Essay Rule Statements Flashcards
Robbery
A person who, in the course of committing a larceny, uses force or violence against any person who is present, or who assaults or puts the person in fear, is guilty of robbery.
Michigan, unlike the common law, does not require a completed larceny.
Armed Robbery
A person who, in the course of committing a larceny, is armed with a dangerous weapon or one that could be used as one or reasonably appeared to be one, or who verbally expressed that he has one, is guilty of armed robbery. This is punishable by up to life in prison.
4th Amendment Search and Seizure
the 4th Amendment protects against unreasonable searches and seizures. Generally, a search without a warrant is per se unreasonable unless justified by an exception to the warrant requirement.
Miranda
The Fifth Amendment to the Constitution provides that a ∆ cannot be compelled to incriminate himself. Miranda safeguards this right. Miranda warnings are required in cases involving custodial interrogations.
Miranda rights may be waived, but such waiver must be voluntary, knowing and intelligent.
Suppression is warranted when the police fails to advise an accused of his Miranda right or if a waiver of those rights is invalid.
Consideration
Consideration is a legal detriment that has been bargained for in exchange for a promise or performance. If there is no mutuality of consideration, the offer is merely a legally unenforceable, gratuitous undertaking.
Promissory Estoppel
The elements for promissory estoppel are: (1) a promise (2) which the promisor should reasonably expect to induce action or forbearance on the part of the promisee and (3) which does induce such action or forbearance and (4) injustice can be avoided only by enforcement of the promise.
The appropriate measure of damages is to ensure that the promisee is compensated for the loss suffered to the extent of the promisee’s reliance.
Modification under UCC
A modification need not be supported by consideration if it is made in good faith. This requires “observance of reasonable commercial standards of fair dealing in the trade.”
A market shift which makes performance come to involve a loss may provide objectively demonstrable proof of good faith between merchants.
Assent to a modification not made in good faith will not waive the right to enforce the original contract unless the other party has detrimentally relied on the assent to the new terms by materially changing its position.
Parol Evidence Rule
Parol evidence of K negotiations, or of prior or contemporaneous agreements that contradict or vary the written K, is not admissible to vary the terms of a K which is clear and unambiguous.
If a written document is an integration, i.e. when it declares it contains the entire agreement of the parties, all antecedent agreements are nullified.
Severability
Nonperformance of a K provision may not result in a total breach of the K if the provision is severable.
The primary consideration in determining whether a K provision is severable is the intent of the parties and whether the nature of the K lends itself to divisibility.
The court considers (1) whether the K embraces one or more subject matters, (2) whether the obligation is due at the same time to the same person, and (3) whether the consideration is entire or apportioned.
Excuse by Impossibility
The key inquiry is whether an unanticipated circumstance has made performance of the promise vitally different from what should reasonably have been within the contemplation of the parties when they entered into the K.
The promisor’s liability is extinguished if his duties become objectively impossible due to an unforeseeable supervening event.
Third Party Beneficiary Rights
Under Michigan statute, any person for whose benefit a promise is made by way of K has the same right to enforce said promise as he would have had if the promise had been made directly to him as the promisee. As such, an intended third-party beneficiary’s rights vest as soon as a promise becomes legally binding on the promisor.
A promisee may divest a third-party beneficiary of his interest whether he is a donee or a creditor, but a creditor beneficiary’s interest may not be divested if done with intent to delay or defraud or if the creditor has taken steps to enforce the promise.
UCC Sale of Goods (Intro)
This transaction falls under Article 2 of the UCC, which governs contracts, whether oral or written, that involve the sale of goods.
Goods are defined as all things which are movable at the time of the contract.
This contract involves the purchase of ____, an item movable at the time identified in the contract for sale.
Perfect Tender Rule
In a single delivery contract, if the goods or the tender fail in any respect to conform to the contract, the buyer may reject all, accept all, or accept any of the commercial units and reject the rest.
Seller’s Right to Cure
If tender is rejected due to the seller’s nonconformity before the time for performance has expired, the seller may seasonably notify the buyer of his intention to cure and may then make a conforming delivery within the contract time.
Delegability of Duties
Generally, duties can be delegated unless otherwise agreed or unless the party has a substantial interest in having his original promisor perform.
A substantial interest exists when the delegation materially changes 1) the duty of the other party, 2) the risks imposed on the other party, or 3) the other party’s chance of obtaining return performance.
Remedy for Seller when Buyer Breaches and Seller has the Goods
Where buyer breaches and seller has the goods, damages are measured by incidental damages minus expenses saved from buyer’s breach, plus either (1) the difference b/w the market price at the time and place for tender and the unpaid K price, or (2) the difference between the resale price and the K price
Duty to Invitees
An invitee is one who is on the premises for a reason directly related to the landowner’s commercial interest.
The landowner has a duty to invitees to exercise reasonable care to protect the invitee from an unreasonable risk of harm cause by a dangerous condition on the land.
Government Tort Immunity (Intro)
A government agency (e.g. police department) is immune from tort liability if it is engaged in the exercise or discharge of a governmental function. However, this is subject to 3 key exceptions.
Highway Exception to Government Tort Immunity
A gov agency that has JX over a highway has a duty to keep that highway reasonably safe. It is liable for damages caused by unreasonably dangerous defects in the highway if agency knew or should’ve known of the defect. Constructive knowledge exists if defect is “readily apparent to an ordinarily observant person” at least 30 days prior to injury.
This exception is limited: applies only to portions of the highway improved for vehicle travel and not to failure to remove natural accumulation of ice and snow or negligently failing to erect guardrail.
Π must give notice to agency within 120 days of injury.
Public Building Exception to Government Tort Immunity
A gov agency has an obligation to repair and maintain public buildings under the agency’s control.
Liability attaches only when 1) the building is open to the public, 2) the injury or damages results from a dangerous or defective condition, 3) agency had actual or constructive knowledge, and 4) agency failed to take action reasonably necessary within reasonable time from acquiring knowledge.
This exception is limited to defects inherent in the actual building; it does not extend to transitory conditions (e.g. oil spilled on floor) or design defects.
Assault (Tort)
An intentional threat of injury to another person by force, or a force unlawfully directed toward the person of another, under circumstances which create a reasonable apprehension of imminent contact, with the apparent present ability to accomplish the contact.
π must show that ∆ acted with intent to cause a harmful or offensive touching of another person or knew with substantial certainty that such contact would result.
Battery (Tort)
The willful and harmful or offensive touching of another person which results from an act intended to cause such contact.
π must show that ∆ acted with intent to cause a harmful or offensive touching of another person or knew with substantial certainty that such contact would result.
Relevance
Evidence is relevant if it tends to make the existence of a fact of consequence in the case more or less probable than it would be without the evidence.
Otherwise relevant evidence may be excluded if the judge finds that the danger of UP substantially outweighs the PV in view of the availability of other means of proof and other facts.
Hearsay
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.
A hearsay statement is not substantively admissible unless it falls into one of the hearsay exceptions.
A statement that is inadmissible as hearsay may nonetheless be admitted for impeachment.
“Other Act” Evidence
Evidence of a crime or other act is generally not admissible to show a person has bad character and acted in accordance with that character.
However, evidence relevant to a non-character purpose is admissible even if it also reflects on a defendant’s character or criminal propensity.
For “other acts” evidence to be admissible, the proponent has the burden of showing: 1) Identified non-propensity purpose, 2) Relevant to an issue or fact of consequence at trial, and 3) UP >> PV balancing, considering availability of other means of proof and other facts.
Expert Testimony
An expert is qualified to testify when he has “scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or determine a fact in issue.”
His opinion must be based on reliable principles and methods that have been reliably applied to sufficient facts and data in this case.
1A Intro
The First Amendment states that Congress shall make no law abridging the freedom of speech.
The First Amendment is applicable to the states through the Due Process Clause of the 14th Amendment.
Free Exercise Clause
FEC is not violated where a law that is facially neutral and of general applicability and has an incidental burden on religious practice.
However, strict scrutiny applies if the law is not neutral or not of general application, and it must be narrowly tailored to advance a compelling state interest.
Equal Protection Clause
EPC is meant to guarantee every person against intentional and arbitrary discrimination. It requires that persons under similar circumstances be treated alike; not necessarily that all persons be treated alike.
There are three levels of scrutiny under the equal protection clause. The applicable standard of review to be applied depends on the type of classification.
Dormant Commerce Clause
Congress has the power to regulate interstate commerce. States may regulate commerce pursuant to their general police powers in the absence of congressional legislation.
The courts follow a “2-tiered approach” for determining whether a state law violates the commerce clause.
- When a state statute discriminates against interstate commerce (i.e. when it enacts measures to protect in-state economic interests at the expense of out-of-state competitors) without express permission from Congress, the statute is generally struck down.
- On the other hand, where a state statute imposes the same burden both in-state and out-of-state, it will be upheld unless the burden on IC is clearly excessive in relation to the benefit.
Recording Statute
MI is a race-notice state. Owners of an interest in land can protect their interests by properly recording them. When a purchaser fails to record their interest in property, that interest is void against any subsequent purchaser so long as the subsequent purchaser is a bona fide purchaser for value without notice of the prior interest.
Fixtures and Trade Fixtures
Personal property is a fixture if it meets MI’s 3-part test: (1) it is annexed to the realty, actually or constructively (2) its adaptation or application to the realty being used is appropriate and (3) there is an intention to make the property a permanent accession to the realty. Generally, fixtures remain with the real property unless expressly agreed otherwise.
Trade fixtures (made specifically for the purpose of conducting business) can automatically be removed upon termination of the lease. This doctrine applies only to leasehold estates.
Landlord Termination of At-Will Lease
A landlord must follow the procedures set out in the Michigan Summary Proceedings Act in order to remove a tenant.
- The landlord must give the tenant written notice (1 month if the tenancy is at-will; 7 days if the tenant fails to pay rent). If the tenant does not vacate by 1 month or 7 days, the landlord may initiate summary proceedings to receive a judgment of possession.
- The tenant must leave in the time stated in the judgment (at least 10 days), but if judgment is due to nonpayment of rent, the tenant may alternatively opt to repay the amount due.
- If the tenant fails to vacate by this time, the landlord is entitled to receive an order of eviction from the court, in which case a sheriff will remove the tenant from the property.
- If the person came into possession of the premises unlawfully to begin with, the landlord can use self-help to remove them, or initiate proceedings without notice
Under the Michigan Anti-Lockout Statute, a landlord may not use self-help to remove a tenant in lawful possession of the premises or retain/remove personal property of the tenant as collateral. If he does so, the tenant is entitled to $200 or 3x actual damages, whichever is greater.
Subject Matter Jurisdiction
MI circuit courts are courts of general and original JX. They, unlike fed courts, have SMJX over all kinds of civil actions, unless there is exclusive JX in some other forum.
The exceptions are that district courts have exclusive JX over actions <$25K, courts of claims have exclusive JX over claims against state or state agencies, and fed courts have exclusive JX over matters like ambassadors and admiralty.
Personal Jurisdiction Step 1
Do ∆’s acts fall w/in the applicable general or long-arm statute?
General JX: is established by (i) incorporation under laws of the state (ii) consent and (iii) carrying a continuous and systematic part of general business within state
Specific (long-arm) JX: LAS authorizes jurisdiction in cases deriving from the following contacts: (i) ownership or use of land in MI (ii) injury in MI from ∆’s tort (iii) matrimonial relationship w/ any ties to MI (iv) insurance K for something insured in MI (v) txn entered into or to be performed in MI
Personal Jurisdiction Step 2
Does the exercise of JX over ∆ comport with the requirements of due process?
∆ must have “minimum contacts” with the forum such that maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Use 3-prong test:
- Whether ∆ purposefully availed himself of the privilege of conducting activities in MI
- The cause of action arises from ∆’s activities in the state
- ∆’s activities must be substantially connected with MI such that JX over ∆ is reasonable (a single txn will suffice as long as ∆ can reasonably anticipate being hailed into MI court as a result)
