Bar Review Flashcards
What is a Spendthrift trust?
The beneficiary is not allowed to either voluntarily or involuntarily transfer his interest in the trust, and creditors are unable to reach it to satisfy their claims (until the income has been paid to the beneficiary, at which point the creditors can reach it). Exceptions for (1) judgments for child/spousal support, (2) government claims, (3) where settlor is also beneficiary.
What are the 6 covenants of title in a general warranty deed? Which are present covenants enforceable only by the buyer, and which run with the land and are also enforceable by future interest holders?
(SEC… Quite Fucking Good)
Present
- Covenant of Seisin – “I own it”
- Covenant Against Encumbrances – no easements, etc.
- Covenant of Conveyance – “I can sell it”
Run with Land
- Covenant of Quiet Enjoyment – “no one will bother you”
- Covenant of Further Assurances – “after I defend you, I’ll make sure it doesn’t happen again”
- Covenant of General Warranty – “if someone bothers you, I’ll defend you”
Statutory formalities for a will (this will vary a bit from state to state/under UPC)
(WISE W.)
- Written
- Intent (testamentary intent – sham wills not given effect)
- Signed (liberally construed, X counts, someone else signing for you at your direction counts. Most states it doesn’t have to be signed at the bottom, but anything added at a later time after the will has been signed is not valid).
- Eighteen or older and sound mind
- Witnesses (two of them) who both see the testator sign the will (most states = “conscious presence”) and themselves sign in the testator’s presence
Adverse Possession Elements
(ECHO)
- Exclusive/Actual Possession – not sharing with the true owner
- Continuous for statutory period – continuous = using it as an owner would be, not literally continuous. Tacking is permitted if there is privity between tackers.
- Hostile – not by the owner’s permission
- Open and Notorious – sufficiently apparent to put the true owner on notice that trespass is occurring
Fee Simple Determinable – what are words of creation? What is future interest?
“To A so long as”
Future interest = possibility of reverter held by grantor
What are the family law considerations for a choice of law issue (all 3 analytical approaches the same), (Marriage / Divorce / Legitimacy)
Marriage – if a marriage is valid where performed, it will be recognized as valid everywhere (unless temporary relocation to get around state rule)
Divorce – forum will apply its own divorce laws. To get jurisdiction, at least one of the parties must be domiciled in the state
Legitimacy – legitimacy of a child is governed by the law of the mother’s domicile at the time of the child’s birth. The validity of subsequent acts of legitimation are governed by the law of the father’s domicile.
What are considered fundamental corporate changes? What is the process for implementing them?
Fundamental changes
- Amendments to articles of incorporation
- Conversion of entity type
- Merger. Exceptions:
- Acquirer doesn’t have to have shareholder vote if acquisition is sufficiently small (e.g. no more than 20% share issuance, no changes to articles of incorporation, each shareholder holds the same number of shares)
- Short form merger of subsidiary (parent owns 90% of sub)
- Share exchange (one corporation purchases all shares of another) – only vote needed is for company to be acquired
- Disposition of all or substantially all assets
Process for implementing
- (1) board meets and votes in favor
- (2) board adopts a resolution
- (3) notice of a vote is sent to shareholders
- (4) shareholders vote
What are the requirements for outside documents to be Incorporated by Reference into a will? Exception?
(1) Document must be in existence at the time of execution
(2) Document must be sufficiently described in the will
(3) Must be intent to incorporate document into will
Exception – many states and UPC allow an exception for the requirement that the document be in existence at time of execution for lists of bequests of personal property (can change list later)
What are the methods of witness impeachment?
(BC Crips)
- Bias or Interest
- Conviction of Crime (felony or involving dishonesty; past 10 years)
- Contradictory Facts
- Reputation/Opinion Evidence of Untruthfulness
- Instances of Misconduct (specific)
- Prior Inconsistent Statements
- Sensory Deficiencies
What are the 3 “warranties for title?”
Quit-claim deed – bad for buyer, contains no promises
General warrant deed – great for buyer, warrants against all defects in title, including those attributable to successors
Special warranty deed – warrants against all defects in title, but not those attributable to successors
What are the three inchoate crimes/definitions? Are they specific or general intent?
Solicitation – asking another to commit a crime with intent that it be committed.
Attempt – specific intent to commit a crime plus an overt act beyond mere preparation.
Conspiracy – an agreement among multiple parties to carry out an illegal act. Mere preparation will usually suffice. Conspirator can be convicted of a foreseeable crime committed by another conspirator in furtherance of the conspiracy.
All three are specific intent crimes.
On MBE, assume pure comparative negligence. What is pure comparative negligence? What are alternatives?
Pure comparative negligence - P can recover even if 99% at fault. Reduce P’s recovery by % of P’s fault.
Modified Comparative negligence – P cannot recover if more than 50% at fault. Reduce P’s recovery by % of P’s fault.
Contributory negligence: P cannot recover if at fault.
When does 5th Amendment provision against self-incrimination / Miranda warnings apply?
(1) perp is in custody (reasonable person would not feel free to leave)
(2) perp knows person questioning him is a cop
(3) there was an interrogation (words or conduct by the police that they should know is likely to elicit an incriminating response)
Reasonable suspicion
Reason to believe that criminal activity has taken place based on something less than probable cause but based on articulable facts
If Worker A is working for Company/Person B, is Company/Person B liable for Worker A’s torts? Under what theories?
Threshold question – is worker an employee or contractor? For employee, look for principal control over manner/method in which job is performed. Factors: characterization of parties, degree of skill required, whose tools and facilities are used, time period of employment (definite and short = contractor), etc.
Possibility 1 – Company/Person B is directly liable for negligent hiring/retaining/supervising.
Possibility 2 – For an employee, principal is liable under respondeat superior if the act was within the scope of employment
Possibility 3 – For a contractor, principal is only liable under respondeat superior if (1) the activity is inherently dangerous, (2) the principal delegated nondelegable duties, (3) the principal knowingly selected an incompetent independent contractor (different than negligent hiring)
Possibility 4 – no respondeat superior, but person/company B is liable under apparent authority
What qualifies as an obscenity?
(PP SLAP)
- Prurient Interest in sex (appeals to)
- Patently Offensive (community standards)
- Lacks Scientific, Literary, Artistic or Political Value (national reasonable person standard)
What are the elements required to create an express/private (i.e. not charitable) trust?
(Trusts Create Incredibly Big Present Value)
- (1) Trustee that is competent, with duties (a court will appoint if necessary)
- (2) Capacity to convey on part of settlor
- (3) Intent (present) to create a trust relationship (“precatory expressions” i.e. hope/wish/etc. generally not enough)
- (4) Beneficiary (definite) (Same person is not sole trustee and sole beneficiary). Some states apply anti-lapse but most do not.
- (5) Property (specific)
- (6) Valid trust purpose (not against public policy, to defraud, illegal, etc.)
When is transfer of venue allowed?
(1) court may transfer the case for the convenience of the parties or witnesses to any court where it could originally have been filed (needs SMJ, PJ, proper venue)
(2) all parties may consent to transfer to a particular district (forum selection clause will be enforced by means of a motion to transfer “in the interests of justice” unless exceptional public interest factors dictate otherwise)
How to determine if a partnership has been formed? What factors are relevant?
No formalities are needed to form a partnership
To determine whether a partnership exists, courts generally look to the intent of the parties. If they intended to carry on a business as co-owners, there is a partnership even if they did not intend to carry on a business as co-owners. Sharing profits raises a presumption of partnership.
What are the (1) majority rule, (2) modern/UPC rule, and (3) traditional rule for the intestate share of children when there is no surviving spouse?
Majority rule – per capita with representation. Property is divided equally at first generation that has living takers. From there, it flows down each line of descent. (could be some uneven distriubtions among grandchildren)
Modern trend/UPC – per capita at each generational level (all children, grandchildren, etc. take same amount as each other)
Traditional rule - classic per stirpes. Shares pass down lines of descent equally (so e.g. often uneven distributions between grandchildren)
Supplemental Jurisdiction Scenarios/Test
(1) Original claim is under diversity. New claim for $75k or less (and complete diversity of citizenship still exists). Test: common nucleus of operative fact
(2) Compulsory counterclaim for $75k or less. (by definition meets CNOF)
(3) When state and federal claim are brought together, federal court may exercise supplemental jurisdiction over state claim. This idea applies to both supplemental claims and parties. Test: CNOF.
When can a law be attacked facially under the 1st Amendment?
- Over-broad
- Vague
- Allows publicofficials unfettered discretion
Under the UCC, what is the obligation of sellers in terms of the condition of goods? What is the consequence of seller sending nonconforming goods? What options does a buyer have when it receives nonconforming goods?
Perfect tender rule: seller must deliver perfect tender to the buyer
Result of perfect tender violation = simultaneous acceptance and breach of contract
Options for buyer:
- (1) accept the goods and pay the contract price
- (2) timely reject the goods and sue for damages
- (3) accept some of the goods and reject some of the goods
Exception: nonconforming goods with a “notice of accommodation” from seller is considered a counteroffer
What are the different pre-answer motions (and what are timing limitations for raising each)?
(Silly Scott Van Pelt Peels French Fries)
May be raised any time even on appeal
- SMJ doesn’t exist
Waived if not raised by motion/answer (whichever is first)
- Service was insufficient
- Venue is improper
- Process was insufficient
- PJ doesn’t exist
May be raised before/at trial
- Failure to state a claim upon which relief can be granted
- Failure to join an indispensable party
What is an Antilapse statute? When does it not apply?
If devisee predeceases the testator (i.e. the person who was going to get the gift dies before the testator), the default rule is that the gift fails. Antilapse statues say that if the devisee is a descendant of a grandparent (i.e. cousin or more closely related) then the gift passes to the devisee’s estate rather than failing.
Antilapse does not apply to person who is dead at time of execution of will. Also does not apply to member of class gift.
