Contracts and Sales/Criminal Law Flashcards
What are the only two requirements for a disclaimer of implied warranty of fitness for a particular purpose?
It must be in writing and conspicuous.
What are the only two requirements for a disclaimer of the warranty of merchantability in writing?
The language must mention merchantability and must be conspicuous.
How can the warranty of merchantability be disclaimed?
Orally, or in writing using the word “merchantability.” If in writing, it must be conspicuous.
When does the one year measuring time frame start for the Statute of Frauds?
Within one year from the time of the contract’s making.
Do two separate documents, one stating part of the contract and the other stating the other part satisfy SOF?
At least one document must refer to the other document, or it fails SOF.
Distinguish failure of condition from failure of promise:
Failure of condition relieves a party of the obligation to perform.
Failure of a promise is a breach, and gives rise to damages.
Explain how a buyer who does not obtain good title transfer good title to a subsequent purchaser?
Only when the purchaser buys the goods in faith and for value.
What is a payment by check conditional upon?
Being honored.
Absent a breach, who retains the risk of loss in the absence of a contract term to the contrary until the buyer receives the goods?
A merchant seller retains the risk of loss, absent a breach by the buyer.
When a specific time for pick-up or delivery is in a contract term, what is the effect of a later attempt to pick-up or deliver?
Breach of contract and risk of loss is transferred from seller to buyer.
How does mens rea apply to multiple elements when only one mens rea is named?
The mens rea applicable to one material element is applicable to all material elements unless a contrary purpose plainly appears.
What is it called when a killing results because the defendant acts with reckless indifference to a known and unjustifiable risk?
Depraved heart murder.
For conspiracies, does the overt act need to be performed by the defendant?
No, it can be performed by anyone in the conspirator.
What is the effect of the exclusionary rule to evidence when a police officer executing a valid search warrant fails to adhere to a “knock and announce statute?”
The evidence seized is not subject to the exclusionary rule.
Derivative-use immunity protects a witness from what?
the use of the witness’s own testimony, or any evidence derived from that testimony, against the witness in a subsequent prosecution - not civil trial.
Can a witness with derivative use immunity have his testimony used in a subsequent civil trial?
Yes.
Absent some statutorily enumerated felony, what are the only felonies that trigger felony-murder?
Burglary, arson, rape, robbery, and kidnapping.
Is a felony in general sufficient to trigger the felony murder rule?
No, it must be BARRK or statutorily enumerated as an inherently dangerous felony.
Involuntary manslaughter is the proper charge under what circumstances?
When he acts with criminal negligence – reckless action that puts another person at a significant risk of injury or death.
How is robbery defined?
(i) larceny,
(ii) from the person or the presence of the victim,
(iii) by force or intimidation.
The force used by a defendant in robbery must be how great?
Greater than the amount necessary to effectuate taking and carrying away of the property.
What are some ways greater-than-necessary force is applied in a robbery?
Giving a victim drugs in order to induce unconsciousness and thereby permit the larceny to occur.
What elements must be met to qualify a lawful search incident to an arrest?
A search of a car in which the defendant was an occupant must be made at the time that the defendant has access to the car; OR
to uncover evidence of the crime for which the defendant was arrested.
What are the elements of false pretenses?
An individual (i) obtains title to property
(ii) of another person
(iii) through the reliance of that person
(iv) ) on a known or false representation of a material past or present fact (v) and the representation is made with the intent to defraud.
What does role does entrustment play in a larceny?
No role because the initial taking in a larceny must be trespassory.
Which stealing crime is entrustment an element of?
Embezzlement
When can a policeman search a car incident to an arrest?
Only when the defendant has access to the car or to uncover evidence for the crime which the defendant was arrested.
A defendant has the right to assistance of counsel when?
At any trial that results in a sentence of incarceration, even when that sentence is suspended.
What is required for a merchant’s firm offer to apply?
Signed writing from the merchant.
Can a merchant’s offer be made orally?
No.
What is the “and” trick in contract questions to watch for?
When a contract question contains two separate terms conjoined by “and” one of those terms is likely to be determinative.
A promise to make a gift is or is not enforceable?
A promise to make a gift is not enforceable.
What is promissory estoppel limited to, damages-wise, regarding failed gift promises?
Reliance damages; like a plane ticket to pick up a promised heirloom.
Does the SOF apply to a promise?
No.
When does duress exist as a defense to contract?
When a person enters into a contract in response to an improper threat that deprives the person of a meaningful choice.
Is the threat of criminal prosecution an improper threat?
Yes, even if the threatened person is guilty of the crime.
Can a statement by a seller containing “in my opinion” be construed as an express warranty?
No.
What is required for an express warranty?
Promise or affirmation of fact.
