Essays Generally Flashcards
Commercial Paper
Article 3 of the UCC
- Negotiable Instrument?
- Negotiated?
- HDC?
1) Negotiable instrument?
Requirements: Must be in writing and signed by its Maker; it must contain an unconditional promise to pay a fixed amount of money, to order or to bearer, on demand or at a definite time, without any undertakings or instructions not authorized by Article 3.
2) Holder? Was it negotiated?
3) Holder in Due Course?
Requirements: Must be a holder who took the instrument for value, in good faith, and without notice of any defenses or adverse claims to the instrument.
Impact: If a negotiable instrument is negotiated to an HDC, the HDC takes the instrument free of personal defenses, and is subject only to the so-called real defenses enumerated in Article 3.
4) Fraud and Forgery
Fraudulent Indorsement: Breaks the chain of title, and no subsequent possessors of the instrument can qualify as holder. Payee can recover for conversion from depository or payor bank. Payor bank has claim against depository bank for breach of presentment.
Forged Signature: Not effective as the name signed, and it is effective as the forger’s signature
Employee signatures: May substitute for payee
5) Payment in Full Check
- claim or obligation is disputed or unliquidated
- person against whom the claim is asserted in good faith tenders an instrument
- conspicuously states that it is tendered in full payment of obligations
- claimant obtains payment of the instrument
Secured Transactions
Article 9 of the UCC
- Attachment?
- Perfection?
- Priority?
1) Attachment?
Requirements: a) Either the debtor must authenticate a security agreement granting the creditor a security interest in collateral the describes the collateral or the creditor must take possession or control of the collateral; b) the creditor must give value; and c) the debtor must have rights in the collateral
Impact: Gives the creditor rights against the debtor in collateral
2) Perfection?
Requirements: a) filing a financing statement that is authorized by the debtor in an authenticated record; OR b) taking possession
Purchase Money Security Interest: Created when a creditor advances credit or provides the funds needed to make a purchase possible and takes a security interest in the goods purchased. Automatically perfected in consumer goods.
3) Priority?
- The first secured party to file or perfect has priority.
- Perfected PMSI prevails over prior perfected interests
Other issues
- Accessions
Trusts
Spendthrift Provision: Prohibits the voluntary or involuntary transfer of the beneficiary’s interest in the trust. Does not enforce against dependents of the beneficiary.
Creditor’s
1) Without a spendthrift provision, can reach a beneficiary’s interest in a trust.
2) Cannot reach future interests in the trust.
Terminating a Trust
1) All beneficiaries must consent
2) Termination cannot interfere with a material purpose of the trust
Discretionary vs. Support Trusts
Power of appointment (general and special)
Administrative Law
Right to a Hearing?
1) Agency action will be based on adjudicative facts;
2) Action will adversely affect an individual’s property or liberty interests; AND
3) No emergency
How much process?
1) Rulemaking
- Notice, Comment, Consider all relevant matter, Statement of basis and purpose, Publication
2) Hearing
- Three part balancing test
- Impartiality of fact finder, ex parte communications, relevance of material considered, show findings, decision based on the record
Wills
1) Valid execution? Signed by T, 2 Ws
2) Incorporation by Reference?
3) Ademption?
4) Slayer statute
Products Liability
1) Absolute duty owed by a commercial supplier;
2) production or sale of a defective product;
3) actual and proximate cause; AND
4) damages
Negligence
1) Duty
2) Breach
3) Cause (actual and proximate)
4) Damages
Comparative negligence?
Contracts
Armadillos from Texas play rap, eating tacos
A = Applicable Law F = Formation T = Terms of Contract P = Performance R = Remedies E = Excuse of Nonperformance T = Third-party Problems
