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1
Q
A
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2
Q

IT - Defenses and Privileges - Types (9)

A
  1. Consent
  2. Defense of self
  3. Defense of others
  4. Defense of property
  5. Recapture of chattels
  6. Necessity
  7. Under Color of Law
  8. Discipline
  9. Justification - court created “catch-all”
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3
Q

IT - Defenses and Privileges - Necessity - Types (2)+ effects

A
  1. Public: Gral public interest
    • Absolute privilege - not liable for any injuries or dx (i.e. firefighter breaking door)
  2. Private: for self-interest
    • has to pay for dx caused
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4
Q

Torts - Remedies - Types (6)

A
  1. Actual dx
  2. Future dx
  3. Interest award
  4. Attorney Fees
  5. Punitive dx
  6. Duty to mitigate
  7. Injunctive relief
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5
Q

Torts - Remedies - Dx - Prove Requirements - Nominal Dx BAFTD

A
  • No need of prove for prima facie case - Jury PRESUMPTION of injury and nominal dx can be awarded
  • BAFTD
    • battery
    • assault
    • false imprisonment
    • Tresspass of land
    • Defamation (per se)
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6
Q

Negligence - Legal Duty - General Duty Standard / foreseable risk-P

A

“Reasonable prudent person under similar circumstances”

N = failure to meet standard when there is a foreseable risk for a foreseable P

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7
Q

Negligence - Legal Duty - Agency Vicarious Liability - Independent Contractor Rules

A
  • Torts by independent contractor usually not generate vicarious liaiblity UNLESS:
    • Ppal with control in the means and objectives of the work
    • Inherently dangerous activities
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8
Q

Negligence - Legal Duty - Land Owner/Possessor - On the Premises - Adult Tresspasser / gral rule, exception

A

Gral Rule: Tresspass at own peril

  • No duty to warn and not liable for dx from dangerous conditions

UNLESS

  • Knowledge of constant tresspass over a limited area - it creates limited duty to warn or correct
  • No wilfull N or excessive use of force
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9
Q

Negligence - Breach of Duty - “Res Ipsa Loquitur” / what, necessary showing (2), effect

A
  • Even w/out evidence jury instructed to infer Negligence from DX - even w/out knowledge of D’s action
  • As a rebuttable presumption of N
  • Necessary to show (3)
  1. Injury wouldnt ordinarily happen w/out someone influence
  2. Operative instrumentality was under D’s exclusive control
  3. No competing plausible guest

i.e. patient wakes up from surgery with instrument inside

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10
Q

Negligence - Defenses - Types (3)

A

As related to P’s own fault for the tort

  1. Contributory N
  2. Comparative Fault
  3. Assumption of RIsk
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11
Q

Fraud - Elements - Damages / req, amount for recovery

A
  • Foreseable
  • P entitled to “Benefit of the bargain” - put P in same position as if statement was true
    • or reescind transaction and recovermoney paid
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12
Q

Negligent Mispresentation - D’s status and Particular P

A
  • D: Usually required to be a professional or business related actor that can make such an statement
  • P: must have suffered dx from justifiable reliance and D to be aware of it - ie.e. professional or fiducairy relation
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13
Q

Torts - Strict Products Liaiblity- Defenses (5) SCAAM

A
  1. State of the Art: industry standards + no knowledge of danger at time of production
  2. Comparative Fault -unless is failure to discover hidden/latent defect (no contributory N)
  3. Assumption of risk: i.e. reduction of price
  4. Alteration: as break in chain of causation
  5. Misuse or overuse: unforeseable use or abuse not originally intended - malfunction wouldnt happened under normal usage
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14
Q

Torts - Product Liability - Negligence - Legal Duty / what, by who, to who

A
  • Duty of reasonable care
  • To: All Ps wihtin danger zone as in stream of commerce
  • From: Everyone in chain of commerce - manufacturer, wholesaler, retailer.
    • HOWEVER: reatiiler usually w/out duty to inspect, and N ffrom manufacturer not usually imputed to retailer
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15
Q

Products Liability - Breach of Warranty - Types of warranties (4)

A
  1. Express: reasonable and as part of bargain.
  2. Implied of merchantibility: average quality/fit fro ordinary purposes and pass w/out objection in the trade
  3. Implied of Fitness for Particular Purpose: when buyer relie on advice by seller - even if exceeds industry standard
  4. Title and against infringement - GUT
    • ​​G: good title
    • U: Free from undisclosed SI, liens, encumprances, claims
    • T: Seller with full transfer rights and/or no infringement of trademark/copyright
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16
Q

Defamation - Elements FPID (4)

A
  1. Unprivileged False statements of fact about P
  2. Publicized to 3rd person
  3. With wrongful intention or N in exposure of P to hatred/contempt/ridicule/disgrace
  4. Creates DX to P’s reputation and good name
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17
Q

Defamation - Standard of Proof and degree of fault required (3) (public/private)

A
  • Burden: On P to show f_alsity and degree of care_
  • Proof: Clear and Convincing E (exception to gral rule of preponderance of E)
  • No SL - unconstitutional
  • Degree of fault to show + Falsity of statement:
  1. Private person/private matter: ordinary N
  2. Public Figure/private matter: Recklesness
  3. Public/Public: Actual Malice or Knowingly falsehood
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18
Q

Defamation - Defenses TEMPR (5)

A
  1. Truthfulness of statement
  2. Express or implied consent of P with the publication or content of statement
  3. Mere Subjective Opinion: differs from objective statement of truth on the language used - ridicule/abuse usually opinion BUT when reference to underlying facts is deemd statement
  4. Privilege: absolut or qualified
  5. Retraction: some states require publication within X time
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19
Q

Mootness exceptions (2)

A

1) Capable of repetition but evading review (harm duration shorter than court cycle OR D’s voluntary cessation but resumable)
2) Class Actions

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20
Q

Standing reqs (3) ICR + prudential standards

A

Have “PERSONAL STAKE” on case/result

  1. Injury: personal and sirect
  2. Causation: cuasal relation action/harm
  3. Redressability: legal remedie avaialble for harm

+

Prudential:

  • no generalized grievance - no “citizen standing”
  • Victim in “zone of danger”
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21
Q

State Sovereign Immunity (11th Am) exceptions (5)

A

Gral Rule: No suing of State UNLESS:

1) Local Govts/agencies
2) State officers (personal action under color of law)
3) Express Consent - or after removing to fed court and use of 11th am as defense
4) Federal tax - for propietary activity
5) Congress Abrogation

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22
Q

Congress Abrogation (State Sovereign Immunity (11th Am) exceptions)

A

By use of Enforcement Clause (14th am section 5)

  • never under commerce power
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23
Q

Cx - Judicial Restrain - “Abstention to hear cases”

A

Prudential for court when:

  • When question of state law is unsettled or uncertain
  • Claim is still pending of relief from below
    • no final decision or no exhaustion of tools
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24
Q

CX - Judicial Restrain - Adequate and Independent State Grounds

A
  • For violation of state statute
  • When decision by state court is (2)
  1. clealry independent from federal grounds
  2. adequate to decide cases
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25
Q

Enumerated Powers of Congress (CAMP/FTC/BD-C) + (TPI)

A
  • Commerce - Admiralty + Maritime Affair - Military + War - Postal - Foreign Affairs - Tax + Spending - Citizenship + Naturalization - Bankruptcy - D.C. laws + - Takings clause - Property Clause - Investigation
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26
Q

Commerce Power - 3 prong (Lopez)

A
  • Channels, Instrumentalities, Substantial Relationship
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27
Q

14th Am Section 5 Enforcement Power of Congress judicial limit

A

1) Congress cant depart from SupCourt interpretation of C 2) Not create new rights

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28
Q

Federal Executive Powers (8)

A
  1. Take Care clause - exec of laws or veto - discretion
  2. Political Appointment
  3. Removal of appointed officials
  4. Impeachment (removal of elected officials)
  5. Pardon of federal crimes
  6. Commander in Chief
  7. Foreign Policy
  8. Executive Privilege and Immunity
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29
Q

Inm AND priv (IAP) vs Inm OR priv (IOP)

A
  • IAP: 4th Am - no discrimination by state against citizen/resident of other state .
  • IOP: 14th Am - protect against state/fed action on fundamental rights of nationals
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30
Q

Federalism - Inmunities and Privileges (IAP): 4th Am - Scope of protection

A

Protection against STATE action vs:

1) Fundamental civil state rights
2) Essential economic activities (livelihood)

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31
Q

Equal Protection (EP) - 14th Am elements

A

similarly situated groups/persons treated different by state (fed/state)

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32
Q

EP - 2 step analysis of law

A

1) Facially discriminatory?: ID class + level of scrutiny
2) Facially neutral? DI-DI: disparate impact + Discriminatory intent + apply facial challenge

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33
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A
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34
Q

CX - Takings clause - types + test for compensation

A

1) Trespassory:

  • a) Eminent domain: action brought by gvt
  • b) Inverse condemnation : action by owner bc of decrease in value

2) Regulatory: deprivation of all viable economic use of land

Test: Penn Central: negative economic impact vs interference with investment expectation vs character of govt

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35
Q

Religion - Exercise -2 step analysis for level of scrutiny

A

1st: Is law a) grally applicable + b) facially neutral = Reasonable basis scrutiny
2nd: If law not all above: strict scrutiny

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36
Q

Religion - Exercise - Strict Scrutiny for facially discriminatory law/regs - P to prove (2):

A

1) E of deliberate govt intent to interfere/prohibit/restrict OR
2) Law affect another fundamental right

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37
Q

Religion - Establishment - Lemon Test for violation (3 parts + prudential question)

A

1) Is purpose of law secular (benefit of public in gral w/o religious consideration) 2) Primary effect not to advance/inhibit religion 3) No excessive govt entanglement + 4) Is govt action endorsement?

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38
Q

Utility of trust - 4 purposes

A

1) Reduce estate taxes
2) Use of living trusts
3) Protect Assets beyond reach of creditors/govt/beneficiaries (“spendthrift restriction”)
4) Avoid Probate administration

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39
Q

Trust Revocability (CL vs UTC)

A
  • CL: irrevocable unless express reservation by donor of power to revoke/amend/substitute
  • UCT: revocable unless expressly provided otherwise - creation of “grantor’s trust” where settlor can withdraw assets at any time
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40
Q

Trust - Petition for court’s trust modification - standing, notice, E + interpretation / ADR

A
  • any party with interest (PR, trustee, settlor, beneficiary + attorney general for charitable trusts)
  • All interested parties notified
  • Court will hear all evidence/assert intent of trustor/effect on creditors and heirs: decide to direct trustee to act or refrain from acting

(Usually avoided by ADR provision in trust)

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41
Q

Trusts - RAP for wills and trusts - Gral

A

Non-vested property interest invalid UNLESS at time of creation there is certainty of vesting/termination within 21 years from death of individual then alive (measuring life) or 90 years after creation

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42
Q

Trusts - RAP - General Scope of application (4)

A

1) Executory interest
2) Open Class Remainder
3) Contingent Remainder
4) Non-charitable trusts (in most states)

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43
Q

Trusts - RAP - Time - Legal Effects / start time, effects (2)

A
  • Clock starts for intervivos irrevocable transfer once property delivered to trustee OR revocable at time of death of settlor

Effects:

1) Court strikes down portion of conveyance
2) If conveyance as fee simple subject to condition subsequent (“but if”) or if fee simple determinable (“so long as”) = then trust will be deemed as fee simple absolute

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44
Q

Trustee - Duties/Liabilities - PINCALL (7)

A
  • Properly Administer - “total asset mgmt” approach (duty of care, safeguard, productivity)
  • Inform beneficiaries
  • No delegation of discretional decisions
  • Commingling of assets (w/ other trust OR trustee’s personal assets) prohibition
  • Account to beneficiaries
  • Litigate on behalf of trust (Sue/Defend)
  • Loyalty duty to trust
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45
Q

Trustee duties - Properly Administer- Standard of care

A
  • “Prudent business person when managing own affairs or investments” (higher than reasonable person) (similar to corp director)
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46
Q

Trustee’s Liabilities - Defenses (3)

A

1) SOL /laches (undue dealy in seeking relief)
2) Consent by beneficiary
3) Exculpatory provision from instrument

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47
Q

Beneficiary’s Creditors - Exceptions that allow for attachment of trust assets (4 + 1)

A

1) Vendor creditors for life necessities
2) Support trust: to children/spouses and even former spouses for family support owed by beneficiary
3) Beneficiaries tax liabilities
4) Self serving trusts (no spendthrift when grantor is beneficiary bc of public policy) (case law extends to trust created by another by res provided by beneficiary)

+

1) Fraudulent trasnfer of debtor into trust to limit creditor’s claim

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48
Q

Beneficiary’s Creditors - Exceptions that allow for attachment of trust assets (4 + 1)

A

1) Vendor creditors for life necessities
2) Support trust: to children/spouses and even former spouses for family support owed by beneficiary
3) Beneficiaries tax liabilities
4) Self serving trusts (no spendthrift when grantor is beneficiary bc of public policy) (case law extends to trust created by another by res provided by beneficiary)

+

1) Fraudulent trasnfer of debtor into trust to limit creditor’s claim

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49
Q

3rd party claims vs Trustee - Torts / personal liability grounds (3)

A
  • Personal liability for:
    a) own torts,
    b) fail to supervise,
    c) Failure to ensure property
  • Posible indemnification when tort from normal trust activties and w/o fault
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50
Q

3rd party claims vs Beneficiaries

A

No rights against beneficiaries for trust/trustee actions

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51
Q

3rd party liability to trust/beneficiaries

A
  • When knowingly receives trust property for less than fair/full value (trustee who authorizes also liable fro SOB breach)
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52
Q

Trust - Termination Grounds (7+1)

A

1) Consolidation of mx trusts
2) Term Expiration
3) Purpose accomplished/illegal/impossible
4) Merger
5) Income Interest Terminates
6) Donor termination - unilateral if possible under agreement
7) Court Petition

+

1) Trust formed under undue influence on trustor

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53
Q

Statutory FFC - Child Custody judgments

A
  • PKPA + UCCJEA prevent interstate custody battle + deter custody related abductions + sets forum where kid and child have closest connection
  • Court can decline jdx if inconvenient
  • Courts prohibited to modify visit/custody order by out-of-state court
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54
Q

Statutory FFC - Child Custody judgments - Requirements for court to have jdx (4)

A

1) Home-state jdx : residence child/ or was for at least 6 months before action started + at least one parent/guardian still resident
2) Emergency jdx: child physically present in state and risk of abuse/abandonment
3) Significant connection jdx: of child or at least one parent (PKPA - only if home-state not possible)
4) Vacuum jdx: no home-state jdx + best interest of the child

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55
Q

Statutory FFC - Child Support judgments

A
  • UIFSA: FFC to judgment as long as 1 parent remains in home state + no possible modification by other state court (unless both parents object to original court jdx)
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56
Q

Statutory FFC - Abducted child or other wrongful conduct

A

Forum court can decline if abduction took place on another state or if parent engaged in similar wrongful conduct before

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57
Q

Full Faith and Credit Clause Exceptions 5+ 1

A

1) Lack of jdx from original court (unless previously raised an solved favorably)
2) Judgment not on the merit
3) Judgment not final (appeals pending or not exhausted)
4) Penal judgment (criminal, civil fine)
5) If inconsistent judgements - only to most recents

+ Violation of Public policy

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58
Q

Types of choice of law systems (3)

A

1) Traditional restatement (vested rights) 2) “Interest Analysis” approach 3) Modern 2nd restatement - used by majority

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59
Q

Vested rights - 2 tears of application

A

1) Bright line rules

+

2) Escape devices (avoid rigidity of rules)

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60
Q

Vested rights - Escape Devices (RADS)

A
  • Renvoi (“sendback”): use forum law despite choice of law rules apply law of other jdx - Areas of substantive law change: how to qualify act - Depecage (“cutting up”): - Substance vs Procedure: procedure under forum law
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61
Q

Interest Analysis - Contacts with case elements CUT

A
  • Contact with case - “Unprovided for” or “No interest” - True Conflict: apply forum law
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62
Q

Modern 2nd restatement

A
  • Based on “most significant relationship” (MSR) criteria - Use of gral factors for MSR + connecting factors for specific situations - Similar use of depecage than in vested rights - Procedure under forum law - include SOL unless unreasonably shorter - Trumped by on-point choice of law statute
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63
Q

Full Faith and Credit Clause Exceptions 5+ 1

A

1) Lack of jdx from original court (unless previously raised an solved favorably)
2) Judgment not on the merit
3) Judgment not final (appeals pending or not exhausted)
4) Penal judgment (criminal, civil fine)
5) If inconsistent judgements - only to most recents

+ Violation of Public policy

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64
Q

Full Faith and Credit Clause - Claim/Issue preclusion

A

Forum court required to use original court law to solve issue of preclussion

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65
Q

Listing Agreement - DEWD Formalities

A
  • Duration
  • Earned Conditions for commission
  • Writing: SOF because of land
  • Description: enough to ID property
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66
Q

Land Sale Contract - Essential Terms LIPP

A
  • Legal description: reasonable certainty by specific ID
  • ID closing entity + method of delivery of title
  • Price: currency + method of payment
  • Parties: ID + possible assignment to 3rd party
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67
Q

Seller Remedies for breach/non-performance of land sale contracts(3)

A

1) Compensatory DX = difference btwn contract price and current market price
2) Liquidated dx: usually use of earnest money deposit as long as reasonable to the probable loss
3) Specific performance: lest likely but possible when no compensatory/liquidates dx possible

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68
Q

Buyer Remedies for breach/non-performance of land sale contracts (3)

A

1) Specific Performance: when land deemed unique 2) Damages: when specific performance not possible. - If not fault of seller buyer entitled to return of deposit + interest. - If seller’s fault: compensatory dx (burden of proof on buyer) 3) Rescission: when defective property

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69
Q

Quiet title action - gral

A

Used to clear chain of a title to a described real property parcel - used for liens, resolve claimant’s priority, remove encumbrances - Might be required to secure marketable title

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70
Q

Conveying Deeds- SADD reqs

A
  • SOF
  • Acknowledgment = notarized
  • Description of property: test of specific identity
  • Delivery
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71
Q

Statutory Warranty Deed - TAFED

A
  • Title of seisin: grantor has title/ ownership
  • Authority + right to convey of grantor: and no contrary agreements with 3rd parties(options, first refusal, etc)
  • Free of encumbrances - “Marketable title”
  • Enjoyment Quiet: no disturbance from legal claims by 3rd parties.
  • Defend Buyer - “warranty of further assurance” - defend+indemnify from 3rd party claims
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72
Q

Quitclaim deed - gral

A
  • aka “Bargain sale” - Grantor only transfer rights - no protection against covenants or with implied warranties
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73
Q

Limited Warranty Deed - gral

A
  • Mid point btwn st warranty deed and quitclaim - i.e. seller warrants TAFED defects but not prior conveyances
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74
Q

Other possible warranties - New home quality

A
  • Usually for commercial developers - implied warranty of habitability for substantial latent defect - defect must be substantial - Express contractual workmanship + mechanical warranties
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75
Q

Other possible warranties - Used home quality

A
  • For dwellings and commercial properties - No implied “buyer beware” warranty (caveat emptor). - If contracts “as is” - buyer assumes risks of defects - Some states require seller’s disclosure on serious/dangerous defects to which he has knowledge and that are concealed or not apparent in buyer’s reasonable inspection
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76
Q

Risk of loss - Equitable conversion (majority view)

A

- Gral rule: _Risk of buye_r: when loss btwn land sale contract execution and closing.

  • Seller retains legal title until closing - but equitable title passes upon contract execution
  • Exception: Seller’s risk when N or caused loss
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77
Q

Risk of loss - Minority view

A

Risk of seller until closing

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78
Q

Risk of loss - Impact of assurance

A
  • Most courts will require seller to pay portion of insurance proceeds to buyer as equitable relief. - Some states require to specific insurance coverage in land sale contract
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79
Q

Risk of loss - Impossibility of performance

A

Buyer excused if property destroyed

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80
Q

Recording Statutes - Record Notice

A
  • Subsequent grantee must be BFP and first to record
  • Used in majority of states
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81
Q

Recording Statutes - BFP - FINS elements

A
  • For value
  • In good faith
  • No record or inquiry notice
  • Shelter Rule
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82
Q

Recording statutue - Title Insurance - GRAL

A
  • Purchaser protection for unknown title defects of record on abstract of the chain of title.
  • Required only when specified in land sale contract
  • Doesn’t negate liability for TAFED warranties, but it provides fund to recover
  • Protection Cant be transferred with property to new owner - hence not for subsequent acts
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83
Q

Title Insurance - Exclusions

A
  • Defects not included in record of title abstract as of closing date
  • i.e.: unrecorded deeds and mortgages, potential easements, encroachments on adjoining property, boundary disputes, setback violation, adverse possession, error in public records,
  • other defects discoverable by physical inspection of property
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84
Q

Conveying Deeds - Implied Warranty of Marketable Title

A

Despite on the use of quitclaim deed and/or limited warranty deed - Courts will usually deem the obligation of transferring MARKETABLE TITLE.

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85
Q

Adverse Possession - ECHO elements

A
  • Exclusive
  • Continuous
  • Hostile
  • Open and Notorious
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86
Q

Adverse Possession - Termination causes (4)

A

1) Owners suits for eviction
2) Reenters the property to regain possession
3) Owners purchase adv pos interest - merger of interests
4) Abandonment by possessor (temporary interruption not enough)

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87
Q

Eminent Domain - Condemnation

A
  • Judicial proceeding started by govt in order to obtain title + compute compensation to due owner
  • Compensation: FMV at its “highest and best use” (shared by LL and T’s)
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88
Q

Will - Property issues (4) (“When will specifies property to particular takes, but…”) AAES

A

1) Ademption
2) Accessions and accretions
3) Exonerations
4) Satisfaction

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89
Q

Will - Property issues - Satisfaction/ concept, presumption CLvsUPC

A
  • As intervivo transfer against testamentary devise
  • CL: rebuttable presumption of satisfaction

VS

  • UPC: no presumption, satisfaction only if expressly intended
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90
Q

Mortgage - Due on Sale Clause/ when, effect - acceleration clause

A
  • Unless prohibited in instrument, mortgagor has the right to assign debt to a buyer of the property.
  • Effects: accelerates remains of ppal debt if property is sold
  • Seller has to make payment of the balance at sale or renegotiate interest rates
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91
Q

Mortgage - Transfer of encumbered property - Has the new buyer direct liability to previous mortgagee - Types of contractual provisions (3)

A

1) Express Assumption: by new buyer/grantee
2) “Subject to”
3) Novation

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92
Q

Mortgage - Transfer of encumbered property - Express Assumption

A
  • new buyer/grantee - enters into promise with assignor to pay debt
  • buyer and grantor both liable for direct deficiency judgment if debt exceeds the property exceeds
  • Bank/lender is a 3rd party beneficiary of this new promise
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93
Q

Mortgage - Transfer of encumbered property - “Subject to”

A
  • Contract provision

- Buyer can not be suit from mortgagee for deficiency judgment against them

  • i.e.: grantee of a quitclaim deed where there w/o any notice of new promise or buyer takes property w/o knowledge of a prior mortgage
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94
Q

Mortgage - Transfer of encumbered property - Novation

A
  • Release or novation required for original grantee to not be potentially liable to mortgagee/bank
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95
Q

Second Mortgage - Priority Rule

A

Gral rule: Second mortgage subordinated to first

  • if 1st forecloses + sale: 1st mortagee must be fully paid before second mortgagee. Second mortgagee has to join as party. if not interest is eliminated
  • if 2nd forecloses + sale: 1st mortgagee has priority. If no balance, 2nd interest remains
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96
Q

Financing instruments - Remedies -Redemption

A
  • Remedy to recover before foreclosure
  • States take different positions whether property can be recovered after foreclosure began
  • depends on reason of equity vs state statute
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97
Q

Financing instruments - Remedies - Estoppel by deed

A
  • When debtor reacquires property by deed
  • Previously he granted a mortgage to 3rd party whose interest was extinguished by foreclosure sale
  • 3rd party interest might be restablished in equity
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98
Q

Types of owner’s rights (4)

A

1) Possession
2) Support Rights (lateral/subjacent)
3) Resource Rights (air, below ground, water)
4) Emblements

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99
Q

Support Rights - Effects (DX)

A
  • Land dx (of natural condition) are recoverable under SL
  • Dx to building/improvements: not recoverable thro`ugh SL, but under tort, N.
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100
Q

Lease - Types of tenancy (4)

A

1) Term Tenancy
2) Periodic Tenancy
3) Tenancy at will
4) Tenancy at sufferance

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101
Q

Duties for LL (5)

A

1) Delivery of possession + control 2) Implied covenant of quiet enjoyment 3) Repairs 4) Deposits 5) Non-retaliatory eviction

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102
Q

Duties for T (5)

A
  • gral: not enforceable by 3rd parties 1) Pay rent 2) Comply with use restrictions 3) Maintain premises 4) Non-disturbance 5) Tort Liability
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103
Q

LL Remedies for breaches of T’s duties (3 situations)

A

1) Abandon property: T quits premises and defaults on lease 2) Anticipatory repudiation by T (3) Mitigation duty)

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104
Q

Periodic Tenancy

A
  • Default
  • w/defined period which repeats if no notice of termination
  • Duration: as stated, if not - in accordance to payments
  • Termination: Requires notice similar period to payments (30 days is standard)
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105
Q

Duties LL - Delivery of possession + control - elements (2)

A

1) Fitness of Premises: CL - LL mades no implied warranties of habitability
* - T has a duty to inspect and take “as is” and LL liable for knowledge of serious hidden defect not disclosed
2) Implied Warranty of Residential Habitability: only for residential leases
* - CL include electricity, heat, water services

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106
Q

Duties LL - Remedy for breach (for T) of delivery of possession and control (5)

A

1) Vacate and terminate + dx
2) Remain + dx (equal to the difference btwn rent and actual value in such conditions)
3) Equitable Relief: specific performance to make comply with housing code
4) Repair to restore habitability: discount from rent (not for ordinary maintenance)
5) Withhold rent + defend from eviction: usually required to pay in escrow

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107
Q

Duties T - Pay Rent

A
  • on time + utilities
  • Breach by LL of his duties is not excuse
  • “LL provision”: included in lease contracts allows for LL to evict T for-non payment w/prior notice
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108
Q

Duties T - Pay Rent - Exceptions to duty (4)

A

1) T and LL agree to terminate lease
2) LL accepts surrender or intention tu surrender the premises by T (SOF req)
3) Eviction actual or constructive
4) Bc of offset of repairs (related with warranty of habitability)

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109
Q

Duties T - Maintain premises obligations - Alteration + Restoration

A

1) T liable for costs to restore to original condition
2) For chattels and trade fixtures removal, liable if dx to LL reversionary interest
3) Ameliorative waste: when T change’s nature/use of the premises. (negative/decreases value - positive/improvements increase value)

  • Negative: LL can seek possible injunction to stop conversion + possible dx for cost of restoration of original use.
  • Positive: No recovery/remedy possible if positive and consistent to overall change in the neighborhood
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110
Q

LL Remedies for breaches of T’s duties (3 situations)

A

1) Abandon property: T quits premises and defaults on lease
2) Anticipatory repudiation by T
(3) Mitigation duty)

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111
Q

LL Remedies for breaches of T’s duties - Anticipatory Repudiation by T

A
  • Unequivocal by T
  • LL can terminate lease + suit for past due rent
  • some states allow for future rents until end of lease - “Acceleration clause”
  • Other states: “Accrual rule”: dx only for executory part of contract
    • creates duty for LL to make reasonable effort to re-lease property - deducing rent obtained from Dx by T
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112
Q

LL Remedies for breaches of T’s duties - Mitigation Duty

A
  • LL duty to mitigate by re-lease
  • But no obligation to rent for other uses or unacceptable T
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113
Q

LL Assignment of lease (Rent Assignment)

A
  • Assign rights to receive rent to 3rd party - T’s need to receive notice to start paying to 3rd party
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114
Q

LL Sale of premises

A
  • Right to receive rent and future reversion assigned with transfer of property
  • T’s need to receive notice to start paying to new owner

- Gral rule: doesn’t affect lease UNLESS sale as condition subsequent in lease deed

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115
Q

LL mortgage’s property - gral + effects on T’s rights (pre-post)

A
  • LL gives mortgage to lender assigning rents if default in payment of mortgage

- T’s bound and must pay to lender after notice

  • Pre-mortgage T’s: rights not affected by LL default to pay mortgage
  • Post-mortgage T’s: can be dispossessed + lease cancelled
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116
Q

Lease termination - Gral causes (6)

A

1) Premises surrender before term (gral cause) 2) Non-renewal of term (gral cause) 3) Frustration of purpose 4) Condemnation by eminent domain 5) Mortgage foreclosure 6) Merger

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117
Q

Lease termination - Mortgage foreclosure

A
  • When mortgage pre-dates lease
  • New owner can force T to surrender premises and quit the property
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118
Q

Estates in Land - Types (3)

A

1) Fee simple: present estate of potential infinite duration (absolute or defeasible) 2) Fee tail: to keep possession in the family 3) Life Estate: for duration of persons life (the either reversion/remainder)

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119
Q

Defeasible Fee Simple - Types (3)

A

1) Determinable: automatic 2) Subject to subsequent condition: exercise of right of reentry 3) Subject to executory interest: future interest passes to 3rd party and not grantor

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120
Q

Life Estate Future Interest - Gral rule

A
  • If silence: Automatically reverts back to grantor - If in provision: can go 3rd person - Remainder (vested or contingent) - Always created at time of grant to present interest - “To A for life”
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121
Q

Life Estate Future Interest - Contingent Remainder-

A
  • When a) grantee of remainder unascertainable OR b) potential future interest subject to some condition precedent before vesting - Future interest is not vested hence not transferable, inheritable, or devisable - “To A for life, remainder to B if B married before A’s death”
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122
Q

Difference btwn Executory interests and remainder

A

1) No possible gap btwn life estate and future estate for remainder 2) Remainder only for life estate

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123
Q

Void Types of Restraints on alienation of fee simple interest (3) (“A” always end up with fee simple absolut)

A

1) Disabling:”To A, but A shall not have power to transfer w/o my consent” 2) Forfeiture: “ To A, but if A attempts to transfer w/o my consent, the land shall automatically revert back to me” 3) Promissory: “To A, but A promises and covenants not to transfer the land without my consent”

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124
Q

Allowed Types of Restraints on interest (3)

A

1) Use restriction 2) Right of first refusal 3) For life states restraint on alienation is permitted: “to A for life, but A prohibited to convey her interest to other than B”

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125
Q

PJDX - Requirements (2)

A

1) Adequate Notice /Service of process + Opportunity to be heard by impartial tribunal 2) Minimum contacts (MC) of D with jdx where court seats (with possible long-arm jdx)

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126
Q

PJDX - Service of Process - Personal Service - 100 miles rule

A
  • Radio of 100 miles around court - even outside state as possible area to be personally served - WHEN:
    1) 3rd party D (impleader) AND/OR
    2) indispensable party (joinder rule 14)
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127
Q

PJDX - MC - Gral

A
  • Sufficient contacs of D with state where district court is located
  • So maintaining suit does not offend traditional notions of fair play and substantive justice
  • aka “General” or “extensive”
  • D subject to the jdx of the state in which it has SUBSTANTIAL, SYSTEMATIC and CONTINUOUS activities, even if the particular cause of action arose elsewhere
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128
Q

PJDX - MC - Establishment cases (4) - DICC

A

1) Domicile of D in state at time of filing (even if left temporarily)
2) “In-state-service (“tag” jdx): no contacts but voluntarily is present in state when served
3) Consent or waiver by D - i.e. D fails to challenge PJDX in pre answer motion or answer itself
4) Consent by contract - grally enforceable

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129
Q

PJDX - Long arm jdx statutes - Gral

A
  • aka “specific jdx”
  • person “submits” to jdx by engaging in certain conducts: business/torts/property/insurance
  • Jdx to adjudicate with specific dispute arising from out-of-state D (no MC) activity on State
  • origin: International Shoes
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130
Q

PJDX - Long arm jdx - Business - Gral / test, PAF elements

A
  • Business transaction within state
  • Test: “ Did out of state purposefully avail itself to state benefits?”
  • PAF Elements (purposedly avail himself, arise from transaction connected with state, fundamental fairness)
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131
Q

PJDX - Long arm jdx - Business - PAF - Fundamental Fairness

A
  • Reasonability - PJDX doesnt affect fair play or substantial justice
  • Court to consider quality/nature/extent of the activity (is it substantial, systematic and continuous) AND convenience of parties AND benefits and protections from state laws
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132
Q

PJDX - Long arm jdx - Tort - Gral Rule

A
  • Gral rule: JDX if commission WITHIN state (i.e. non resident in car accident)
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133
Q

SMJ - Gral

A
  • Can not be created by parties
  • Can not be WAIVED by parties (unlike pjdx)
  • Challenge at any time - even post trial motion and appeal
  • FARS grounds (federal question, amount + diversity, removal jdx, supplemental jdx)
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134
Q

SMJ - FARS - Amount and Diversity - Specific rules for Corporations

A
  • Citizenship on:
    1) Place of incorporation OR
    2) Ppal place of business
135
Q

Venue - Grounds for proper venue (3)

A

1) Residence of D within forum district
2) Location of event or property that are substantial part of action
3) If not other proper district - any district where court has PJDX over D

136
Q

Venue - Grounds for proper venue - Residence Rules when D is a corporation (3)

A

1) State of incorporation
2) “Nerve center” = ppal place of business
3) “muscle center” = where most activities are performed

137
Q

Pleadings - Complaint - Gral Content Rules

A
  • Has to give enough notice to D of all material elements of each claim + facts/legal basis
  • If corporate P, it must disclose all its related entities
  • Any undisclosed claim can not be asserted at trial
  • These rules apply even for “notice pleading”
138
Q

Pleadings - Complaint - Content - JARR

A

1) Jdx: Pjdx and SMJ
2) Allegation of facts: that generate plausibility of claim
3) Right to relief - legal theory - basis of claim + specific statute referred to.
4) Relief (remedy) request: specific

139
Q

Pleadings - Complaint - Joinder of claims - gral

A
  • When P has mx claims/theories in a single complaint
  • Even when arising from different transactions of events
  • Court can separate bc of convenience, judicial economy or to avoid prejudice
140
Q

Pleadings - Complaint - Single Complaint Rule

A

When claim arises from single transaction or event

  • No “spiting claims” possible
141
Q

Pleadings - Complaint - Single Complaint Rule - Effect of “claim splitting”

A
  • Preclusion affects second claim in relation to judgment of second claim
142
Q

Pleadings - Special Matters Pleadings (4) FMBD

A

1) Fraud
2) Mistake
3) Breach of trust
4) Denial of contract capacicty

143
Q

Pleadings - Challenge to pleadings - Rule 12 motions to dismiss (8)

A

1- Lack of PJDX or SMJ (12b)

2- Improper venue (12b)

3- Insufficient process (12b)

4- Insufficient service of process (12b)

5- Failure to to state claim (12b6)

6- failure to join parties (12b)

7- Judgment on pleadings (12c)

8- Motion to strike - invalid defenses OR redundant/impertinent/scandalous matters (12f)

144
Q

Pleadings - Challenge to pleadings - Rule 12 - Motion to dismiss for Failure to State Claim (12b6) - Gral

A
  • Is used as quick/easy way for D to avoid claim when is CLEAR will never prevails
  • -i.e. SOL, claims not recognized under substantial law of the jdx
  • Claim being too vague is grounds
145
Q

Pleadings - Challenge to pleadings - Rule 12 - Consolidation and Waiver - Specific rules - Waived if not timely presented in D’s answer (4)

A

1) Lack of PJDX
2) Insufficient Services
3) Lack of MC
4) Improper Venue

146
Q

Pleadings - Challenge to pleadings - Rule 12 - Consolidation and Waiver - Specific rules for Lack of PJDX and Improver Venue

A
  • If challenge by pre-answer motion or in motion: need for consolidation along all other defenses
    • if not presented then deemed as waiver
  • When in answer: P is entitled to wait and file motion for improper venue later, having more time to investigate and draft motion
147
Q

Amended Pleadings - Allowed Types (2)

A

1) As a matter of right
2) By leave of court OR written consent of the other party

148
Q

Amended Pleadings - As a matter of right - Timing (2)

A
  • Once before responsive pleading is served - answer (not pre answer motion) OR
  • Within 21 after service if no responsive pleading is permitted OR not yet on trial calendar
149
Q

Amended Pleadings - By leave of court/written consent of party - BUUF conditions for not-admitance

A

1) Bad Faith
2) Undue delay
3) Unfair prejudice
4) Futility

+ Court attitude towards amendment: Better chances adding defenses/claims (causes of action) than adding parties

150
Q

Amended Pleadings - “Relate back” - Gral

A
  • For purposes of SOL amended pleading is treated as it occurred at time of original pleading filing
  • Specific treatment if new claim/defense or new party
  • If new party added it can potentially alter diversity for federal SMJ
151
Q

Amended Pleadings - “Relate back” - When new claim/defense

A

Relates back if it new claim/defense arises from similar transaction/occurrence

  • even if reason for amendment is excusable neglect or as conscious trial strategy
152
Q

Amended Pleadings - “Relate back” - When new party (3 conditions)

A

1) New party arises from similar facts as original pleading
2) Added Party receives due notice
3) Not unfair - that new party knew or had known of possible action vs them if not for mistaken identity

153
Q

Appearance and Default - Default Judgment Effects

A
  • D is deemed to have admitted truth of P’s claims by not contesting them
  • NO BURDEN OF PROOF for P
  • Prevents default party from presenting defenses and/or compulsory counterclaims
  • Generates Preclusion if court had jdx and D received notice and had opp to appeal.
154
Q

Default Judgment - Motion to vacate - Causes (2)

A

1) For lack of PJDX
2) Other - based on D’s “admission of error” (i.e. lose summons, fail to retain counsel, etc) - “JUST cause”

155
Q

Parties - Gral Reqs (2)

A

1) Real interest
2) Capacity

156
Q

Parties - Compulsory Joinder of Parties - Causes of “necessity” of joinder for just adjudication (2)

A

1) Complete Relief
2) Rights being adjudicated

157
Q

Parties - Impleader - Gral

A
  • D1 brings D2 into civil action, under theory that if D1 liable to P, D2 is liable to D-2 - D1 = “3rd party P” / D2 = “3rd party D”
  • Does not affect diversity for SMJ
158
Q

Parties - Substitution of parties - Causes for both P/D (4)

A

1) Death (90 days to present motion)
2) Becoming incompetent
3) Interest is transferred
4) Public officer ceases to hold office

159
Q

Parties - Class Actions - Gral

A
  • Allow for pursue of claims with significant aggregate effect but to small to justify individual legal redress
  • Courts with heavy discretion to certify
    • BUT under guidelines of FRCP 23 (CULP) + additional factors
160
Q

Parties - Class Actions - Court certification guidelines - CULP

A

1) Common (and relevant) question of law or fact among P’s
2) Usual (typical) claims or defenses for all other class members
3) Large membership - as to make joinder impractical
4) Protection of class members interests by representation of fairly/adequately - i.e. attorneys experience

161
Q

Parties - Class Actions - Court certification - Additional Factors (other than FRCP23 guidelines) (3)

A

1) Risk of separate actions
2) Conduct of opposing party has made injunctive or declaratory relief appropriate
3) Common questions

162
Q

Parties - Class Actions - Court certification - Additional Factors - “Common questions”

A
  • Common question of law/fact by class members trump questions affecting individual members
  • court decides class action is the best way to adjudicate fairly and efficient by considering claims already commenced and mgmt difficulties
  • Possible claims have to be highly cohesive which is high threshold to prove - i.e. sexual discrimination cases
  • Relates with primarily pursuing $dx
163
Q

Discovery - Scope - Gral

A
  • Very broad and liberal
  • FRCP 26: info that appears to be relevant or likely to lead to admissible E
  • NOT necessarily admissible
  • Privileges apply hence confidential coms not discoverable unless waived
164
Q

Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - Reqs for discoverable

A

WP prepared for litigation is NOT discoverable UNLESS:

  • only source +
  • “substantial need”
165
Q

Discovery - Scope -Restriction - Attorney’s Work Product Doctrine - Specific Restrictions to application (hence possible discovery) (3)

A

1) Attorney’s work at issue - i.e. malpractice case
2) Attorney’s impressions, legal theories and/or strategies
3) Attorney waives privilege - “open door” to counsel by showing materials to W to prepare for testifying/deposition

166
Q

Discovery - Experts W - Disclose obligations (5)

A

1) Subject matter
2) Substance of opinion
3) Grounds of opinion (factual basis and data used)
4) Compensation
5) Qualifications

167
Q

Discovery -Depositions - Use of deposition transcript as E on trial as exception to hearsay

A

Transcription of deposition Exception to gral hearsay rule (is out-of-court statement )

    • when inconsistent previous statement or as opposed party admission
    • Can be admissible as former testimony if if deponent is unavailable as W at trial
168
Q

Discovery -Depositions - Use of deposition as E on trial as exception to hearsay - Party deposition

A
  • Used in place of live testimony
  • Exception hearsay: when used as opposed party admission
169
Q

Discovery - Request for Admission of factual E

A
  • Deemed admitted if not affirmatively denied or object within 30 days
  • UNLESS court allows withdrawal or amendment
  • Request for pure admission of conclusion of law is not allowed
    • i.e. “Do you admit that X statute applies?”
170
Q

Discovery - Supplementation of responses to discovery requests

A

No gral duty to supplement UNLESS:

1) Prior responses discovered to be materially incomplete or incorrect
2) Need for correction or completion not satisfied yet by other discovery request

171
Q

Discovery - Abuses - Sanctions - Types

A

1) Exclude E
2) Held party in contempt
3) Payment of costs and attorney fees
4) Dismissal w/prejudice for abuse by P*
5) Default Judgment for abuse by D* (ultimate sanctions- rare)

172
Q

Discovery - Abuses - Spoliation - Sanctions - “Negative Inference”

A
  • Evidence of destruction is admissible to suggest destruction of “smoking gun” - Opposing counsel may be allowed to have jury instruction inviting to such infered
173
Q

Motion in limine

A
  • TO exclude admissible evidence
  • Usually before trial begins, but also before E is presented
  • Later is possible by jury instruction to ignore E (but is hard to “unring the bell”)
174
Q

Pre-trial - Preliminary Equitable Relief - Motion for Preliminary Injunction - RAMP considerations

A

1) Risk of irreparable harm and money dx are inadequate
2) Appropriate weight of harm distribution w/or w/out injunction (balance test)
3) Merits success reasonable likelihood
4) Public interest

175
Q

Pre-trial - Preliminary Equitable Relief - Temporary Restrain Order (TRO) - gral

A
  • When risk of IMMEDIATE + IRREPARABLE harm
  • Before service and opportunity to be heard
  • Hence ordered ex-parte
  • Higher requirement of showing than for preliminary injunction
176
Q

Pre-trial - Preliminary Equitable Relief - Temporary Restrain Order (TRO) - Requirements

A

Include in affidavit:

  • specific facts
  • reasons
  • efforts to notify opposing party of TRO motion
  • Justification for ex-parte issuance
177
Q

Pre-trial - Dismissal FRCP 41 - Voluntary dismissal - Restrictions for subsequent filing

A
  • 1st dismissal: w/o prejudice, allows for refill
  • 2nd dismissal: Is deemed as adjudication on the merits, P cannot file for 3rd time
178
Q

Pre-trial - Summary Judgment - Grounds for motion

A

No genuine issues of material fact - RELEVANT

  • trier of fact (jury) has nothing to decide
  • Party entitled to JMOL (solved w/out argumentation briefs) IF IN DOUBT - court will usually decide for trial
  • -i.e. Preclusion
179
Q

Pre-trial - Summary Judgment - Facts typically considered as genuine issue of material facts

A

Which effect is to preclude Summary Judgment:

  • Oral contract
  • N
  • Proximate cause
  • Reasonableness
  • Consent
  • Knowledge
  • Mistake
180
Q

Trial - Procedure - Timeliness of trial objections - Specific Rulings

A
  • Ruling on E: object before answer of W
  • Other rulings: on the record as soon as possible
  • EXCEPTION: Constitutional issues: can be raised for the first time on appeal
181
Q

Jury Trial - Judge/Jury duties

A
  • Jury: decides Q of fact: i.e. dx, breach of contract, tort
  • Judge:
    1) Decides Q of law: i.e. admissibility of E, N claims, equitable actions like specific performance or injunctive relief
    2) Discretion to decide on “predominant nature” of case (law or fact)
    • If both present court allows jury to decide first issue of fact
182
Q

Jury Trial - Jury selection - “For cause” Challenge - LIB causes

A

1) Lack of qualification (18 y/o, convicted felon, not US citizen, inhabiility to communicate in English)
2) Incapacity - unsound of body and mind
3) Bias

183
Q

Jury Trial - Jury Misconduct - Effects

A

Potentially can “set aside” judgment because of mistrial

  • Mistrial is declared for some cases (improper action, clerical error)
  • not usually for other cases (improper reasoning or thought process, life experiences, bias/prejudice)
184
Q

JMOL - Motion purpose

A
  • Avoid case to be decided by jury WHEN no rational basis by which jury could base its finding
  • One party failed to produce enough E to show material facts at dispute
    (time: before is submitted to jury or 28 days after judgment)
185
Q

JMOL - Motion presentation timing

A
  • Gral Rule:
    a) Any time before submission to jury.
  • If not granted, file re-new motion for JMOL
    b) Within 28 days since verdict if preserved (presented before) in relation to jury issue not decided in verdict.
186
Q

JMOL - Test for Sufficiency of E to submit case of jury - Weight of E and credibility of W

A
  • Court usually disregards credibility of W (similar to summary judgment)

- Court doesnt weight E - only objectively asks about sufficiency to submit case to jury

187
Q

Post trial motions - Motion for new trial - Grounds (4 + JET)

A

1) Irregularity in proceeding
2) Misconduct by persons involved in trial
3) Significantly excessive/inadequate dx (remititur/adititur)
4) Newly discovered E not discoverable before/reasonable diligence

+ JET:

  • Juror misconduct
  • Errors of law (justifies use as easy substitute of appeal)
  • Timeliness of objection (preserved by having objected error during trial)
188
Q

Post trial motions - Motion for Relief or Correction of Judgments - aka “Motion to Vacate” - Grounds (6) CIEFLN - OJO NOT for Error of law

A

1) Clerical or other mistake
2) Improper Service
3) Excusable neglect or irregularity in obtaining judgment*
4) Fraud*
5) Lack of jdx
6) Newly discovered E not discoverable before/reasonable diligence*

(* 1 year to present motion)

189
Q

Appeals - Cases when is allowed (3) + Timeliness of objection

A

1) As of right for final judgment
2) Collateral Order doctrine for “discretionary” rulings
3) Exceptional Writs + Objection must have had been previously presented
* - EXCEPT for SMJ and Constitutional issues

190
Q

Appeals - Extraordinary Writs - Writ of Mandamus

A

Superior court directs DISTRICT court to take some action required under law

  • Abolished by FRCP but still used by some state courts
191
Q

Appeals - Extraordinary Writs - Writ of Prohibition

A

Is for APPEALS court (superior) to order District Court to refrain from taking an action contrary of law (out of jdx or authority)

192
Q

Appeals - Procedure - Commencement - Timing - Exception to gral 30 day rule for filing since entry of final judgment (3)

A

1) If govt is party: 60 days
2) If post trial motion was filed: 30 days from entry of decision disposing motion
3) Cross Appeals: Must be filled the later between 30 days of entry of judgment or 14 days after initial notice of appeal

193
Q

Appeals - Standard of review - Gral

A
  • As the level of deference given to the decision of the lower court
  • Distinguish btwn:
    a) factual determination - “substantial E”
    b) discretionary ruling - “Clear abuse of discretion”
    c) question of law - “de novo”
194
Q

E - Relevant E - Elements (2) + relation w/admissibility

A
  1. Probative Value
  2. Materiality
  • Relevant is not = to admissibility - use of Balance Test
195
Q

E - Relevant E - Limited Admissibility Rule

A
  • FRE 105
  • E can be admissible for one purpose but not for the other
  • Controlled by judge via limiting instruction to jury
  • i.e. use of prior conviction to porve D as a criminal type, BUT it canbe admisted if D testifies as W
196
Q

E - Relevant E and Admissibility - BALANCE TEST

A
  • Relevancy doesnt grant admissibility
  • BALANCE TEST: excluded if probative value and need for E is outweighted by MUUC elements (dange ro funfair prejudice, confusion or undue dealy)
197
Q

E - Relevant E - Examples of Relevant AND Admissible E (3)

A
  1. Undisputed E
  2. Conduct suggesting guilt
  3. When rebutted from irrelevant for P’s case to relevant to D’s case
198
Q

Appeals - by US Supreme Court - Discretionary - Writ of certiorari (2)

A

1) When issue of CX of treaty/statute at state high court
2) All cases from Fed Court of Appeals (Circuit)

199
Q

Appeals - by US Supreme Court - Discretionary - Issues (3)

A

1) When conflict between decision from Circuit court with other circuit’s decision or SC decision
2) When a significant Q of Law is presented
3) When issue of substantial public interest

200
Q

Preclusion - 2 theories

A

1) Res iudicata or “claim preclusion” (bar/merger)
2) Collateral Estoppel or “issue preclusion” - (issue is actually and necessary - SAFEN)

201
Q

Preclusion - Collateral Estoppel - SAFEN elements

A
  • Same Q/facts from prior case,
  • Actually at issue in litigation resulting in,
  • Final binding judgment in which issue was,
  • Essential, and
  • Necessary to decision
202
Q

Corps - BOD election - “Cumulative Voting Rule”

A
  • Exception to 1share/1vote
  • Applies when there is more than 1 vacancy in BOD
  • Formula: Multiply number of shares owned times the number of vacancies and allocate those votes as pleased in single or mx vacancies) (100 shares and 3 vacancies = 300 votes)
  • Is default system in WA / other states require express option
203
Q

Corp- BOD -Methods of removal of directors (2)

A

1) By shareholders: w/ or w/o cause in special meeting + prior notice
2) By court: when finding (4):
a) fraudulent conduct
b) gross abuse of position
c) intentional inflection of harm
d) OR for the best interest of corp

204
Q

Corp - Rule on dividends + BOD liability

A

Sole discretional power of BOD

  • potential personal liability of approving director if it causes insolvency of corp
205
Q

Corps - Fiduciary duties - Conflict of Interests - Legal Remedies (3)

A

1) Transaction “set aside” by court
2) Profit disgorged (forced giving up)
3) Recover of dx by corp from breaching director/exec/officer

206
Q

Corps - Business Judgment Rule - gral / effect/standard/error

A
  • Presumption that directors/officers have acted with due care and good faith under “prudent business person”.
  • Limits personal liability - rebutal of presumption can result in personal liability

- Usually court upholds business decision when there is no fraud, illegality or self dealing

  • Allows for honest/good faith error of judgment
207
Q

Corp - Types of shares (4)

A

1) Preferred: w/superior rights
2) Authorized for issuance by nr or class according to articles (any different issuance requires amendment)
3) Outstanding: issued but unredeemed
4) Redeemed: re-purcahsed by own corp for cancellation or potential reissue (held in treasury) - No voting or distribution rights - If cancelled cant be reissued

208
Q

Corps- Shareholder Rights (6)

A

1) Meetings and voting rights
2) Access to records and financial statements
3) Legal Remedies
4) Decision making control/allocation
5) Dissenter and appraisal rights
6) Dividends

209
Q

Corp- Shareholders Meetings - Notices

A
  • No less than 10 days no more than 60 days
  • No less than 20 for significant changes affecting shareholder rights (merger, dissolution, susbtantial sale of assets, fundamental changes)
  • No more than 70 to define who gets notice

[ Notice waived if attends meeting and doesnt object to it at its begining)

210
Q

Corp- Legal Remedies (2)

A

1) Direct Action: when corp has direct negative effect in personal finances of shareholder (i.e. pay certain classes and other not)
2) Derivative Action: by corp bc BOD fails to enforce corporate right - dx for corp

211
Q

Corps - Shareholder rigths - Dissenter/Appraisal rights - Procedure

A
  • Present written notice of objection + intent to demand appraisal prior to vote
  • Corp has 30 days to pay fair value + accrued interests/dividends ALONG with explanation of price and financial statements
  • Dissenter has 30 days to contest proposed price
  • After 60 days w/out agreement - corp can ask court to determine value
  • If no court involvement, Corp must pay amount required by dissenter
212
Q

Corp- Shareholder Liability - Gral Rule

A

Not liable beyond investment in shares

  • UNLESS:
    1) “pierce of corporate veil” (equitable for fairness and to avoid unjust enrichment, ordered by court) - allow for creditor to sue shareholder directly.
    2) Statutory liability (very narrow exceptions)

[Exception allow to

213
Q

Corp- Shareholder Statutory Liability (3) (very narrow exceptions to gral rule)

A

1) Subscription agreement set amount for liability for shareolders
2) Equitable Insolvency of corp can expose directors/shareholders to creditors
3) Balance Sheet Test: When post-distribution liabilities exceed assets (‘illegal distribution”).

214
Q

Corp- Equitable Veil Piercing reqs (2)

A

1) Corp used to avoid payment duty and intentionally grossly undercapitalized
2) Disregard of corp form to prevent aiding fraud/wrong suffered by innocent injured party

215
Q

Corp - Dissolution Causes (3)

A

1) Voluntary - surrender of corporate charter (submit articles of dissolution)
2) Administrative - by sec of state
3) Judicial: possible appointment of receiver, custodian

216
Q

CL and UCC application

A
  • CL: SIR - services (personal, professional, contractual), intangibles (software, trademark, patents, copyrights, etc), real estate - UCC: goods -all things movable at time of execution of contract
217
Q

Type of contracts: Classifications (4)

A

1) Express/Implied: creation
2) Unilateral/Bilateral: acceptance
3) Executory/Wholly Executory: level of performance
4) Divisible

218
Q

Bilateral Contract

A
  • Acceptance of party to promisor offer is returned with promise to accept.
  • Both parties mutually promisee/promisor
    • hence breach of obligation is independently enforceable even w/o own performance (although court might create constructive condition of performance)
219
Q

Unilateral Contract

A
  • Acceptance of offer is in the form of an action (performance) - i.e. reward
  • When language is vague is usually indicative of unilateral
  • Enforceable only when party has complied with own obligation
220
Q

OAC - LLS - VIPR - TAD

A
  • Offer, acceptance, Consideration - Legal capacity, legal subject matter, SOF - Void/voidable circumstance, Interpretation of contract, performance + breach, Remedies - Third party beneficiary, assignment of rights, delegation of duties
221
Q

“Mixed Contracts” - tests

A

1) Predominant Purposes: as in intention behind contract 2) Gravamen Test (less applied): Depending on what portion of the contract caused injuries

222
Q

Offer- DIPP

A
  • Definitive terms
  • Intent expressed to be bound
  • Power of acceptance created (to create binding contract)
  • Particular offeree (not assignable)
223
Q

Offer- DIPP - “Open terms” in offer - treatment

A

Gral Rule: to be determined by court

    • fill gaps when required/essential terms are satisfied
    • exception to Parole evidence rule (PER)
224
Q

Offer- DIPP - Expressed Intent of being bound - Revocability - Exceptions (2)

A

1) CL Option contract
2) UCC Firm Offer

225
Q

Offer- DIPP - Offer termination

A

1) Revocation before acceptance

UNLESS a) option/firm offer, b) offeree learns of inconsistent act with open offer, c) Already sold

2) Within reasonable time (for “open” offers)
3) By operation of law:
a) S matter illegal or destroyed,and
b) offeror dead/insanity

226
Q

Acceptance - gral

A
  • Valid acceptance requires valid offer - Offeree needs to have Power of Acceptance, resulting in bilateral or unilateral contract
  • Offer is not assignable to other offeree
  • POA personal
  • Knowledge by offeree is required
227
Q

Acceptance - Silence Rule

A

Gral Rule: Silence does not constitute acceptance

EXCEPT: agreed on / according to past course dealings btwn parties / customary for trade or industry (creates duty to speak to avoid contract formation)

228
Q

Acceptance - Conflicts btwn offer-acceptance

A
  • CL: counteroffer - last shot rule - “battle of the forms”
    • last communication prevails
  • UCC: conflicting terms “knocked out” - gaps filled by UCC provisions (except for quantity)
229
Q

Acceptance/Revocation - Effective date- Mailbox Rule

A
  • Exception to gral rule - for non-instant communication - Acceptance by time of dispatch (mailing) to offeror WHEN offeree using similar/faster means of communication as offeror
  • Even when offeror is unaware or has already dispatched revocation
230
Q

Consideration - Legal Sufficiency: Test + rules

A

Benefit/detriment test: Bargained for if act/return promise results in material benefit/detriment to promisor and promisee

  • mutuality: not necessarily of equal monetary value
  • In unilateral contract, detriment can be the offeree’s performance itself
231
Q

Consideration - UCC contract modification

A

When modification in good faith no consideration required

  • when for $500 or more, it needs to be in writing
232
Q

Legal Subject Matter - gral rule

A

Not illegal or against public policy

233
Q

Legal Subject Matter - Illegal

A
  • Violates law: i.e. contract to commit tort or crimes or perform professional service without license
  • If primary purpose not illegal - apply divisible contract
234
Q

Legal Subject Matter - Illegal - Violation of Public Policy

A
  • Discretional for court to strike offensive part if divisible contract OR to entire contract unenforceable
  • Potential application for restrain of trade, non-competition employment agreement, tortious interference, exculpatory clauses, business sale.
235
Q

SOF - MOULS

A
  • Marriage as consideration for property transfer (i.e. pre-nup, community agreement)
  • Over one year
  • UCC contract over $500
  • Land sale or lease
  • Suretyship contract (promises)
236
Q

SOF - MOULS - UCC over $500 K - PAWS exceptions

A
  • Part performance
  • Admission
  • Written merchant to merchant confirmation
  • Specially manufactured goods
237
Q

SOF - MOULS - UCC over $500 K - PAWS exceptions - Written Merchant to Merchant Confirmation

A

Any symbol or sign to confirm writing is sufficient if not objected within 10 days AND it must at least ID goods and contracting parties

238
Q

SOF - MOULS - Land Sale or Lease over 1 year - Content

A
  • written
  • Sale: price + Full description of property + signature of seller
  • Lease over 1 year: written + signature of lessor
  • Also applied to included agreements such as conveynce deeds, encumbrances, contracts for land-based resources, contracts for crops if >$500, listing agreement with broker (commission!!!!)
239
Q

SOF - MOULS - Suretyship Promises (contracts) - Exception

A

When main purpose of contract is to benefit surety’s economic interest.

  • oral promise can be enforced i.e. parent guarantee son obligation, pre-existing creditor who would receive payment after bank loan
240
Q

Void/Voidable - MUFFED - Mistakes - Gral

A
  • When basic assumption/understanding of significant element of contract is not truth
  • Usual remedy is rescission
  • Can be unilateral or mutual
241
Q

Void/Voidable - MUFFED - Mistakes - Unilateral - Exceptions to gral rule of enforceability (2)

A

1) Other party had actual/constructive (“should have known”) knowledge and failed to correct
2) Other party substantially contributed (if too significant also as possible fraud or unconscionable) i.e. didnt disclose hidden effect that would increase performance cost

242
Q

Void/Voidable - MUFFED - Mistakes - Mutual - Specific rules for type of mistake (value or fact)

A

- Mistake of value: usually not ground for rescission

  • Mistake of fact: voidable if of s_uch magnitude_ that there is “no true meeting of the minds” -i.e. purchase of fake art piece

- Mixed value/fact: deemed to allow for rescission - i.e. contract for land though to have oil and didnt

243
Q

Void/Voidable - MUFFED - Fraud/Misrepresentation Types (3)

A

1) In the execution
2) In the inducement - misrepresentation of contract info - FIRD (false statement of material fact, intention to deceive, reliance, dx)
3) Fraudulent Concealment: as omission or non-disclosure of material fact or hidden defect

244
Q

Void/Voidable - MUFFED - Estoppel Defenses

A
  • Defense to enforcement
  • Different from promissory estoppel in that false statement of fact (not promise)
  • Can be equitable or judicial
245
Q

Interpretation of contracts - II PACC

A
  • Intentions of parties
  • Incorporation by reference
  • Parole Evidence Rule
  • Ambiguity
  • Controlling Statute
  • Conflict of Laws
246
Q

Interpretation of contracts - Intention of Parties Control

A

Objective intention as expressed in the language uses in the contract

247
Q

Interpretation of contracts - Incorporation by Reference

A
  • If contracts refers to other doc/agreement
  • Doc needs to be able to be identified w/reasonable certainty
  • If conflict with contract - most recent control
248
Q

Interpretation of contracts - Parole Evidence Rule - Gral

A
  • Rule that excludes from E any written/oral prior/contemporaneous extrinsic discussions or agreements that contradict the terms of the final contradicted agreement
  • Gral exception: consistent terms and recitals of facts usually allowed as evidence, everything else as DUCAS Exceptions
249
Q

Interpretation of contracts - PER - DUCAS exceptions

A
  • Defect in Formation
  • UCC Trade and Dealings
  • Condition Precedent
  • Ambiguity Interpretation
  • Subsequent Modifications
250
Q

Interpretation of contracts - Ambiguity - Construction Maxims and Contradictory Terms Rules

A
  • Terms have usual/ordinary/popular meaning unless contrary intent demonstrated
  • Ambiguous terms construed against drafting party - Handwritten terms over typed
  • Typed over standard form agreement terms
  • Number words prevail over typed periods
251
Q

Contract Performances - Types of performances (6)

A

1) Full satisfactory
2) Substantial
3) Excusable non-performance (CIISSU)
4) Insecurity and assurance
5) Non performance but: accord/novation/cancellation/waiver/release
6) Breach

252
Q

Contract Performances - Full satisfactory - Gral

A
  • When all conditions of performance are satisfied
  • All parties are discharged from their contractual obligations
  • Allows for 3 possible types of conditions to trigger/limit/extinguish duty to perform: a) precedent, b) concurrent, c) subsequent
253
Q

Contract Performances - Full satisfactory - Condition Precedent - When condition is approval - Standards

A

1) Objective: reasonable person would approve when involves mechanical utility or operational fitness (i.e. architect certification)
2) Subjective: When approval involves personal taste

254
Q

Contract Performances - Substantial performance - Gral

A
  • UCC: “perfect tender” rule: need perfect performance to avoid forfeiture
  • CL: less strict
    • OK when minor defect in good faith still generates substantial benefit
    • Dx from defect deduced from contract price
255
Q

Excusable non- performance - Gral

A
  • duty discharged totally/aprtially/temporarily if performance becomes impossible, unduly burdensome BC of event unforeseable at time of contact. - applies in CIISSU situations (cooperation lacking, illegality after formation, incapacity of personal service contractor, source of supply impossible, subject matter distroyed, UCC failure of a presupposed condition)
256
Q

Excusable non- performance - ClISSU - Subject Matter destroyed

A
  • aka “Frustration of purpose” / when w/o fault of any of the parties.
  • If executory contract - there is no excuse if party can easily find replacement
257
Q

Excusable non- performance - ClISSU - Subject Matter destroyed - Special rule for contractors

A

When partially executed contract - Risk of loss usually stays with contractor until completion UNLESS contract only for repairs the contract is discharged and contractor entitled to recovery for value of work to taht point

258
Q

Excusable non- performance - ClISSU - UCC Failure of Presuposed Condition

A
  • When is commercially impracticable or force majeure then performance is excused (discharge might only be temporary)
    • i.e. terrorist attack, fire, war, embargo
  • Not foreseable at time of contract + beyond parties control
  • Includes government regulation
259
Q

Excusable non- performance - ClISSU - UCC Failure of Presuposed Condition - Part performance Rule

A

part performance may stil be required if possible in fair + reasonable manner

  • Buyers should be notified of the available quota and expected delay / Buyer’s choice to agree w/quota or to terminate contract if defect substantially impairs value of total contract
260
Q

Insecurity and assurance of performance - UCC - Procedure

A

Party has nto present wirtten demand and other party 30 days to give response with assurance (no specific form of response - just complete communication!!!)

261
Q

Non-performance but - gral

A

When performance is not possible but parties agree on modify or end contract liability by accord/satisfaction, novation, cancellation, waiver, release or promise not to sue, or modification

262
Q

Breach of Contract - Anticipatory Repudiation / when, effects for other party, retraction

A
  • Party demostrates clearly/unequivocal intetntion to not continue performance in the future, substantially impairing value of the contract
  • Non-repudiating party allowed to SUSPEND PX + CANCEL CONTRACT + DX (also option to “wait and see” untill due date)
  • If retraction before change of position - there is no repudiation and contract remains valid and enforceable
263
Q

Breach of Contract - Anticipatory Repudiation / UCC Treatment

A

Grounds for demanding assurance

264
Q

Breach of Contract - Divisibility of Contract / difference btwn CL and UCC

A
  • CL: to avoid forfeiture, it is possible to equivalent pyament for performed portion
  • UCC: “Single delivery” rule is default
265
Q

Remedies -MRS DAISI

A
  • Money dx
  • 4R’s
  • Specific Performance
  • Declaratory Judgment
  • Injunction
  • SOL
  • In quasi contract
266
Q

Remedies - MRS DAISI - Money Dx - Recovery Limitations

A
  • Established in contract +
  • w/ foreseeable objective standard +
  • Reasonable to the amount of actual loss and that dx that would have been avoided but for breach (i.e. loss of profits for new business)
267
Q

Remedies - MRS DAISI - Money Dx - DX Limitations

A
  • By contract - UCC prohibits limitation that fails essential purpose of contract
  • UCC allows seller to retain deposit and offset dx and exceptionally use 20% or $500 as liquidated dx
  • UCC limitation allows unless deemed unconscionable (i.e. limit to personal injury on consumer goods contracts)
268
Q

Remedies -MRS DAISI - Money DX - Compensatory or Expectation Dx - Concept

A
  • Compensatory: sufficient in amount to indemnify injured person for loss suffered
  • Expectation: compensation for the loss of person reasonable expectation of transaction not completed -
269
Q

Remedies -MRS DAISI - Money DX - Compensatory or Expectation Dx - Gral application

A
  • gral: as default when liquidated deemed punitive
  • Not allowed when too speculative (i.e. when there is no previous experience on a specific tpe of business)
270
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Seller

A

1) Right to cure if buyer rejects tender of goods
2) Seller stop transit and demand COD for future when buyer’s breach
3) Incidental dx related to avoiding loss, i.e. storage, insurance
4) Goods in Production can be sold as scrap or completed
5) Lost Profit
6) For buyer’s insolvency

271
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Seller - Basic Dx measure

A
  • Measure of dx: difference btwn contract price and market price at time of tender OR price at time of resale
  • If resale of good, it has to be commercially reasonable and buyer must be notified / BFP takes free and clear
272
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Seller - Buyer’s Insolvency

A
  • When seller discovers it he can stop/reuse delivery except for cash
  • Also can reclaim goods bought on credit but looses right to recover any dx
273
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - Gral

A
  • When seller fails to deliver/non-deliver/delivers late
  • Buyer can reject or accept all/portion bc of perfect tender rule - Buyer must have reasonable inspection right before accepting/paying - if rejects price can be recovered
  • Mx Remedies: CICS + Market price remedy + Repudiation remedy
274
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - CICS - Cover by purchase of substitute goods (Cover Dx)

A
  • Buyer purchaser equivalent goods on reasonable price to satisfy his requirement
  • Dx amount = difference btwn contract price and cover market price at time buyer LEARNS from breach
275
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - CICS -Incidental Dx

A

Buyer mitigation costs from breach - i.e cost for care of rejected goods

276
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - CICS -Consequential Dx

A
  • aka “expectancy interest”
  • Loss of economic advantage obtained have the contract not been breached
277
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - Market Price Remedy

A
  • When buyer cant cover
  • Dx = difference btwn market price and contract price at time buyer LEARNS from breach [?????]
278
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - Specific Performance - CIT conditions

A
  • Cover is impossible from other sources
  • Identification of good in contract was particular - Transfer to BFP not yet occurred
279
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - Rejection - Gral

A
  • Rejection of tender for non-conforming goods
  • Within reasonable time
  • Must notify seller with details of non-conformity in order to give seller opp to cure - If unjustified buyer looses right to further reject or claim breach
280
Q

Remedies - MRS DAISI - Money DX - UCC Remedies - Damage Mitigation Duty - Duty for seller

A
  • When buyer’s breach
  • Resale has to be commercially reasonable + at highest possible price
281
Q

Remedies - MRS DAISI - Money DX - UCC Remedies - Damage Mitigation Duty - Duties for buyer (4 situations) when seller breaches and buyer rejects

A

1) Non-merchant buyer: notify seller + held w/reasonable care
2) Merchant buyer: notifiy seller + follow insructions ofr care/return
- if perishable or no instructions, make best effort to sell them on seller’s account

282
Q

Remedies - MRS DAISI - 4 R’s

A
  • Used when dx are too speculative to define OR don’t resolve dispute OR don’t adequately measure detriment
    1) Rescission
    2) Reformation
    3) Replevin of stolen goods
    4) Restitution
283
Q

Remedies - MRS DAISI - 4 R’s - Rescission - Application

A
  • Formation defects
  • Mutual mistake
  • Fraud in the inducement
  • Excusable non-performance
284
Q

Remedies - MRS DAISI - Declaratory Judgement - gral

A
  • Request for court to make declaration to terminate controversy on contract provision or performance
  • i.e. meaning of ambiguous term, fund mutual mistake, lack of contract formation elements
285
Q

Remedies - MRS DAISI - Injunction - Types (3)

A

1) TRO: post lawsuit to protect person/property
2) Preliminary Injunction: pre-trial when probability of success of claim OR irreparable injury
3) Permanent Injunction: after full trial on merits

286
Q

Remedies - MRS DAISI - SOL - Specific rules - Contracts

A
  • Gral rule: Non breaching party has 6 years since execution of written contract
  • 2-3 years when contract is oral

- on date on knowledge of breach

287
Q

Remedies - MRS DAISI - SOL - Specific rules - Torts

A
  • gral rule: 3 years
  • 2 years for short-lived acts: i.e. assault, false imprisonment, libel, slander
  • Starts running on date _P discovers tor_t was committed (Discovery Rule)
288
Q

Remedies - MRS DAISI - SOL - Specific rules - UCC

A
  • Action for warranty: 4 years from date of cause of action accrued / 6 years if express warranty
  • From date breach occurs even if not known (no discovery rule)
  • Parties can modify but not reduce to less than 1 year and extend more than X years
289
Q

3rd Party Beneficiaries - Gral Rule

A

Privity of contract necessary for P to have standing to sue + enforce contract rights UNLESS rights are bestowed on him by parties to contract

290
Q

3rd Party Beneficiaries - Bestowment of rights - Intention

A
  • Parties must intent and declare for 3rd party to receive unqualified rights or benefits from future performance and enforceability of such rights
291
Q

3rd Party Beneficiaries - Legal Rights

A
  • Receive payment otherwise intended for contract party
  • Right to sue promisor directly
292
Q

3rd Party Beneficiaries - Vesting of Rights

A
  • Beneficiary assents OR knows of assignment OR moves to indicate affirmative reliance OR commence action to enforce right
  • Prior to vesting parties can modify contract to modify/rescind benefit
293
Q

Assignment of Rights - Gral

A
  • New party introduced to contract who receives pre-existing contractual right OR agrees to perform a pre-existing contractual duty
  • For UCC assignment includes rights and duties unless otherwise indicated
294
Q

Assignment of Rights - Limitations - Gral rule

A
  • CL: cant assign rights to mere offer, to receive personal services, insurance coverage, expectation of payment from future or executory contract (must have performed obligations)
  • UCC: All rights assignable unless otherwise agreed OR burden of risk for other party are materially increased + any assignment provides right to request for Assurance of performance
295
Q

Assignment of Rights - Prohibition of Assignment provision - CL

A
  • Gral rule: enforceable - UNLESS assignor has fully performed his obligations and assignment is for right to get paid or to suit for dx for freach of contract
296
Q

Assignment of Rights - Prohibition of Assignment provision - CL - Application

A
  • Alimony and child support payment
  • Wage
  • Rights not yet in existence (i.e. expected payment from future contract)
  • Right to receive payment from executory personal service contract
297
Q

Delegation of duties - Gral Rule CL

A
  • Delegate must consent to perform (express/implied agreement)
  • Obligee doesnt have to consent to RECEIVE performance, unless (3) circumstances
298
Q

Delegation of duties - CL - Exceptions to no need to consent to receive performance from delegate (3)

A

1) Prohibition to delegate exists: consent as waiver
2) Performance involves personal skill of obligor
3) When acceptance involves a material risk or burden

299
Q

Delegation of duties - Delegate Liability

A
  • Delegate who accepts delegation through express assumption is liable to original obligee if performance is inadequate
300
Q

Delegation of duties - Delegator Liability

A
  • His rights are extinguished but obligations remains - Delegator remains liable to obligee
  • UNLESS novation or release from obligee
301
Q

Negligence - Legal Duty - Rescuer - Tortfeasor Liability /2 types

A
  1. “Rescue Doctrine”: original tortfeasor liable for original injury and additional harm suffered because of rescue AND injuries suffered by rescuer
  2. Harm Creator: original tortfeasor duty to rescue/aid/summon/help for victim for risk created

[Tortfeasor not liable for “Professional Rescuer”]

302
Q

Collateral - Types of Property (2)

A

1) Tangibles
2) Intangible

303
Q

SI - Tangible Property - Types (5) + 1

A

1) Inventory
2) Equipment
3) Consumer Goods
4) Farming products
5) Manufactured home + Proceeds

304
Q

Intangible Property - Types (11) + 1

A

1) Instrument: negotiable or other (i.e. promissory note)
2) Document of title
3) Chattel Paper
4) Account
5) Deposit Account
6) Investment property
7) Commercial tort claim
8) Letter of credit
9) Insurance Policy proceeds
10) Financing Lease of personal property
11) Gral - “residual” + Proceeds thereof

305
Q

SI- Proceeds - Gral / source, content, [SI after sale??}

A
  • Of both tangible and intangibles UNLESS otherwise provided by SA
  • Include whatever is received by the debtor upon the sale/exchange/other disposition of primary collateral
  • “whatever”: can be $ or property

[- SI continues with collateral once attached/perfected???]

306
Q

SI - Proceeds - Relation with SI (“automatic SI”)

A
  • SI from SA continues with collateral once attached/perfected
  • “Automatic SI” for 20 days after attachment/perfection.
  • After 20 days: SI survives only in:
    1) Cash traceable by creditor
    2) Non-cash when new FS filed with particular identification of these new non-cash proceeds.
307
Q

Secured Transactions - Purchase Money Security Interest (PMSI) - Gral/ special relation, creditor’s dual position, burden of proof, exclusion

A
  • Special nexus btwn collateral and obligation, because collateral itself secures the repayment of its puchase price owed to creditor
  • Creditor can have “dual status”, when PMSI on only 1 of mx collateral assets (as PMSI and gral creditor)
  • Burden of proof: party claiming interest
  • Bank loan for working capital doesn’t qualify bc is not associated w/specific good (as a general loan)
308
Q

Secured Trans - PMSI - Creation Methods (2)

A

1) Collateral Sale
2) Loan to acquire specific collateral

309
Q

Secured Trans - PMSI - Advantages (4)

A

1) Unlike non-PMSI it can affect household goods sold to debtor
2) For consumer goods it allows for perfection by mere attachment
3) Provides a 20-day grace period from reception to file when interest on non-inventory (equipment) goods
4) For inventory goods it has super priority

310
Q

Secured Trans - PMSI - Advantage - Super priority on Inventory - Requirement

A

Notice to other SI creditors w/claims over same inventory

  • Prevents previous creditors to claim collateral on “After-acquired” clause
311
Q

Secured Trans - Priority - Gral / process, gral rule for each category

A

1st: Define the type of SI (is attached/perfected) then
2nd: set the priority among each piece of collateral
3rd: Within each category of priority application of “f_irst in time first in right_” (check effective date of attachment/perfection)
- Possible RAP exceptions (As “super priorities”)

312
Q

Secured Trans - Priority - PMSI advantages over other secured creditors (3)

A

1) 20-day grace period for filing + relate back for non-inventory
2) Perfection by attachment for consumer goods
3) Priority of PSMI on inventory over prior perfected non-PSMI if notify them
* (asserting an after-acq property interest)

313
Q

Secured Trans - Priority - Exceptions (3) RAP (as super priorities)

A

1) Retail inventory - BIOCOB
2) Adding value to collateral
3) Preferential bankruptcy interests

314
Q

Secured Trans - Priority - RAP Exceptions - Retail Inventory - BIOCOB

A
  • Purchase by BIOCOB from someone who regularly sells goods of that kind
  • Doesn’t include sale in bulk or from pawn shop
315
Q

Secured Trans - Priority - RAP Exceptions - Adding value to collateral - Type of credits (2)

A

1) Chattel and real property lien
2) Warehouse and carrier lien

316
Q

Secured Trans - Priority - RAP Exceptions - Adding value to collateral - Chattel and real property lien - Gral / for whom, effect, sanction

A
  • For person who performed labor or furnished materials
  • Creates a lien of property that must be formally filed at dept of licensing within 90 days of work
  • Failure to fill gives purchaser free/clear title to BFP
317
Q

Secured Trans - Priority - RAP Exceptions - Adding value to collateral - Chattel and real property lien - Lien w/priority over (3):

A

1) Previous attached not perfected interest
2) Subsequent interest to labor/material provided
3) Over prior perfected interest only when established by statute (i.e. labor lien on harvested timber, or lien on the cost of agricultural products)

318
Q

Secured Trans - Priority - RAP Exceptions - Adding value to collateral - Warehouse and Carrier Lien - Lien Foreclosure / effect, method

A
  • Lien foreclose MUST be formally executed, the carrier/warehouse with super priority
  • Formal execution can be achieved via disposition sale
319
Q

Secured Trans - Priority - RAP Exceptions - Preferential Bankruptcy Interests - Gral / when , possible effects

A
  • Upon filing of bankruptcy petition, the court will appoint trustee to represent unsecured/gral creditors
  • Court can SET ASIDE debtor’s bargain sales and any payment to SI for “Antecedent debts” on eve of bankruptcy (created prior to insolvency that otherwise wouldn’t have been created)
320
Q

Torts - Mx D’s Liability Rules / situations (2) in relation to P’s fault

A
  1. P not at fault + indivisible injury: Joint and Several Liability
  • recover all from 1 D = Contribution Rights among Ds
  • recover each portion = doesnt discharge other Ds
  1. P at fault: if application of Comparative Fault System AND D’s only severally liable to the extent of their individual fault
    • Jury apportions % for P and each D
    • requires individual ID of each D.
321
Q

Torts - Mx D’s - “Indivisible Injury” Concept + effect

A

Harm that is not capable of accurate apportionment between D’s

  • result: joint and several liability
322
Q

Torts - Mx D’s Liability Rules - Contribution Rights / What + exception

A

When liaiblity is apportionable among them AND one D pays more than its share

  • Entitled to contribution claim against other D for the excess

UNLESS: it was INTENTIONAL TORTFEASOR

323
Q

Torts - Mx D’s Liability Rules -No individual Negligence Rule / when, effect

A

When no D was individually N BUT combined actions creates unforeseable harm

  • NO D is liable
324
Q

Intentional Torts - Standard for victim / gral rule and exception

A

Gral Rule: ORDINARY PERSON (type of contact that oridnary person would object or be harmed)

  • Heightened susecptibility of P doesnt change standard

UNLESS: D aware of heihgtened susceptibilty and therefore knew injury would be beyond ordinary person

+ rules for infliciton of emotional distress

325
Q

Intentional Torts - Negligence Claim Option Rule / when, effect

A

If act does not have elements for IT or if any defenses or privleges

  • D can always be potentially liable on N
326
Q

IT - Defenses and Privileges - Types (9)

A
  1. Consent
  2. Defense of self
  3. Defense of others
  4. Defense of property
  5. Recapture of chattels
  6. Necessity
  7. Under Color of Law
  8. Discipline
  9. Justification - court created “catch-all”
327
Q

Negligence - Legal Duty - Land Owner/Possessor - On the Premises - Licensee / i.e., liability, satisfaction of duty of care

A

Has express or implied permission to be in the premises for non-business purposes

  • i.e. social guest, canvassing sales person, police, emergecny workers, children owner is aware are tresspassing

LIABLE for: visible or known dangerous conditions could be reasonable to anticipate wont be discovered by licensee - SATIFACTION with Warning

NOT LIABLE for unknow danger

328
Q

Negligence - Legal Duty - Land Owner/Possessor - On the Premises - Attractive Nuisance / gral application, duty, type

A
  • For child tresspassers
  • Duty to avoid harm
  • Depends on type of condition:
    1. Artificial
    2. Natural
329
Q

Negligence - Legal Duty - Land Owner/Possessor - On the Premises - Attractive Nuisance - Artificial Condition / elements, laibility, satisfaction of duty, status of children

A
  • Child attracted to dangerous condition “itself” AND his is not old enough to objectiviley appreacite danger

LIABILITY for condition left exposed in place it could reasonable to expect it could be found by children

  • WARNING not enough
  • Children status changes from tresspasser to invitee
330
Q

Negligence - Legal Duty - Land Owner/Possessor - On the Premises - Attractive Nuisance - Natural Condition / gral rule, exception

A
  • Gral Rule: No liability
  • UNLESS:
    • Danger easily discoverable under reasonable inspection (no liability if hidden) AND
    • easily avoidable by taking simple precautions
331
Q

Torts - SL - Products Liaiblity / Elements

A
  1. Only for products/goods (no real estate or services)
  2. Sold by merchant D (not casual sellers)
  3. Product must have defective condition AND be unreasonably dangerous
  4. Without substantial change - downstrm alteration as superseading cause or defense for manufacturer if unforeseable
  5. Degree of care irrelevant
  6. Privity abolished
332
Q

Torts - SL - Products - Defective condition AND be unreasonably dangerous Requirement - types (3), use, obvious dangers

A
  • Includes: 1) manufacturing defect, 2) desing error, 3) failure to reasonably warn
  • When ORDINARY USAGE by consumer
  • NO SL if gral knowledge of danger
333
Q

Torts - Strict Products Liaiblity- Defenses (5) SCAAM

A
  1. State of the Art: industry standards + no knowledge of danger at time of production
  2. Comparative Fault -unless is failure to discover hidden/latent defect (no contributory N)
  3. Assumption of risk: i.e. reduction of price
  4. Alteration: as break in chain of causation
  5. Misuse or overuse: unforeseable use or abuse not originally intended - malfunction wouldnt happened under normal usage

AOG Important - Complex (1 decks)

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