Bar MidTerm Flashcards
Res ipsa loquitur - 3 elements
(1) the event is of a kind which ordinarily does not occur in the absence of negligence;
(2) it is more likely than not that defendant’s negligence was responsible for the event; and
(3) plaintiff was not responsible for the event.
If the claim hinges on the presence or lack thereof of Negligence - look for .. ?
Proximate Causation - Was the injury a foreseeable result of the incident?
Both definitions of Criminal Assault.
1) attempting to commit battery; or
2) intentionally causing the victim to fear an immediate battery
- the threatened contact need only be offensive or insulting in this type of criminal assault. The victim does not have to fear actual injury or pain
Ex: Grossed out = enough for offensive too
Boundary / Property Line - not in writing but agreed by both - OK ?
Oral agreements to settle a boundary dispute are enforceable if the parties subsequently accept the line for a sufficient time.
Fee Simple Subj to Exec. Interest (3rd Party - happening / non-happening of event - make sure of when that is - death or death of someone else w/o kid)
- Can they exploit the property resources or waste?
Yes- holder of a fee interest, the Party can permissibly use the property in any manner she chooses.
Can the Plaintiff properly serve the summons and complaint ?
NO - ONLY by
1) Anyone who is NOT a party (plaintiff) and
2) Over the age of 18.
Forum non conveniens and transfer - foreign counrty
Ct cannot transfer to foreign country ct so ….
- court can only dismiss the case and leave the plaintiff to refile elsewhere
Non-white students being discouraged from - whatever - in schools : congress develops something to promote and fix this - can they ?
Yes - Congress is authorized to enact legislation to prohibit violations of Fourteenth Amendment rights.
Defacto segregation in school - b/c of social factors not intentional - can schools correct it ?
- Cannot reassign students based on race to correct to achieve a “racial balance.”
but»_space; can
> carry out VOLUNTARY racial balancing by “structural” measures = redrawing school zones or building new schools, in order to remedy
War Powers Clause - Congress
Very broad authority to initiate whatever measures it deems necessary to provide for the national defense in peacetime as well as in wartime.
- Initiate wage, price, and rent control of the civilian economy during wartime [
Transfer Venue Civil case - request of Def.
Why would they ?
Because witnesses and evidence would be in the District
- If PJ + SMJ and other Dist. would provide easier access to proof and witnesses - then Ct would.
- Def. Consents to PJ +Venue by filing transfer
Sale of Land - Right of first Refusal
Not an unenforceable restraint on alienation - but-
Must be in writing = SOF !!
Dispute in Contracted work - check marked “Payment in Full” - cashed check ..means
Accord and Satisfaction
> obligee accepts a lesser performance
> compromise provides consideration for the accord, and satisfaction extinguished the obligation
- impliedly agreeing to accept less as a compromise of the dispute
- Having so agreed, cannot thereafter seek to enforce the full contract price.
Restoring Property after an easement dug - pipes etc -
what are they entitled to
Reasonable compensation for any damage done in repairing the easement
> not entitled to have the land restored to its previous special condition if such restoration costs more.
KNOWN Risk - is the contract discharged due to it coming true ?
Contract between the promoter and the hall is NOT discharged, because the Promoter bore the risk.
- knew the rush and still entered into it -
X grabs Y’s arm - pushed off + dies - crime?
No - self defense
Forum selection clause - Erie
Enforced by
Motion to Transfer
Under FRCP
Can a BFP rely on the protection of the recording act vs. adverse possession ?
NO - Acquisition via adverse possession is not a “conveyance” within the recording act, and thus that act does NOT benefit a subsequent purchaser
Are parents vicariously liable for their children ?
Parents are generally NOT vicariously liable for the Negligence of their children.
Performance of a personal services contract is excused when?
An obligation becomes an absolute duty to perform, the promisor may still be excused from performance if
- some event that prevents his performance
> illegality, death or disability, and commercial frustration.
> NO Notice = does not operate to create any additional rights for the city opera as to damages.
Employment renewal - after end of term but b/c in a political party …
- Violated her First Amendment rights
> cannot be denied public employment based upon membership in a political organization
