Bar Review Flashcards
Termination of Agency
A) Manifestation to terminate (Apparent not until communicated to 3rd party)
B) Term of authorization expires
C) Death of either party
D) Incapacity of either party
Actual Authority
A) Express - explicitly told the agent
B) Implied - i) agent believes action is necessary to carry out duties ii) Agent acted similarly previously iii) customary for agent to act
Act within reasonable understanding of the authority
Apparent Authority
1) 3rd party reasonably believes person has authority to act on behalf of principal
2) Belief traceable to principal’s manifestations (holding out - A) position/title B) previous holding out/no published revocation C) cloaked in appearance)
Ratification of Agent’s Act
1) Agent had no authority
2) principal had knowledge of all material facts
3) principal manifests assent
Agent still liable for ratified for undisclosed principal
Independent Contractor Factors
1) Extent of control
2) Agent engaged in distinct occupation/business
3) type of work
4) Type of Payment (hourly v. per project)
5) who supplied tools/equipment
6) degree of supervision
7) degree of skill required
8) job part of principal’s regular business
9) length of service
10) intention of the parties
11) hired for a business purpose
Respondeat Superior Factors
A) conduct is kind employee is employed to perform
B) occurs substantially within the authorized time/space
C) Serves the employer
Disregard of employer’s directions insufficient
Respondeat Superior Intentional Torts
Not within scope of employment unless
A) specifically authorized
B) Driven by a desire to serve the employer
C) naturally occurring friction
Vicarious Liability
A) principal intended the conduct B) Principal was negligent/reckless in control of agent C) Non-delegable duty D1) apparent authority D2) actions constitute tort D3) 3rd party relied on authority
Vicarious Liability for Independent Contractors
Generally not liable A) inherently hazardous activity B) Non-delegable duty C1) principal holds the IC to be his agent C2) 3rd party reasonably relies C3) harmed suffered
Fiduciary Duties
1) Duty of Care - act reasonably
2) Duty of Loyalty - act for the principal’s benefit
3) Duty of Obedience - obey reasonable directions
Supplemental Jursidiction
Common Nucleus of operative fact
Exceptions-
A) Cannot violate complete diversity
B) Cannot be used by original plaintiff against 3rd party defendant
Court may decline - A) raises novel/complex state law issue B) state claim predominates federal claim C) federal court has dismissed federal claims D) exceptional circumstances
Must decline primarily domestic relations issues
Diversity in Class Action
1) Exceeds $5M [aggregate individual class claims]
2) 100+ class members
3) minimal diversity (any diversity) - may decline when non-diverse parties constitute 1/3 to 2/3s; must decline if non-diverse constitutes greater than 2/3s
Must decline - State government primary defendants; securities or corporate fiduciary claims
Removal
Sitting in the State where Claim was filed
1) Subject matter jurisdiction
2) Defendants agree
3) no Defendant resident of forum state
4) sought within 30 days (not 1 year after commencement)
Removal Procedure
1) File Notice of Removal in federal court [state basis for jurisdiction; include filed summons/complaint]
2) Serve Notice on all parties
3) File copy of removal with state
Removal is automatic
Personal Jurisdiction
Same extent as the State which the federal court is located
1) Traditional bases
2) State’s Long- Arm Statute
Obtaining Personal Jurisdiction
A) Domicile
B) Presence in State during Service of Process
C) Consent
D) Wavier (appearance without objection)
Personal Jurisdiction Constitutional Requirements
1) Minimum Contacts (General & Specific)
2) Not offending notions of fairness and justice
Personal Jurisdiction - General Jurisdiction
Defendant is at home in the jurisdiction (Domiciled)
Jurisdiction does not arise from where the claim took place
Personal Jurisdiction - Specific Jurisdiction
Jurisdiction arises out of defendant’s contacts with state which are related to the underlying claim
Personal Jurisdiction Fair Play and Justice
Burden on defendant to show unreasonable; Factors-
A) Burden on defendant to litigate in state
B) states interest in providing a forum
C) plaintiff’s interest
D) Interest of the judicial system in efficiency
Service of Process
1) within 90 days of filing compliant
Extension permitted on good faith showing
2) Server is at least 18 years old
3) Server is not a party
Service of Process on an Individual
A) To the person
B) Someone of suitable age/discretion living at the current dwelling
C) to an authorized agent
D) Accordance to state law (forum state or place of service)
Venue
Proper where (at the time the suit is filed)
A) any defendant resides
B) Substantial portion of claim occurred
C) Substantial portion of property located
D) Not A-C then where there is personal jurisdiction
Transfer of Venue
When Original Venue was Proper -
1) convenience of parties
2) could have initially been brought in new venue
[Transferee court applies law of transferor court]
When Original Venue was not proper-
A) must dismiss
B) transfer if interests of justice requires
Erie Doctrine
1) Diversity of Citizenship SMJ
2) Federal Court applies Federal Procedural Rules
3) Federal Court applies substantive law [including Choice of law rules - must apply the law as the state court would]
Preliminary Injunction
May Issue when
1) notice to adverse party
2) moving party gives security
Traditional Test 1) success on the merits likely 2) irreparable harm likley 3) harm to movant outweighs harm to other party 4) in public interest [if money damages sufficient then deny]
Temporary Restraining Order
1) immediate irreparable harm
2A) Notice given (same elements at Prelim Injunction)
2B) Without Notice
2Bi) sworn statement with specific facts that immediate irreparable harm will result
2Bii) certifies in writing efforts of giving notice & why no notice should be given
2Biii) gives security
[lasts 14 days, 1 renewal permitted - good cause or consent]
Pleadings - Amendment
A) As of Right within 21 days
B) Written Consent
C) Leave of Court
Waived Defenses if not Plead
A) Lack of Personal Jurisdiction
B) Improper Venue
C) Insufficient Process
D) Insufficient Service
Amendment Relation Back
A) Arose from same Transaction/Occurrence
B) Statute of Limitation Allows
Changing Party/Party Name
1) Arose from same Transaction/Occurrence
2) New party received notice of original notice within 90 days of filing
3) new party knew or shouldve known about the mistaken identity
Counterclaim
Defendant against Plaintiff
Compulsory - 1) arises out of same transaction/occurrence 2) does not require adding another party that court doesnt have jurisdiction over
Cross-Claims
Claim against a co-party
1) Same Transaction of Occurrence
Rule 11
All papers must be signed by attorney
1) not being presented for any improper purpose
2) legal contentions are warranted
3) factual contentions have evidentiary support
4) denials of factual contentions are warranted
[Does not apply to discovery or discovery motions]
[Sanctions within discretion of the court - no monetary sanctions against a client for attorney’s contentions - sanctions as deterrent]
Joinder
Multiple Plaintiffs or Defendants - 1A) joint and several relief is asserted 1B) claim arises out of the same transaction/occurrence 2) common question of law/fact 3) subject matter jurisdiction [mis-joinder not grounds for dismissal]
Required Joinder
1) necessary party
1A) cannot grant complete relief without absent party
1B) absent party claims an interest in action that would be impaired or impeded
1C) substantial risk of multiple liability/inconsistent obligations
2) joinder is feasible
Impleader
Third party action
1) 3rd party may be liable to the defendant
2) for all or part of the claim against the defendant
Derivative liability required
Leave of court required to implead 14 days after original answer
Class Action
Certification of Class:
1) Numerosity
2) Commonality
3) Typicality
4) Adequacy of Representation
Attorney Work Product Discovery Exception
1) a substantial need for the materials
2) materials cannot be obtained without undue hardship
Sanctions for a Pre-Trial Motion
A) party/attorney fails to appear B) does not participate in good faith C) Substantially unprepared D) fails to obey a scheduling [Can only modify final pre-trial conference order to prevent manifest injustice]
Motion to Dismiss
1) Consider the facts in the light most favorable to non-moving party
2) Any basis which relief can be granted
A) lack of SMJ B) Lack of PJ C) Improper Venue D) Insufficient Process/Service of Process E) Failure to state a claim F) Failure to join necessary parties
Motion for Summary Judgement
1) no genuine issue of material fact [reasonable jury could return a verdict]
2) entitled to judgement as a matter of law
3) evidence viewed in the light most favorable to the non-moving party
[any time until 30 days after the close of all discovery]
Motion of Judgement as a Matter of Law
1) Any time before submitted to Jury
2) non-moving party fully heard on an issue
3) reasonable jury would not have a legally sufficient basis to rule for non-moving party
4) court must draw all reasonable inferences in light most favorable to the opposing party
Appellate standard - A) jury’s factual findings are not supported by substantial evidence B) legal conclusions not supported by factual findings
Renewed Judgement as a Matter of Law
1) moved for JMOL
2) Within 28 days of judgment entry
3A) allow verdict
3B) order new trial
3C) direct the entry of JMOL
Claim Preclusion
1) parties are identical
2) court of competent jurisdiction
3) final judgement on the merits
4) same claim was involved
Issue Preclusion
1) valid and final judgement
2) issue is identical
3) issue was actually litigated, determined, essential
4) full and fair opportunity to litigate
Appeals
1) may only appeal final judgement [ends the litigation on the merits]
Exceptions -
A) 1) multiple parties/claims 2) final judgement for some of the claims/parties 3) court expressly determines no reason for delay
B) injunctions, receiverships, orders affecting possession of property, liability in an admiralty action, patent infringement
C) Circuit court certifies and Court of Appeals agrees
D) interlocutory order conclusively determines disputed question, resolves important issue completely separate from the merits, effectively unreviewable on appeal
Relevant
1) any tendency to make a fact more or less probable
2) fact is of consequence
Admissible unless rule of exclusion applies
Exclusion - probative value is substantially outweighed by A) unfair prejudice B) misleading the jury C) wasting time D) undue delay E) wasting time F) cumulative
Unfairly prejudicial
1) unnecessary
2) make jury improperly sympathize/dislike party
Subsequent Remedial Measures
1) would have made an earlier injury/harm less likely to occur
2) Not admissible to show:
A) negligence
B) culpable conduct
C) defect in product/design
D) need for a warning/instruction
Allowed for impeachment/prove disputed ownership/control
Compromise/Settlement Offers
Not admissible to show:
A) prove validity/amount of a disputed claim
B) to impeach by prior inconsistent statement
Allowed to show bias, refute undue delay, obstruction in a criminal matter
Pleas Deals/Negotiations
Not admissible in subsequent case:
A) statements made during plea discussions
B) nolo contendere plea
C) guilty plea later withdrawn
Offers to pay medical expenses
Not admissible to prove liability
Except - related statement/factual admissions are admissible
Liability Insurance
Not admissible to prove culpability
Admit for another purpose - bias, agency, ownership, control
Authentication of Physical Evidence
Must authenticate
A) witness testimony
B) substantially unbroken chain of custody
Authentication of Voice Recordings
may be authenticated by anyone who
1) heard the person speak
2) Identified the recorded person as the speaker
Authentication of Handwriting
Non-expert testimony allowed
1) handwriting is genuine based on a familiarity with the writing
2) familiarity with handwriting not acquired for the current litigation
Comparison by jury or expert; responsive letter
Original Writing Rule
Original Writing, Recording, Photograph required Unless-
A) reliable duplicate
B) all originals lost or destroyed
C) cannot be obatined by any available judicial process
D) not produced after proper notice
E) not closely related to a controlling issue
Character Evidence
Character not admissible to show propensity; Except Criminal Cases -
A) Defendants Character (defense only, prosecution as rebuttal)
B) Victims Character (not in rape cases, prosecution can rebut with victim good character or defendant bad character) [self-defense case; victim’s character for peacefulness]
Methods of Proving Character
Direct Examination - Opinion or Reputation
Cross Examination - Opinion, Reputation, Specific Act
Prior Bad Acts
Not admissible to show propensity Non- Propensity Purposes (MIMIC) M) Motive I) Identity M) Mistake, Absence of I) Intent C) Common Plan of Scheme/Opportunity/Preparation 1) act was committed 2) probative value substantially outweighs prejudice
Habit or Routine
Admissible to prove party acted in accordance with the habit/routine
Habit - regular response to a repeated situation
1) specificity
2) repetition
3) duration
4) semi-automatic/reflexive
Impeachment - Prior Inconsistent Statement
Admissible to Impeach
Extrinsic Evidence admissible 1) relevant to material issue and 2) proper foundation [1) witness given opportunity to explain 2) adverse party can examine witness about it]
Impeachment - Prior Convictions
Felony/Misdemeanor involving Dishonesty Admissible
Felonies not involving dishonesty - A) witness is not a defendant B) defendant witness in a civil case [probative value outweighs prejudicial]
Within 10 years of conviction/release
Not admissible if pardoned/Annulled based on finding of innocence
Impeachment - Specific Instances of Conduct
Cross Examination Only
Instance is probative for the witness’s character for truthfulness
NO extrinsic evidence
Impeachment - Character for Truthfulness
Untruthful Character - Reputation or Opinion [anytime]
Truthful Character - only after truthfulness has been attacked
Impeachment - Ability to Observe, Remember, Relate
Cross Examination
Extrinsic Evidence admissible
Impeachment - Bias
Bias, interest, motive, partiality, corruption always relevant
Impeachment - Hearsay Declarant
May impeach a hearsay declarant as if the declarant was a witness at trial
May admit inconsistent statements/conduct that would be otherwise hearsay for impeachment
Refreshing Recollection
1) witness once had personal knowledge of the matter
2) unable to recall the matter
Witness can read the document [only opposing party may offer the document into evidence]
Lay witness
1) comptent [presumed]
2) has personal knowledge
3) Opinion allowed if: 1) based on witness’s perception 2) helpful fact in issue 3) not based on specialized knowledge
Expert Witness
1) qualified as expert
2) Opinion is helpful to jury
3) Witness Believes opinion to a reasonable degree of certainty
4) Opinion supported by sufficient facts
5) Opinion based on reliable principles/methods that were reliably applied
Criminal case - no mental state opinion about defendant
Hearsay
1) out of court statement [assertion; oral, written, conduct]
2) offered to prove the truth of the matter asserted
multi-level hearsay - each must fit within exception
Non-Hearsay Statements
1) Verbal Acts of independent legal significance
2) show the effect on the listener
3) prior inconsistent statement used to impeach
4) circumstantial evidence of speaker’s state of mind
Hearsay Exclusion - Statements by a party opponent
A) any statement offered against an opposing party
B1) made by the party
B2) adopted by the party [silence sufficient in reasonable person would have denied]
C) person was authorized to make a statement
D) made by agent/employee
E) made by co-conspirator in furtherance of a conspiracy
Hearsay Exclusion - Prior Statements by a witness
1) declarant testifies
2) declarant subject to cross examination
3A) statement was inconsistent with witness testimony [previous testimony was given under penalty of perjury]
3B) identifies a person
3C) consistent with witness testimony and offered to i) rebut the declarant is lying ii) rehabilitate the declarant’s credibility
Hearsay Exception - Present Sense Impression
1) statement describing an event made by the declarant
2A) while observing the event
2B) immediately thereafter
Hearsay Exception - Excited Utterance
1) statement relates to a startling event
2) statement made while declarant was under the stress of excitement caused by the event
Hearsay Exception - Business Records
1) record of events
2) kept in the regular course of business
3) made at or near the time of the matter described
4) made by a person with knowledge of the matter
5) regular practice of the business to make such a record
6) Opponent does not show record lacks trustworthiness
Hearsay Exception - Medical Diagnosis Treatment
1) statement made for and reasonably pertinent to medical diagnosis or treatment
2) describes medical history or symptoms
Hearsay Exception - Statements of Mental, Emotional, Physical Condition
Declarant’s statement about then-existing state of mind, emotional, sensory, physical condition
Statements of memory or belief no admissible
Hearsay Exception - Dying Declaration
Civil or Criminal Homicide Cases
1) declarant unavailable
2) statement made under a sense of impending death
3) statement about cause/circumstances of death
Declarant Unavailable
A) privilege B) refuses to testify C) Witness does not remember D) death or illness E) beyond rich of court
Hearsay Exception - Statement Against Interest
1) Statement against the declarant’s penal, property, pecuniary interest when made
2) declarant has firsthand knowledge
3) person in declarant’s position would have made the statement only if the person believed it to be true
4) declarant is unavailable
Criminal case - supported by corroborating circumstances
Hearsay Exception - Public Records
Government or public records
A) record describing policies and practices
B) observations made in accordance with duties by law
C) Factual findings from authorized investigation (civil or against government in criminal)
[inadmissible if opponent shows a lack of trustworthiness]
Hearsay Exception - Past Recollection Recorded
1) witness has personal knowledge at the time of events
2) writing was made or adopted by the witness
3) writing made while events still fresh
4) writing is accurate
5) witness can no longer remember the event
Record may be read into evidence [only offered as evidence by adverse party]
6th Amendment Confrontation Clause
Applied to states via 14th amendment
criminal defendant has right to confront witnesses
Hearsay Exception violates 6th Amendment (except- dying declarations, wrongdoing by the defendant) when
1) statement is testimonial
2) declarant is unavailable for cross examination
3) defendant had no opportunity for cross examination
6th Amendment Testimonial Statements
A) to a grand jury
B) to the police when primary purpose is to collect testimony to be used later at trial [not statements to help an ongoing emergency response]
Spousal Immunity
1) Witness-spouse holds privilege
2) in a valid marriage [not after the marriage]
Does not apply in civil cases
Confidential Marital Communications
Applies in Civil and Criminal
1) Communication made during the course of a valid marriage
2) communication intended to be confidential
Either spouse may assert the privilege
Survives the marriage
Communication disclosed to 3rd party destroys the privilege
Physician-Patient Privilege
1) confidential patient communications
2) for the purpose of medical diagnosis or treatment
Patient holds the privilege [only patient can invoke]
Sovereign Immunity
11th Amendment - prohibition on suing state or state agency (not local governments) unless
A) state explicitly waives
B) Federal 14th Amendment claim
C) injunctive relief against a state official
D) money damages from a state official
Standing
1) personally suffered injury in fact (concrete and particularized)
2) injury was caused by defendant
3) injury is redressable
Third Party Standing
A) Close Relationship
B) Difficult/unlikely for the 3rd party to assert their rights
C) 3rd party is organization
Organization Standing
1) Issue germane to Organization’s purpose
2) Members would have standing
3) members participation no necessary
Ripeness: Pre-enforcement review of statute
1) Hardship of the parties
2) fitness of the record
Mootness Exceptions
A) Wrong is capable of being Repeated and Escaping Review
B) Defendant voluntarily stops and can resume anytime
C) Class action with one member having ongoing injury
Commerce Clause
A) Channels
B) people and instrumentalities
C) activities with a substantial effect on interstate commerce [intrastate activities - rational basis, aggregation of activity]
Dormant Commerce Clause
State/Local Government cannot pass law that:
A) Discriminates against out of state commerce [narrowly tailored to achieve legitimate objective or market participant]
B) undue burden on interstate commerce [clearly excessive to the putative benefits]
Fundamental Rights [substantive due process]
Strict Scrutiny
A) Right to Vote
B) Right to interstate travel
C) Right to privacy [marriage, procreate, raise a child, etc.]
Procedural Due Process
Deprivation of property - entitlement that is not fulfilled - Factors for process -
A) importance of the private interests
B) risk of error/value of additional procedures
C) State interests/burdens of additional procedures
[notice and unbiased hearing]
Equal Protection - Strict Scrutiny Categories
necessary to serve a compelling government interest [narrowly tailored and least restrictive] A) Suspect Class [race, national original, alienage] B) Impacting Fundamental Rights of a class Alienage - state only [except limiting participation in function of government]
Equal Protection - Intermediate Scrutiny Categories
Substantially related to an important government interest [narrowly tailored and leaves open other channels]
Quasi-Suspect Class - gender/sex, non-marital children, sexual orientation/identity
Rational Basis
Age, disability, wealth, undocumented aliens
not rationally related to any legitimate government interest
Regulatory Taking
Factors
A) economic impact on the claimant
B) extent of interference with investment expectations
C) character of government actions
Licensing Requirements
1) government has important reason
2) specific articulated standards
3) procedural safeguards [prompt final judicial decision]
Unprotected Speech
A) Fighting Words [inflict injury/incite breach of piece - not just abusive language]
B) Incitement of Imminent Lawless Action [1) advocates the use of force 2) directed to produce imminent lawlessness 3) likely to incite]
C) Obscenity [1) appeals to prurient interest 2) patently offensive 3) lacks any serious artistic value] - mere possession in home not criminal
D) False or misleading commercial speech
Freedom of Speech in Schools
Regulation of conduct that materially and substantially interfere with the operation of the school [not pro-drug messages]
Speech Vague/Broad
unduly vague - doesnt provide reasonable notice as to what is prohibited
overbroad - regulates more speech than permitted
not overbroad/vague if court rules the regulation applies to only unprotected speech
Punishment for Group Membership
1) group is actively engaged in illegal activity
2) person has knowledge of illegal activities
3) person has specific intent of furthering those activities
Offer
1) Manifestation of intent to contract
2) definite or reasonably certain terms
3) communicated to an identified offeree
Battle of the Forms
1) both parties are merchants
2) the term is not a material change (hardship/surprise)
3) the offer does not expressly limit acceptance to exact terms of the offer
4) no objection in reasonable time
Implied Contracts (conduct of the parties)
1) conduct intentional
2) party knows/reason to know the other party will interpret the conduct as an agreement to enter into a contract
Illusionary contract
one party has no obligation to perform (insufficient consideration)
Promissory Estoppel
1) a party reasonably and foreseeably relied to his detriment
2) promisor should have reasonably expected a change in position based on reliance
3) enforcement of promise necessary to avoid injustice
Common Law Contract Modification
1) modification is fair an equitable
2) modification due to unanticipated changed circumstances [severe/far beyond foreseen]
3) contract not yet fully performed by either party
Minor Contracting
May be bound for contracts for necessities
Economic Duress
Voidable
1) improper threat [mere threat to breach insufficient]
2) induces a party
3) party has no reasonable alternative
Fraudulent misrepresentation
Voidable
1) one party knowingly [non-fraudulent when not knowingly]
2) makes a false representation
3) of a fact
4) other party reasonably relies to their detriment
Merchant’s Confirmatory Memo
1) two merchants
2) writing that confirms agreement
3) can be signed by only the enforcing party
4) no prompt objection
Exceptions to Parol Evidence Prohibition
A) correct clerical error
B) establish defense against formation
C) interpret vague/ambiguous terms
D) supplement a partially integrated writing [cannot contradict the writing]
Impossibility
A) Death or physical incapacity of a necessary person
B) Unanticipated destruction of the subject matter necessary
C) New law or regulation that was unanticipated makes performance extremely and unreasonably difficult or expensive
Impracticability
1) events after contract formation
2) unanticipated by both parties
3) performance extremely and unreasonably difficult or expensive
Frustration of Purpose
1) principal purpose of a party is substantially frustrated
2) unforeseeable supervening event
3) both parties knew the purpose at the time of formation
3rd Party Contract Enforcement Vested Rights
A) 3rd party manifests assent to the promise
B) detrimental reliance
C) Brings suit
Common Law Contract Breach Remedies
A) Expectation Damages - same position as if no breach
B) Consequential Damages - indirect damages [breaching party must know about the special circumstances]
C) Punitive - not normally available
UCC Contract Breach Remedies
Buyers - cover, market, loss-in-value; incidental
Sellers - cover damages, market damages, lost profits, replevy; incidental damages [commercially reasonable costs]
Fee Simple subject to a condition subsequent
Reserves a future interest in the grantor
1) retain a right of re-entry
2) interest being conveyed is subject to a specified condition
[if unclear, courts hold it as subject to]
Fee Simple Determinable
Reserves a future interest in the grantor
1) words of duration
2) Reverter - automatic termination if a specified condition occurs
Fee simple subject to executory Limitation
Reserves a future interest in a 3rd party
1) rights transfer automatically
vested remainder
future interest in land given to identifiable person with no conditions
A) indefeasible vested remainder [cant be beat]
B) vested remainder subject to complete defeasance [condition subsequent can defeat interest]
C) vested interest subject to open [interest can be reduced by increase in class]
contingent remainder
interest conditioned upon the occurrence of a specified event
Devisable
A) unascertained/unknown person
B) subject to an unmet condition precedent
Executory Interests
Shifting Executory Interest - interrupts the interest of a grantee [follows an interest subject to complete defeasance]
Springing Executory Interest - interrupts the interest of the grantor
Joint Tenancy 4 unities
Time [at the same time]
Title [through same instrument]
Interest [ownership is equal]
Possession [all have right to possess]
Leaseholds
Tenancy for Years [specific end date]
Periodic Tenancy [for periods without specific end date]
Tenancy at Will [terminable at anytime 1) notice 2) reasonable time to leave]
Breach of Warranty of Habitability
A) Move out/Terminate Lease
B) withhold/reduce rent
C) repair the defect and deduct costs
D) remain on the premises and sue for damages
Constructive Eviction
A) Landlord Breached a duty [duty to repair common areas; duty to warn of latent defects]
B) breach caused a loss of the substantial use and enjoyment of the premises
C) tenant gave landlord notice of condition
D) landlord failed to remedy within a reasonable time
E) Tenant vacated premises
Real Covenant (money damages)
1) writing satisfying SoF
2) intent covenant runs with the land
3) vertical and horizontal privity
4) covenant touch and concern the land
5) Notice
Equitable Servitudes (injunctive relief)
1) Notice of the covenant
2) writing satisfying SoF
3) touch and concern the land
Fixture Factors
A) nature of the item
B) the manner in which it is attached
C) damage resulting from removal
D) extent item is adapted to the property [custom windows]
Crime Elements
1) Mens Rea
2) Actus Reus [voluntary]
3) causation (actual/proximate)
4) concurrence
Requirements to Act
A) contractual duty B) parent-child relations C) Duty taken voluntarily (police/fire) D) statute creates duty E) defendant created the danger
Proximate Cause - Superseding Intervening Cause
1) independent of the defendant’s wrongful conduct
2) not foreseeable
[acceleration of death still proximate cause]
Common Law Mens Rea
A) Specific Intent [intent/desire to engage in such conduct/cause result]
B) General Intent [awareness of acting a certain way]
C) Malice [reckless disregard of known risk]
D) Strict Liability [no mental state]
Model Penal Code Mens Rea
A) Purposefully [conscious objective]
B) Knowingly [aware conduct will cause the result]
C) Recklessly [1) consciously disregards a substantial and unjustifiable risk 2) gross deviation from normal behavior - intoxication no defense]
D) Criminal Negligence [1) should have been aware of a substantial and unjustifiable risk 2) failure to perceive is a gross deviation]
Malice Aforethought
2nd Degree Murder [first = deliberate/premeditated]
A) intent to Kill
B) intent to inflict great bodily injury
C) reckless disregard of an extreme risk to human life
D) intent to commit an inherently dangerous felony (BARRK)
Model Penal Code Murder
A) purposefully or knowingly
B) recklessly - extreme indifference to the value of human life
Voluntary Manslaughter
1) intentional Killing
2) Adequate provocation [1) defendant was provoked 2) reasonable person would’ve been provoked 3) no time to cool off 4) no cooling off]
Imperfect Self Defense - 1) good faith belief of imminent danger 2) deadly force was necessary to defend 3) but beliefs were unreasonable
Involuntary Manslaughter
unintentional killing
Common law Distinction only
Larceny
1) trespassory taking
2) carrying away
3) personal property of another
4) intent to permanently deprive
Receiving Stolen Property
1) receives possession of stole property
2) knows the property is stolen
3) intent to permanently deprive
Robbery
1) Trespassory Taking/carrying away
2) personal property of another
3) in the other person’s presence
4) use of force or threat of immediate physical harm
5) intent to permanently deprive
Armed Robbery 6) with a dangerous weapon
False Imprisonment
1) unlawful
2) confinement
3) against their will
4) knowledge the restriction is unlawful
Arson
1) Malicious (intentional/reckless)
2) burning
3) of a dwelling
4) of another
Attempt
1) specific intent to commit a crime
2) overt act beyond mere preparation [substantial step]
Defense - legal impossibility; not abandonment [unless 1) voluntarily renounces 2) completely abandons/prevents commission]
Conspiracy
Specific Intent
1) agreement between two or more
2) intent to enter into an agreement
3) intent to pursue unlawful objective
4) overt action in furtherance of the unlawful objective [any action]
Liable for conspiracy and all foreseeable crimes
Withdrawal not a defense
Solicitation
1) person request another person to commit a crime
2) specific intent that crime be committed
3) other person receives request
Defense - Renunciation [1) voluntarily and completely renounce 2) prevent the commission]
Accomplice
1) aids, abets, facilities the commission of a crime
2) intent to assist
3) intent the crime be committed
Liable for all foreseeable crimes
Defense - Withdrawal [1) before the crime becomes unstoppable through repudiating or neutralizing assistance]
M’Naghten Test
1) mental disease or defect
2A) disease caused defendant to not know the wrongfulness of conduct
2B) defendant unable to understand the nature/quality of acts
Model Penal Code Insanity Test
A) unable to appreciate criminality
B) unable to conform his actions to law
Irresistible Impulse Test
A) unable to control his actions
B) unable to conform his actions to law
Durham Test
unlawful conduct was the product of mental illness
Insanity Defense Standard
Defendant must prove insanity by the preponderance of the evidence; Federal court - clear and convincing evidence
Specific intent crimes
Soliciation Conspiracy Attempt First-Degree Murder Assault Larceny Embezzlement False Pretenses Robbery Burglary Forgery Defenses - Intoxication a defense [must negate the state of mind required]; Mistake of fact [mistake may be unreasonable]
Battery
1) intentional [desire/known with substantial certainty]
2) harm/offensive [reasonable sense of personal dignity]
3) contact with plaintiff’s person
Assault
1) intentional act
2) reasonable apprehension [awareness of act & belief defendant is able to commit act]
3) imminent harmful/offensive contact
False Imprisonment
1) intentional act
2) restrain plaintiff to fixed boundaries [threats sufficient]
3) plaintiff conscious of/harmed by the confinement
Intentional Infliction of Emotional Distress
1) Intentional/Reckless Act
2) Conduct Extreme and Outrageous
3) Act caused emotional distress (causation)
4) plaintiff actually suffered severe emotional distress
[liable for conducted directed at a 3rd party A) member of family and plaintiff present B) any other person if bodily harm]
Trespass to Land
1) intentional [no intent to trespass, just to enter the land]
2A) enters the land
2B) causes object/3rd party to enter land
2C) remains on the land
2D) fails to remove object from land when there is a duty to do so
3) plaintiff must possess the land at the time of the trespass [tenant sufficient]
Trespass to Chattels
1) intentional
2) interferes with another’s personal property
3) small amount of damage
Mistaken ownership not a defense
Conversion
1) intentional
2) interferes with another’s personal property
3) interference is substantial
Liable for the full market value of the chattel involved
Mistaken ownership not a defense
Trespass to Chattel v. Conversion factors
A) extent/duration of control B) intent to deprive owner of possession C) tortfeasor's good faith D) extent/duration of interference E) harm done F) inconvenience/expense caused
Transferred Intent
1) defendant intention to commit a tort against a person
2A) commits different tort
2B) injures a different person [liable for any tort causing injury, not just intended one]
Only applies: Battery, Assault, False Imprisonment, trespass to land, trespass to chattel
Detain for Investigation/Shopkeepers Privilege
1) temporarily detaining
2) reasonable suspicion of theft
3) in/near the store
4) purpose of investigation
May use reasonable non-deadly force [after request to remain was refused]
Affirmative Duty to Act [Negligence]
A) pre-existing relationship
B) defendant put the plaintiff in peril
C) defendant has undertaken a rescue [1) failure to take reasonable care 2A) increases the risk of harm 2B) harm suffered because of reliance on help]
D) duty imposed by law
Psychologist/psychotherapist Negligence Duty
1) therapist believed
2) the patient posed a real risk of serious physical violence
2) readily identifiable victim
4) therapist failed to take steps to warn victim
Land Owner Duty to Entrants - Anticipated Trespasser
without permission, but expected by the landowner
1) reasonable care in operations
2) warn of/make safe highly dangerous artificial conditions [land owner must know of the condition]
Land Owner Duty to Entrants - Attractive Nuisance
Duty to child trespassers to make the premises reasonably safe or warn of hidden dangers; liable if:
1) landowner knows/should know of dangerous artificial condition likely to cause death/injury
2) landowner knows/should know children are likely to frequent the area
3) children are unlikely to discover the condition/appreciate the risk
4) risk of harm outweighs the expense
5) landowner fails to exercise reasonable care
Land Owner Duty to Entrants - Licensee
Social Guest
1) exercise reasonable care in operations
2) warn of/make safe dangerous conditions
Condition must be known by landowner and not apparent to guest
Land Owner Duty to Entrants - Invitee
Duty to make reasonable inspections of the property to find and make safe non-obvious dangerous conditions; liable for dangerous conditions that would have been discovered upon reasonable inspection
Negligence Per Se
1) statutes purpose is to prevent the type of harm suffered
2) plaintiff is of the class the statute seeks to protect
Exceptions - compliance with statute would been more dangerous than violation; compliance is impossible
Res Ipsa Loquitur
1) injury typically doesn’t occur without negligence
2) instrumentality in defendant’s exclusive control
3) no contributory negligence
Not against multiple defendants
Assumption of Risk
1) plaintiff voluntarily assumed
2) known risk
Express or Implied (normal person would appreciate the risks) assumption
Negligent Infliction of Emotional Distress
A) Near Miss [in zone of danger; physical symptoms]
B) Bystander Claim [contemporaneous witness to bodily injury to close family member; physical symptoms]
C) Pre-existing relationship between plaintiff and defendant; negligent act foreseeably caused distress
Alternative Liability
All defendants liable
1) multiple defendants are negligent
2) unclear which defendant caused the plaintiff’s injuries
Market Share Liability
1) all named defendants possible tortfeasors
2) products are identical/share same defective qualities
3) plaintiff unable to identify which product caused injury
4) substantially all manufactures named as defendants
Defamation
1) False defamatory statement [harms the reputation of another]
2) concerning the plaintiff
3) publication
4) damages (not slander per se; not libel within slander per se categories)
Not of a dead person
Defamation of Public Person
Heighten Standard - plaintiff must show
A) recklessness as to the truth of the statement
B) knowledge of its falsity
Private person on public matter - negligence required
Defamation Absolute Privilege
Complete Defense
A) statements in a judicial proceeding
B) statements between spouses
C) statements by executive branch officials
D) statements during legislative proceedings
Defamation Qualified Privilege
1) statement is conditionally privileged
2) privilege is no abused
A) statements by former/prospective employers [good faith and legitimate purpose] B) Government reports C) testimony in legislative proceedings D) in self-defense E) warn others about harm/danger
False Light
1) widespread dissemination
2) plaintiff’s beliefs, thoughts, actions
3) false light
4) highly objectionable to a reasonable person
Public person/concern - 5) actual malice
Intrusion of privacy
1) defendant intrudes into the private affairs
2) reasonable expectation of privacy
3) intrusion highly objectionable to a reasonable person
No publication required
Public Disclosure of private facts - newsworthiness defense; information from public document defense
Intentional Interference with Business Relations
1) a contract/business expectancy
2) defendant knows of the expectancy
3) defendant intentionally induces another party to breach the contract/terminate the relationship
4) a breach occurs
5) damages
Defenses - A) legitimate competitive activity B) truthful information to another C) financial interest in the breaching party D) honestly giving requested advice [usually special relationship]
Intentional Misrepresentation
1) misrepresentation of a material fact
2) knowledge the fact was false
3) intent to induce
4) actual and reasonable reliance
5) damages
Negligent Misrepresentation
1) misrepresentation
2) in a business transaction
3) knowledge the info was for a business transaction
4) defendant was negligent
5) actual and reasonable reliance
6) information was proximate cause
7) Damages
No Duty To Disclose
A) fiduciary duty
B) necessary to correct earlier mistake
C) active concealment of material fact
D) real property - concealment of material facts impacting property value (buyer unaware/cant reasonably discover)
Abnormally dangerous activity
1) not of common usage in the community
2) creates a foreseeable and highly significant risk of physical harm
Strict Products Liability
1) product was defective [design, failure to work, manufacturing]
2) product was not altered
3) product caused injury
4) used in intended or unintended foreseeable manner
5) defendant is commercial supplier
No privity required
No recovery for economic loss only
Defense - reasonable inspection would not have reveled defect
Failure to Warn
1) plaintiff no warned
2) risk was not obvious to ordinary user
3) warning was not proportionate in size to risk involved with normal use
Design Defect
1) safer design exist
2) the safer design was more practical
3) safer design had a similar cost
Holographic Will
1) handwritten
2) not witnessed
3) some states require signature of testator
Revokes an earlier valid will [when the provisions conflict]
Incorporation into Will
1) writing in existence at the time the will executed
2) writing sufficiently described in the will
3) testator intention to incorporate
UPC - bequest of tangible personal property 1) signed 2) describes with reasonable certainty [doesnt need to be in existence at time of will execution]
Will Revocation
1) Destruction
2) Subsequent Will/Codicil [only to the extent it conflicts, unless express]
3) Dependent Relative Revocation Doctrine [mistaken belief of law of fact]
Will Revival
A) if revoked by physical act - intention to revive
B) Republish the will [complies with formalities]
Contractual Wills
Enforceable
1) agreement must expressly state parties intend wills to form a binding contract
2) Specific reference to contract in the will
No presumption for execution of joint wills
Will Advancements
Common Law - gifts were advancements & deducted from share of estate
Modern Approach - no advancement unless A) will stipulates B) writing indicate’s intent of advancement
Simultaneous Death
1) Clear and Convincing Evidence
2) One person survived the other
3) by 120 hours
Joint tenancy severed for simultaneous death
Will restricts on Marriage
Void as public policy [still receive bequest]
Valid - A) restraint on remarriage B) intended purpose is to take care of daily needs until marriage supports the beneficiary
Lapsed/Anti-Lapes Statute
Common Law Rule of Lapse - beneficiary must survive the testator; no survival bequest fails [gift to residuary/intestacy]
Exception - Anti-Lapse Statute - gift vests in the issue of the predeceased beneficiary if 1) the statute specifies the relationship [specified descendant] 2) beneficiary leaves issue surviving the testator
UPC - specified descendant = issue; stepchildren; grandparents; grandparent’s issue
Ademption
Common Law - Identity Theory - specific gift is adeemed by extinction [destroyed/sold before death]
Modern Law - ademption only if testator intended - beneficiary entitled to A) property bought by testator as a replacement of the specific gift B) a monetary devise equal to value of specific gift [insurance recovery if destroyed]
Disclaimer
renouncing legal right to inheritance
1) declared in writing
2) describe the interest/power disclaimed
3) signed
4) delivered or filed
Reasonable time/Before accepting the gift
Anti-lapse statute could apply
Will Class Gift
Closes at the time of the testator’s death
Spouse’s Elective Share
statutory right to take a share of deceased’s estate [instead of taking under the will] - amount of the net estate [gross estate minus creditor claims]; can access funds in illusory trust [decedent maintained control during lifetime]
Share is in addition to A) family residence B) exempt personal property C) family allowance
pretermitted children
child unintentionally left out of a will
1) born or adopted after the will
entitled to an intestate share of estate
Testamentory Capacity
1) capable of knowing the nature/extent of property
2) the natural objects
3) understand the dispositions
Conservator/guardian appointment does not automatically establish lack of capacity
Undue Influence of Testator
Invalidates the will
1) testator had a weakness
2) wrongdoer had access/opportunity [Common law - confidential relationship]
3) wrongdoer actively participated in drafting the will
4) unexpected bequest result
Life Insurance Beneficiary
cannot change the beneficiary through a will [must change on the policy directly]
Advanced Directive [living will]
Durable Health Care Power of Attorney
specifies the patients preferences for treatment during incapacitation
gives a designated agent the power to make healthcare decision during incapacitation - 1) signed writing 2) witnessed/notarized; no liability for good faith decision
Trust Formation
1) definitive Beneficiary
2) Settlor with capacity
3) intent to create a trust [intention to create in the future only valid if done in valid contract]
4) a trustee
5) valid purpose
6) trust property (the res)
7) state statutory formalities (none under uniform code)
Irrevocable Trust
Default
cannot be modified or revoked
Charitable Trust
No rule against perpetuities
confer a substantial benefit to society
General charitable intent = cy pres doctrine [as near as possible to complete settlor’s charitable intention]
Discretionary Trust
1) trustee has absolute discretion and power to determine distributions
2) must exercise discretion in good faith [based on 1) terms of the trust 2) other duties of the trustee]
Creditor cannot compel distribution [except child support/alimony]
Support Trust
1) pure or discretionary
2) pay as much as is necessary for the beneficiary’s support [trust instrument may contain a standard - health, education, support, maintenance]; more than just necessities - measured by lifestyle
Spendthrift Trusts
1) prevents the transfer of beneficiaries interest
2) only valid if trust retrains both voluntary and involuntary transfers
Creditor cannot reach trust assets [can access distributions once the debtor receives]; mandatory distributions not protected
Spendthrift Exceptions
1) judgement creditor [provided services for the protection of the beneficiaries interest in the trust]
2) creditor who furnishes necessities
3) child support or alimony
4) federal or state government claim
5) settlor retains an interest in the trust
Trustee Prudent Investor Rule
Exercise the degree of care, skill, and prudence of a reasonable investor
1) diversifying assets
2) avoiding risky investments
3) monitor investments
4) keep trust assets productive
May delegate duties to a skilled agent [most monitor the agent]
Articles of Incorporation Requirements
1) Name
2) Number of Shares
3) Address/Name of initial Agent
4) Names/Address of each incorporator
Promoter
Person who acts on behalf of a corporation before formation
Promoter is personally liable 1) purports to act on behalf of the corporation 2) knowing no corporation was formed
Not liable if: A) subsequent novation B) contract explicitly provides [normally entitled to indemnification from corporation if acting within scope of agency]
Implied Corporate Liability for Pre-Formation Contracts
1) knows/reason to know material terms of the contract
2) accepts some benefit from the contract
De Facto Corporation
1) made a good faith attempt to incorporate
2) otherwise eligible to incorporate
3) took some action indicating that it considered itself a corporation
4) must be unaware the formalities of incorporating failed
Reasons to Pierce the Corporate Veil
1) Alter Ego
2) Failed to follow corporate formalities
3) inadequate capitalization
4) prevent fraud
more likely for tort than contract; unlikely to extend to passive investors
Increasing number of shares
1) amend the Articles of Incorporation
2) Adopted by the Board of Directors
3) Approved by majority of shareholders
Special Shareholder Meeting Requirements
1) 10 days advance notice [to shareholders entitled to vote]
2) full description of meeting purpose
3) Date, Time, Place of meeting
Shareholder’s rights to inspect accounting records
1) during regular business hours
2) 5 days written notice
3) demand made in good faith and proper purpose [reasonably relevant to the interest of a shareholder]
4) purpose described with particularity
5) records directly connected with purpose
Business Judgement Rule
1) Acted in good faith
2) Acted in best interest of corporation (reasonable belief)
3) acted with the care that a person in a like position would reasonably believe appropriate under similar circumstances
Does not apply - A) financially interested directors in a transaction B) directors not acting in good faith C) directors engaging in fraud/illegality
LLC Business Judgement Rule
1) Duty of Care
2) Best interest of the LLC
Derivative Suit Requirements [Corporation}
1) shareholder at the time of the act
2) shareholder through entry of judgement
3) fairly and adequately represent the interests of the share holder
4) written demand for corporation to take suitable action [suit not actionable until 90 days after demand]
Mandatory Dismissal of Derivative Suit
1) majority of qualified board member [no material interest]
2) good faith determination
3) after reasonable inquiry
4) derivative suit not in the best interest of the corporation
Appraisal Rights
1) shareholder gave notice of intent to demand payment
2) demand given before the fundamental change vote was taken
3) fundamental change actually occurs
4) shareholder did not vote in favor of the change
Judicial Dissolution [Corporation]
A) deadlock of directors & irreparable injury
B) directors acted illegally, oppressively, fraudulently
C) shareholders deadlocked and failed to elect directors for 2 consecutive annual meetings
D) wasted/misapplied corporate assets
Judicial Dissolution [LLC}
A) Members activities are illegal/fraudulent
B) Oppressive and directly harmful behavior
C) LLC activities are unlawful
D) LLC not conforming with Certificate of Org/Operating Agreement
