Business Associations Flashcards
1
Q
Formation of Agency Relationship
A
ABC
Assent by both principal and agent
Behalf (agent will work on behalf of principal)
Control (subject to principal’s control)
2
Q
Liability for Hiring IC
A
Inherently Dangerous Delegations Negate Health
Activity was inherently dangerous
Duty was non-delegable
P negligent in hiring IC
3
Q
Ratification
A
Martians Train Martians Against Extra-Terrestrials Capabilities
Material Terms (knowledge of)
Manifest Assent
Entire Transaction
Capacities
4
Q
Independent Contractor Factors
A
Students Take P.E. Purely Because Coaches Create Champions
Skills Tools and Facilities Period of Employment Purpose of business Business owned by contractor Characterization Compensation (basis) Custom
5
Q
Intentional Torts of Employees
A
Natural Incognito Police Association
Natural Incident of Employee’s Duties
Employee is Promoting the Employer’s business
Specifically authorized or ratified
6
Q
Business Judgment Rule
A
I’ve Got Faith, Cheating is Risky Business
D&O must perform their duties in good faith with such care as an ordinarily prudent person in a like position would use under similar circumstances, in a manner reasonably believed to be in the best interests of the corporation.
7
Q
Duty of Loyalty (Fiduciary Duty Owed)
A
CIrCUIT
8
Q
Approving Interested Transaction (Statutory Safe Harbor)
A
Four Moles Dug Deeper Swiftly
Fair and reasonable to corp.
Material facts disclosed
Disinterested directors approve (majority)
Shareholder majority (disinterested) approves
9
Q
Corporate Opportunity
A
Lonely Buffalo In Evergreen Forest
Line of Business
Interest or Expectancy
Financially Able to take opportunity
10
Q
Derivative suit requirements
A
Shannon Demands Red Furniture
was SH at time of act
written Demand on board
Remains SH through pendency of suit
Fairly and adequately represent corp. interests
11
Q
Fundamental corporate changes
A
Royal Navy Sinks Fast
Resolution by board
Notice
Majority disinterested SH approve
File changes with state
12
Q
10(b)(5)
A
Insane Clowns Murder Fluffy Squirrels Casually (Rough Day)
Interstate Commerce Material Fact (fraudulent conduct) (reasonable investor would consider important when making investment decision) Scienter Causation Reliance Damages
13
Q
16(b)
A
I’ll take 2,000 Sex for $10M please Alex
2000 SH (500 non-accredited SH)
National Stock Exchange
$10M valuation
(Must be 10% owner both before and after purchase/sale)
14
Q
Articles of Incorporation
A
No Sleep Available Anytime, Insomnia
15
Q
Piercing the Corporate Veil
A
Alter Egos Feature in Capital Frauds
16
Q
De Facto Corporation
A
Greek Freak is Everyone’s Championship Player
17
Q
Ultra Vires Act
A
SHE CODS
18
Q
Duty of Loyalty (Partnership)
A
All Penguins Ate Ice Cream
Account for Profits/Benefits
Don’t deal with partnership as Adverse Interest
don’t Compete with partnership
19
Q
Nonfeasance Exceptions
A
Strange Roosters Caw Proudly Before Roosters Cock-a-doodle-doo
Special Relationship (parent child, common carriers) Created Peril (by D) undertaking for P's Benefit D's actions created Reliance Contract
20
Q
Attractive Nuisance
A
Apples Falling Inspire Isaac’s Enlightenment
Aware of (should be) dangerous condition
children Frequent (attracted) to vicinity
likely to cause Injury (not aware of risk)
(Inability to appreciate risk)
Expense of remedy < danger of risk
21
Q
Landlord Liability
A
CLAPS
Common Areas Latent Defects Assumed Repairs (negligently made) Public Use Short-Term lease of Furnished Dwelling (any defective condition)
22
Q
Res Ipsa Loquitur
A
Tuna Sole Carp Casserole
Typical injury
Sole Control of instrumentality (caused by D)
p not Contributorily negligent.
23
Q
Privacy Torts
A
Commercial Seaman Die First
Commercial appropriation
intrusion upon Seclusion
public Disclosure of private true facts
portrayal in False light
24
Q
Strict Products Liability
A
Commercials Depict Children’s Creative Dioramas
Commercial Supplier
Defective when left D’s control
Causation (actual and proximate)
Damages
25
Design Defect
USA LOAF
FAT RUT
Usefulness/desirability of product
Safer Alternative design availability
Dangers of product identified by time of trial
Likelihood and probable seriousness of injury
Obviousness / public expectation of danger
Avoidability of injury by care in use of product
Feasibility of eliminating danger without seriously impairing products function or making Unduly expensive
Feasible alternative test: product could have been made safe w/o serious impact on price/utility
Risk-utility test: danger of design > utility to society, feasibility of alternative designs
26
Slander per se
Trade Talk Daily Chatter
P's trade
moral Turpitude
loathsome Disease
lack of Chastity for women
27
Defamation
Deer Proudly Proffer Delicious Recipes
Public Figures False Feign Kindness, Rats
Defamatory statement
concerning Plaintiff
Publication
Damage to Reputation
Public Figure
Falsity
Fault
Knowing or Reckless
28
Misrepresentation/Fraud
Miniature Market Fears Robots, Jaws, and Dinosaurs
29
Malicious Prosecution
Pokemon Catcher Peter Parker Masters Discipline
no Probable Cause
no Proper Purpose
prevailed on Merits
suffered Damages
30
Exploitation of Natural Resources (Voluntary Waste)
PURGE
Prior Use of land for exploitation before grant
Repair or maintenance of land
express/implied Grant to exploit
suitable only for Exploitation
31
Joint Tenancy
```
4 Unities (T-TIP)
Time
Title
Interest
Possession
```
32
Adverse Possession (Prescription)
COACHES
```
Continuous
Open and notorious
ACtual possession
Hostile
Exclusive
Statutory Period
```
Easement by Prescription (COAHS)
33
Fixtures (factors)
Nunchucks Attach Damage Against Evil Pirates
```
Nature of Item
Manner of Attachment
Amount of Damage
Appropriateness of use with property
Permanence of T's interest in property
Purchaser Expect fixture as part of property
```
34
Zoning Ordinances (Validity)
Zoning With Restrictive Diagrams
Reasonably Related to Public Welfare
Not Too Restrictive
Not Discriminatory
35
Easement Creation
PING
Prescription
Implication
Necessity
express Grant
36
Termination of Easement
END CRAMPS
```
Estoppel
Necessity (cessation of)
Destruction (involuntary)
Condemnation
Release
Abandonment
Merger
Prescription
Stated conditions
```
37
Covenant (burden) to run
WITH N
```
Writing
Intent
Touch & concern land
Horizontal and vertical privity
Notice
```
38
Covenant (benefit) to run
WIT V
Writing
Intent
Touch and concern
Vertical privity
39
Valid Conveyance of Deed
Weird Delivery Address
Writing satisfying SOF (intent) (reasonably identify parties and land)
Valid delivery
Acceptance
40
Constructive Eviction
Loving Bull Shit Does Not Reveal Valor
Landlord breaches
Substantial and materially deprives tenant of use and enjoyment of property
provide LL with Notice and Reasonable time to Repair
Vacates
41
Future Covenants (Deed)
Quiet Enemies Wait For Assholes
```
Quiet enjoyment (promise grantee won't be disturbed by lawful claims of title)
Warranty (promise to defend from reasonable claims of title and compensate for losses from superior claims)
Future Assurances (promise to take reasonable steps to perfect defects in title)
```
42
Present Covenants (Deed)
Sex Only Creates Angry Enemies
Seisin (ownership)
right to Convey (had right as valid owner)
Against Encumbrances
43
Notice
Kit Is Reckless
44
Public Nuisance
Ur Health Service Provider will C U now
Unreasonable interference
Health, Safety, or Property rights
of Community
Unique damage to recover
45
Takings
Total taking
1) Physical appropriation = almost always a taking
2) Regulatory taking. Deprive all economic value? = Physical appropriation
Partial taking
Mere decrease in value not a taking if they leave economically viable use for property
Bears Eat Insects Bears Insects Eat
Balance Economic Impact (of regulation) with investment-backed expectations of claimant
Just compensation = fair market value at time of taking, including any improvements
No requirement to provide relocation costs
46
Use Variance
Hot Hawaiian Fiesta
Hardship w/o ordinance
Variance will not damage or harm neighborhood
Not at Fault or bad actor in request
47
Pre-Marital Agreements
Volunteers Unconsciously Disclose Whereabouts of 7 Convicted Rats
```
Voluntary
not Unconscionable
full Disclosure of assets and information to other side
(unless Waiver)
7 days for outside Counsel Review
```
48
Transmutation
Consider Not Requiring Signature Declaring Canada Official
Consideration Not Required
Signed by party to be adversely affected
express Declaration of Change of Ownership
49
Improvements of CP by SP
DIP
right to reimbursement for contributions to....
Down payment
Improvements
Principal of mortgage
50
Education Reimbursement
Super Bowl 10, Cowboys Felt Embarrassed at Loss to Superior Steelers
community Substantially Benefitted (presumed after 10 years)
also received Community-Funded Education
Lessens need for Spousal Support
51
Trust Formation
SPIRiT BF
| ```
Settlor
Purpose
Intent
Res (property
I)
Trustee
Beneficiary
Formalities
```
52
Support Trust
HEMS
Health, Education, Maintenance, Support
53
Co-Trustee Liability
rANCID
Approve, participate, or conceal a breach of trust
Negligently enable a breach
fail to reasonably Correct breaches;
Improperly Delegate administration of trust
54
Formal Attested Will
2 Douglas William Crandell, I Love U
```
2 Disinterested Witnesses
Writing
Capacity (18, sound mind, know bounty)
present testamentary Intent
signed during testator's Lifetime
Understanding that witnessing will
```
55
Holographic Will or Codicil
Interesting Card, Holographic Seal
Intent (for document to be a will)
Capacity (18 years old and sound mind)
Handwrite material provisions
Sign (witnesses not required)
56
Incorporation by Reference
Every Idiot Does Poorly
Document was in existence at time of will creation
Intended document to be incorporated
Defined in the will
Proven to be the document described
57
Undue Influence
In Every Oven Burns Fire
Influence Exerted (opportunity to do so)
Overpowered mind and free will of testator
But For influence there would have been a different disposition
58
Undue Influence Factors
Opportunity Supplies Perfectly Voluptuous Ukrainians
```
Opportunity to exert influence
Susceptibility to influence due to age/physical condition
beneficiary active in Procuring will
Variance in expressed intentions
will provisions are Unnatural
```
59
Presumption of Undue Influence (common law)
Cowardly Russians Attack Ukraine
Confidential Relationship
Active in helping draft/procure will
Unnatural result
60
California Statutory Undue Influence
Dogs Chase Cats Frequently
Donative transfer to
1) person who Drafted will
2) Care custodian of dependent adult (does not apply if had prior relationship before being custodian, e.g. child)
3) Fiduciary relationship
61
Pretermitted Child
Internet Service Provider
Intentional omission
Substitute transfer intended to replace provision in will
Provision of nearly all of estate to parent of omitted child
62
Spendthrift Exceptions
Tasty Steak Nuggets, Garlic Fries, Sold Inside
Tort judgment creditors
Support for beneficiary
Creditors supplying Necessities
Gov't
Felony victim committed by beneficiary to extent equitable and reasonable
Settlor is beneficiary, spendthrift is Invalid
63
Right to Speedy Trial (6th Amendment) Factors
LRAP
Length of delay
Reason for delay
Asserted right
Prejudice to D
64
Malice Aforethought
If Ken Stabs Barbie, Run, Don't Dial Home For Murder
Intent to Kill
Substantial Bodily Injury
Reckless Disregard for human life (Depraved Heart)
Felony Murder
1st Degree -- premeditated and deliberate
65
Voluntary Manslaughter
Professional Robot CONference
adequate Provocation
Reasonable person would be provoked
No time to Cool Off
did Not cool off
66
Insanity Defenses
MN - Quality MidWest (Can't understand quality or nature of actions or that actions are wrong)
MPC -- Criminals Conduct Cornets and Lutes (can't appreciate criminality of conduct or conform to law)
In Italy, Conforming Artists Lose (irresistible impulse -- can't control conduct due to mental defect)
Durham -- Duke Medical (but for mental defect unlawful act would not have been committed)
67
Forgery
CAlifornia Life Savers Free Dive
Creation/Alteration
document of Legal Significance
so that it is False
intent to Defraud
68
Kidnapping
U Can't Win Min, Ha!
Unlawful
Confinement
against person's Will
by Moving/Hiding (secret place)
General intent crime
69
Self-Defense
Without Faith, Unicorns Fade, Total Death
Without Fault
Confronted by Unlawful Force
Reasonably believe Threatened with imminent Death or great bodily harm
70
Confrontation Clause
Terrible Undercooked Chicken
Testimonial
Unavailable
Cross-examination
71
Breach of Warranty of Habitability
Mexican Trains Run on Rail Roads Daily
Move and Terminate lease
Reduce rent
Repair and deduct
Remain and sue for Damages
72
Plain View Exception
Luxurious Ducks Prefer Potato Chips
1) Lawfully present officer
2) Discover evidence of crime in plain view
3) Probable cause to believe item is evidence of crime or contraband
73
Custody
Fast Old Men Inherit Children's Playthings
Freedom of Movement
Inherently Coercive Pressures (station house questioning)
74
Co-defendant's Confession
ECROC
Elizabeth's Corgis Romp Over Countryside
Eliminate all references to other D
Subject to Cross-Examination
Used to rebut claim that confession obtained coercively
75
Warrant Exceptions
A... A SPEEECH
```
Arrest
Automobile Exception
Stop and Frisk
Plain View
Exigent Circumstances/Evanescent Evidence/Emergency Aid
Consent
Hot Pursuit
```
76
Abnormally Dangerous Activity
ScRUM
1) Substantial risk of bodily harm or death
2) Uncommon to the area
3) cannot be mitigated by sufficient care
77
Prop 8
Even Brainiacs Host Rowdy Phish Parties
```
Exclusionary Rule
Best Evidence Rule
Hearsay
Rape Shield
Privilege
Prosecutorial Limits on Character Evidence
```
78
Legal Relevance
People Can Make Daily Changes Within
```
unfair Prejudice
Confusion of Issues
Misleading the jury
undue Delay
Cumulative presentation of evidence
Waste of Time
```
79
Statement Against Interest
3PI KA chU
against Penal, Pecuniary, or Proprietary Interest (social interest CA)
personal Knowledge of facts
Aware against interest and no motive to misrepresent
Unavailable
80
Recorded Recollection
Kawen Makes Angry Faces At Insults
personal Knowledge at one time of facts in writing
Made/Adopted (by the witness)
made when Fresh in mind
Accurate
Insufficient recollection to testify fully and accurately
81
Non-character Purposes for Evidence
MIMIC
```
Motive
Intent
Mistake (absence of)
Identity
Common plan/scheme
```
82
Business Records
Crispy Rice Krispie Treats
Made at Time of occurrence with Knowledge (of either the recorder or someone with a business duty to transmit matters to the recorder)
Regularly conducted activity
testimony of Custodian
83
Unavailability
Four Ants Devour Hand Pies Proficiently
```
Former Testimony
Statements Against Interest
Dying Declaration
Personal or Family History
Party Procuring Declarant's Unavailability (intentionally)
Physical Threat/Harm
```
84
Public Records
STADIA
1) records made within Scope of duty
2) at Time of event
3) Activities of office/agency
4) matters observed pursuant to Duty
5) Investigation by Authority (factual findings -- only in civil cases or FRE if used against gov't in criminal cases)
85
Expert Witnesses
SQCR
Some Quokkas Care Reliably
Specialized Knowledge helpful to jury
Qualified as an expert
Reasonable certainty regarding opinion
Testimony based on proper facts/Reliable methods
86
Expert Witness Reliability Factors
General Atomics Peers Publish Low Error Rate
Generally accepted in relevant scientific community
Peer reviewed
Published
Low Error Rare
87
Leading Question
1) Questions used to elicit preliminary or introductory matter
2) Witness has loss of memory
3) Cases in which witness is hostile or an adverse party
88
Expert Witness Basis of Opinion
OERR
Oscar Elbows Rowdy Rita
Facts witness knows from Own experience/observation
Facts presented in evidence at trial
Facts not in evidence reasonably relied upon by experts in the field
89
Lay Opinion
Rotating Pizza HUT
Rationally based on perception of witness
Helpful to a clear understanding of his testimony or a material fact
Not based on scientific or otherwise technical/specialized knowledge
90
Authentication of voice
Witness recognizes voice
Speaker has knowledge of certain facts only a particular person would have
Speaker has identified self
91
Threat of Physical Harm (CA)
1) Made at or near time of infliction or threat
2) circumstances indicate trustworthiness
3) in writing, or made to law enforcement or medical personnel
92
Exclusionary Rule
Is a Song of Ice and Goddamn Fire Written Down?
Independent Source
Inevitable Discovery
Good Faith Warrant Defective
93
Standing
Indy Car Racing
Injury in fact
Causation by D
Redressability
94
Organizational Standing
Indianapolis Motor Speedway Patrol
Individual Participation not required
Members have Standing
Purpose (germane)
95
Commerce Clause
CHAISE
Channels of Interstate Commerce
Instrumentalities of Interstate Commerce
Substantial Effect (non-economic activities)
96
Dormant Commerce Clause
Nine Normal Dinos Make Pizza TGiF
Dinos Need Internal Self Introspection
Normal Dinos Uphold Unusual Bids
Noneconomic NonDiscriminatory alternatives (to achieve important state interest)
Market Participant
Traditional gov't function
Laws that discriminate against interstate commerce violate DCC unless necessary to achieve an important state interest
State laws that do not discriminate will be upheld unless they unduly burden interstate commerce (balance legitimate/nondiscriminatory state interest vs. burden on IC)
97
Obscenity
Platypuses do LAPS with Patented fiNS
Prurient interest
Lack of literary, artistic, political, or scientific value
Patently offensive
National standard
98
Establishment Clause
Excessive SPrAIN
(SEX)
Sect preference? Strict scrutiny
Excessive Entanglement
Secular Purpose
Primary intention neither advance nor inhibit religion
99
Preemption
Editor In Chief
Exclusive (conflict -- mutually exclusive preemption)
Impedes (object preemption -- interferes with objective)
Clear intent to preempt (field preemption) (health, safety, welfare)
100
Time, Place, Manner Restrictions
| Public Forum/Designated Public Forum
Coming Now No Teams In Atlantic Coast Conference
Content Neutral
Narrowly Tailored for Important gov't interest
Alternative channels of communication
CN = subject matter neutral & viewpoint neutral
If not CN: strict scrutiny
Limited Public Forums/Non-public forums:
TPM regulations must be Viewpoint neutral + reasonably related to a legitimate gov't purpose
101
Commercial Speech
Loud Ass Mother Fuckin': SAINT
Lawful Activity / Misrepresentation fraud
Substantial gov't interest
Advances the interest
Narrowly tailored
102
Taxing and Spending Clause
CPU
Clear (condition on grant)
condition relates to Purpose of spending program
not unduly coercive
103
Procedural Due Process
Important Individual's Interests Always Plague Gov't
Deprivation of life, liberty, or property right (freedom secured by Constitution or statute) or (entitlement to continued receipt of gov't benefit)
Importance of Interest to Individual
Ability of Additional Procedures to increase accuracy of fact-finding, and
Gov't's Interest
104
Substantive Due Process
Fundamental right? Strict scrutiny (narrowly tailored to achieve compelling gov't interest). No less restrictive means available.
Other rights -- rational basis. If arbitrary, violates due process
105
Equal Protection Clause
Fundamental interest (1st A, travel, voting)? Strict scrutiny
Classification (suspect/quasi-suspect):
If does not discriminate on its face or expressly, must prove: 1) discriminatory effect and 2) discriminatory intent
Gender (exceedingly persuasive justification)
106
Free Exercise Clause
GBSGA
Gay Badgers Sometimes Get Arrested
```
Genuine Belief (court prohibited from determining -- SC never found nonreligious) (parallel to orthodox religious beliefs)
Sincerely Held
Generally applicable (targeting religious conduct)
If not generally applicable and motivated to interfere with religion > strict scrutiny (least restrictive means)
```
107
Freedom of Association
UAPA
United American Panda Association
May not punish for joining unless individual knows)
1) Unlawful purpose or association
2) Individual actively participates
3) Individual intends to advance illegal purpose
108
Privileges & immunities clause (IV and 14)
State laws that deny out-of-state persons privileges and immunities accorded to in-state persons violate the provision
(With regard to civil liberties or important economic activities -- not hobbies)
Gov't can show nonresidents are at least part of the problem the gov't is attempting to solve and there are no less restrictive means
If law does not discriminate -- no problem
Does not apply to corporations and aliens
109
Res Judicata (Claim Preclusion)
For Shit's Sake
1) Final judgment on the merits
2) same parties (same configuration)
3) same claims (cause of action)
110
Collateral Estoppel (Issue Preclusion)
Some Asians Eat Japanese Mexican Food
1) Same issue of fact
2) Actually litigated and decided
3) Essential to the judgment
4) Judgment on the merits (not default or consent judgment)
5) Fair (non-mutual issue preclusion)
Defensive (non-mutual): new non-party D can assert prior judgment
Offensive (new P not party to 1st suit v D)
Fairness factors: P had opportunity to have easily joined first suit; D had incentive to litigate first suit; prior judgments inconsistent; procedural opportunities not available to D in first suit
111
Legal Remedies (Tort) -- Compensatory
Casual Foreplay Certainly Unavoidable
Causation Foreseeability Certainty, Unavoidable (Mitigation)
112
Specific Performance
Volunteers Prepare Infants For Expected Delivery
```
Valid contract
Performed or prepared to do so
Inadequate legal remedies (unable to secure substitute goods)
Feasibility of enforcement
Defenses (hardship, etc.)
```
(Sale of land to BFP cuts off specific performance
113
TRO/Preliminary Injunction
Indiana Basketball Premier League Success
Irreparable injury
Balance of hardships (unless willful)
Public interest favors granting
Likelihood of success on the merits
Maintain status quo until regular hearing can be held
May be granted without notice if strong showing as to why
114
Permanent Injunction
Indiana Pacers Follow Basketball Drills
```
Inadequate legal remedy (e.g. continuing wrong)
Protectable property right
Feasibility of enforcement
Balance of hardships
Defenses
```
115
Defenses (Equitable Remedies)
ULUrU Has Every Feature Coveted
```
Unclean Hands
Laches
Undue Hardship/Unfairness
Equitable estoppel
Free speech
Crime (except if public nuisance)
```
116
Constructive Trust
Downright Terrible Web User Interface
D has title to property
Through Wrongdoing of D
retention = Unjust enrichment
Inadequate legal remedy (insolvency sufficient)
No deficiency judgment allowed after imposition of constructive trust
Cut off by transfer to BFP
Equitable lien on lowest intermediate balance unless show D expressly intended the subsequent addition as restitution of P's funds
117
Grounds for Rescission/Reformation
Mistake (Mutual or Unilateral)
Misrepresentation (Innocent/Fraudulent).
Sue for rescission before asserting damages. Claim for damages affirms K.
118
Undue Hardship
Inadequacy of Consideration, Marked Inequality Between Parties, and Unfair Advantage Exercised by the Plaintiff
119
Indispensable Party
1) Without can't grant complete relief
2) Interests will be impaired if proceed without
3) will not destroy diversity (if so either dismiss or proceed without party)
Consider prejudice; alternative forum; chance of inconsistent judgments
120
Interlocutory Appeals Act
1) Trial judge certifies a controlling question of law on which there is a substantial difference of opinion resolution of which via appeal will materially advance termination of litigation
2) Court of appeals agrees
121
Defenses to K Formation
Southern Miami Florida International Intelligence University
```
Statute of Frauds
Mistake/Ambiguity
Illegality
Incapacity
Unconscionability
Fraud (misrepresentation), Duress
```
122
Discharge of Duty (K)
Iguanas Frustrated Modify Repair Nuclear Accords
```
Impossibility, Impracticability
Frustration of Purpose
Modification
Mutual rescission
Novation
Accord & satisfaction
```
123
Contract Remedies
Clearance Creedwater Revival Rates Robust Songs
```
Compensatory Damages
Consequential Damages
Restitution
Rescission or Reformation
Specific Performance
```
124
Mutual mistake
Mistake concerns basic assumption on which contract was made (essential element -- parties, subject matter, consideration, offer and acceptance)
Mistake has material effect
party seeking avoidance did not assume risk
Unilateral mistake: mistake had material effect and mistaken party did not bear risk. Nonmistaken party did not know or have reason to know of mistake. Usually only computational errors.
125
Parol Evidence Rule (admissions)
Evidence concerning validity (formation defects, conditions precedent) (not performance)
Evidence used to interpret ambiguities
Evidence showing true consideration paid
Evidence in action for reformation
126
Anticipatory Repudiation
1) Executory bilateral contract (actions remain undone on both sides)
2) Unequivocal statement of nonperformance
3) Nonrepudiating party may:
a) sue immediately
b) suspend performance and sue when performance due
c) Treat repudiation as rescission
d) Urge performance
127
Contract (Offer)
Intent to make offer
Certain and definite terms
Communicated to offeree
128
Material Breach
Not received substantial benefit of bargain.
| May sue immediately
129
Land Sale K
Description of Land, Parties, and Price
| K for services: nature of services and duration (no extrinsic evidence)
130
Estoppel (K)
D's conduct or promise foreseeably induces P to change position in reliance on oral agreement, may remove K from SoF
131
Impossibility/Impracticability
| Frustration of Purpose
Impossible (impossible for any one to perform)
1) Nonoccurence of event was basic assumption of parties
2) Neither party expressly assumed risk
3) contractual duties may be discharged if performance becomes impossible or impracticable
Impracticability -- party has encountered extreme and unreasonable difficulty and/or expense and nonoccurrence of condition was basic assumption of the parties. Mere increase in costs usually insufficient.
FOP: 1) purpose of K becomes valueless due to supervening event not the fault of party seeking discharge. 2) Must not have reasonably foreseen the supervening event.
132
Replevin
```
Goods identified (specifically) in contract
After reasonable effort unable to secure adequate substitute or such effort would be unavailing
```
or If partial payment or purchased for personal, family, or household purposes
Not a remedy when no guarantee sheriff can recover
Available at commencement of action and before trial if a pre-seizure judicial hearing is held
133
Material vs. Minor Breach
Look at breach of particular provision but also totality of deviations
Extent to which nonbreaching party will receive benefit he expected
Extent to which nonbreaching party can be compensated in damages
Hardship to breaching party if K is terminated
Extent to which negligent or willful
Extent to which breaching party has performed and likelihood of full performance
134
Encroachment
1) Legal remedy inadequate (land unique). Consider ejectment
2) Balance of hardships
3) Continuing trespass - damages = rental value of occupied land
Permanent trespass -- damages are market value of land occupied by structure
135
Conversion
1) act by D that interferes with P's right of possession in chattel
2) serious enough to warrant paying full value
3) intent to perform the act bringing about the interference
4) causation
FMV at time of conversion
Trespass to land: reasonable value of use of land
BFP can be liable for conversion if obtains from thief (no title to give)
136
Equitable lien
DTUI
Downtown Taxis Under Influence
D misappropriated P's property
P's property can be Traced to property held by D
Retention = unjust enrichment
Legal remedy is inadequate
Appropriate where value decrease. Priority over unsecured creditors
Cut off by transfer to BFP
137
Restitution
Conferred benefit on D
With Reasonable expectation of being compensated for value
D knew or had reason to know of P's expectation
D would be unjustly enriched
138
Duty of Competence/Diligence (CA)
Icelandic Rangers Gaze at Norse Ruins
Intentionally
Recklessly
Gross Negligence
Repeatedly
139
Conflict of Interest
Delta Airlines: So Many Layovers
Rascally Pirate Witness
Revolve Babies In Communion Wine
Directly Adverse. Substantial Material Limitation
Related to Party or Witness (CA - disclose even if no material limitation)
Reasonable Belief carry on Rep (Informed consent in Writing)
140
Business Transaction with Client
For Reasons Due to Water, Soccer Club is Closed
Fair and Reasonable Terms
Disclosed in Writing
Seek Counsel
Informed Consent (in writing)
141
Fee Reasonableness
DiRECT
```
Difficulty (and novelty of) Issues
Relationship (nature of)
Experience
Contingency
Time limitations
```
142
3rd Party Compensation
Capable Rabbits Capture Carrots In Western China
can't Control Representation (retain independent judgment)
Confidential communications preserved
Informed written consent
143
Fee Splitting
A Well-Priced Racecar
client agrees in Writing
Proportional to work done by each lawyer
Reasonable fee
144
Confidentiality Exceptions
(CA)D FUSE ICC
"Prevent Crime likely to result in Death/Serious Bodily harm CA
substantial Financial harm using lawyer's services
Suit by Client
Ethics Advice
Informed Consent
Compelled by Court"
145
Permissive Withdrawal
An (Amazing) Puffin Ubers Over a Diverse (Rain Forest)
"without material Adverse effect on client's interests
(CA) client knowingly and freely assents
Persists in criminal or fraudulent action involving lawyer's services
Used services to perpetrate crime or fraud
client fails to fulfill Obligation
unreasonably Difficult
Repugnant course of action
Unreasonable financial burden"
146
Duty of Candor
Kill Fat Mother Fucking Feral Elk For Deer Cheerfulness
"Knowingly
False statement of Material Fact
offer False Evidence
Fail to Offer Disclosing controlling law"
147
Supervisor
Orcas Really Fancy Rosé
"Orders misconduct
Ratifies misconduct
Fails to Remedy"
148
Duty of Communication
Informed Dolphins Spend Days Reading Research
"Informed Decisions
Substantial Developments
Reasonable Requests for Information"
149
Counsel as Witness
Ultra Light Single Serve Hamburger
"Uncontested matter
value of Legal Services
Substantial hardship on client (informed written consent CA)"
150
Prosecutorial Duties
PCP Completely Ruins & Destroys Everything
```
"Probable cause to prosecute
Right to counsel
Refrain from extrajudicial comments
Disclose mitigating evidence
New evidence"
```
151
Substantially Related
Same Dispute or Substantial Risk that Confidential Factual Info that would normally be obtained in prior rep would materially advance client's position in subsequent matter
San Diego's Starting Right Center Fielder
152
Duty of Fairness to Opposing Party
```
Taco Diet I Eat
(Not to Tamper)
(Disclose Incriminating/Exculpatory evidence)
(Inadvertent Disclosures)
(Expedite Litigation)
```
153
CA (Fee Agreement)
> $1,000 in writing unless
1) Corp
2) client waives in writing
3) same as previous services
4) emergency
5) impractical for other reasons
ABA &CA: contingency must be in writing
