All Flashcards

Question

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

Answer 1

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

Answer 2

- Channels, Instrumentalities, Substantial Relationship

Answer 3

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

Answer 4

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

Answer 5

- 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

Answer 6

Protection against STATE action vs: 1) Fundamental civil state rights 2) Essential economic activities (livelihood)

Answer 7

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

Answer 8

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

Answer 9

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

Answer 10

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

Answer 11

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

Answer 12

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?

Answer 13

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

Answer 14

- 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

Answer 15

- 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)

Answer 16

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

Answer 17

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

Answer 18

- 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

Answer 19

- 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

Answer 20

- "Prudent business person when managing own affairs or investments" (higher than reasonable person) (similar to corp director)

Answer 21

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

Answer 22

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

Answer 23

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

Answer 24

- 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

Answer 25

No rights against beneficiaries for trust/trustee actions

Answer 26

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

Answer 27

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

Answer 28

- 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

Answer 29

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

Answer 30

- 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)

Answer 31

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

Answer 32

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

Answer 33

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

Answer 34

1) Bright line rules + 2) Escape devices (avoid rigidity of rules)

Answer 35

- 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

Answer 36

- Contact with case - "Unprovided for" or "No interest" - True Conflict: apply forum law

Answer 37

- 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

Answer 38

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

Answer 39

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

Answer 40

- Duration - Earned Conditions for commission - Writing: SOF because of land - Description: enough to ID property

Answer 41

- 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

Answer 42

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

Answer 43

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

Answer 44

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

Answer 45

- SOF - Acknowledgment = notarized - Description of property: test of specific identity - Delivery

Answer 46

- 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

Answer 47

- aka "Bargain sale" - Grantor only transfer rights - no protection against covenants or with implied warranties

Answer 48

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

Answer 49

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

Answer 50

- 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

Answer 51

**- 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

Answer 52

Risk of seller until closing

Answer 53

- 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

Answer 54

Buyer excused if property destroyed

Answer 55

- Subsequent grantee must be BFP and first to record - Used in majority of states

Answer 56

- For value - In good faith - No record or inquiry notice - Shelter Rule

Answer 57

- 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

Answer 58

- 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

Answer 59

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

Answer 60

- Exclusive - Continuous - Hostile - Open and Notorious

Answer 61

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)

Answer 62

- 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)

Answer 63

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

Answer 64

- As intervivo transfer against testamentary devise - CL: rebuttable presumption of satisfaction VS - UPC: no presumption, satisfaction only if expressly intended

Answer 65

- 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

Answer 66

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

Answer 67

- _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

Answer 68

- 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

Answer 69

- Release or novation required for original grantee to not be potentially liable to mortgagee/bank

Answer 70

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

Answer 71

- 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

Answer 72

- 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

Answer 73

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

Answer 74

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

Answer 75

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

Answer 76

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

Answer 77

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

Answer 78

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

Answer 79

- 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)

Answer 80

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

Answer 81

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

Answer 82

- 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

Answer 83

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)

Answer 84

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

Answer 85

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

Answer 86

- 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

Answer 87

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

Answer 88

- Assign rights to receive rent to 3rd party - T's need to receive notice to start paying to 3rd party

Answer 89

- 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**

Answer 90

- 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

Answer 91

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

Answer 92

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

Answer 93

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)

Answer 94

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

Answer 95

- 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"

Answer 96

- 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"

Answer 97

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

Answer 98

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"

Answer 99

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"

Answer 100

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)

Answer 101

- 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)

Answer 102

- 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

Answer 103

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

Answer 104

- 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

Answer 105

- 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)

Answer 106

- 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

Answer 107

- Gral rule: JDX if **commission WITHIN state** (i.e. non resident in car accident)

Answer 108

- 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)

Answer 109

- Citizenship on: 1) Place of incorporation OR 2) Ppal place of business

Answer 110

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

Answer 111

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

Answer 112

- 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"

Answer 113

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

Answer 114

- 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

Answer 115

When claim arises from single transaction or event - No "spiting claims" possible

Answer 116

- Preclusion affects second claim in relation to judgment of second claim

Answer 117

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

Answer 118

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)

Answer 119

- 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

Answer 120

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

Answer 121

- 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

Answer 122

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

Answer 123

- 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

Answer 124

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

Answer 125

- 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

Answer 126

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

Answer 127

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

Answer 128

- 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.

Answer 129

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"

Answer 130

1) Real interest 2) Capacity

Answer 131

1) Complete Relief 2) Rights being adjudicated

Answer 132

- 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

Answer 133

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

Answer 134

- 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

Answer 135

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

Answer 136

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

Answer 137

- 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

Answer 138

- 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

Answer 139

WP _prepared for litigation_ is NOT discoverable UNLESS: - only source + - "substantial need"

Answer 140

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

Answer 141

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

Answer 142

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

Answer 143

- Used in place of live testimony - Exception hearsay: when used as opposed party admission

Answer 144

- 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?"

Answer 145

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

Answer 146

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)

Answer 147

- Evidence of destruction is admissible to suggest destruction of "smoking gun" - Opposing counsel may be allowed to have jury instruction inviting to such infered

Answer 148

- 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")

Answer 149

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

Answer 150

- 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

Answer 151

Include in affidavit: - specific facts - reasons - efforts to notify opposing party of TRO motion - Justification for ex-parte issuance

Answer 152

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

Answer 153

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

Answer 154

Which effect is to preclude Summary Judgment: - Oral contract - N - Proximate cause - Reasonableness - Consent - Knowledge - Mistake

Answer 155

- 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

Answer 156

- 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

Answer 157

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

Answer 158

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)

Answer 159

- 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)

Answer 160

- 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.

Answer 161

- Court usually disregards credibility of W (similar to summary judgment) _- Court doesnt weight E - only objectively asks about sufficiency to submit case to jury_

Answer 162

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)

Answer 163

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)

Answer 164

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

Answer 165

Superior court directs DISTRICT court to take some action required under law - Abolished by FRCP but still used by some state courts

Answer 166

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

Answer 167

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

Answer 168

- 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"

Answer 169

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

Answer 170

* 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

Answer 171

* 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)

Answer 172

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

Answer 173

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

Answer 174

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

Answer 175

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

Answer 176

- 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

Answer 177

- 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

Answer 178

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

Answer 179

Sole discretional power of BOD - potential personal liability of approving director if it causes insolvency of corp

Answer 180

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

Answer 181

- 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

Answer 182

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

Answer 183

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

Answer 184

- 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)

Answer 185

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

Answer 186

- 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

Answer 187

_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

Answer 188

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").

Answer 189

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

Answer 190

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

Answer 191

- 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

Answer 192

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

Answer 193

- 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)

Answer 194

- 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

Answer 195

- 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

Answer 196

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

Answer 197

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

Answer 198

Gral Rule: to be determined by court * - fill gaps when required/essential terms are satisfied * - exception to Parole evidence rule (PER)

Answer 199

1) CL Option contract 2) UCC Firm Offer

Answer 200

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

Answer 201

- 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

Answer 202

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)

Answer 203

- 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)

Answer 204

- 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

Answer 205

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

Answer 206

When modification in good faith no consideration required - when for $500 or more, it needs to be in writing

Answer 207

Not illegal or against public policy

Answer 208

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

Answer 209

- 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.

Answer 210

- 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)

Answer 211

- Part performance - Admission - Written merchant to merchant confirmation - Specially manufactured goods

Answer 212

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

Answer 213

- 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!!!!)

Answer 214

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

Answer 215

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

Answer 216

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

Answer 217

**- 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

Answer 218

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

Answer 219

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

Answer 220

- Intentions of parties - Incorporation by reference - Parole Evidence Rule - Ambiguity - Controlling Statute - Conflict of Laws

Answer 221

Objective intention as expressed in the language uses in the contract

Answer 222

- 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

Answer 223

- 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

Answer 224

- Defect in Formation - UCC Trade and Dealings - Condition Precedent - Ambiguity Interpretation - Subsequent Modifications

Answer 225

- 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

Answer 226

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

Answer 227

- 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

Answer 228

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

Answer 229

- 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

Answer 230

- 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)

Answer 231

- 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

Answer 232

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

Answer 233

- 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

Answer 234

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

Answer 235

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

Answer 236

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

Answer 237

* 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

Answer 238

Grounds for demanding assurance

Answer 239

* CL: to avoid forfeiture, it is possible to equivalent pyament for performed portion * UCC: "Single delivery" rule is default

Answer 240

- Money dx - 4R's - Specific Performance - Declaratory Judgment - Injunction - SOL - In quasi contract

Answer 241

- 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)

Answer 242

- 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)

Answer 243

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

Answer 244

- 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)

Answer 245

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

Answer 246

- 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

Answer 247

- 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

Answer 248

- 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**

Answer 249

- 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

Answer 250

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

Answer 251

- aka "expectancy interest" - Loss of economic advantage obtained have the contract not been breached

Answer 252

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

Answer 253

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

Answer 254

- 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

Answer 255

- When buyer's breach - Resale has to be commercially reasonable + at highest possible price

Answer 256

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

Answer 257

- 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

Answer 258

- Formation defects - Mutual mistake - Fraud in the inducement - Excusable non-performance

Answer 259

- 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

Answer 260

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

Answer 261

- 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_

Answer 262

- 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)

Answer 263

- 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

Answer 264

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

Answer 265

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

Answer 266

- Receive payment otherwise intended for contract party - Right to sue promisor directly

Answer 267

- 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

Answer 268

- 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

Answer 269

- 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

Answer 270

- 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

Answer 271

- 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

Answer 272

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

Answer 273

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

Answer 274

- Delegate who accepts delegation through express assumption is liable to original obligee if performance is inadequate

Answer 275

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

Answer 276

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"]

Answer 277

1) Tangibles 2) Intangible

Answer 278

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

Answer 279

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

Answer 280

- 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???]**

Answer 281

- 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.

Answer 282

- _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)

Answer 283

1) Collateral Sale 2) Loan to acquire specific collateral

Answer 284

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

Answer 285

_Notice_ to other SI creditors w/claims over same inventory - Prevents previous creditors to claim collateral on "After-acquired" clause

Answer 286

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")

Answer 287

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)

Answer 288

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

Answer 289

- Purchase by BIOCOB from someone who regularly sells goods of that kind - Doesn't include sale in bulk or from pawn shop

Answer 290

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

Answer 291

- 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

Answer 292

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)

Answer 293

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

Answer 294

- _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)

Answer 295

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.

Answer 296

Harm that is not capable of accurate apportionment between D's * result: joint and several liability

Answer 297

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

Answer 298

When no D was individually N BUT combined actions creates unforeseable harm * NO D is liable

Answer 299

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

Answer 300

If act does not have elements for IT or if any defenses or privleges * D can always be potentially liable on N

Answer 301

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"

Answer 302

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

Answer 303

* For child tresspassers * Duty to avoid harm * Depends on type of condition: 1. Artificial 2. Natural

Answer 304

* 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

Answer 305

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

Answer 306

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

Answer 307

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

Answer 308

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