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Book Notes Flashcards

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1
Q

Federalism

A

-the division of governing power between the federal government and the sates

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2
Q

Federal Supremacy

A

-federal law takes precedence over conflicting state law

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3
Q

Federal Preemption

A

-right of federal government to regulate matters within its power to the exclusion of regulation by the states

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4
Q

Judicial Review

A

-examination of governmental actions to determine whether they conform to the U.S. Constitution

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5
Q

Separation of Powers

A

-allocation of powers among executive, legislative, and judicial branches of government

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6
Q

State Action

A

-actions of governments to which constitutional provisions apply

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7
Q

Federal Commerce Power

A

-exclusive power of federal government to regulate commerce with other nations and among the states

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8
Q

State Regulation of Commerce

A

-the Commerce Clause of the Constitution restricts the states’ power to regulate activities if the result obstructs interstate commerce

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9
Q

Federal Fiscal Power

A
  • Taxation and Spending
  • Borrowing and Coining Money
  • Eminent Domain
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10
Q

Taxation and Spending

A

-the Constitution grants Congress broad powers to tax and spend; such powers are important to federal government regulation of the economy

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11
Q

Borrowing and Coining Money

A

-enables the federal government to establish a national banking system and to control national fiscal and monetary policy

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12
Q

Eminent Domain

A

-the government’s power to take private property for public use with the payment of just compensation

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13
Q

Contract Clause

A

-restricts states from retroactively modifying contracts

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14
Q

Freedom of Speech

A
  • Corporate Political Speech
  • Commercial Speech
  • Defamation
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15
Q

Corporate Political Speech

A

-first amendment protects a corporation’s right to speck out on political issues

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16
Q

Commercial Speech

A

-expression related to the economic interests of the speaker and its audience; such expression receives a lesser degree of protection

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17
Q

Defamation

A

-a tort consisting of a false communication that injures a person’s reputation; such a communication receives limited constitutional protection

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18
Q

Due Process

A

-fifth and fourteenth amendments prohibit the federal and state governments from depriving any person of life, liberty, or property without due process of law

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19
Q

Substantiative Due Process

A

-determination of whether a particular governmental action is compatible with individual liberties

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20
Q

Procedural Due Process

A

-requires the governmental decision-making process to be fair and impartial if it deprives a person of life, liberty, or property

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21
Q

Equal Protection

A

-requires that similarly situated persons be treated similarly by governmental actions

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22
Q

Rational Relationship Test

A

-standard of review used to determines whether economic regulation satisfies the equal protection guarantee

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23
Q

Strict Scrutiny

A

-exacting standard of review applicable to regulation affecting a fundamental right or involving a suspect classification

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24
Q

Intermediate Test

A

-standard of review applicable to regulation based on gender and legitimacy

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25
Q

Property

A

-interest, or group of interests, that is legally protected

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26
Q

Tangible Property

A

-physical objects

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27
Q

Intangible Property

A

-property that does not exist in a physical form

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28
Q

Real Property

A

-land and interests in land

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29
Q

Personal Property

A

-all property that is not real property

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30
Q

Fixture

A

-personal property so firmly attached to real property that an interest in it arises under real property law

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31
Q

Sale of Property

A

-transfer of property for consideration (price)

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32
Q

Gift

A

-transfer of property without consideration

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33
Q

Elements of a Gift

A
  • delivery
  • intent
  • acceptance
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34
Q

Will

A

-right to property acquired upon death of the owner

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35
Q

Accession

A

-right of a property owner to any increase in such property

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36
Q

Confusion

A
  • intermixing of goods belonging to two or more owners such that they can identify their individual property only as part of a mass of like goods
  • -if due to mistake, accident, or agreement, loss share proportionally
  • -If caused by an intentional or unauthorized act, wrongdoer bears act
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37
Q

Possession

A

-a person may acquire title by taking possession of property

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38
Q

Abandoned Property

A

-intentionally disposed of by the owner; the finder is entitled to the property

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39
Q

Lost Property

A

-unintentionally left by the owner; the finder is generally entitled to the property

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40
Q

Mislaid Property

A

-intentionally placed by the owner but unintentionally left; the owner of the premises is generally entitled to the property

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41
Q

Treasure Trove

A

-coins or currency concealed by the owner for such a length of time that the owner is probably dead or undiscoverable; the finder is entitled to the property

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42
Q

Insurance

A

-contractual arrangement that distributes risk of loss among a large number of members (the insureds) through an insurance company (the insurer)

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43
Q

Insurance Coverage

A

-provides protection against loss due to fire or related peril

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44
Q

Types of Fire

A
  • friendly fire

- hostile fire

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45
Q

Friendly Fire

A

-fire contained in its intended location

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46
Q

Hostile Fire

A

-any fire outside its intended or usual location

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47
Q

Co-Insurance

A

-insurance in which a person insures property for less than its full or stated value and agrees to share the risk of loss

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48
Q

Other Insurance Clauses

A

-if multiple insurers are involved, liability is distributed pro rata

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49
Q

Types of Policies

A
  • valued policy

- open policy

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50
Q

Valued Policy

A

-covers full value of property as agreed upon by the parties at the time the policy is issued

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51
Q

Open Policy

A

-covers fair market value of property as calculated immediately prior to the loss

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52
Q

General Contract Law

A

-principles of contract law apply

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53
Q

Insurable Interest

A

-a financial interest or a factual expectancy in someone’s property that justifies insuring the property; the interest must exist at the time the property loss occurs

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54
Q

Premiums

A

-amount to be paid for an insurance policy

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55
Q

Defenses of Insurer

A
  • Misrepresentation
  • Breach of Warranty
  • Concealment
  • Waiver
  • Estoppel
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56
Q

Misrepresentation

A

-false representation of a material fact made by the insured that is justifiably relied upon by the insurer; enables the insurer to rescind the contract within a specified time

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57
Q

Breach Warranty

A

-the failure of a required condition; generally an insurer may avoid liability for a breach of warranty only if the breach is material

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58
Q

Concealment

A

-fraudulent failure of an applicant for insurance to disclose material facts that the insurer does not know; allows the insurer to rescind the contract

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59
Q

Waiver

A

-an insurer intentionally relinquishes the right to deny liability

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60
Q

Estoppel

A

-an insurer is prevented by its own conduct from asserting a defense

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61
Q

Termination

A

-an insurance contract may be terminated by due performance or cancellation

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62
Q

Bailments

A

-the temporary transfer of personal property by one party (the bailor) to another (the bailee)

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63
Q

Classifications of Bailments

A

-For the Bailor’s Sole Benefit
-For the Bailee’s Sole Benefit
For Mutual Benefit

64
Q

Essential Elements of a Bailment

A
  • Delivery of Possession
  • Personal Property
  • Possession, but not Ownership, for a Determinable time
  • Restoration of Possession to the Bailor
65
Q

Bailee’s duty to exercise due care

A

-the bailee must exercise reasonable care to protect the safety of the property and to return it to the proper person

66
Q

Bailee’s Absolute Liability

A

-occurs when (1) the parties so agree; (2) the custom of the industry requires the bailee to insure the property against the risk in question, but he fails to do so; or (3) the bailee uses the bailed property in an unauthorized manner

67
Q

Bailee’s Right to Limit Liability

A

-certain bailee’s are not permitted to limit their liability for breach of their duties, except as provided by statute

68
Q

Bailee’s Right to Compensation

A

-entitled to reasonable compensation for work or services performed on the bailed goods

69
Q

Bailor’s duties

A

-in bailment for sole benefit of bailee, the bailor warrants that she is unaware of any defects; in all other bailments, the bailor has a duty to warn of all known defects and all defects she should discover upon a reasonable inspection

70
Q

Pledge

A

-security interest by possession

71
Q

Warehouser

A

-storer of goods for compensation; warehouser must exercise reasonable care to protect the safety of the stored goods and to deliver them to the proper person

72
Q

Carrier of Goods

A

-transporter of goods; a common carrier is an extraordinary bailee, and a private carrier is an ordinary bailee

73
Q

Innkeeper

A

-hotel or motel operator; is an extraordinary bailee except as limited by statute or case law

74
Q

Documents of Title

A

-an instrument evidencing ownership of the record and the goods it covers

75
Q

Types of Documents of Title

A
  • Warehouse Receipt

- Bill of Lading

76
Q

Warehouse Receipt

A

-receipt issued by person storing goods

77
Q

Bill of Lading

A

-document issued to the shipper by the carrier (1) as a receipt for the goods, (2) as evidence of their carriage contract, and (3) as a document of title

78
Q

Negotiability

A

-a document of title is negotiable if, by its terms, the goods are to be delivered to bearer or to the order of a named person

79
Q

Due Negotiation

A

-delivery of a negotiable document in the regular course of business to a holder, who takes in good faith, for value, and without notice of any defense or claim

80
Q

Warranties

A

-a person who negotiates or delivers a document of title for value, other than a collecting blank or other intermediary, incurs certain warranty obligations unless otherwise agreed

81
Q

Ineffective Documents

A

-in order for a person to obtain title to good by negotiation of a document, the goods must have been delivered to the issuer of the document by their owner or by one to whom the owner has entrusted actual or apparent authority

82
Q

Types of Freehold Estates

A
  • Fee Estates
  • Life Estates
  • Future Interests
83
Q

Fee Estates

A

-right to immediate possession of real property for an indefinite time

84
Q

Fee Simple

A

-absolute ownership of property

85
Q

Qualified Fee

A

-ownership subject to its being taken away upon the happening of an event

86
Q

Life Estates

A

-ownership right in property of the life of a designated person, while the remainder is the ownership estate that takes effect when the prior estate terminates

87
Q

Future Interests

A
  • Reversion

- Remainders

88
Q

Reversion

A

-grantor’s right to property upon termination of another estate

89
Q

Remainders

A

-two kinds: vested remainders (unconditional remainder that is a fixed, present interest to be enjoyed in the future) and contingent remainders (remainder interest conditional upon the happening of an event in addition to the termination of the preceding estate)

90
Q

Leasehold Estates

A

-

91
Q

Lease

A

-both (1) a contract for use and possession of land and (2) a rant of an estate in land

92
Q

Landlord

A

-owner of land who grants a leasehold interest to another while retaining a reversionary interest in the property

93
Q

Tenant

A

-possessor of the leasehold interest in land

94
Q

Duration of Leases

A
  • definite term
  • periodic tenancy
  • tenancy at will
  • tenancy at sufferance
95
Q

Definite term

A

-lease that automatically expires at the end of the term

96
Q

Periodic tenancy

A

-lease consisting of specific terms that continue in indefinite succession

97
Q

Tenancy at will

A

-lease that is terminable at anytime

98
Q

Tenancy at sufferance

A

-possession of real property without a lease

99
Q

Transfer of Tenant’s Interest

A
  • Assignment

- Sublease

100
Q

Assignment

A

-transfer of all of the tenant’s interest in the leasehold

101
Q

Sublease

A

-transfer of less than all of the tenant’s interest in the leasehold

102
Q

Tenant’s obligations

A

-the tenant has an obligation to pay a specified rent at specified times or, if none is specified, to pay a reasonable amount at the end of the term

103
Q

Destruction of premises

A

-under the common law, if the premises are destroyed, the tenant is not relieved of his obligation to pay rent and cannot terminate the lease

104
Q

Eviction

A

-if the tenant breaches one of the covenants of her lease, the landlord may terminate the lease and evict (remove) her from the premises

105
Q

Abandonment

A

-if tenant abandons property and the landlord reenters or relets it, tenant’s obligation to pay rent terminates

106
Q

Quiet enjoyment

A

-the right of the tenant to have physical possession of the premises free of landlord interference

107
Q

Fitness for use

A

-most courts impose for residential leases an implied warranty of habitability that the leased premises are fit for ordinary residential purposes

108
Q

Repair

A

-unless there is a statute or a specific provision in the lease, the landlord has no duty to repair or restore the premises

109
Q

Concurrent ownership

A
  • Tenancy in common
  • Joint tenancy
  • Tenancy by the entireties
  • community property
  • condominium
  • cooperative
110
Q

Tenancy in common

A

-co-ownership in which each tenant holds an undivided interest with no right of survivorship

111
Q

Joint tenancy

A

-co-ownerhsip with the right of survivorship; requires the presence of the four unities (time, title, interest, and possession)

112
Q

Tenancy by the entireties

A

-co-ownership by spouses in which neither may convey his or her interest during life

113
Q

Community property

A

-spouses’ rights in property acquired by the other during their marriage

114
Q

Condominium

A

-separate ownership of an individual unit with tenancy in common with respect to common areas

115
Q

Cooperative

A

-the corporate owner of the property leases units to its shareholders as tenants

116
Q

Easement Types

A
  • Appurtenant

- In Gross

117
Q

Easement

A

-limited right to use the land of another in a specified manner

118
Q

Easement Appurtenant

A

-rights and duties created by the easement pertain to and run with the land of the owner of the easement (dominant parcel) and the land subject to the easement (servient parcel)

119
Q

Easement in Gross

A

-rights and duties created by the easement are personal to the individual who received the right

120
Q

Creation of easements

A

-easements may be created by (1) express grant or reservation, (2) implied grant or reservation, (3) necessity, and (4) prescription (adverse use)

121
Q

Profits a Prendre

A

-right to remove natural resources from the land of another

122
Q

Licenses

A

-permission to use the land of another

123
Q

Formation

A

-a contract to transfer any interest in land must be in writing to be enforceable

124
Q

Marketable title

A

-the seller must transfer marketable title, which is a title free from any defects or encumbrances

125
Q

Quality of Improvements

A
  • common law rule

- implied warranty of habitability

126
Q

Common Law Rule

A

-under caveat emptor (“let the buyer beware”), the seller is not liable for any undiscovered defects

127
Q

Implied Warranty of Habitability

A

-in a number of states, the builder-seler of a dwelling

128
Q

Deeds

A

-a formal document transferring any type of interest in land

129
Q

Types of Deeds

A
  • Warranty deed
  • Special deed
  • Quitclaim deed
130
Q

General Warranty deed

A

-the grantor (seller) promises the grantee (buyer) that she has valid title to the property without defect

131
Q

Special warranty deed

A

-the seller promises that he has not impaired the title

132
Q

Quitclaim deed

A

-the seller transfers whatever interest she has in the property

133
Q

Deed Requirements

A
  1. written
  2. contain words of conveyance and property description
  3. signed with the signature of the grantor, a seal, and an acknowledgement before a notary public
  4. must be delivered
134
Q

Delivery

A

-intent that the deed take effect, as evidenced by acts or statements of the grantor

135
Q

Recordation

A

-required to protect the buyer’s interest against third parties; consists of delivery of a duly executed and acknowledged deed to the appropriate recorder’s office

136
Q

Elements of a secured transaction

A

-involves (1) a debt or obligation to pay money, (2) an interest of the creditor in specific property that secures performance, and (3) the debtor’s right to redeem the property (remove the security interest) by paying the debt

137
Q

Mortgage

A

-interest in land created by a written document that provides security to the mortgagee (secured party) for payment of the mortgagor’s debt

138
Q

Deed of Trust

A

-an interest in real property that is conveyed to a third person as trustee for the benefit of the creditor

139
Q

Transfer of Interest

A
  • Assume the mortgage

- Subject the mortgage

140
Q

Assume the mortgage

A

-the purchaser of mortgaged property becomes personally liable to pay the debt

141
Q

Subject the mortgage

A

-purchaser is not personally liable to pay the debt, but th property remains subject to the mortgage

142
Q

Foreclosure

A

-upon, default, sale of the mortgaged property to satisfy debt

143
Q

Adverse Possession

A

-acquisition of title to land by open, continuous, and adverse occupancy for a statutorily prescribed period

144
Q

Adverse possession must be:

A

actual and without intervening by the true owner

145
Q

Zoning

A

-principle method of public control over private land use, involves regulation of land but may not constitute a taking to the property

146
Q

Zoning Authority

A

-the power to zone is generally delegated to local authorities by statutes known as enabling acts

147
Q

Variance

A

-a use differing from that provided in the zoning ordinance and granted in order to avoid undue hardship

148
Q

Nonconforming use

A

-a use not in accordance with, but existing prior to, a zoning ordinance; permitted to continue for at least a reasonable time

149
Q

Judicial Review

A

-zoning ordinances may be reviewed to determine if they are invalid or a confiscation of property

150
Q

Eminent Domain

A

-the power of a government to take (buy) private land for public use

151
Q

Public Use

A

-public advantage

152
Q

Just Compensation

A

-the owner of the property taken by eminent domain must be paid on the fair market value of the property

153
Q

Private Restrictions on Land Use

A

-private restrictions on property contained in a conveyance

154
Q

Covenants running with the land

A

-covenants that bind not only the original parties but also subsequent owners of the property

155
Q

Covenants in Subdivision

A

-bind purchasers of lots in the subdivision as if the restrictions had been inserted in their own deeds

Business Law (4 decks)

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