony homicide

Answer 342

accidental killing while committing a non-enumerated felony - where there is a causal connection

Question 343

CRIM Elements of forgery

Answer 343

making or altering a writing so that it is false with intent to defraud

Question 344

CRIM elements of larceny

Answer 344

``` trespassory (wrong or no permission) taking and carrying away personal property of another intent to permanently deprive (steal) ```

Question 345

CRIM Elements of robbery

Answer 345

taking, with the intent to deprive the owner or custodian, permanently, of personal property, from his person or in his presence, against his will, by force, threat or intimidation

Question 346

CRIM Elements of uttering

Answer 346

offering as genuine a forged instrument with intent to defraud

Question 347

CRIM elements second degree murder

Answer 347

assumed 2nd degree if not raised or lowered

Question 348

CRIM Elements to common law forcible rape

Answer 348

``` Sex w/o victims consent accomplished by - force - threat of force - unconscious ```

Question 349

CRIM entrapment

Answer 349

the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer

Question 350

CRIM Erroneous takings rule

Answer 350

Taking under a claim of right is not larceny

Question 351

CRIM felonies w felony murder in Virginia

Answer 351

``` 7. four unique -arson -robbery -burglary -abductpon three sexual -inantimate object sex pentration -rape -forcible sodomy ```

Question 352

CRIM felony / misdemeanor dividing line

Answer 352

OVER one year incarceration

Question 353

CRIM felony embezzlement

Answer 353

[1] wrongful conversion to his own use the property of another with the intent to permanently deprive the rightful owner of the use thereof: and [2] that the property had been entrusted to the defendant by another ; and [3] the value of the property was $200.00 or mor

Question 354

CRIM Felony murder magic words

Answer 354

inherently dangerous enterprise

Question 355

CRIM Felony vs Misdemeanor - Property

Answer 355

OVer $500 - Felony

Question 356

CRIM First degree murder

Answer 356

non-capital murder involving - poison - lying in wait - imprisonment - starvation - willful, deliberate, premeditatted not in capital murder

Question 357

CRIM general intent crimes

Answer 357

battery false imprisonment kidnapping forcible rape

Question 358

CRIM general intent defined

Answer 358

only generally aware of factors of crime no specific result needed doing of the act sufficient to establish general intent

Question 359

CRIM Generic criminal defenses

Answer 359

``` insanity intoxication infancy self defense (self, others, property) necessity / duress entrapment mistake of fact or law ```

Question 360

CRIM Generic elements of crime

Answer 360

physical act mental state causation concurrence

Question 361

CRIM have person exit car

Answer 361

always permitted for officer safety

Question 362

CRIM Hearsay evidence and conspiracy

Answer 362

Statements in furtherance of a conspiracy admissible against all conspirators

Question 363

CRIM Impoundment

Answer 363

Discovery of items during a police impoundment inventory is a legal search

Question 364

CRIM Inference from small bills

Answer 364

Intent to distribute

Question 365

CRIM Intervening causes doctrine

Answer 365

UNFORSEEABLE intervening event causes the bad result

Question 366

CRIM Joinder of Offenses.

Answer 366

Two or more offenses, any of which may be a felony or misdemeanor, may be charged in separate counts of an indictment or information if the offenses are based on the same act or transaction, or on two or more acts or transactions that are connected or constitute parts of a common scheme or plan.

Question 367

CRIM larcenty vs embezzlement

Answer 367

possession requires authority to control e.g., teller does not have possession of cash so cannot commit embezzlement, only larceny

Question 368

CRIM Larceny and robbery in Virginia

Answer 368

Larceny a lesser-included offense in robbery (Means automatically included?) Unique in Virginia (so what?)

Question 369

CRIM larceny by trick

Answer 369

obtain possession | by intentional false statement

Question 370

CRIM Larceny in Virginia

Answer 370

Same as these variants in common law - larceny - embezzlement - false presenses

Question 371

CRIM Levels of larceny in Virginia

Answer 371

Grand larceny - Taking from another more than $5 - Taking not from another $200 or any firearm Petit larceny - all else

Question 372

CRIM Malice

Answer 372

Defendant acts - intentionally, or - reckless disregard of obvious or known risk

Question 373

CRIM Malice crimes

Answer 373

murder | arson

Question 374

CRIM Malice”

Answer 374

state of mind which results in the intentional doing of a wrongful act to another without legal excuse or justification, at a time when the mind of the actor is under the control of reason may be inferred from any deliberate, willful, and cruel act against another, however sudden

Question 375

CRIM malicious wounding

Answer 375

maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury with the intent to maim, disfigure, disable or kill, he shall . . . be guilty of a Class 3 felony

Question 376

CRIM meaning of concurrence in criminal liability

Answer 376

mental state as same time as the act | mostly an issue in larceny and burglary

Question 377

CRIM CONCEPTS | Meaning of force in robbery

Answer 377

force capable of overcoming resistance | so pickpocket is not robbery, just larceny

Question 378

CRIM meaning of in person's presence

Answer 378

in vicitims vicinity, including anywhere in victim's house while victim is in it.

Question 379

CRIM Mistake of fact defenses

Answer 379

Any honest mistake specific intent - e.g., mistaken belief of ownership in burglary Reasonable honest mistake general intent - e.g., consent to forcible rape (not statutory) No mistake defense to strict liability

Question 380

CRIM mistake of law as a defense

Answer 380

Generally not Exceptions - knowledge is an element of offense - statute was not available - defendant was relying on prior statute overruled/unconstitutional - reliance on OFFICIAL w enforcement/admin/interpret duties

Question 381

CRIM model penal code mental states

Answer 381

1. intentionally (purposefully) 2. knowingly (willfully) 3. recklessly (conscious disregard of risk) 4. negligently (should have known substantial/unjustified risk)

Question 382

CRIM multistate sources of criminal law

Answer 382

common law model penal code majority statutory rules

Question 383

CRIM Murder degrees

Answer 383

In Virginia, all homicides are presumed to be second degree murders. It is the prosecutor's burden to increase the charge to first degree murder, and the defendant's burden to reduce it to voluntary manslaughter. To be charged with first degree murder, the prosecution most prove that the killing was premediated, willful and deliberate. The statute also specifically references circumstances such as lying in wait with respect to first degree murder. The defense would need to show that the crime was in the heat of passion in order to reduce the charge to voluntary manslaughter.

Question 384

CRIM Murder in the first degree in Virginia

Answer 384

other than capital murder, by poison, lying in wait, imprisonment, starving, or by any willful, deliberate, and premeditated killing, or in the commission of, or attempt to commit....

Question 385

CRIM participation in conspiracy

Answer 385

common law required two villians | modern law villian and undercover agent enough

Question 386

CRIM PENALTY | classes of misdemeanors in Virginia

Answer 386

MD1: up to 1 year and/or up to $2500 MD2: up to 6 months and/or $1000 MD3: up to $500 MD4: up to $250

Question 387

CRIM Possession of narcotics (gun, or whatever) definition

Answer 387

Is possession, not ownership

Question 388

CRIM Presuemed larceny

Answer 388

Unexplained and exculsive possession of recently stolen property

Question 389

CRIM Principal conviction required to convict accomplice

Answer 389

Common law - yes Modern view - no, but does require proof that crime was committed

Question 390

CRIM principal in the second degree

Answer 390

(an aider and abettor) | under Virginia law is punishable as if a principal in the first degree [18.2-18].

Question 391

CRIM Principal second degree magic words

Answer 391

assisted and encouraged

Question 392

CRIM Probable cause to search person

Answer 392

Nervous behaviour of driver, including hand in pocket (weapon potential) allows pat down

Question 393

CRIM Probable cause to search person not

Answer 393

Suspicious behavior of someone else

Question 394

CRIM Probable cause to stop car

Answer 394

Traffic violation in view of officer | Doesn't matter if something else attracted officer's attention

Question 395

CRIM Proof of conspiracy intent

Answer 395

No overt act required in Virginia

Question 396

CRIM proximate causation

Answer 396

natural and probable result of conduct - forseeability - fairness

Question 397

CRIM require separate trials

Answer 397

trying the offenses together may create “spill-over” prejudice, since the jury may conclude that Bob is guilty of one of the crimes simply because they have come to believe he is guilty of the other crime may wish to testify in his own defense concerning one of the charges, but not the other

Question 398

CRIM resistance againsts arrest

Answer 398

``` 11: assuault murder first degree larceny embezzelment false presences robbery forgery burlgary solicitation conspiracy attempt ```

Question 399

CRIM Rights of baliee in search

Answer 399

Has right to allow search | Has right to object to search

Question 400

CRIM CRIME Robbery | Elements

Answer 400

To convict an offender of a robbery in Virginia the Commonwealth must prove: - taking by violence, force, threats or intimidation - of personal property - from a person or his presence - with the intent to permanently deprive the owner of his property.

Question 401

CRIM Search after arrest

Answer 401

Arrest makes legal any general search EXCEPT contents of cell phone

Question 402

CRIM Seibert

Answer 402

Case invalidating ask first, give Miranda, ask again

Question 403

CRIM Self defence

Answer 403

non-deadly - rewsonably necessary - protect against imminent use - unlawful force against deadly force - immediate threat - death or serious injury not available when - defendant was the initial aggressor - without - - -- reset by complete witdhrawal and - - -- communication of that mistake permitted

Question 404

CRIM specific intent

Answer 404

commit act plus specific result

Question 405

CRIM Specific intent crime against property

Answer 405

``` larceny embezzlement forgery robbery false pretenses burglary ```

Question 406

CRIM specific intent crimes

Answer 406

commit act plus specific result

Question 407

CRIM Specific intent incohate crimes

Answer 407

solicitation conspiracy attempt

Question 408

CRIM Sprecific intent crime against person

Answer 408

assault | Murder 1

Question 409

CRIM SUB Stolen Property

Answer 409

The rightful owner of stolen property will have good title to the property as against the rest of the world. The true owner of property that has been stolen is under no duty to reimburse, or make whole, the parties who have subsequently purchased his stolen property. The true owner's rights are superior to all others, and even a party who unknowingly purchased stolen property may be liable for conversion.

Question 410

CRIM strict liability

Answer 410

only act required - no mental state

Question 411

CRIM strict liability crimes

Answer 411

``` public welfare (alcohol to minor, contaminated food) statutory rape ```

Question 412

CRIM Tests for Miranda

Answer 412

1. Defendant in custody | 2. Statements in response to interrogation

Question 413

CRIM Threat of immediate injury

Answer 413

immediate physical harm | NOT extortion or blackmail which are future threats

Question 414

CRIM Time to die for murder

Answer 414

common law - year and a day | Virginia - no limitation

Question 415

CRIM TRIAL Venue

Answer 415

city or county where crime occurred | can be inferred by circumstantial evidence

Question 416

CRIM CONCEPTS | Types of causation

Answer 416

Actual causation | Proximate causation

Question 417

CRIM types of Virginia homicide

Answer 417

``` capital murder First degree murder second degree murder vol manslaughter invol manslaughter felony homicide ```

Question 418

CRIM DEFENSE | Use of force to prevent crime

Answer 418

nondeadly force - any crime deadly force - a felony risking human life

Question 419

CRIM Validity of dog detection during traffic stop

Answer 419

If unrelated to original stop, dog detection illegal search if it delays completion of traffic stop.

Question 420

CRIM Virginia Bad Check Law

Answer 420

Virginia Code §18.2- 181

Question 421

CRIM Virginia Bad Check Law

Answer 421

produce ]any check knowing at the time of such making, that the maker or drawer has not sufficient funds or shall be guilty of larceny . . . .

Question 422

CRIM Virginia criminal infancy

Answer 422

under 7 - no prosecution 7 to 14 - rebuttable presumption against prosecution greater than 14 - prosecution allowed adult felony means child charged as an adult

Question 423

CRIM Virginia criminal jurisdiction

Answer 423

Offense committed whole or part of Virginia Attempt/conspiracy - out of state plan for in state deed - inside state plat for out of state deed

Question 424

CRIM Virginia distinction for burglary

Answer 424

elimination of at night requirement | expanded definition of dwelling

Question 425

CRIM Virginia distinctions for arson

Answer 425

includes explosives | any building except an outhouse

Question 426

CRIM Virginia distinctoin on conspiracy

Answer 426

conspiracy limited to felonies must have two people no overt act, but agreement must be complete conspiracy must be convicted with act conviction or before - can be same trial - exception if acts of conspiracy are separate failure to convict on crime negates conspiracy

Question 427

CRIM Virginia statutory assaults and bodlily woundings

Answer 427

``` malicious wounding aggravated malicious wounding wounding while committing felony - shooting/stabbing/display firearm - while committing or attempting felony specific assaults/batteries w higher penaty - hate crime - assault on -- police officer -- firefighter -- specified school employees injuring emergency personnel - law enforcement - firefighter - emergency medical assuaulting family or household member stalking ```

Question 428

CRIM Virginia vicarious liabilty for murder

Answer 428

must be co-felon who caused death

Question 429

CRIM Virginia vs common law on rape

Answer 429

Between spouses, - must have been living separate and apart - serious phsical injury to victim by force or violence

Question 430

CRIM Virginia vs common law statutory rape

Answer 430

Defined as under 13 | Between 13 and 15 Class 4 felony (carnal knowledge)

Question 431

CRIM DEFENSE | voluntary intoxication defense

Answer 431

voluntary intoxication is not generally an excuse for crime

Question 432

CRIM voluntary intoxication exception

Answer 432

The only exception to this rule in Virginia is that voluntary intoxication can defeat the specific premeditation required to prove first-degree murder.

Question 433

CRIM What part of criminal case not beyond shadow of douby

Answer 433

Insanity defense - preponderance of evidence

Question 434

CRIM Withdrawal from a conspiracy

Answer 434

In effective if it occurs after the crime is committed

Question 435

CRIM Withdrawal from attempt

Answer 435

Not possible after attempt is complete

Question 436

CRIM Withdrawal from conspiracy

Answer 436

withdrawal from the conspiracy is not a defense to the crime of conspiracy. The crime of conspiracy is complete when there is a shared intent and agreement to commit a felony.

Question 437

DOM GFD - Constructive desertion

Answer 437

Constructive desertion is a grounds for divorce when one spouse is so cruel as to force the other spouse to leave the marital home and abandon the marriage. Constructive desertion requires that the at-fault spouse be responsible for the conditions leading to the constructive desertion, while the other spouse not be at fault.

Question 438

DOM Parental visitation rights

Answer 438

Parents have a constitutionally protected right to visit with their children. This is considered to be a fundamental due process right, in accord with the history and traditions of this country. As such, parents may not prevent the other parent from visiting with the child. However, court intervention may be sought to provide an appropriate visitation schedule, and decide where and on what terms visitation may take place. The right can be terminated if paternity of the child is in dispute or abuse of the fomer spouse or the child took place.

Question 439

DOM Adultery rules

Answer 439

No spousal support, but exception for manifest injustice | Not a factor in child support

Question 440

DOM Appeal from Jeuvenile and Domestic Realtions Court

Answer 440

From any final order or judgment of the juvenile court affecting the rights or interests of any person coming within its jurisdiction, an appeal may be taken to the circuit court within 10 days from the entry of a final judgment, order or conviction and shall be heard de novo.

Question 441

DOM Appeal from Juevenile and Domestic Relations Court

Answer 441

Anyone seeking appeal of the decision of the J&DR should appeal to the Circuit Court. The losing party must note its appeal to the Circuit Court within 10 days of the JD&R Court's final order, and within 30 days of the final order must pay the writ tax, court costs, and post a bond that the court deems sufficient.

Question 442

DOM Application of out of state law in divorce

Answer 442

Not for divorce itself. | A divorce in Virginia is a Virgina affair (in rem)

Question 443

DOM Basic support for divorce

Answer 443

When multiple grounds for a divorce may exist, a court reviewing a claim for divorce may issue the divorce on any relevant grounds it finds supported by the evidence.

Question 444

DOM Best Interest Factors

Answer 444

(i) the age, physical and mental conditions of the parent (or third party); (ii) the age, physical and mental conditions of the child; (iii) the relationship the parent (or third party) has had with the child, throughout his or her life; (iv) the needs of the child, including fostering social relationships with child's peers and extended family; (v) the role the parent or third party has and will play in the child's development; (vi) the parents' (and third party) fostering relationships with the other parents (or third party); (vii) the demonstrated willingness and ability of the parent (or third party) to maintain a close and continuing relationship with the child, including cooperation and dispute resolution; (viii) the reasonable preferences of the child; and (ix) family history of sexual or other abuse; and (x) any other factors the court finds necessary and proper in making a good decision in the best interests of the child.

Question 445

DOM Best interests of the child factors

Answer 445

Found in VA 20-124.3

Question 446

DOM Can one enforce a separation agreement not previously filed in a divorce action

Answer 446

yes - this is a contract collection must be in a court w jurisdiction

Question 447

DOM Can one party get a divorce ex parte?

Answer 447

yes - divorce is an in rem proceeding notice by (local) publication is sufficient

Question 448

DOM Can one party get support payments ex parte?

Answer 448

no - support payments are in personam requires personal juridiction over defendant

Question 449

DOM GFD | Cause grounds for fault-based divorce in Virginia

Answer 449

In Virginia, a divorce may be granted on fault grounds, including - adultery, - buggery - sodomy- - cruelty, or - desertion.

Question 450

DOM CUSTODY | Changing child custody

Answer 450

Best interests of the child Change in circumstances Factors including - physical and finacial well being of parents - relationship between child and each parent []look up statute]

Question 451

DOM Child custody

Answer 451

The controlling consideration in child custody determinations is the best interests of the child. he Court must consider the “best interests of the child” factors set forth in Va. Code §20-124.3 in making its determination.

Question 452

DOM Child support | Setting child support by contract between the parties

Answer 452

A parent cannot contract away his duty to pay child support for the wellbeing of his child. Such an agreement is void under Virginia law. The Court retains continuous jurisdiction to change or modify its order relating to care and maintenance of a child. Va. Code §20-108.

Question 453

DOM Child support - length of obligation

Answer 453

A parent must pay child support for until the child reaches 18 years of age, or else the earlier of his reaching 19 or graduating from high school.

Question 454

DOM competing grounds for divorce

Answer 454

Parties can amend reason for divorce 1 year separation easier than proving fault Judge has wide discretion to select from grounds demonstrated

Question 455

DOM condonation

Answer 455

cuts off prior claims for cruelty, etc

Question 456

DOM Custody vs visitation

Answer 456

With respect to child custody and visitation, although inherently intertwined, these are generally considered two separate issues before the law. When ruling on domestic relations matters, including child custody and visitation, the court may rule specifically on one issue, and exclude others, saving the determination of such issues for a later date.

Question 457

DOM GFD | Desertion

Answer 457

Can not be mutual | Must be one party against the other

Question 458

DOM PROPERTY | Dividing marital property

Answer 458

Marital property is that property acquired during the marriage, other than property received by one spouse by gift, intestate succession, or devise. Marital property can also include increases in value to non-marital property if the efforts of either spouse during the marriage contributed to the increase.

Question 459

DOM divorce on grounds of cruelty

Answer 459

mental or verbal abuse alone not sufficient | must show impact on physical health

Question 460

DOM Enforcement of payments in divorce

Answer 460

Court can hold party in contempt | Remedies include fine and incarceration

Question 461

DOM Enforcement of Settlement Agreement

Answer 461

Where parties competently enter into a settlement agreement and there is no indication of unconscionability or fraud, Courts will respect the parties' rights to be the masters of their own bargain and uphold the contract

Question 462

DOM Factors for non-parent to get custody

Answer 462

best interests of the child, considering 1. parental unfitness 2. pervious order of divestiture 3. voluntary relinquishment 4. abandonment 5. finding of special facts and circumstances

Question 463

DOM factors in allocation of assets

Answer 463

1. contribution by both parties 2. duration of the marriage 3. ages and mental/physical condition of parties 4. how/when property acquired 5. debts and liabilities of parties 6. tax consequences to each party 7. liquidity of property 8. dissipation of marital assets (adultery) 9. other appropriate factors Allocation of assets factors into support

Question 464

DOM foundation of support order

Answer 464

must show a real need

Question 465

DOM GFD - Adultery

Answer 465

When one spouse commits adultery, the other spouse may obtain a fault divorce on those grounds. However, there are several exceptions where adultery may not serve as grounds for a divorce. These exceptions are recrimination, connivance, forgiveness, fraud on the court, and a mutual meeting of the minds to restart the marriage. Recrimination is where the party seeking a fault divorce on the grounds of adultery is also guilty of an act that would be grounds for a fault divorce. Adultery must be proven by clear and convincing evidence.

Question 466

DOM GFD - Cruelty

Answer 466

Cruelty authorizing divorce requires acts that tend to cause bodily harm and render the spouses' living together unsafe. Mental or verbal cruelty alone is not grounds for divorce in Virginia. However, if the mental/verbal cruelty resulting in physical manifestations (e.g., bad health symptoms) it may be possible to assert cruelty as a grounds.

Question 467

DOM GFD | Adultery

Answer 467

Is not grounds for divorce when the other spouse also engaged in adultery (recrimination) or when the adultery is condoned by resuming marital relations after discovery of the adultery (condonation).

Question 468

DOM GFD | Contructive Desertion

Answer 468

Must prove that the other's conduct is so egegrous as tp justify the non-offendin spouse leving the marital home.

Question 469

DOM GFD Cruelty

Answer 469

Requires acts that tend to cause bodily harm and rednet it unsafe for the spouses to be living together.

Question 470

DOM Grounds for divorce

Answer 470

Constructive desertion Cruelty Adultery No Fault

Question 471

DOM APPEAL | How is an order of Juevenile and Domestic Relations Court appealed

Answer 471

To corresponding circuit court???

Question 472

DOM how soon must an appeal from a divorce order be filed?

Answer 472

six months or upon discovery of new evidence filing on new evidence must be with permission of the court

Question 473

DOM Impact of conviction / incarceration on existing child custody order

Answer 473

None automatice. | separate finding that not in best interests of the child required

Question 474

WILLS Impact of Divorce

Answer 474

if a divorce or spousal support petition is filed (as opposed to finalized) by a spouse, then all powers and powers of appointment, contained in the settlor’s revocable living trust, are revoked by operation of law. Note, however, that if there is no subsequent trust revocation or amendment, then the former trust provisions are revived upon the trust settlor’s (the maker of a trust) remarriage to the former spouse.

Question 475

DOM Impact of sex on separation

Answer 475

If sex is not indicative of cohabitation, does not matter. Still measure time from date of separation

Question 476

DOM Incarceration as grounds for divorce

Answer 476

Conviction occurred after marriage Incarceration is for over one year Cohabitation is not resumed

Question 477

DOM GFD | incarceration grounds for divorce

Answer 477

1. conviction after marriage 2. incarceration greater one year 3. no habitation following incarceration

Question 478

DOM Interest in marital home purchased before marriage

Answer 478

Becomes marital property to the extent both parties contribute to payment of the mortgage

Question 479

DOM is divorce law or equity

Answer 479

equity

Question 480

DOM Joint property dertmination

Answer 480

Title does not govern Source of funds governs Paycheck into joint account makes all that follows joint

Question 481

DOM Jurisdiction under UCCJEA

Answer 481

State where child most recently lived six consecutive months

Question 482

DOM Jury in divorce

Answer 482

Divorce is an equity matter | No jury

Question 483

DOM Law for prenup

Answer 483

Is law of jurisdiction where signed | It's a contract, duh

Question 484

DOM SUPPORT | Modification of support

Answer 484

Court ordered support can be modified | Separation agreement is a contract - can not be modifed by court if not ordered by court

Question 485

DOM Modifying child support arrearages

Answer 485

Court can not change what was owed prior to filing for modifications, but not earlier

Question 486

DOM new evidence test for bill of review

Answer 486

1. evidence discovered after trial 2. evidence is material and would produce a different result 3. evidence is NOT cumulative, corroborative, or collateal 4. evidence could not have been discovered pre-trial 5. the evidence CAN be provided at new trial

Question 487

DOM No fault divorce waiting period

Answer 487

on year (does child matter?)

Question 488

DOM No-fault grounds for divorce

Answer 488

One year of separation after intent to separate. Can be shortened to 6 months if no children and there is a written separation agreement covering all terms.

Question 489

DOM Non-parental rights

Answer 489

Third parties, who are not parents of the child, do not have a constitutionally protected right to visitation. Virginia courts give special weight to a fit parent's determination of whether visitation with the third party is appropriate. As such, grandparents may be prevented from visiting with the child. However, in order to obtain some visitation rights, the third party must show (i) depriving the child of visitation is likely to cause irreparable harm to the child; and (ii) it is in the child's best interests to visit with the third party.

Question 490

DOM ore tenus hearing

Answer 490

sdfsdd

Question 491

DOM Parental support for custody arrangement

Answer 491

Court looks first to the parents as primary custodians for a child. Either parent is presumed superior to a grand parent absent with respect to supervising a child absent compelling evidence to the contrary, such as actual harm to the child from being allowed contact with the grandparent.

Question 492

DOM Parents vs grandparents

Answer 492

Parent supervision of a child is preferred to that of a grandparent

Question 493

DOM Requirements for no-fault divorce

Answer 493

Physical separation for one year | At least one party intends to remain separate

Question 494

DOM Spousal support

Answer 494

The agreement was incorporated within the parties’ final divorce decree and became a term of the decree. Where parties competently enter into a settlement agreement and there is no indication of unconscionability or fraud, Courts will respect the parties' rights to be the masters of their own bargain and uphold the contract. was there "a bargained for exchange"?

Question 495

DOM Spousal Support

Answer 495

Upon divorce, spousal support is available depending on a number of factors. These factors include - the age and health of each spouse, - the contributions each made to the marriage whether monetary or otherwise, - the lifestyle to which they were accustomed during the marriage, - the relative earning potential of the spouses, - agreements made during marriage, - the ability of a spouse to improve earning potential through education or training, and - the relative degree of fault for the dissolution of the marriage. Spouses who have committed adultery are barred from receiving spousal support unless providing no spousal support would be manifestly unjust or the other spouse was substantially more at fault for the dissolution of the marriage.

Question 496

DOM spousal support and adulter

Answer 496

adultery strong grounds for denial spousal support | can be overturned on grounds of MANIFEST INJUSTICE

Question 497

DOM Standard for non-parent to get custody

Answer 497

clear and convincing evidence that lack of custody would cause actual harm to child

Question 498

DOM Statute of limitation on DNA testing

Answer 498

none

Question 499

DOM test of one year separation

Answer 499

requires BOTH one year of separation AND one year following reaching intent to end marriage

Question 500

DOM Third party rights to visitation

Answer 500

Third parties, who are not parents of the child, do not have a constitutionally protected right to visitation Virginia courts give special weight to a fit parent's determination of whether visitation with the third party is appropriate. As such, grandparents may be prevented from visiting with the child. In order to obtain some visitation rights, the third party must show (i) depriving the child of visitation is likely to cause irreparable harm to the child; and (ii) it is in the child's best interests to visit with the third party.

Question 501

DOM Uniform Child Custody JUrisdiction and Enforcement Act

Answer 501

UCCJEA

Question 502

DOM Venue for divorce action

Answer 502

SO LONG AS LIVED IN VA SIX MONTHS PRIOR - County where couple last cohabited - County where defendent resides

Question 503

DOM Visitation rights of non-custodial parent

Answer 503

Parents have a constitutionally protected right to visit with their children. This is considered to be a fundamental due process right, in accord with the history and traditions of this country. This right may only be set aside through due process under judicial supervision IF IT IS IN THE BEST INTERESTS OF THE CHILD to deny visitation. if there is evidence of paternity dispute or child abuse. One parent may not resort to "self help" in preventing the other parent from visiting with the child.

Question 504

DOM Weight of being birth father on custody

Answer 504

Superseded by best interests of child assessment

Question 505

DOM What are the best interest of the child factors

Answer 505

VA 20-124.3 MUST consider

Question 506

DOM What are the factors for spousal support in VA 20-107.1

Answer 506

TBD

Question 507

DOM What if void marriage acquires property?

Answer 507

Not tenants by entirety Becomes joint tenants But right of survivorship may attach if clearly intended

Question 508

DOM What impact marry w/o divorce

Answer 508

Bigamy | second marriage void ab initio

Question 509

DOM what is an appeal from a divorce final order

Answer 509

bill of review

Question 510

DOM what is the process for determining child support

Answer 510

every parent owes a duty of support for a child child support guidelines are the presumptive amount less than 90 days means other parent sole custody for guidelines 20-124.2

Question 511

DOM what is the process for determining spousal support

Answer 511

Court MUST consider factors in VA 20-107.1 in setting any maintenance and support And if either party has grounds for adultery (need not be the basis of the divorce)

Question 512

DRIM Accomplice liabiity`

Answer 512

A co-conspirator is guilty for all reasonably anticipated crimes that occur during the commission of the agreed upon crime. This is true both under the conspiracy, but also because they are accessories before the fact or principals in the second degree, depending on whether they were present at the scene of the crime or not. An accessory before the fact encourages, aids, or counsels the principal in the first degree in the commission of the crime, but is not physically present during the crime. A principal in the second degree encourages, aids, or counsels the principal in the first degree, but is present at the scene. Both accesssories before the fact and principals in the second degree are liable as though they were the principal actor.

Question 513

EQ Constructive trust

Answer 513

“Constructive trusts arise independently of the intention of the parties, by construction of law; being fastened upon the conscience of him who has the legal estate, in order to prevent what otherwise would be a fraud. The burden of proof is by clear and convincing evidence.

Question 514

EQ Nuisance

Answer 514

Private nuisances adversely affect one person's use and enjoyment of his property ih ways that the general public is not affected. Public nuisances affect many in the same way or the public generally

Question 515

EQ Private Nuisance

Answer 515

The theory of private nuisance requires an action that unreasonably interferes with the use and enjoyment of plaintiff’s land in away unique to the plaintiff. The remedy may be a permanent injunction. To obtain an injuction, plaintiff not only has to prove the existence of a nuisance, but also the inadequacy of a remedy at law.

Question 516

EQ Remedy for violation of contract

Answer 516

Ask the court to declare the existence of a constructive trust based on a theory of unjust enrichment.

Question 517

Equitable conversion

Answer 517

The doctrine of equitable conversion exists in Virginia, not as arule of law, but as adiscretionary doctrine to be applied when equity considers a thing to be done which ought to have been done. It is alegal fiction based on the presumed intention of the parties. application of the doctrine is limited to cases where the enforcement of the contract is in accord with the intention of the parties, free from fraud, and where enforcement will not produce inequitable results. The doctrine will not be applied in acase where to do so would result in hardship or injustice forced upon one party, through achange in circumstances not contemplated by the parties at the time of the contract.

Question 518

EQUITY Infeasibility

Answer 518

Can't compel third party to perform

Question 519

EQUITY Laches test

Answer 519

1. equitable claim 2. discretionary call by judge 3. judge to consider - - a. how much time has elapsed - - b. effect of time on other party ability to defend - - c. loss of evidence/testimony due to delay - - d. case specific circumstances Only applies in equity Only if there is no relevant statute of limitations

Question 520

EQUITY Specific Performance

Answer 520

specific performance as a remedy is only avaialble in certain circumstances. First, money damages must not be an adequate remedy. This can be proven if the subject matter of the contract is unique. One example of this principal are contracts for the sale of real property, as all real property is considered to be unique. Second, the equitable remedy of specific performance must be feasable.

Question 521

EQUITY Third-Party Bona FIde Purchaser

Answer 521

A BFP is a purchaser for value who takes the property without notice of any encumberances or others with rights to possess. If the BFP does not pay significantly less than fair market value for the property, then a court should refuse to divest the BFP of interest in property when decideding whether or not to impose an equitable remedy under contract law.

Question 522

EQUITY DOCTRINES | Unclean hands

Answer 522

Under the unclean hands doctrine, aparty seeking equitable relief must himself not have been guilty of inequitable or wrongful conduct.

Question 523

ETHICS Accepting settlement offer

Answer 523

A lawyer shall abide by aclient’s decision, after consultation with the lawyer, whether to accept an offer of settlement of a matter

Question 524

ETHICS Advertising Statements

Answer 524

A lawyer may not make false or misleading communicatiois about his or her services. An attorney may not make statements implying that the outcome of aparticular legal matter was not or will not be related to its facts or merits; comparing the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated; or create an unjustified expectation about the j results the lawyer can achieve. Rule 7.01

Question 525

ETHICS Basic Duties Advocate

Answer 525

3. 1 Meritorious Claims and Conetntions 3. 2 Expediting Litigation NOT ADOPTED 3. 3 Candor Towards the Tirbunal 3. 4 Fairness to Opposing Party and Counsel 3. 5 Impartiality and Decorum 3. 6 Trial Publicity 3. 7 Lawyer as Witness 3. 8 Added Resp of Prosecutor 3. 9 Advocate in Nona Adjudicative Proceedings

Question 526

ETHICS Can judge bar an attorney from a specific court?

Answer 526

Yes, under case law.

Question 527

ETHICS comfidentiality vs crime

Answer 527

VIRGINIA DISTINCTION! ABA model rules - attorney MAY reveal Virginia - attorney SHALL promptly reveal

Question 528

ETHICS Communicating Settlement Offer

Answer 528

A lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea agreement... should promptly inform the client of its substance unless prior discussions with the client have left it clear that the proposal will be unacceptable

Question 529

ETHICS Communications w Client

Answer 529

A lawyer shall keep a client reasonably informed about the status of a matter...“); RPC Rule 1.4(c)

Question 530

ETHICS | Competence

Answer 530

The Rules require that an attorney represent her clients competently. Competence does not necessarily require expertise. It also does not prevent an inexperienced attorney from taking on cases, or an attorney taking on a case in a new field. However, if the attorney is not experienced in a particular field, she should either associate herself with another attorney who is competent in the field and who will be involved in the case, or she should engage in sufficient study to become competent in the field of law.

Question 531

ETHICS Confidentiality

Answer 531

Alawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).

Question 532

ETHICS Conflict company vs executives

Answer 532

When Winston retained Lane to prepare his will, there was no concurrent conflict with Shockoe, so Lane did not violate Rule 1.7. It Is arguable that, given Lane’s longstanding representation of Shockoe and her in-depth knowledge of the company and its key personnel, including Winston, she could have anticipated the possibility of a future conflict involving Winston.

Question 533

ETHICS Conflict Created by Prospective Client

Answer 533

When a prospective client reveals to alawyer information that could be significantly harmful to that client, the lawyer cannot represent another client with interests materially adverse to the prospective client in the same or substantially related matter. Rules of Professional Conduct, Rule 1:18(b)&(c)

Question 534

ETHICS Conflict of Interest Clients

Answer 534

A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one ciient wiii be directly adverse to another client; or (2) there is significant risk that the representation of one or more ciients wili be materiaily iimited by the lawyer’s responsibilities to another client, a former client, or a third person - or by a personal interest of the lawyer.

Question 535

ETHICS Conflict of Interest Waiver

Answer 535

Notwithstanding the existence of aconcurrent conflict of interest under paragraph(a), alawyer may represent aclient if each affected client consents after consultation, and: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of aclaim by one client against another client represented by the lawyer in the same litigation or other proceeding before atribunal; and (4) the consent from the client is memorialized in writing.

Question 536

ETHICS Contingency Fee

Answer 536

The Rules permit contingency fee agreements for most cases, except domestic relations cases generally and criminal cases. When an attorney enters into a contingency fee agreement, the attorney must provide a written explanation of the terms of the fee, including the contingency rate, how fees and expenses are calculated and whether fees and expenses will be taken before or after the contingency rate. The fee terms must be reasonable.

Question 537

ETHICS Correcting misstatement by client

Answer 537

A lawyer shall not knowingly: ... (b) fail to disclose a fact when disclosure is necessary to avoid assisting acriminal or fraudulent act by a client.’’ first action should be to “remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal and seek the client’s cooperation with respect to the withdrawal or correction of the false statements,” but further remedial action might be required

Question 538

ETHICS Diligence

Answer 538

“A lawyer shall act with reasonable diligence and promptness in representing aclient.”); (“A lawyer should pursue amatter on behalf of aclient despite opposition, obstruction or personal inconvenience to the lawyer

Question 539

ETHICS | Dispute as to contingency

Answer 539

When a lawyer and a client have a dispute regarding payment or funds, the lawyer must release to the client the amount that is not in dispute and retain in the client trust account the amount that is in dispute.

Question 540

ETHICS Duties to a dead client

Answer 540

Confidentiality No representation against interest - can't get consent since person is dead

Question 541

ETHICS Existing Client Conflict

Answer 541

A lawyer may not represent a client if representation of that client would be directly adverse to an existing client unless (1) the lawyer reasonably believes the representation would not adversely affect the relationship with the other client, (2) the representation does not involve the assertion of aclaim by one client against another client represented by the lawyer in the same litigation and (3) both clients consent in writing after consultation.

Question 542

ETHICS Former Client General Rule

Answer 542

A lawyer who has formerly represented a client In amatter shall not thereafter represent another person In the same or a substantially related matter In which that person's Interests are materially adverse to the Interests of the former client unless both the present and former client consent after consultation.

Question 543

ETHICS Former Client Seeking Waiver

Answer 543

Seeking a waiver may involve breaching the duty of confidentiality per Rule 1,6.

Question 544

ETHICS Governing statute

Answer 544

Virginia Rules of Professional Conduct

Question 545

ETHICS Grounds for Contempt

Answer 545

1. misbehaviour in the presence of the court 2. failure to obey an order of the court? 3. vile, contemptuous, or insulting language 4. misbehavior of an officer of court in official character

Question 546

ETHICS Hourly fees

Answer 546

For fee agreements that are based on an hourly rate, the Rules do not require the fee agreement to be in writing, thought the Rules strongly suggest that the agreement be reduced to writing at the time the representation is entered into, or shortly thereafter. The terms of the fee agreement must be dislosed to the client and the client must consent, and the fee arragement must be reasonable.

Question 547

ETHICS Imputed Firm Conflict

Answer 547

Under the imputed disqualification rule. Rules of Professional Conduct, Rule 1:10, if one attorney in a firm cannot represent agiven client, then no attorney in the firm can.

Question 548

ETHICS | Judge reports to Virginia State Bar

Answer 548

- is required to report (should) reliable information substantial likelihood - And everyone has a right to file grievance

Question 549

ETHICS Malpractice

Answer 549

The Virginia Rules of Professional Conduct provide that an attorney may not prospectively limit her personal liability for malpractice when entering into a representation agreement with a client

Question 550

ETHICS MIsconduct

Answer 550

8.4

Question 551

ETHICS Retention of case records

Answer 551

No permissible over a genuine fee disputer?

Question 552

ETHICS Sexual relations w client

Answer 552

The Rules contain no explicit prohibition on sexual relations with a client, though such a relationsihp could potentially create a conflict of interest in the future and compromise the duty of loyalty to the client. The Rules do require attorneys to comport themselves properly, maintain professional conduct, and avoid the appearance of impropriety.

Question 553

ETHICS When can court impose sanctions?

Answer 553

- On motion from a party | - On its own initiative

Question 554

EVID New evidence requirements

Answer 554

1. evidence was discovered after trial 2. evidence is material - change in outcome 3. not cumulative, corroborative, or collateral 4. could not have been discovered prior to trial 5. can be produced for new trial

Question 555

EVIDENCE Default to request for admissions

Answer 555

All questions are deemed admitted 21 days after service

Question 556

EVIDENCE Marital Priviledge

Answer 556

Limited in Virginia - Can not prevent spouse taking the stand in civil - Communications during marriage priviledge survives divorce - -- IF intended to be confidential at the time

Question 557

EVIDENCE Remedial measures

Answer 557

Not allowed as evidence, but not exempt from discoverey

Question 558

FCP Adding third party

Answer 558

14 days after receipt of complaint w/o leave OK | Thereafter must have leave of court

Question 559

FCP Amount in controversy

Answer 559

The minimum amount in controversy is judged for diversity purposes at the initial time of filing.

Question 560

FCP Choice of Laws

Answer 560

A federal court who has subject matter jurisdiction over a lawsuit based on diversity of citizenship applies the choice of law rules of the state in which it sits.

Question 561

FCP Conflicts in Laws general

Answer 561

Substantive - state of contract | Procedural - state of forum

Question 562

FCP Deadline for defendant to respond to complaint

Answer 562

21 days, need not be an answer | day of receipt does not count

Question 563

FCP Diversity Excception

Answer 563

Subject matter jurisdiction based on diversity of citizenship is improper when a defendant is a citizen of the original state court where the lawsuit was brought.

Question 564

FCP Diversity jurisdiction

Answer 564

First, the amount in controversy must exceed $75,000. The test for whether the amount in controversy is met is the legal certainty test. That test provides that, unless to alegal certainty on reviewing the complaint the district court can say that there is no way the plaintiff can recover more than $75,000 exclusive of interests and costs, Second, there must be complete diversity of domicile. . Complete diversity is when all plaintiffs reside in a different state from all defendants. Residence for this purpose equates to the person's domicile. Domicile for the purposes of diversity jurisdiction is determined at the time of filing. ...intent permanently to remain

Question 565

FCP Federal joinder of parties

Answer 565

in fedeal court a motion to amend is permitted as a right before the defendant has served his or her answer. After that, the party must receive leave of court. Here, the defense had only served a responsive pleading, so it could be argued that the plaintiff had a right to amend her answer as a matter of right to add the defendant Buddy to her compliant. Morover, it could be argued that Buddy is a necessary party to the litigation meaning that Penny's interests will be harmed if he is not added to the litigation. If he is deemed to be `indespensible, meaning that ligation cannot go forward without him the court will look at whether it can retain jurisdiction will his addition and if not the case will have to be dismissed unless it causes a manifest injustice. Since Buddy's negligence arises out of the same incident, he'll likely be found to be a necessary but not indespensible party. The court will likely grant the motion to add him to the ligiation unless he destorys jurisdiction.

Question 566

FCP Federal venue

Answer 566

A federal case can be brought in any forum where any defendant resides or in any forum where a substantial part of the claim arose.

Question 567

FCP Grounds to transfer venue

Answer 567

Improper venue | Convenience

Question 568

FCP Joinder and diversity

Answer 568

under 28 U.S.C, § 1447(e), “If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to statecourt. If joining the new party was for the purpose of destroying diversity, the court would have the discretion to deny joinder.

Question 569

FCP Permissive counterclaim

Answer 569

Not related to original claim | Must independently satisfy SMJ

Question 570

FCP Personal Jurisidiction - Virginia Long Arm

Answer 570

Claims in diversity must also find that the court has personal jurisdiction under state law. Virginia's long-arm statute permits exercising personal jurisdiction over out of state defendants in several instances, including when actions outside of Virginia cause a tort inside of Virginia. Other grounds for jurisdiction are torts that occur within the state by actions within the state, a single transaction with a state resident, or contracts to supply products or services in-state, but none of these apply here because they do not relate to the claim at issue.

Question 571

FCP Removal

Answer 571

In general, a defendant can remove a case initially filed in state court to the federal court encompassing the state court if the case qualifies for diveristy jurisdiction or federal question jurisdiciton. A Notice of Removal must be filed within 30 days of service of the pleading that shows the basis for removal. A proper removal removes to the federal court encompassinng the state court. However, the federal court is unlikely to deny the Notice of Removal on this basis. The court will more likely transfer the case to the proper court.

Question 572

FCP Removal

Answer 572

30 days from service to Federal Court in district Local defendant ineligible

Question 573

FCP Respondong to law suit in Federal Court

Answer 573

Under the Federal Rules of Civil Procedure, a party must object to personal jurisdiction first or it is deemed waived. However, a party may object to personal jurisdiction in the answer if the answer is filed first. Absent waiver of service of process, a responsive pleading is due within 21 days of service of process.

Question 574

FCP Rule 11 Attorney sanctions

Answer 574

Sanctions of attorneys under FRCP allow a safe harbour rule where a party seeking sanctions must give notice to the offending attorny of intent to file for sanctions, giving the attorney a copy of the sanction the partys intend to file. The offending attorney has 21 days to correct the mistake. In not corrected, then you are entitiled to file the motion with the court.

Question 575

FCP Standing of insurance

Answer 575

If claim has been paid (or payment committed) subrogation makes insurance company the party of interest. The policy holder, once paid, is no longer a party of interest

Question 576

FCP Subject matter jurisdiction in Federal Court

Answer 576

A federal court has SMJ only if the claim arises in federal law (i.e., presents a federal question on the face of the complaint), if the claim arises in diversity, or if the court can exercise supplemental jurisdiction.

Question 577

FCP Subject matter jurisdiction through supplemental jurisdication

Answer 577

In cases where the federal court's jurisdiction is based solely on diversity jurisdiction, however, the court does not have supplemental jurisdiction to hear claims by or against additional parties if their presence in the case would destroy complete diversity (28 U.S.C. § 1367(b)). A district court in its discretion may decline to exercise supplemental jurisdiction over a state law claim if: The claim raises a novel or complex issue of state law. The claim substantially predominates over the claims for which the court has original jurisdiction. The district court has dismissed all claims over which it has original jurisdiction. In exceptional circumstances, there are other compelling reasons for declining jurisdiction.

Question 578

FCP Taking testimony outside of discovery cut-off

Answer 578

Not permitted

Question 579

FCP Test if indispensible party

Answer 579

In the absense of the pary, can complete relief be given. If yes, party is not indispensible Rule 19

Question 580

FCP Tests for adequate contacts

Answer 580

1. prior negotiations 2. contemplated future consequences 3. terms of the contract 4. parties actual course of dealing

Question 581

If a party sends the wrong goods in response to an offer, do they accept?

Answer 581

Generally, yes Noncomforming goods is an acceptance and a breach Exception: Accomodation If shipper makes it clear that the noncomforming goods are an accomodation, that is a counteroffer

Question 582

LOC | Act under unanimous consent

Answer 582

“unanimous written consent" by the Board members approving the contract does not constitute avalid action by alocal public body under Virginia law

Question 583

LOC Can soverign immunity first be raised in appeal

Answer 583

Yes. It is a matter of subject matter jurisdiction that can not be wiaved by county.

Question 584

LOC Compensation for abatement of a public nuisance

Answer 584

Not required

Question 585

LOC Condemnation of public property

Answer 585

A taking of public property is not taking of private proepty and thus not entitled to compensation

Question 586

LOC Contents of required notice to city

Answer 586

written statement nature of claim time and place of alleged injury

Question 587

LOC Definition of condemnation lost profits

Answer 587

Must be defined by General Assembly limited to net income for three years prior conditioned ooninability to relocate in a reasonable wwy may not be cduplicated in the other compensation

Question 588

LOC Definition of gross or wanton negligence

Answer 588

utter disregard of prudence amounting to complete neglect of the safety of another - deliberately multtiple acts of simple negligence can accumulate into gross negligence

Question 589

LOC Determination of just compensation

Answer 589

Requires condemnation jurors if disputed | Ore tenus

Question 590

LOC Dillon rule

Answer 590

Rule of statutory construction that requires narrow interpretation of the powers granted by Commonwealth to localities

Question 591

LOC Dillons Rule

Answer 591

The Dillon Rule is a rule of strict statutory construction that requires narrow interpretation of the powers granted to localities by the Commonwealth. Dillon's Rule states that a Virginia locality has no powers other than those expressly provided by the Virginia Code or its legislatively-enacted charter, unless otherwise necessary to carry out an express power or indispensable to the purpose for which the locality was created. when in doubt, Virginia will narrowly construe the terms of a Code provision in an effort to adhere to Dillon's Rule.

Question 592

LOC Duty of municipality public facilities

Answer 592

duty to keep its property in reasonably safe condition for persons who use ordinary care and prudence. duty to use appropriate proper care to ensure this

Question 593

LOC elements for inverse condemnation

Answer 593

1. ownership of property or property right 2. property or property right taken or damaged 3. taking was for a public use 4. government failed to pay also, action was taken pursuant to state law

Question 594

LOC Elements of Dillon rule

Answer 594

loclaities have only those powers 1. expressly granted by General Assembly 2. necessarily or failrly implied or incident to those expressly granted 3. essential and indispensable, not simply convenient If there is doubt, the locality does not have the power

Question 595

LOC Emails as public records

Answer 595

Yes. To from between public officials. "public records in the transaction of public business" email is by definition a written record

Question 596

LOC Examples governmental functions

Answer 596

PROMOTING THE PUBLIC GOOD - Fire department - Library - Plowing snow - Fire hydrants - Exercise of police power (public safety) - Garbage collection - Planning of streets (and therefore traffic signal installation) - Regulation of traffic where governmnetal and proprietary functions coincide, teh governmental function is the overriding factor

Question 597

LOC Examples of indeterminate functions

Answer 597

Garbage collection

Question 598

LOC Examples of proprietary functions

Answer 598

Def: Routine ministerial acts that involve no discretion Def: Primarily for the benefit of the municipality Water supply system Maintenance of sidewalk!! Street maintenance

Question 599

LOC exercise of police power

Answer 599

municipality exercising police power has absolute liability

Question 600

LOC FOIA

Answer 600

Under the Virginia Freedom of Information Act, public records are to be open to all citizens of the Commonwealth unless aspecific exception excludes the record from mandatory disclosure

Question 601

LOC FOIA and contracts

Answer 601

governmental contracts are subject to FOIA

Question 602

LOC FOIA Exceptions

Answer 602

- Engineering report that would jeopardize safety - Report that contains a proprietary record or trade secret - Report prepared for litigation - Deposit can be required if cost to exceed $200 -

Question 603

LOC FOIA exclusions

Answer 603

- engineering drawing jeopardizing safety - proprietary record or trade secret - prepared for litigation - subject of closed meeting

Question 604

LOC FOIA record access

Answer 604

- Open to all CITIZENS OF VIRGINIA unless explicit exclusion | - deposit can be required if cost to copy exceeds $200`

Question 605

LOC Governmental vs Proprietary function

Answer 605

Governmental soverign immunity | Proprietary liability for negligence

Question 606

LOC inverse condemnation

Answer 606

right to ingress egress compensation subordinate to state reasonably regulating the flow of traffic on the street to poromote public health, safety, and welfare partial reduction or limitation of a direc access easement in the interest of public safety is a non-compensable exercise of the of of a legislature's police power unless it is unreasonable

Question 607

LOC Liability for abatement of a nuisance

Answer 607

None in taking or in tort

Question 608

LOC Municipality specific defenses

Answer 608

Statutory immunity | Notice of claims requirement

Question 609

LOC Notice of claim exception

Answer 609

Locality has actual knowledge | Disabiity of claimant

Question 610

LOC Notice of negligence claim

Answer 610

Every claim against a city for negligence is barred unless the claimant or his representative has filed awritten statement of the nature of the claim, which includes the time and place at which the injury is alleged to have occurred, within six months after the cause of action accrued.

Question 611

LOC Notice Requirement

Answer 611

The Virginia General Assembly allows for localities to be sued on a limited basis but requires notice of injury to be given to the locality’s mayor, chief executive, or City attorney within six months of the alleged incident. Otherwise, without adequate notice, the action is barred from suit against the locality.

Question 612

LOC Notice requirement for negligence action

Answer 612

1. Written statement - nature of claim - time and place - within six months (tolls for disability) 2. Filed with - city/county/town attorney, OR - cheif executive or mayor 3. Filed when received by any means of delivery 4. Manadatory and strictly construed

Question 613

LOC Police Power

Answer 613

Police power is strictly limited to actions for the health, safety, welfare, and morals of the citizens.

Question 614

LOC public meeting requirement for governmental bodies

Answer 614

applies to all functions, not just governmental

Question 615

LOC public meeting requirement for governmental bodies

Answer 615

applies to all functions, not just governmental

Question 616

LOC Recreation Facilities

Answer 616

A user of a free public recreational facility is a licensee of the property. There is no business purpose for the users presence. The locality grants a free license to users for ordinary use of the recreational facility. The user must use reasonble care with respect to visible defects.

Question 617

LOC Recreational Facilities

Answer 617

the General Assembly only holds localities liable only for gross negligence for actions on and maintenance of recreational facilities.

Question 618

LOC Remedy if County fails to act on developer application

Answer 618

Writ of Mandamus Declaratory Judgement Action in CC Petition CC to approve (if 60 days no action)

Question 619

LOC Remedy of County disapproves development plan

Answer 619

Appeal to Circuit Court as arbitrary/capricious or otherewise improper

Question 620

LOC rememdy government body fails to act on development plan

Answer 620

Writ of Mandamus to Circuit Court MInisterial act - no discretion Maybe a declaratory judgement If County has not acted for 60 days, with 10 days notice, developer can ask Circuit Court to approve plan If plan disapproved, developer an appeal to Circuit Court if disapporval was improper or arbitrary or capriciou

Question 621

LOC Requirement of notice for negligence

Answer 621

a muniipality must have actual or constructive notice of a defect on public property in time to have in remedied in order for liability to attach

Question 622

LOC right of ingress and egress, into and from property

Answer 622

derived from common law

Question 623

LOC Sovereign Immunity

Answer 623

A city or town can only be held liable for its negligence (i.e., the negligent acts or omissions of its employees) for proprietary functions. It holds sovereign immunity for governmental functions. Governmental functions are those considered inherent in the legislative and executive powers of the government. For example, providing emergency services and designing streets are considered governmental functions. Proprietary functions, however, are not within the inherent nature of the government and are usually ministerial tasks like maintenance and operation duties. An example of a proprietary function would be street maintenance.

Question 624

LOC Sovereign Immunity condemnation

Answer 624

Sovereign immunity does not apply to aconstitutional taking claim for inverse condemnation, which sounds in contract.

Question 625

LOC Sovereign immunity government employee

Answer 625

1. Nature of the function performes 2. Extent of government interest in that function 3. degree of discretion by government over employee 4. judgement or discretion of employee in wrongful act Employee does not get the 6 month notice rule

Question 626

LOC Standard of care applicable to parks

Answer 626

immunity from simple negligence | liable for gross or wanton negligence

Question 627

LOC taking by tort

Answer 627

Flooding damage caused by state action has been held to be an inverse taking

Question 628

LOC tearing down a nuisance

Answer 628

abatement of a public nuisance is an exercise of police power and not considered a condemnation

Question 629

LOC Tort action against munipality affirmative defenses

Answer 629

- Contributory negligence by plaintiff (should have seen the hole) - Assumption of risk - open and obvious defect - Lack of notice

Question 630

LOC Transportation as public purpose

Answer 630

Does not extend to parking garages

Question 631

LOC ultra vires

Answer 631

Means???

Question 632

LOC Unanimous written consent in lieu of meeting

Answer 632

Not a valid action by local public body | A vote at a public meeting is required to take action

Question 633

LOC Va FOIA

Answer 633

within 5working days, the Board is required | to make the contract available for inspection and copying.

Question 634

PERS Bailment

Answer 634

To establish a prima facie case of bailment, James must prove that (1) he had an ownership right in the bailed property; (2) he transfered present possession of the bailed property to the bailee; and (3) the bailee knowingly accepted the bailed property from the bailor.

Question 635

PERS Finders

Answer 635

To establish a prima facie case of bailment, James must prove that (1) he had an ownership right in the bailed property; (2) he transfered present possession of the bailed property to the bailee; and (3) the bailee knowingly accepted the bailed property from the bailor.

Question 636

Probable cause required for street search

Answer 636

None, just permission

Question 637

PROP Action for partition requirements

Answer 637

Dispute among co-owners | Physical partition not convenient

Question 638

PROP WARRANTIES | Is zoning an encumberance?

Answer 638

NO

Question 639

PROP Negative easement

Answer 639

Veto right over subservient tract

Question 640

PROP Purchase under partition

Answer 640

One owner can ask judge to set buyout price for others

Question 641

PROP Requirements of a valid deed

Answer 641

1. Meet certain formalities 2. Be delivered by grantor 3. Be accepted by grantee Recording is not required

Question 642

PROP Requirements of a valid deed

Answer 642

3. Delivery to new owner

Question 643

PROP What is English covenants of title

Answer 643

``` Fee Simple w/o encumberances of tenancies or liens Specifically 1. right to convey (seisin) 2. quiet posessesion 3. free from encumberances 4. further assurances 5. no act to encumber ```

Question 644

PROP What is the doctrine of merger in a property sale?

Answer 644

``` Contract of sale merges with the deed Disfavored, thus narrowly construed Deed terms govern But only terms covered in deed Does not extinguish other terms in contract Regardless of any merger clause ```

Question 645

PROP When one party has invested in property owned as tenants in common

Answer 645

That party is entitled to remibursement prior to distribution of proceed

Question 646

REAL Adverse Possession

Answer 646

Adverse possession in Virginia requires that the person claiming adverse possession must hold the property (1) in an open and notorious manner consistent with being an owner, (2) exclusively (3) continuously (4) hostile to ownership rights of the real owner. (5) for 15 years,

Question 647

REAL Condomium common areas

Answer 647

In Virginia, (by statute?), only the governing body of a condominium unit owners' association has standing to sue a party for claims related to the community's enjoymnet of common elements of the condominium complex.

Question 648

REAL Easement

Answer 648

Expenditure of investment and maintenance may be sufficient to create an easement, an irrevocable license

Question 649

REAL Easement

Answer 649

An easement is an interest to either do or not do something to property. An affirmative easement is an easement which allows you to do something to land such as walk through someones land or use it in some way you choose. A negative easement is one which you cannot do something. Negative easements relate to the land, sky, water, and mineral rights. A constructive easement is one created by a court (of equity) in which the court creates an easement because one relied on the promise of another with consideration that such an interest was created.

Question 650

REAL Invitee vs guest vs

Answer 650

TBD

Question 651

REAL Is an unrecorded deed valid against subsequent deed of trust

Answer 651

Deed is still valid, but so is deed of trust | A susequent recorded sale would trump

Question 652

REAL License

Answer 652

Where access is granted by permission without cost, we have have license that is revcoable at any time.

Question 653

Return of engagement ring

Answer 653

Return CAN be demanded Notwithstanding Heart Act Argument is that ring is a conditional gift

Question 654

SEC TRANS Replevin Virginia

Answer 654

In Virginia, "detinue" refers to a procedure by which a party may recover possession of "unlawfully withheld" personal property.[1] Many creditors are familiar with a related and similar cause of action, "replevin," which is utilized in many jurisdictions outside of Virginia but has now been abolished in Virginia by statute.[2

Question 655

SEC TRANS Damages liquidation

Answer 655

the amount of any loss caused by afailure to comply with this title ... [which] may include loss resulting from the debtor’s inability to obtain, or increased costs of, alternative financing”] lso recover statutory damages under Va. Code §8.9A-625(c) [“an amount not less than the credit service charge plus ten percent of the principal amount of the obligation orthe time-price differential plus ten percent of the cash price”

Question 656

SEC TRANS Notice of sale

Answer 656

Va. Code §8.9A-611(b) and (c)(1) [a secured party that disposes of collateral must send reasonable authenticated notification to the debtor] and Va, Code §8.9A-612 [10 days’ notice before disposition of collateral is considered reasonable].

Question 657

SEC TRANS Reservation of interest

Answer 657

retention or reservation of title by aseller of goods notwithstanding shipment or delivery to the buyer under Va. Code §8.2-401 is limited in effect to areservation of asecurity interest."

Question 658

SEC TRANS After acquired

Answer 658

A security interest in inventory, accounts, and/or chattel paper includes a security interest in all after-acquired such collateral, unless otherwise stated. Inventory includes all goods held for sale; accounts are the right to be paid. An interest attaches immediately when other collateral is acquired in which the secured party has a security interest, and upon the debtor's default, the creditor may repossess the collateral or rights to payment

Question 659

SEC TRANS General

Answer 659

Under UCC Article 9, a secured transaction is one in which a creditor pays value to a debtor, and the debtor grants the secured party an interest in his collateral, which the secured party can take possession of and/or sell upon the debtor's default. A security interest attaches when the creditor has given value, the debtor has rights in the collateral, and the parties have executed a security agreement. A security interest is generally perfected by filing a financing statement.

Question 660

Statute of Limitation - Fraud

Answer 660

2 years from did or should have become aware

Question 661

TORT Battery

Answer 661

The intentional tort of battery requires the intentional or reckless unwanted offensive touching of another.

Question 662

TORT Bouncer

Answer 662

Generally employers are not liable for the intentional torts of their employees.However, an employer may be held liable if the employee’s responsibilites include acts where torts are incident and inherent in the nature of the work. When the torts arise in these incidents, the court will also assess wether it was motivated by an intent to serve. Thus it is common for employers of bouncers to be held liable for intentional torts incident to bouncing.

Question 663

TORT Contributory Negligence

Answer 663

Contributory negligence is a defense when the victim was acting negligently. In Virginia, any contributory negligence can cause an otherwise liable defendant to not be liable. When a party is specifically warned of an action and then does not exercise reasonable care, the party is contributorily negligent. Negligence is based off a reasonable person standard.

Question 664

TORT Dram Shop

Answer 664

Virginia does not have a "dram shop" statute imposing strict liability on establishments serving alcohol for the accidents caused by those that are visibly overserved alcohol.

Question 665

TORT Duty of business to guest

Answer 665

A landowner owes an invitee a duty of reasonable care to keep the property reasonably safe, which includes an obligation to warn of or make safe nonobvious dangerous conditions known to the landowner and a duty to make reasonable inspections to discover dangerous conditions and to then make them safe. The landowner generally does not have aduty to warn of a condition that is so obvious that the invitee should reasonably have been aware of it

Question 666

TORT Duty of Common Carrier / Hotel

Answer 666

A common carrier, like a hotel, owes it's guests elevated duty of care. Hotels have a duty to conduct inspections and warn of artificial and natural conditions they know about or should know about.

Question 667

TORT Duty Property Owners

Answer 667

In Virginia, property owners have a duty of care to maintain their property in such a way to reasonably provide safety when portions of their property expose the public to risks. The property owner has a duty to inspect the land and rememdy defects that they know or should know are likely to present hazards to the public.

Question 668

TORT Intentional Tort

Answer 668

An intentiional tort requires volitional movement and the requistie intent.

Question 669

TORT Liability Statutory

Answer 669

Negligence per se. When a statute is violated by a defendant, a plaintiff may enter the statute into evidence as evidence of negligence per se if the plaintiff can prove that a statutory violation occured and the plaintiff was of the class of people and within the class of risk protected by that statute.

Question 670

TORT Negligence

Answer 670

Negligence requires duty, breach, causation, and damages. An individual or entity must has a duty to the public to act as a reasonably prudent person in the circumstances. This duty must be breached due to their conduct. The result of this breach must be proximate, or "but for," cause of the plaintiff's injuries. Finally, damages, which include compensatory damages, must arise.

Question 671

TORT Negligent hiring

Answer 671

An additional exception where liability for the torts of an employee may arise would be a company's negligent hiring of an employee

Question 672

TORT Proximate Cause

Answer 672

Proximate cause for an injury is an action or inaction that may be deemed a "but for" cause of the injury, but may be attenuated from the most direct cause. However, the harm and the injuried party must have been foreseeable incidents of the negligence asserted.

Question 673

TORT Punitive damages

Answer 673

Virginia courts set a high bar for allowing punitive damages. Punitive damages may be recovered for “willful or wanton conduct, or such recklessness as evinces aconscious disregard for the safety of others” [Va. Code 8.01-52,5j.

Question 674

TORT Rescuer Liability

Answer 674

Generally, rescuers once they attempt a rescue are liable for any negligence in their attempts. Virginia has a "good samaritan" statute that protects persons who, while attempting to assist injuried or at-risk persons, may be deemed to have caused them further injury.

Question 675

TORT Traffic accident altercation

Answer 675

Virginia courts have held that an altercation resulting from a traffic accident remains within the scope of employment.

Question 676

TORT Vicarious Liability

Answer 676

respondeat superior. For vicarious liability for torts to attach there must be a principal agent relationship and the tort must occur within the scope of employment. In cases, where there is an employee of an establishment, the agency relationship is established under the doctrine of respondeat superior. The question of whether the act was within the scope of employment is determined based on an analysis of the totality of the circumstances.

Question 677

TORT Vicarious Liability Independent Contractor

Answer 677

Principals are generally not liable for tort liability commited by independent contractors. The two main exceptions being when the activity is abnormally dangerous or the indpendent contractor holds themselves out to be an employee, in which case the employer/owner would be estopped from claiming no liaiblity.

Question 678

TORTS Bailment

Answer 678

Elements - delivery - acceptance Duty - gradtuitious: gross negligence - commercial: ordinary care and strict liability to deliver to proper owner

Question 679

TORTS Conversion

Answer 679

sdfdsf

Question 680

TORTS premises liability

Answer 680

In Virginia, the owner of a premises that is open to the public and invites the public in for business owes a duty of reasonable care to its invitees. As part of this reasonable care, the business must not only warn of concealed dangers, but actively inspect its premises to ensure that the dangers are discovered and rectified, such that the invitees are protected from them.

Question 681

TORTS proximate cause

Answer 681

Proximate cause in Virginia extends to all natural and probable consequences of the negligence

Question 682

TORTS Rights of Finders

Answer 682

Real owner has absolute superior right

Question 683

TRUSTS trust for minor in anticipation of death

Answer 683

Trust does not automatically terminate upon majority

Question 684

TRUSTS Trustee liability for known misdeeds of co-trusttee

Answer 684

yes!

Question 685

TRUSTS trustee personal liability for unpaid trust expenses

Answer 685

no. trust is iiable

Question 686

UCC Attorneys fees

Answer 686

The UCC structure provides default provisions for many aspects of a contract for goods. The parties are generally free to contract explicitly around these provisions. The default rule regarding attorneys fees is that each party shoulders its own legal costs. The two primary exceptions are when the parties expressly agree to liability for attorneys fees, and when the court finds fraud against one of the parties, in which cases legal fees can be assessed against that party

Question 687

UCC Goods Buyer Acceptance`

Answer 687

A buyer accepts the goods if it fails reject them after areasonable opportunity to inspect.

Question 688

UCC Loss on shipment

Answer 688

There are various types of UCC contracts and how the risk of loss is delineated. A shipment contract is where the seller delivers F.O.B. (free of board) to a common carrier, makes the proper arrangements for the common carrier to deliver the goods to the buyer, and notifies the buyer when the goods have been delivered. During a shipment contract, the risk of loss is on the seller until delivery to the common carrier, and at that point the risk of loss is shifted over to the buyer. So the buyer has the burden of risk during the common carrier’s shipment to the buyer. The other type of contract is a destination contract where the seller delivers F.O.B. to the buyer directly (to either the buyer’s place of business or a place designated by the buyer) and the buyer is notified upon delivery of the goods at the designated location. During a destination contract, the risk of loss remains with the seller until the goods have been delivered to the buyer.

Question 689

UCC NEG INST Impact of security

Answer 689

Additional security on the repayment of a note does not in itself change the negotiability of the instrument. The note aspect of the paper has superior standing to the secured transaction nature of the paper.

Question 690

UCC NEG INST No Contingencies

Answer 690

To be a valid negotiable instrument, it must be payable on demand or at a specific date. Payment based conditioned on an event that is not certain to occur is not sufficient.

Question 691

UCC NEG INST Requirements

Answer 691

a negotiable instrument is a written and signed instrument providing for an unconditional promise to pay money to order or bearer and do nothing else payable on demand or at a definite time. The instrument may be payable either to the order of a specific person, or to bearer. In order for a note to be negotiatable, it must: (i) be paid to someone or to the order or to a bearer; (ii) have a specific sum of money; (iii) have an interest rate either desribed specifically or to be set by the court; (iv) a final payment date; (v) a security; and (iv) a signature.

Question 692

UCC Sales - Care for rejected goods

Answer 692

sss

Question 693

UCC Sales - Definition of merchant

Answer 693

sss

Question 694

UCC Sales - Express Warranty

Answer 694

xxx

Question 695

UCC Sales - Waiver

Answer 695

sss

Question 696

UCC Sales - Warranty for obvious defects

Answer 696

sss

Question 697

UCC Sales Food at Restaurant

Answer 697

A sale of food at a restaurant is considered a sale of goods covered by the UCC

Question 698

CONT UCC FORM | Installment Contracts

Answer 698

An installment contract authorizes the delivery of separate lots over time. Late-delivered lots can be rejected only if the late delivery "substantially impairs" the value of the shipment.

Question 699

UCC SALES Non conforming goods

Answer 699

A buyer that has accepted non-conforming goods may keep the goods and recover damages "for any loss" resulting from the breach, including lost profits.

Question 700

UCC SALES Terms of Art

Answer 700

There are "terms of art" used in contracts for the sale of goods, and they are enforceab;e where the meaning of th term can be foundina usage of trade - UCC 2-202(a)

Question 701

UCC Warranties in sales of of goods

Answer 701

Warranty of good title | Warranty of mechantability

Question 702

VCP Good Faith Purchaser

Answer 702

A good faith purchaser (or bona fide purchaser) is one who takes for value, in good faith, without notice that the sale violates the rights of another in the property.

Question 703

VCP Appeal from Circuit Court`

Answer 703

A party seeking an appeal from a judgment in Circuit Court must file a notice of appeal in the Circuit Court in which a final order or judgment has been entered, within 30 days after the judgment or order has been entered.

Question 704

VCP Appeal Process CC

Answer 704

``` Notice of Appeal Trial Court Clerk's Office 30 days from date of entry final order Mail to all counsel Certificate of service on all counsel ``` Within 30 days of entry of final order - file notice of appeal with Circuit Court Post bond for costs with Supreme Court of Virginia File copy of transscript within 60 days or statement within 55 days? File petition for appeal within 3 months of entry of final order

Question 705

VCP Appeal Supreme Court Standard of review

Answer 705

Law de novo, facts abuse of discretion

Question 706

VCP Appeal to Circuit Court process

Answer 706

File written notice of appeal With the clerk of GDC -- Within 10 days of judgment Post bond and pay writ tax in GDC - - Within 30 days of judgment - - Within 10 days of judgment (if unlawful detainer)

Question 707

VCP Appeal to Supreme Court - Contents

Answer 707

Assignments of Error | Specifies rulings of the trial court of which party complains

Question 708

VCP Appeal to wrong court

Answer 708

Court can not dismiss, must forward to correct court

Question 709

VCP Appealing a sustained demurrer

Answer 709

A sustained demurrer is a final order, subject to appeal, because it represents the "final" disposition of the case.

Question 710

VCP Appealing Objections

Answer 710

Objections during trial must be made timely and with specificity as to the basis of the objection. If a party does not make an objection during trial, the matter will only be addressed on appeal if it constitutes plain error. There is plain error where, absent the mistake, the outcome would have been completely different.

Question 711

VCP Arbitration

Answer 711

Can be enforced by the court

Question 712

VCP Arbitration -Waiver

Answer 712

Can result from - failure to compell up front - extensive participation in litiagation before seeking

Question 713

VCP Arbitration enforcement

Answer 713

Make application to court to enter a conforming award

Question 714

VCP Arbitration vacate award

Answer 714

Yes, but only for a defect in process, not a disagreement with the result

Question 715

VCP Attachment grounds

Answer 715

VA CODE 8.01-534 1. not a resident of Commonwealth 2. Is removing or is about to remove himself 3. Intends to remove, or is removing, or has removed the specific property sued for 4. Is converting with intent to defraud his creditors; 5. Has assigned [property} with intent to defraud his creditors; 6. Has absconded or is about to abscond or has concealed or is about to conceal himself or his property to the injury of his creditors, or is a fugitive from justice. The intent mentioned in subdivisions 4 and 5 above may be stated either in the alternative or conjunctive.

Question 716

VCP Attorney Fees

Answer 716

Generally, in Virginia, each party is responsible for paying their own attorney's fees, and the court will not order otherwise. However, in special cases, such as a finding of fraud, the Court may offer that attorney's fees be paid to the victor. the party must request attorney's fees in the complaint.

Question 717

VCP Attorney fees award

Answer 717

Generally only in cases of fraud

Question 718

VCP BIll of Review

Answer 718

A bill of review is a bill IN EQUITY that requests a judge to reopen a case in which a final order has been entered. However, a bill of review may be filed within six months of the entry of a final order. (A divorce action is a proceeding in equity.) A bill of review can be brought on either of two alternative grounds: [1] error of law apparent on the face of the record of the proceeding; and [2] newly/after discovered evidence. If the bill of review is sought on the grounds of newly/after discovered evidence, leave of court to file the bill of review must be first obtained.

Question 719

VCP Bill to quiet title

Answer 719

Equitable action Settles title, not possession directly Inferior to legal remedy of ejectment

Question 720

VCP Bill to quiet title

Answer 720

Equitable action Settles title, not possession directly Inferior to legal remedy of ejectment

Question 721

VCP Change in amount on appeal to Circuit Court

Answer 721

Permissible if appeal is by defendant

Question 722

VCP Choice of Laws Contracts

Answer 722

Virginia follows the Traditional Approach from the First Restatements of Conflicts (the "Vested Rights" approach). Under the vested rights approach, in breach of contract actions, the forum state applies the law of the state where the contract was executed - unless it is a claim for breach of performance. In that case, the forum court will apply the law of the state where the contract was performed.

Question 723

VCP Civil Appeals

Answer 723

All civil appeals (except domestic and workers compensation cases) from Virginia Circuit Courts are mad on petition to the Supreme Court of Virginia. (If a petition for civil appeal is incorrectly filed with the VIrginia Court of Appeals, that court will transfer the petitiorn to the Virginia Supreme Court.)

Question 724

VCP Conflicts in Laws

Answer 724

Virginia will apply the shortest SOL from among the jurisdictions involved.

Question 725

VCP Conflicts in Laws Choice of Law

Answer 725

Not enforcible if stated forum unrelated to the contract

Question 726

VCP Contents of Bill of Review (new evidence)

Answer 726

Where a party seeks a bill of review based on newly discovered evidence, the party must show: 1) That the evidence was discovered after the conclusion of the trial; 2) That the evidence would likely produce a different result; 3) That the evidence is not cumulative, corroborative, or repetitive; 4) That the evidence could not have been discovered before trial through the use of reasonable diligence; and 5) That the evidence can be produced at trial

Question 727

VCP Court jurisdition after final order

Answer 727

After entry of a final judgement, a case "rests in the breast of the court" for 21 days. After that, the court has no further jurisdiction. The period is adjusted if the 21st day fall on a day when the court is closed.

Question 728

VCP Declaratory judgement

Answer 728

judicial determination of rights and obligations - before actual cause of action matures not favored if alternatives exist "crossroads of a controversy"

Question 729

VCP Defenses requiring affadavit

Answer 729

Lack of genuineness of handwriting Lack of corporate or partnership agency status Lack of ownership or operation of property/instrument

Question 730

VCP Defenses to contributory negligence

Answer 730

Default judgement waives as matter of law - as to liability only, not damages

Question 731

VCP Demurrer requirements

Answer 731

Must state specific grounds for the objection

Question 732

VCP Demurrer sufficiency

Answer 732

A demurrer challenges the legal sufficiency of a Complaint or other pleading. All well-pleaded facts in the complaint are presumed admitted, but the demurrer alleges that even if those facts are true, they do not allege a sufficient basis for a legal claim.

Question 733

VCP Detinue

Answer 733

In Virginia, "detinue" refers to a procedure by which a party may recover possession of "unlawfully withheld" personal property.[1] Many creditors are familiar with a related and similar cause of action, "replevin," which is utilized in many jurisdictions outside of Virginia but has now been abolished in Virginia by statute.[2

Question 734

VCP Discovery (circuit)

Answer 734

Virginia Distinctions: No mandatory disclosures 21 days rather than 30 days for deadlines 30 is the max for interrogatories No limit on number of depositions No requests for production against non-parties

Question 735

VCP Ejectment

Answer 735

Action at law to settle title | Must prove positive right to title for plaintiff

Question 736

VCP Elements of action for detinue

Answer 736

1. show current right to property 2. show right to immediate possession 3. property is capable of being possessed 4. property has value 5. defendant had possession when suit filed good against person with posession but not title seeking seizure in advance required double value bond 8.01-115

Question 737

VCP Evidence on appeal GDC to CC

Answer 737

As the circuit court hears the case de novo, there is no "appeal" from evidence decisions at the GDC

Question 738

VCP Evidence on appeal to VSC

Answer 738

There is none. The SCV appeal is on matters of law, though exclusion of relevant evidence is a possible grounds for abuse of discretion.

Question 739

VCP General District Court Appeal substance

Answer 739

Appeals from the General District Court to the Circuit Court are de novo. Therefore, the parties start over from the beginning and put on the entire case again. Evidence used in the prior trial may be used again, but does not have to be. Similarly, evidence that was not used in the prior trial may be introduced in Circuit Court.

Question 740

VCP General District Court Appeal timing

Answer 740

Parties to a General District Court action may file an appeal to the Circuit Court. This notice of appeal must be filed with the General District Court where the judgment was entered within 10 days of the judgment. However, if the 10th day falls on the weekend, the appellant may file the notice on the following Monday.

Question 741

VCP Geographic scope of court judgement

Answer 741

Against real estate anywhere in Virginia, docket w appropriate

Question 742

VCP Heart Balm Act

Answer 742

In general, can not sue for loss of affection

Question 743

VCP Impact of filing being nullity

Answer 743

There is no case to amend, etc. Does not exist Statute of limitation continues to run

Question 744

VCP Injunction - Temporary

Answer 744

1. Preserve status quo and prevent harm to P? 2. Adequate remedy at law? 3. Likelihood of P prevailing on the merits? 4. public interest? If favor plaintiff, grant and post bond

Question 745

VCP Injunction Permanent

Answer 745

In Virginia, a Court will only order a permanent injunction under the following conditions 1) Plaintiff has suffered a harm 2) a remedy of monetary damages are inadequate 3) the injunction would be in the public's interest 4) the balance of hardships between the Plaintiff and the Defendant favors the Plaintiff 5) the injunction would be enforcable 6) Defendant has no defenses in equity.

Question 746

VCP Injunction Temporary

Answer 746

1) not granting the injunction will cause irreparable harm, 2) the asking party will likely prevail, 3) the benefit of granting the injunction will outweigh the burden on the other party, and 4) the injunction does not go against public policy.

Question 747

VCP Jury - three person

Answer 747

In any civil case in which the consent of the plaintiff and defendant shall be entered of record, it shall be lawful for the plaintiff to select one person who is eligible as a juror and for the defendant to select another, and for the two so selected to select a third of like qualifications, and the three so selected shall constitute a jury in the case. They shall take the oath required of jurors, and hear and determine the issue, and any two concurring shall render a verdict in like manner and with like effect as a jury of seven.

Question 748

VCP Jury awards

Answer 748

Excess if shocks the conscience Plaintiff can accept remittiur (lower) or new trial on all or just damages

Question 749

VCP JURY | Jury contact by others

Answer 749

Judges discretion upon investigation

Question 750

VCP Jury strike for cause

Answer 750

When a potential juror - is related to a party, - has any interest in the case being tried, or - has expressed an opinion or bias in the matter, he can be stricken from the panel for cause.

Question 751

VCP Late Filings

Answer 751

Court MAY approve for good cause | But test is real

Question 752

VCP Motion to Quash

Answer 752

Claim of lack of personal jurisdiction

Question 753

VCP Motion to set aside verdict

Answer 753

Must be made during 21 day post final window | Even if valid, after that judge can do nothing

Question 754

VCP Name of action to ask court to decided ownership of property

Answer 754

Interpleader VA 8.01-364

Question 755

VCP Naming wrong defendant

Answer 755

Misjoinder. Incorrect party. Tolls SOL.

Question 756

VCP Ore Tenus

Answer 756

Oral hearing - common in divorce

Question 757

VCP Pers Jurisdiction Fgn Co

Answer 757

For the Court to exercise personal jurisdiction over a foreign corporation, both Virginia’s Long-Arm Statute (VA Code § 8.01-328.1) and Constitutional Due Process would each have to be satisfied. For purposes of the Long-Arm Statute, Virginia is a single transaction state. If a foreign company transacts business with a Virignia company, the court can assert personal jurisdiction. For purposes of Constitutional Due Process, the foreign company must satisify the minimum contact test first articulated in International Shoe such that personal jurisdiction does not offend traditional notions of fair play and substantive justice. When looking at whether the Defendant has minimum contacts, we look to whether the defendant purposefully availed himself of the benefits of doing business in Virginia and whether it was foreseeable that he may be sued in a Virginia court. We look to the relatedness of the claim to those contacts with the state, and finally, we look to fairness factors, focusing on the affect on Defendant and witnesses in bringing the case in Virginia, the state’s interest in the claim and finally, the plaintiff’s interest in having the case heard in Virginia.

Question 758

VCP Personal Jurisdiction - agent

Answer 758

Presense of an agent in Virginia can create personal jirisdiction

Question 759

VCP possession of items in a car

Answer 759

actual ownership of car matters | must be proven, including knowledge that items were there

Question 760

VCP pre-trial seizure in detinue

Answer 760

1. kind, quantity, and estimated value of property sought 2. basis of plaintiff's claim with particulars 3. allgege grounds for attachment w facts 4. swear to petition by plaintiff or agent PLUS BOND?

Question 761

VCP Preservation of error

Answer 761

Issues (assignment of error) raised on appeal for the first time will not be considered by the appelate court unless the "ends of justice" exception applies - in general, trail counsel must have oobjected tto the issues, and given the trial judge a chance to rule on it, inorder for that issue to be considered on appeal - The "ends of justice" exeption is appplied in extreme cases where the court must correct a grave injustice.

Question 762

VCP Proper venue generally

Answer 762

Place of occurance | Home of defendant

Question 763

VCP Request for Admissions deadline

Answer 763

A request for Admissions must be answered within 21 days or any requested admission is deemed admitted

Question 764

VCP Requirements for bill of review

Answer 764

``` Must be filing within 6 months of prior ruling Based upon - error of law apparent on the face - new/after discovered evidence Requires leave of court to file ```

Question 765

VCP Reverse GFPV real property in probate

Answer 765

One year after start of probate

Question 766

VCP Separation of liability and damages

Answer 766

Proceedings are separated. A waiver of liability defense is not waiver of right to argue damages

Question 767

VCP Server of Service

Answer 767

Court Officer in home or adjoining jurisdiction | Disinterested aduilt

Question 768

VCP Service curative

Answer 768

If service is not proper, but nonetheless the defendant actually receives the summons and complaint in a timely manner, then the curative statute will cure the defective service and service will be deemed proper

Question 769

VCP Service on foreign corporation

Answer 769

Only officer, director, or registered agent | Note curative statute 8.01-288

Question 770

VCP Service Process Out of State Defendant

Answer 770

P executes and files an affidavit setting forth both: - - That D is a non-resident or cannot be found - - D's last known address P gives process and a copy of the affidavit to the Secretary of the Commonwealth The Secretary: - - Sends process to D by certified mail - - Sends a certificate of mailing to the court Service is complete once the clerk of court receives the certificate

Question 771

VCP Service requirements

Answer 771

Virginia's options for service of process are not simple alternatives, rather they are in descending order and only if the preferred method of service fails may process server result to the next option. In Virginia, service on a natural person must be made by either the sheriff or a disinterested adult over the age of 18. To be effective, service must include both a summons and a complaint. The complaint is first filed with the clerk of the court, who will prepare a summons, which is then attached to the complaint. Both the summons and complaint must be served on the defendant for service to be effective. Service on natural persons may be accomplished in several ways. In descending order of priority, these methods are: 1) In person; 2) By delivering to a family member over the age of 16 at the defendant's usual place of abode and explaining the significance of the service; and 3) By posting on the front door of the defendant's usual place of abode and mailing a copy of the complaint and summons to the defendant's address. If service is not proper, but nonetheless the defendant actually receives the summons and complaint in a timely manner, then the curative statute will cure the defective service and service will be deemed proper.

Question 772

VCP Sovereign Immunity - timing of defense

Answer 772

Can be raised at any time as it relates to subject matter jurisdiction

Question 773

VCP Soverign Immunity - scope

Answer 773

Virginia Tort Act only applies to state - NOT counties - but yes cities and towns Counties SI for all negligence Cities and towns and state liable for gross negligence $100,000 cap (to same extent as private citizen liability)

Question 774

VCP Specific Performance

Answer 774

First, as is the case with all equitable remedies, Sam must demonstrate that no adequate remedy at law is available. While Virginia generally recognizes that real property is sufficiently "unique" to meet this requirement for buyers, sellers are also afforded specific performance under real estate contracts if the equities so demand.

Question 775

VCP Specific Performance

Answer 775

Rare outside of real estate Court must find - contract is valid - contract not subject to legitimate defenses - no adequate remedy at law (real estate is unique) Performance obligations on both sides?

Question 776

VCP Statue Limitations Breach Contract

Answer 776

In Virginia, a breach of contract claim has a statute of limitations period for five years. The statute begins to run from the date the contract was entered.

Question 777

VCP Statute limitations breach of contract

Answer 777

5 years

Question 778

VCP Statute Limitations Equitable Relieve

Answer 778

traditionally, in Virginia, there is no statute of limitations for equitable claims.

Question 779

VCP Statute Limitations Fraud

Answer 779

For claims of fraud, the statute of limitations is two years to bring the claim. The statute of limitations for fraud claims begins to run at the time the fraud is discovered, not when the fraudulent act is committed.

Question 780

VCP Statute limitations Offer Will to Probate

Answer 780

None

Question 781

VCP Statute of limitation - written contract

Answer 781

Five years non UCC | Four years UCC

Question 782

VCP Statute of Limitation sale of good

Answer 782

The statute of limitations on the sale of goods is 4 years, as articulated by the UCC

Question 783

VCP Statute of limitations - injury to person

Answer 783

2 years

Question 784

VCP Statute of Limitations - Tolling

Answer 784

All time periods for statutes limitations are tolled for incapcity or infancy of the plaintiff. Infancy in Virginia ends upon turning age 18.

Question 785

VCP Statute of Limitations Contracts

Answer 785

in Virginia, contracts have a statute of limitations of 3 years for oral contracts, 4 years for UCC contracts for sale of goods, and 5 years for written contracts. The statute of limitations begins to toll when there has been a breach of the contract.

Question 786

VCP Statute of limitations tolling

Answer 786

Infancy - until majority (age 18) | - except medical malpractice to 10

Question 787

VCP Subject matter jurisdiction

Answer 787

Can not be accepted or waived. Can not be conferred by private party Is what it is Issue can be raised at any time

Question 788

VCP Summary judgement

Answer 788

Any party can move for summary judgement. Based upon the pleading and any requests for admissions - inlcuding any attachments to the pleadings

Question 789

VCP Summary judgement evidence

Answer 789

The court may not rely upon depositions in ruling on a motion for summary judgement, unless all parties have agreed to allow them. Information contained in a discovery request for admissission may be used, even if that request for admissions was inspired by deposition testimony.

Question 790

VCP | Suspension of an order

Answer 790

Keeps case in court's jurisdiction. | Tolls the 21(?) day rule?

Question 791

VCP Sustaining a demurrer

Answer 791

When the court sustains a demurrer, it can take one of two actions. It can make a final order dimissing the case, or it has the power to allow the plaintiff to amend the pleading.

Question 792

VCP Term for using wrong name for defendant

Answer 792

Misnomer

Question 793

VCP Tests for preserving SOL if wrong person named

Answer 793

1. New action arose from same event in initial pleading 2. Correct person was unaware of pendency of action 3. Delay does not prejudice defendant 4. Defendant should have been aware cause of action pending

Question 794

VCP Titleing an action by minor

Answer 794

Jane Doe, a minor, who sues by her next friend John Doe, Plaintiff

Question 795

VCP Trial by jury

Answer 795

Not possible in District General Court

Question 796

VCP Unlawful detainer

Answer 796

Legal action | Action for possession (not title) of real property

Question 797

VCP VA attorney designation of a non VA attorney as agent

Answer 797

Not permitted. Any action by agent is a nullity

Question 798

VCP`Barriers to non-suit

Answer 798

1. motion to strike evidence sustained 2. jury has retired from bar 3. action submitted to court for decision

Question 799

VCRP Automobile passenger

Answer 799

For an officer to search an individual in an automobile, they must either have consent, reasonable suspicion of danger for a Terry Stop, or probable cause that the search will provide evidence of a crime.

Question 800

VCRP Drug Dog

Answer 800

a drug sniffing dog may be used during the course of a lawful traffic stop, so long as the traffic stop is not unreasonably extended. An alert from a drug-sniffing dog can give rise to probable cause so long as the foundation can be laid that the dog has the proper training, etc. A sniff from a drug dog is not considered a search unless it is done upon a constitutionally protected area. a vehicle is not a constitutionally protected area where an individual has a reasonable expectation of privacy. Thus, a dog sniff of a car does not constitute a search.

Question 801

VCRP Motion to Strike

Answer 801

In a criminal trial, a party may file a motion in limine to resolve an issue of admissibility prior to the trial taking place. The defense should file a motion to exclude the evidence, and the court should hold a preliminary hearing on the issue prior to trial. If the defense failed to make a pretrial motion, the defense may object to the admissibility of the evidence upon the prosecutions attept to admit the evidence. The court should hear arguments outside the presence of the jury so as not to prejudice the jury.

Question 802

VCRP MOTION | Motion to suppress

Answer 802

Motions seeking to exclude evidence must be raised in writing before trial by motion filed and notice given to opposing counsel not less than seven days before trial in circuit court VA 19.2-266.2 The court can still allow the motion to be made.

Question 803

VCRP Pat down of person

Answer 803

A pat down of an individual is permissible only if the officer has reasonable suspicion that the person might be armed or dangerous.

Question 804

VCRP Plain View

Answer 804

Illict items in plain view during the execution of a search warrant may be seized even if not named specifically in the warrant. Under the plain view doctrine, an officer may seize items which are in plain view if their illicit nature is readily ascertainable and the officers did not need to move or disturb the objects to discover them.

Question 805

VCRP Possession

Answer 805

Possession can be actual or constructive. Actual possession would be physical possession, like holding a gun. Constructive possession is when one exercises dominion and control over the space containing an object. Note in a crimnal case possession must be beyond a reasonable doubt

Question 806

VCRP Probable cause to arrest

Answer 806

Probable Cause exists where the facts and circumstances within the officer's knowledge, and of which he has reasonaably trustworth information, would lead a reasaonable person to believer that a crime has been committeed, and the arrest of a person believed to have committed it.

Question 807

VCRP Seach person``

Answer 807

Police may also not search or seize a person under the law without justifiable support. There are several exceptions to this general rule. Police are able to Terry stop and frisks based on reasonable suspicion, may search subjects incident to arrest, and may search subjects for inventory at the time of booking. Here, the facts indicate that the police had a right to search the man for either of the final two reasons. Officers may search a person and seize any weapons or contraband that is immediately apparant incidental to an arrest. This rule is designed to protect officer safety.

Question 808

VCRP Search of Automobile

Answer 808

a special set of rules has evolved articulating the application of the 4th amendment to police-citizen encounters that occur in the context of automobiles. Officers may perform a warrantless search of a vehicle if they have probable cause to believe that it contains evidence of a crime.

Question 809

VCRP Search warrant description

Answer 809

A search pursuant to a valid warrant is presumptively reasonable. The warrant must describe with some specificity what items the police are searching for, and police cannot search in places where the items on the search warrant could not be found.

Question 810

VCRP Search warrant scope

Answer 810

When a search warrant authorizes officers to search for specific items within a home, they are authorized to search containers and places within the home in which such items could reasonably be discovered.

Question 811

VCRP Separate witnesses

Answer 811

In general, the court is required , on motion of either attorney, to exclude the winessess to be called. Bzut there is a statutory excdeption that allows a complaining witness to remain in the courtroom ifis does not compromise the fairness of the process. VA 19.2-265.1

Question 812

VCRP Stopping a car

Answer 812

Under the Fourth Amendment of the Constitution, an individual has a right against unreasonable searches and seizures of his person and effects. An officer may stop a car upon the probable cause of a crime being committed. If an officer personally observes a misdeamor, the officer may show authority and lawfully stop the vechile

Question 813

VCRP Sufficiency of evidende firearm

Answer 813

It is not necessarily that the victim actually see a firearm to convict for using a fireamr in the commission of a felony - this can be proven by circumstantial evidence

Question 814

VCRP Sufficiency of the evidence

Answer 814

sfsd

Question 815

VCRP Unduly suggestive identification

Answer 815

A "show up" identification procedure is not overly suggestive when the witness has sufficent time and ability to look at the suspect and is not pressured into identifying someone.

Question 816

WILL Legal List

Answer 816

If a will refers to a written statement or list to dispose of items of tangible personal property not otherwise specifically bequeathed, the statement or list shall be given effect to the extent that it describes items of tangible personal property and their intended recipients with reasonable certainty and is signed by the testator although it does not satisfy the requirements for a will. Bequests of a general or residuary nature, whether referring only to personal property or to the entire estate, are not specific bequests for the purpose of this section.

Question 817

WILLS Dead Man Rule

Answer 817

Virginia applies a modified version of the Dead Man's Statute. A witness who has an interest in the decedent's estate may offer testimony as to statements made by the decedent, but only if there is some other evidence to corroborate that statement.

Question 818

WILLS Impact of adoption

Answer 818

When a child is adopted in to a family, she takes only from her adoptive parnets. She does not take from her biological parents. The sole exception to this rule is when there is a step-parent adoption, which occurs when one of the childs parents remarries and the child’s step- parent adopts the child. In these situations, the child can take from both of his biological parents as well as the adoptive parent.

Question 819

WILLS Intestate succession

Answer 819

Under the intestacy laws, if a decedent does not leave behind a surviving spouse, the estate passes to any descendants of the decedent, by representation. Only children who are natural children of the decedent, or who have been formally adopted, constitute "descendants" for intestacy purposes. If a decedent does not leave behind a surviving spouse or any descendants, then the estate passes to his parents. If his parents do not survive him, then the estate passes to his siblings, by representation.

Question 820

WILLS Transfer by referenced list

Answer 820

in Virginia, a will can incorporate a list by reference. This list can be executed before, during, or after the will is executed and still be a valid conveyance of property.

Question 821

WILLS Transfer on Death Deed

Answer 821

Under Virginia (VA) law, while a grantor who wishes to transfer title to land ordinarily requires that a deed be both executed and delivered to a grantee, a grantor can satisfy the delivery requirement by a Transfer on Death deed, which is a non-probate asset that transfers title immediately upon the grantor’s death

Question 822

WILLS Validity of Copy

Answer 822

In Virginia, if a decedent was known to have executed a will, and that will is not found in his possessions at his death, there is a presumption that the decedent destroyed the will. Physical destruction of the will, such as by burning or tearing the text of the document, operates as a revocation by physical destruction. However, even if the will cannot be found, a copy of the will can be admitted for probate if there is sufficient evidence to establish that the copy does represent the testator's valid last will and testament, and that it was not revoked`

Question 823

WILLS abatement

Answer 823

If the probate estate has a reduced value from what is bequeathed in the will, then the process of abatement will determine how the reduced value will be apportioned among the beneficiaries. State law determines how ademption or abatement will apply.

Question 824

WILLS Abatement Virginia

Answer 824

Property that a testator gave during his lifetime to a person shall not be treated as a satisfaction of a devise or bequest to that person, in whole or in part, unless (i) the will provides for deduction of the lifetime gift, (ii) the testator declares in a writing made contemporaneously with the gift that the gift is to be deducted from the devise or bequest or is in satisfaction thereof, or (iii) the devisee or legatee acknowledges in writing that the gift is in satisfaction of the devise or bequest.

Question 825

WILLS ademption by extinction.

Answer 825

When the asset covered by as specfic bequest is not found in the estate

Question 826

WILLS ademption by satisfaction

Answer 826

A gift given to the beneficiary while the testator was still alive is called ademption by satisfaction.

Question 827

WILLS Afterborn heirs.

Answer 827

Relatives of the decedent conceived before his death but born thereafter, and children resulting from assisted conception born after the decedent's death who are determined to be relatives of the decedent as provided in Chapter 9 (§ 20-156 et seq.) of Title 20, shall inherit as if they had been born during the lifetime of the decedent.

Question 828

WILLS Age of majority in Virginia

Answer 828

18

Question 829

WILLS Completion of a gift

Answer 829

To complete a transfer of title to an asset, there must be intent, acceptance, and delivery of title. Acceptance may be assumed by silence or passage of time. Delivery is completed either by physically handing the necessary document to the recipient, or symbolically. The transferor's intent is necessary in determining whether delivery occurred or not, because even where physical delivery did not occur, if it is clear that the transferor intended for the recipient to receive it, delivery may be have been made.

Question 830

WILLS Conflict between will and outstanding contract

Answer 830

Represents a breach of contract Actionable against estate Seek specific performance against estate Conflict grounds for removing executor?

Question 831

WILLS Contract

Answer 831

A contract to make a will is controlled by the same rules and priniciles and is enfforceable as other contracte The remedy is specfic performance

Question 832

WILLS Contractual significance of mirror wills

Answer 832

Insufficient without other evidence

Question 833

WILLS Death of ommitted child before majority

Answer 833

Property reverts to estate, not intestacy

Question 834

WILLS Dependent relevant revocation

Answer 834

Dependent relevant revocation (DRR - also known as ineffective revocation) is a doctrine in trusts and estates law. It makes a revocation of a former will ineffective if the testator made the revocation through execution of a new will, and that newly executed will is determined invalid.

Question 835

WILLS Disposition of funds in joint account WROS

Answer 835

To the survivor unless clear evidence of other intent WHEN ACCOUNT WAS CREATED

Question 836

WILLS Effect of guardian on assessing capacity

Answer 836

not dispository

Question 837

WILLS Elective share

Answer 837

§ 64.2-308.3. Elective share amount; effect of election on statutory benefits; non-domiciliary. A. The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this article, to take an elective-share amount equal to 50 percent of the value of the marital-property portion of the augmented estate. B. If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse's homestead allowance, exempt property, and family allowance, if any, are not charged against but are in addition to the elective-share amount. C. The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent's domicile at death.

Question 838

WILLS Elements of testatmentary capacity

Answer 838

Know: 1. the nature of his property 2. the natural objects of his bounty 3. capable of forming an orderly plan of disposition 4. understand the disposition made AT TIME OF SIGNING Need not be as sharp as ever Prior periods of incapacity irrelevant

Question 839

WILLS Entitled to Probate

Answer 839

Speak for is this a valid will

Question 840

WILLS Estate Tax in Virginia

Answer 840

none?

Question 841

WILLS Gift in praesenti

Answer 841

donor may reserve right of possession if manifest intent that gift is complete

Question 842

WILLS Holographic will

Answer 842

Merely requires that it clearly be intended as a wiil Entirely in testator handwriting Same rule for revival / codicil?

Question 843

WILLS hotchpot

Answer 843

When the descendant of a decedent receives any property as an advancement from the decedent during the decedent's lifetime or under the decedent's will, and the descendant, or any descendant of his, is also to receive a distribution of any portion of the decedent's intestate estate, real or personal, the advancement shall be brought into hotchpot with the intestate estate and the descendant is entitled to his proper portion of the entire intestate estate, including such advancement. the combining of properties into a common lot to ensure equality of division among those entitled to a share of an estate which requires that advancements (as to a child) be made up to the estate by contribution or by an accounting

Question 844

WILLS If will is NOT self-proving, what is process

Answer 844

``` Any interested person take to Clerk of Circuit Court - original of will - death certificate - one of the two witnesses of will AND - pay fees - post bond and surety if PR ```

Question 845

WILLS Impact of adoption on intestacy

Answer 845

Cuts off original family line

Question 846

WILLS Impact of lapsed beneficiary

Answer 846

Either creates intestacy OR | Requires contructive return to gross estate/residuary

Question 847

WILLS Impact of two valid wills?

Answer 847

Most recent trumps on conflicting aspects | Older stands where not in conlfict

Question 848

WILLS Independent Significance

Answer 848

The doctrine of acts of independent significance at common law permits a testator to effectively change the disposition of his property without changing a will, if acts or events changing the disposition have some significance beyond avoiding the requirements of the will. The doctrine is frequently applied under the following two circumstances: ``` The testator devises assets to a class of beneficiaries where the testator controls membership. For example, Joey leaves the contents of his bank account "to my employees." If Joey then fires some of old employees and hires new ones, the new employees will inherit the contents of the bank account under this provision. The testator devises a general type of property, and then changes the specific items of property within that category. For example, Joey writes in his will, "I leave my car to Rachel". Joey drives a 1974 AMC Gremlin at the time of the testamentary instrument, but later sells the Gremlin and purchases a 2016 Rolls-Royce Phantom Drophead Coupé with suicide doors and teak paneling. Because Joey bought a new car to get a more comfortable ride, rather than to change a will without going through the testamentary formalities, the gift to Rachel remains enforceable. ``` The Uniform Probate Code states, A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of another individual's will is such an event.[1]

Question 849

WILLS inherit through a will

Answer 849

technically not possible. | one inherits only through intestacy

Question 850

WILLS Interpartes Probate

Answer 850

In rare cases, all interested parties can be summoned to appear before a Circuit Court pursuant to Va. Code § 64.2-449. Guardians ad litem may be appointed for minors and incapacitated persons. Where necessary, process may be had by order of publication. When all interested parties are convened, the Court shall proceed to hear the motion for probate. The use of this proceeding results in a decree that will generally bar parties to the proceeding from later filing a Complaint to Impeach or Establish the Will. (See Va. Code § 64.2-448; Lamb, Virginia Probate Practice §§ 56 through 75.)

Question 851

WILLS Intestacy children different marriages

Answer 851

spouse gets 1/3, children split remaining 2/3rds

Question 852

WILLS Intestacy children surviving spouse

Answer 852

spouse takes all

Question 853

WILLS Intestate beneficiaries

Answer 853

1. Spouse 2. Children 3. Parents 4. Siblings Virginia phrase that covers: Grandparent or descendant of grandparent??

Question 854

WILLS negating anti-lapse provision

Answer 854

stating "those who survive me" as a modifier

Question 855

WILLS Nuncupative Will

Answer 855

A will that has been delivered orally (that is, in speech) to witnesses, as opposed to the usual form of wills, which is written and according to a proper format.Valid for soldier in actual military service or mariner or seaman at sea to dispose of personal property.

Question 856

WILLS Nursing Home

Answer 856

A will is probated in the Cirdcuit Curt within the city or county where the decedent had a known place of residence. There is a rebutable presumpiton that moving into a nursing home does not change the resideced.

Question 857

WILLS Oral creation/modification of a trust

Answer 857

Must have - intent to create a trust - actual transfer of property by clear and convincing evidence

Question 858

WILLS Oral gift of property at death

Answer 858

Invalid. Only a will will do

Question 859

WILLS Out of State Executor

Answer 859

Out of state residents may serve as executors, so long as they - consent to service of process in Virgnia, and - post a srety bond no matter what will says OR get a Viriginia resident to serve as co-executor

Question 860

WILLS Overarching rights of surviving spouse

Answer 860

$24,000 (2k x 12) family allowance $20,000 exempt personal property $20,000 homestead allowance These trump all but costs of administration no homestead allowance if elective share?

Question 861

WILLS Power of Appointment

Answer 861

Creation of power of appointment. A. A power of appointment is created only if: 1. The instrument creating the power: a. Is valid under applicable law; and b. Except as otherwise provided in subsection B, transfers the appointive property; and 2. The terms of the instrument creating the power manifest the donor's intent to create in a powerholder a power of appointment over the appointive property exercisable in favor of a permissible appointee. B. Subdivision A 1 b does not apply to the creation of a power of appointment by the exercise of a power of appointment. C. A power of appointment may not be created in a deceased individual. D. Subject to an applicable rule against perpetuities, a power of appointment may be created in an unborn or unascertained powerholder.

Question 862

WILLS Proof of paternity out of wedlock

Answer 862

Must be by clear and convincing evidence

Question 863

WILLS Remedy for unjust enrichment

Answer 863

Court designation of constructive trust

Question 864

WILLS Removal of executor by court

Answer 864

Can be done whenever from any cause it appears proper | But this is still a high bar

Question 865

WILLS Required to shift proof undue influence

Answer 865

1. Evidence of some weakness of mind 2. Testator names beneficiary who stood in relationshp of confidence or dependence 3. Testator had previously expressed a contrary intention of disposition NOT ENOUGH: 1. 2. 3.

Question 866

WILLS Requirements

Answer 866

Must in writing Signed by testator Must be signed or acknowledges in the presence of two witnesses present at the same time And in the presense of the testator

Question 867

WILLS Requirements for inter vivos gift

Answer 867

Donative intent Delivery Acceptance Donor can retain for life if clearly completed gift

Question 868

WILLS Residence of person in nursing home

Answer 868

Rebutably presumed as residence before becoming a patient in nurnsing home

Question 869

WILLS Residency requirement of executor

Answer 869

``` If not a Virginia resident, 1. must appoint either: - a Virginia resisident (inc. Virginia bank) - Clerk of Court to receive service of process --- AND --- 2. post a surety bond unless - a Virginia resident is also serving OR - clerk waives surety ```

Question 870

WILLS Right of Survivorship

Answer 870

For accounts of joint ownership, the law prefers ownership in common instead of ownership with rights of survivorship. Where, however, the instrument that creates an account expressly states that it is created as a joint account with rights of survivorship, then it is properly a joint account with survivorship rights as long as the all the account owners create the account at the same time and in the same instrument. In a joint account with rights of survivorship, a decedent's share passes to the surviving owner(s), instead of any testate or intestate takers, as a form of nonprobate transfer. This form of nonprobate transfer takes precedence over a testate decedent's preferences expressed by will.

Question 871

WILLS Rights of ommitted child

Answer 871

such portion of the testator's estate as would have been entititled to if testator had died intestate OR equal to same as largest bequest to sibling under the will

Question 872

WILLS Self Proving

Answer 872

A self-proving will, is a will that has been certified and acknowledged in advance of probate. The affidavit contains sworn statements attesting that the testator signed their will freely and without any coercion. The testator and the two (2) witnesses must sign the affidavit in the presence of a notary public who will, in turn, provide their certification. Once the affidavit has been signed and notarized, it will be admissible in court as sworn testimony on the part of the witnesses.

Question 873

WILLS Tagged items in safe deposit box

Answer 873

Not clear if these are completed gifts or part of estate

Question 874

WILLS Testing reality vs possiblity of undue influence

Answer 874

If in the end, there was no benefit... | So even with presumption of fraud, might admit will?

Question 875

WILLS Transfer on death deed

Answer 875

Legitimate in Virginia if recorded

Question 876

WILLS Undue influence in draft of will

Answer 876

Is a form of fraud Thus must meet higher burden of proof - clear and convincing evidence

Question 877

WILLS | Virginia Dead Man Statute

Answer 877

8.01-397 no judgment or decree shall be rendered in favor of an adverse or interested party founded on his uncorroborated testimony.

Question 878

WILLS Where do lapsed bequests go/

Answer 878

To residuary portion of estate - often thence intestate

Question 879

WILLS Who controls inherited property of child?

Answer 879

Guardian of the estate appointed by court | - not necessarily parent (guardian of the person)

Question 880

WILLS Who is protected by anti-lapse

Answer 880

A decendent, but not a spouse

Question 881

WILLS Will signature requirement

Answer 881

two competent witnesses can be saved by harmless error rule?