Feb 10 Flashcards
Contracts:
Nonconforming goods & acceptance
Offers to buy goods for prompt shipment “shall be construed as inviting acceptance either by prompt promise to ship or by the prompt or current shipment of conforming or nonconforming goods.” Thus, even a shipment of nonconforming goods operates as an acceptance. (It is also a breach of contract.)
However, the shipment of nonconforming goods will not operate as an acceptance if the seller “seasonably notifies the buyer that the shipment is offered only as an accommodation to the buyer.” In such a case, the shipment of nonconforming goods is considered a counteroffer, which the buyer may either accept or reject. If the buyer rejects the nonconforming shipment, no contract is formed, and the buyer has no rights against the seller.
Crim Pro:
6th Amendment, Informant, Co-Conspirator Confession
A co-defendant does not have standing to object the rights of his co-defendant being violated.
SCOTUS has held that 4th amendment rights are personal and therefore, standing does not transfer to co-conspirators to object to unlawful searches/seizures.
“To my son for life”
Life tenant
A life tenant has a duty to maintain the property in a reasonable state of repair - ordinary wear and tear excluded.
This duty is limited to the extent of the income derived, or if the LT personally occupies the premises, to the extent of the reasonable rental value of the land.
So LT that derives income from renting to others + rental value of his own occupancy in the property = value that the owner can recover for repairs.
Class Actions
In addition to the basic requirements for certifying a class, courts will maintain a class action only if at least one of the following is true:
(1) the prosecution of separate actions would create a risk of inconsistent judgments that would impair the ability of other members to protect their interests;
(2) the party opposing the class has acted on grounds that are generally applicable to the class as a whole; or
(3) common questions predominate over individual questions, and class representation is superior to other methods for adjudicating the controversy.
–Factors to determine common questions include pending individual litigation, class member interests, the desirability of concentrating litigation in the forum, and the difficulties of managing the class action. Importantly, a court is unlikely to grant class certification where multiple state laws are involved and individual claims require separate investigation.
Public Nuisance
A public nuisance is an act by the defendant that obstructs, inconveniences, or damages the enjoyment or use of common property. A private plaintiff may only maintain an action if he suffers an injury peculiar to that suffered by the general public - aka “special damages”
Contracts - Two assignee’s claim the right to collect from the obligor…
…the majority rule is that the first assignee wins. Under the Restatement, however, if the second assignee has paid value and took the assignment in good faith, the second assignee will prevail if she has also obtained payment from the obligor, recovered a judgment on the debt, entered into a new contract with the obligor, or received delivery of a tangible token or writing from the assigner that must be surrendered under the obligor’s contract.
motion for summary judgment - what evidence can the court consider?
the court must consider any cited materials, but may consider other materials in the record. If the court chooses not to consider the testimony that neither side cited, the court may enter summary judgment under Rule 54(c)(1)(B), because the record so viewed shows that the plaintiff cannot produce admissible evidence of a fact without which the plaintiff cannot win.
Signature Requirement - Statute of Frauds
If a contract falls within the Statute of Frauds, then the general rule is that the contract is unenforceable unless evidenced by a writing signed by the party against whom enforcement is sought. Under either the common law or the UCC, a letter describing the contract, signed by the party against whom enforcement is sought, will satisfy the Statute of Frauds. Additionally, if all of the documents are signed by the party against whom the contract is being enforced, or if a signed document incorporates unsigned documents by reference, then the signing requirement is satisfied.
Property - Buyer liability after sale of property encumbered by mortgage - silent on liability
When the land-sale contract is silent as to the buyer’s liability, the default rule is that the buyer takes subject to the mortgage. As such, the buyer does not become personally liable for the mortgage obligation.
Juror - Procedural Error - New Trial
A party is entitled to a new trial as a result of procedural error if the error was harmful rather than harmless. Put another way, the moving party is entitled to a new trial if the procedural error made the trial unfair rather than merely imperfect. Here, there are significant indicia of harm. The juror’s actions were deliberate and were motivated by a desire to see the defendant lose. The information, if revealed, would have resulted in the juror being excused for cause. The juror became the foreperson. Under these circumstances, the trial was unfair rather than merely imperfect, and the defendant is entitled to a new trial.
Congressional Taxing Power
Under Article I, Section 8, Congress is authorized to “lay and collect taxes” for the general welfare. A tax will be upheld as a valid exercise of the taxing power if it raises revenue in fact (the objective test) or is intended to raise revenue (the subjective test).
Standard of Care - Court Deference bc of Profession
For lawyers, doctors, accountants, and architects, the court will defer to the profession to assess the appropriate standard of care.
Under the UCC, what are the damages available to a seller if a buyer has repudiated and the goods were not delivered?
If the seller has not resold and the goods were not delivered, the seller’s damages are the difference between the contract price and the market price.
Attorney-Client Privilege - Waivers
A blanket or total waiver results only if the waiver was intentional and both the disclosed and undisclosed information concerns the same subject matter.
A seller can accept a buyer’s offer to purchase goods for prompt or current shipment in three ways:
(1) by a promise to ship goods;
(2) by shipping conforming goods; or
(3) by shipping nonconforming goods.
However, under the UCC, the shipment of nonconforming goods will not constitute acceptance if the seller notifies the buyer that the shipment is offered only as an “accommodation” to the buyer.
An original document or writing includes either the original itself or a duplicate. There are three substitutes for an original…
(1) a duplicate;
(2) a certified copy of a public record; or
(3) summaries of voluminous records.
The Supreme Court has held that the placement of the Ten Commandments on the walls of courthouses is…
unconstitutional, because it has no secular purpose.
