February 2021 Flashcards
Partnership
Partners are co-owners of a business for profit. The default status of a partnership is that of a general partnership. There are a number of factors that are together considered and weighed to determine whether a partnership has formed. These factors get at whether the parties are functioning as co-owners. It is important to note that there is no intent required to form a partnership or to join a partnership as a partner. Rather, there is an objective test of whether the relationships amount to partnership relationships. No official documentation or filing is necessary for partnership formation
Partnership liability
In a general partnership, which the case here, partners are held jointly and severally liable for torts committed by partners dealing in the course of the business. This means that each partner may be held personally liable for the torts of his/her partners.
However, the doctrine of exhaustion has a protective effect over the personal assets of the partners. That is because exhaustion doctrine requires that a claimant pursue relief
through the assets of the partnership before going after the partners’ personal assets. In a limited partnership, the limited partner is liable only for the percent of his investment in the partnership.
Vicarious Liability
An employer may be held vicariously liable for negligence by an employee if that
employee was acting within the scope of his employment when negligent. If an employee is largely acting in the scope of his employment with only a small deviation, this is still considered within the scope of employment, and the employer is still liable. A larger deviation, a frolic, is considered outside the scope of employment and the employer is not liable.
Independent contractors
Generally speaking, it is more common that an employer will be held for liable for the negligence/torts of their employer than it is that they will be held liable for the negligence/torts of an independent contractor. This makes sense policy-wise because independent contractors have more freedom and control to determine how they execute their duties. The general rule is that one is not responsible for the negligence/torts of an independent contractor.
Codicil
A codicil is a writing, in a person’s own handwriting, meant to supplement or modify a will. Here, Testator’s handwritten statement is a valid codicil because it is wholly in Testator’s handwriting and State A allows unsigned codicils as valid.
Incorporated by reference
The next issue is whether another document may be incorporated into a will by reference. In general, another document which exists at the time of execution of the will, and is reasonably identifiable, may be incorporated into the will by reference.
Here, Testator signed and dated the document before the will was executed, so it was in existence at execution of the will, and the document was located. The document may be incorporated into the will by reference
Federal Questions Jurisdiction
In order for a federal court to have jurisdiction over a claim, the court must have federal question jurisdiction or diversity jurisdiction. Federal question jurisdiction arises when the claim arises under federal law. Diversity jurisdiction arises when all plaintiffs are diverse from all defendants and when the well-pleaded complaint states a claim for over $75,000. A party is a citizen of whatever state they are domiciled in. A single plaintiff may aggregate multiple claims against a single defendant; however, separate plaintiffs may not aggregate multiple claims against a single defendant. Multiple plaintiffs may join their individual claims against a single defendant when their claims arise out of the same transaction or occurrence so it would make sense to try both claims in the same trial.
Claim Preclusion
The woman is precluded from bringing her claim as a result of the judgment in her favor in the lawsuit brought by the man in federal court in State A. The issue is whether the woman had a mandatory counterclaim that she failed to raise.
A defendant has a mandatory counterclaim if the defendant has a claim against the plaintiff and the claim arises out of the same transaction or occurrence as the plaintiff’s claim. If the defendant does not bring the counterclaim at the time of the plaintiff’s claim, he or she is barred from raising it later.
Issue Preclusion
The man will be precluded from denying that he was negligent with respect to the passenger as a result of the judgment against him in the lawsuit he brought against the woman. At issue is whether he had the opportunity to fully and fairly litigate the issue at the first trial.
A party will be precluded from raising an issue that has been previously litigated if there has been the chance to fully and fairly litigate the issue. If a person is a party to a previous litigation and has an opportunity to defend the right there, the issue is fairly litigated
Security Interest
A security interest (SI) occurs where a party, the debtor, uses collateral to secure a loan from a secured party (SP), who has the ability to foreclose on the collateral if the debtor defaults on their payments. A SI is created and becomes enforceable when the SI attaches. Attachment occurs where: the SP gives value to the debtor, the debtor has the right to transfer their rights in the collateral to the SP, and the parties complete a valid security agreement (SA). A valid SA requires a document signed by the debtor, which identifies the SP and the debtor, and sufficiently describes the collateral. A sufficient description will not be found where the security agreement states “all property” or “all assets”. However, a description that describes a UCC type of collateral (machinery, equipment, etc.) will be sufficient. A party’s knowledge that another party has a SI in the collateral will not affect priority or enforceability
Perfection
Perfection is the process by which a SI can gain priority over other SIs in the same collateral. Perfection requires attachment and for the SP to file a financing statement (FS) with the secretary of state’s office in the state where the debtor is located. The FS must state the names of the parties and a description of the collateral. The FS may describe collateral by any method, including overly broad grouping such as “all assets
Order of Priority
Generally, SPs will have superior right based on first in time. An attached SI has priority over an unattached SI. A perfected SI has priority over an un-perfected SI. Between two perfected SI, the party who perfects or files their SA first wins. A lien creditor will be deemed to have a perfected SI in collateral once they have obtained a judgment on the collateral which allows them rights in the collateral.
Implied Easement
- The friend has an implied easement to use the grave road from prior use over the man’s 80 acres before the man’s conveyance to the builder.
An easement is a nonpossessory interest in land. The easement holder is free to use and land for his own benefit. An easement appurtenant requires a dominant land and a servient land, where the servient land carries burden to provide the easement to the dominant land. An easement can be created expressly or implied. An express easement often requires a writing that satisfies the statute of fraud to reflect the intent of the grant of easement. However, an easement can also be implied from prior use if there is no writing manifesting the express intent. Under common law, an implied easement from prior use requires: (1) there is a common ownership of the servient and the dominant lands at a time, (2) the owner of the land has been using the easement before the dominant and the servient lands are separated, (3) the use of the easement is reasonably necessary, and (4) when the dominant and the servient lands are separated, the landowner intends the easement to be used by the successors.
Land Easement
An easement runs with the land, unless a bona fide purchaser takes the land without notice. A bona fide purchaser is a purchaser of a land for value without notice. A notice can be actual, inquiry, constructive, or record. An actual notice is the purchaser’s actual knowledge of the easement. An inquiry notice is a notice that the purchaser can obtain
through a regular inspection of the land. A constructive or record notice is a notice the purchaser can obtain by searching the title of the land.
Article 2 of the UCC
Article 2 of the UCC governs the sale of goods. Goods are any movable item. In order for there to be a contract, there must be mutual assent and consideration. Mutual assent means that there is an offer and an acceptance. An offer creates the ability of acceptance in the other person. Acceptance is when the person accepts the offer.
Consideration is the bargained-for exchange. Once there is mutual assent and consideration, there is a valid contract unless there are any defenses to contract formation. One defense to contract formation is the statute of frauds. Any contracts for the sale of goods over $500 must be reduced to writing or the contract will not be enforceable. The contract must contain the material terms and be signed by the party who will be bound. The UCC allows a merchant’s confirmatory memo to count for the statute of frauds requirements. A merchant’s confirmatory memo must include a price term, a quantity term, and the merchant’s signature. The UCC will allow the merchant’s letterhead to count as a signature.
