Feb 15 Flashcards
Third Party Beneficiaries to a K
A third-party beneficiary is one who receives rights to a contract that was formed between two other parties. Whether a third-party beneficiary can enforce those rights depends first on their classification as an intended or incidental third-party beneficiary. An intended third-party beneficiary is one whose benefit is the major reason for the contract. An incidental third-party beneficiary is a third party mentioned in a contract, but the contracting parties had a major reason for the contract other than benefiting the third party. An incidental third-party beneficiary has no rights in the original contract to enforce. Here, the only reason for the contract was to benefit the skier, so the skier was an intended third-party beneficiary. An intended third-party beneficiary’s rights are enforceable once they vest. Therefore, it does not matter why the original parties made the third party a beneficiary. Even a donee beneficiary can enforce his rights once they vest. An intended third-party beneficiary’s rights vest once they have notice of and assent to the contract or once they demonstrate reliance on the benefit. Here, the facts indicate that the skier was aware of the contract, and, therefore, the notice requirement is met. Neither the skier’s father nor the pilot knew the skier was aware of the benefit. The skier never demonstrated that she assented to the benefit to either of the two contracting parties prior to their change of mind. The fact that the skier purchased clothes and equipment would not be enough to vest her rights, because this would be mere preparation. However, when she canceled existing plans to make the same trip, including returning her airline tickets, she detrimentally changed her position in reliance of the agreement. Therefore, the skier’s rights have vested, and the skier will be successful.
Common Law Larceny
At common law, larceny was defined as the trespassory taking (“caption) and carrying away (“asportation”) of the tangible personal property of another with the intent to permanently deprive the owner of his interest therein. While abandoned property cannot be the subject of larceny, lost or mislaid property can. In order for a finder to be guilty of larceny of lost or mislaid property, he must: 1) intend to steal it; and 2) either know who the owner is or have reason to believe (from ear-markings on the property or from the circumstances of the finding) that he can determine the owner’s identity
Attempt
The crime of attempt consists of: (1) an intent to do an act or to bring about certain consequences, which would in law amount to a crime; and (2) an act in furtherance of that intent which, as it is most commonly put, goes beyond mere preparation. As such, attempt is a specific intent crime.
Reformation of a contract
Reformation of a contract is available to correct a mistake when there has been an error in transcription. When two parties reach an oral agreement and then commit their agreement to writing, a mistake by either party in transcribing, or by a third-party typist, will allow the contract to be reformed.
Invasion of Privacy Tort Claim
One who uses without authorization the name or likeness of another for commercial advantage (to promote a product or service) is subject to liability for the invasion of privacy tort of appropriation of identity or likeness. There is no intent element to this tort, so it is irrelevant that the pharmacist believed that the supermodel’s photograph in the display was authorized. Here, all of the elements of appropriation of identity are present, so the supermodel will prevail in her claim.
Privilege or Immunities Clause under the 14th amendment vs. under Article IV Sect. 2
The Privileges or Immunities Clause under the Fourteenth Amendment includes the right to travel across state lines and establish residence in a new state. Thus, a waiting period to obtain unemployment benefits after establishing residence in a new state would be a violation of the Privileges or Immunities Clause under the Fourteenth Amendment, not under Article IV, Section 2.
The state is not absolutely prohibited from regulating a natural resource used by the federal government for the benefit of non-citizens; it is prohibited only from regulating it in a manner inconsistent with federal policy. Congress has plenary power over immigrants, including refugees. The federal government alone has the authority to set conditions under which immigrants may enter or remain in the country
Life estate pur autre vie
A life estate pur autre vie is an estate where the duration is measured by the life of someone other than the grantee. Here, the daughter’s estate ends at the father’s death.
A fee simple determinable is an estate that will terminate if a named future event occurs. If the event never occurs, then the estate never terminates. A life estate, on the other hand, always terminates at the end of the specified life.
A fee simple subject to a condition subsequent is an estate that may be cut short if the estate is retaken by the grantor or a third party on the happening of a named future event. The condition does not automatically terminate the estate. A life estate, on the other hand, always terminates automatically at the end of the specified life.
Because a jury could reasonably conclude that the executive sent the threatening letter, judgment as a matter of law (JMOL) would be inappropriate. Pursuant to Fed. R. Civ. P. 50, if a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may grant JMOL. But, here, the jury could have a sufficient basis for finding against the executive.
If a delegatee (here, the second landscaper) fails to satisfactorily perform, the original obligor (the original landscaper) is liable secondarily to the obligee (the woman). The obligee can take action against the obligor even if there has been an effective delegation of performance. Thus, if the delegatee failed to perform, the obligee has a cause of action against either the delegator or the delegate.
Most courts hold that use of a right of way to reach land other than that which was originally to be benefited by the easement (here, the Bluff Heights lot) is an automatic “overburdening” and can be enjoined, even if the quality or quantity of the use of the easement is not affected by the additional use of it to reach other land. A court will analyze the quality and quantity of the use of an easement only when the use of an easement has changed with respect to the land originally intended to benefit from the easement (e.g., a shopping mall is built on benefited land that originally housed only a residential home).
Necessity alone is not sufficient to create an easement by necessity; it must also be shown that the land was held in common by one grantor. In this case, there is no indication that Bluff Heights and Forestacre were ever held in common by a single grantor.
Where a party to a contract for an agreed exchange of performances knowingly prevents, hinders, or makes more costly the other’s performance, such conduct is a breach of contract for which an action will lie. The breach is of an implied promise against prevention.
The theory of “quasi-contract” allows a party’s recovery despite the absence of a valid contract, in order to prevent the other party’s unjust enrichment. For a party to be entitled to restitution (the reasonable value of the benefit conferred) under a quasi-contract theory, certain requirements must be met: First, the party seeking recovery must have conferred a benefit on the other party with a reasonable expectation of being compensated; second, the other party must have expressly or implicitly requested the benefit; and third, the other party would be unjustly enriched if not required to compensate the party seeking recovery. While it is possible that the auto shop owner will be unjustly enriched if his promise to the car enthusiast is not enforced, the auto shop owner’s unjust enrichment alone will not guarantee the car enthusiast’s recovery. She must also establish the first and second elements of quasi-contract. Given that the car enthusiast repeatedly stated that she had no expectation of being compensated for her managerial services, she cannot establish that she had a reasonable expectation of being compensated. As such, she cannot recover on a quasi-contract theory. Thus, this answer is incorrect.
Consideration is required to make a contract legally enforceable. Here, given that the auto shop owner promised to give the auto shop to the car enthusiast in return for services that she had already rendered, the promise to the enthusiast was not supported by valid consideration. Thus, no enforceable contract was formed. However, even in the absence of an enforceable contract, a party may still be able to recover the value of the benefit she conferred on the other party in “quasi-contract.” For a party to be entitled to restitution (the reasonable value of the benefit conferred) under a quasi-contract theory, certain requirements must be met: First, the party seeking recovery must have conferred a benefit on the other party with a reasonable expectation of being compensated; second, the other party must have expressly or implicitly requested the benefit; and third, the other party would be unjustly enriched if not required to compensate the party seeking recovery. Under the facts presented, the car enthusiast repeatedly stated that she had no expectation of being compensated for her managerial services. Given that her words and actions did not indicate an expectation of being compensated, she cannot recover on a quasi-contract theory.
Special Use Permit
A special use permit is required when the use that the applicant seeks is not permitted in the district as zoned, but it would be compatible with the area. Here, an auto-body paint-spraying operation is not compatible with the residential area, as evidenced by the complaints of the neighbors. A special use permit would not be granted.
Conditional Use Permit
A conditional use permit is required when the use that the applicant seeks is not permitted in the district as zoned, but it would be compatible with the area if certain conditions are met. This is the young man’s only hope, and it is a slim chance. If the city is able to write air pollution restrictions into the permit that the young man can successfully employ to prevent fumes from escaping, then it is possible that he will be granted a conditional use permit to operate his business. However, even with conditions, it is unlikely that this industrial business is compatible with a residential neighborhood. However, this is the best answer listed.
Robbery is larceny by force or threat of force. Here, the defendant threatened force using the toy gun. He then stole the wallet, satisfying the element of taking and carrying away the personal property of another with the intent to steal. Therefore, all of the elements of robbery are present. The larceny of the wallet will merge into robbery as a lesser-included offense. The defendant thereafter broke and entered the dwelling of another with the intent to commit a larceny or felony inside. The breaking and entering element was fulfilled when he opened the window and reached into the house without permission, and did so with the intent to commit a larceny. Therefore, all of the elements of burglary are present. While the facts do not indicate that he actually stole something from the house, by attempting to enter it through the window with the intent to take something from inside, the defendant has committed a substantial step towards larceny, and so will also likely be found guilty of attempted larceny. As such, the defendant will likely be found guilty of all three of these crimes.
One of the Rule 803 hearsay exceptions is that the absence of an entry in records, reports, or data compilations can be used to prove the non-existence or non-occurrence of a matter, if the matter was of the kind normally kept in those records, reports, or compilations. An airline would necessarily have a system of recording who had bought a ticket, and the absence of a person’s name in that system would be admissible as a hearsay exception.
One of the Rule 803 hearsay exceptions is that the absence of an entry in records, reports, or data compilations can be used to prove the non-existence or non-occurrence of a matter, if the matter was of the kind normally kept in those records, reports, or compilations. An airline would necessarily have a system of recording who had bought a ticket, and the absence of a person’s name in that system would be admissible as a hearsay exception.
