final

Question 1

What language raises a presumption of testamentary intent?

Answer 1

language such as “This is my last will” raises a presumption of testamentary intent, but the presumption is rebuttable.

Question 2

When is extrinsic evidence admissible for determining a will?

Answer 2

Extrinsic evidence is admissible to show testamentary intent, presumably, lack of testamentary intent.

Question 3

How may a will be revoked?

Answer 3

A will may be revoked by operation of law, a subsequently written instrument, or by physical act

Question 4

How do you revoke a will by written instrument?

Answer 4

There must be a present intent to revoke and the instrument must be executed with the same formalities as are required for the execution of a will

Question 5

Can a holographic will revoke a typewritten, attested will?

Answer 5

If the state recognizes holographic wills, a valid holographic will may revoke a typewritten, attested will

Question 6

What acts generally are sufficient to revoke a will.

Answer 6

Burning, tearing, obliterating, or canceling a material portion of the will

Under common law the act must be shown to have had an actual effect on the will or its language

Under UPC: words of cancellation must be on the will itself but need not touch any of the words of the will

Question 7

What is a purging statute?

Answer 7

In a common law state, where a interested witness is involved, a purging statute will not void the whole will, rather it will simply void the interest to the beneficiary who is a witness

Question 8

What are the requirements for a contract to make a will at common law?

Answer 8

at common law, a contract to make a will need not be in writing unless land is involved, some states require a writing for all contracts to make a will.

Question 9

What are the requirements for a contract to make a will under the UPC?

Answer 9

Under the UPC, a contract to make a will can be established by (1) provisions in the will stating the material provisions of the contract (2) an express reference in a will to the contract and extrinsic evidence proving the terms of the contract or (3) a writing signed by the decedent evidencing the contract

Question 10

When does the cy pres doctrine apply?

Answer 10

In a will or trust, if the testator/settlor had a general charitable intent and it is impossible or impracticable to use the gift for the purpose indicated, the doctrine of cy pres allows the court to apply the property to another purpose as close as possible to the original one

Question 11

What are some of a trustee’s fiduciary duties?

Answer 11

(1) Exercise her powers in accordance with the terms of the trust; failure to do so constitutes a breach of trust
(2) Duty to act prudently, diligently, and in good faith
(3) duty of undivided loyalty to the trust and its beneficiaries

Question 12

Can a beneficiary interfere with the exercise of the trustee’s discretion in a discretionary trust?

Answer 12

No, unless the trustee abuses her power.

Even if a trustee’s power is absolute, a court will interfere if the trustee acts in bad faith or dishonesty

Question 13

Can a trustee enter transactions with the trust?

Answer 13

No. This is self-dealing. Absent court approval or a contrary provision, a trustee cannot do this.

Question 14

What can a beneficiary of a trust do if a prohibited transaction takes place?

Answer 14

The beneficiary can (1) set aside the transaction (2) recover the profit made by the trustee or (3) ratify the transaction

Question 15

What must the trustee do upon termination of the trust?

Answer 15

Upon termination of the trust. the trustee must distribute the property in accordance with the terms of the trust

Question 16

What is presumed regarding the cy pres doctrine in states that follow the UTC?

Answer 16

UTC states presume general charitable intent

Question 17

Do courts give full faith and credit to divorce decrees of the courts of sister states?

Answer 17

Yes, if the sister state had proper jurisdiction and the decree is valid in the sister state

Question 18

What is the jurisdictional requirement for granting a divorce decree?

Answer 18

the jurisdictional requirement is satisfied if one of the spouses is domiciled in the state granting the divorce

There is a rebuttable presumption that the state granting the divorce is the bona fide domicile of the plaintiff

Question 19

Does an ex parte divorce decree have any effect on disputes over marital property?

Answer 19

NO, unless the property is located in the rendering state. Otherwise such disputes can only be resolved by a court having personal jurisdiction over both of the parties

Question 20

A court has jurisdiction to initially enter or modify a child custody order or visitation order if the state (1) is the child’s “home state”, or (2) was the child’s home state within the past 6 months and the child is absent from the state, but a parent or person acting as a parent continues to live in the state. What is a child’s “home state”?

Answer 20

The “Home State” is the state in which the child lived with a parent (or person acting as a parent) for at least 6 consecutive months immediately before the commencement of the proceeding (or the state where the child has lived since birth if younger than 6 months old), disregarding temporary absences

Question 21

What does the Federal Parental Kidnapping Prevention Act require?

Answer 21

Requires states to enforce a custody order of another state, but only if the state entering the custody decree had home state jurisdiction.

Question 22

What are the jurisdictional standards of the Federal Parental Kidnapping Act?

Answer 22

They are substantially similar to the UCCJEA

Question 23

What is the standard that applies in awarding custody ?

Answer 23

Courts will apply the best interest of the child standard

Question 24

What factors are considered in making a custody determination?

Answer 24

(1) Wishes of the parents
(2) wishes of the child
(3) the relationship the child has with parents, siblings, and others
(4) the child’s adjustment to home, school, and other community, and
(5) The mental and physical health of all individuals involved

Question 25

When is the preference of a child given weight in a custody dispute?

Answer 25

When they are over 12, given great weight

Under 12 given little weight

Question 26

What is the tender years doctrine?

Answer 26

The tender years doctrine grants custody of a young child to a mother unless she is proven unfit

It is questionable constitutionally because of gender bias

Question 27

What are a couple big factor courts (random) to consider in granting custody?

Answer 27

Many Courts grant custody to the primary caregivers

Courts don’t like to split up siblings

Question 28

Who is vested with the power to manage business and affairs of the corporation?

Answer 28

Directors

Directors can act on this power by majority vote at a meeting which a quorum of directors are present

Question 29

When will a court not second guess a directors decisions?

Answer 29

A court will not second guess a director’s decision If the directors: (1) manage the corporation to the best of their ability in good faith (2) with the care that an ordinarily prudent person in a like position would exercise, and (3) in a manner that they reasonably believe is in the best interest of the corporation

Question 30

What is the business judgment rule?

Answer 30

Under the BJR, there is a presumption that directors’ decisions are (1) made in good faith, and (2) in the best interest of the corporation

Question 31

Who has the burden of proof when challenging a director’s actions?

Answer 31

the challenger

Question 32

What can a director do to exercise their duty of care?

Answer 32

A director can rely on reports from corporate officers whom the director reasonably believes to be reliable and competent, and corporate outsides as to matters that the director reasonably believes to be within the outsiders professional competence

Question 33

What does a director’s duty of loyalty prohibit?

Answer 33

A director’s duty of loyalty prohibits the directors from profiting at the expense of the corporation

Question 34

when is a director self-dealing transaction not set aside?

Answer 34

A director self-dealing transaction is not set aside if (1) the director discloses all of the material facts of the transaction and the deal is approved by a disinterested majority of the directors or (2) shareholders or (3) the deal is fair to the corporation

Question 35

Does a director who is involved in a self dealing transaction get to vote on the transaction?

Answer 35

No, and it might also invalidate the votes of the directors she controls

Question 36

In a secured transaction problem regarding self help

first state ____

Answer 36

“If a debtor defaults on a secured transaction the creditor can repossess the collateral”

Question 37

When can a secured party use self help to repossess collateral?

Answer 37

A secured party can use self help to repossess collateral as long as they don’t breach the peace

Question 38

Define breach of the peace

Answer 38

Breach of the peace isn’t defined by Article 9. However, repossession over the debtor’s protest usually qualifies

Question 39

Can a debtor waive the right to redeem collateral?

Answer 39

A debtor can waive the right to redeem collateral only after they have defaulted

(if the security agreement says they waive the right to redemption it is going to be void because it is before default)

Question 40

Acceleration clauses in security agreements are permissible. However ___

Answer 40

if the debtor offers to pay the entire amount due, the creditor MUST allow debtor to redeem

Question 41

What happens if a secured party fails to follow rules of article 9?

Answer 41

They are prohibited from collecting on any deficiency if any article 9 rule is broken unless the secured party can show that the breach did not cause the deficiency

(example-security agreement asking for waiver of redemption before default, or not giving back collateral after acceleration clause and they offered to pay in full))

Question 42

Does a party need to disclose evidence if it has not been made in a discovery request?

Answer 42

A party must provide to other parties copies or descriptions of documents that are in the disclosing party’s possession or control and that the disclosing party may use to support its claim or defense-no need to disclose things relevant to the adverse parties claim or defense absent a request

Question 43

What can the grantor of an easement do?

Answer 43

The grantor of an easement can limit the grantee’s use of the land

Question 44

When does the attorney-client privilege apply between communications of a doctor and patient rather than the doctor patient privilege?

Answer 44

If the attorney hires the doctor for the purposes of examining the client then the doctor is an agent of the attorney and the attorney-client privilege applies.

This is true even if plaintiff puts his injury at issue

Question 45

What are the limits on congress’s spending?

Answer 45

Congress may spend for any public purpose.

A tax measure will be upheld if it bears a reasonable relationship to revenue production

Question 46

What do commercial suppliers have to anticipate in strict liability claims?

Answer 46

Courts hold that commercial suppliers must anticipate reasonably foreseeable uses of the product even if it is a misuse

Question 47

Who has standing to challenge a stop of a car on 4th amendment grounds?

Answer 47

Every person in the car

Question 48

If a stop of a car is unlawful, but the arrest is lawful, will evidence obtained at this time be admitted?

Answer 48

No-fruit of the poisonous tree doctrine

Question 49

How can intent of parties to carry on as co-owners of a business be shown?

Answer 49

Intent can be implied from the conduct of the partners

Question 50

What will raise a presumption that a partnership has formed?

Answer 50

the sharing of profits raises a presumption that a partnership has formed

Question 51

What should you do when analyzing an authority issue

Answer 51

Whenever authority is a rule you’re addressing, always state the full rule for actual and apparent authority

Question 52

Are partners agents of the partnership?

Answer 52

Yes, every partner is an agent of the partnership and the acts of a partner will bind the partnership if the partner acted with authority.

Question 53

What is actual authority in a partnership?

Answer 53

Actual authority is the authority a partner reasonably believes he has based on the communications between the partnership and the partner.

Question 54

What type of authority does a partner have for acts within the ordinary course of business?

Answer 54

If an act is within the ordinary course of business, the partners may confer actual authority by a majority vote

Question 55

Is hiring an employee to perform partnership business within the ordinary course of the partnership business?

Answer 55

Yes

Question 56

When does a partner acting in the ordinary course of business not bind the partnership?

Answer 56

the act of a partner in the ordinary course of the partnership business will bind the partnership unless the partner has no actual authority and the third party with whom the partner was dealing knew or received notice that the partner lacked authority

Question 57

Are partners personally liable for the obligations of the partnership?

Answer 57

Partners are jointly and severally liable for all obligations of the partnership

Question 58

Will a judgment personally bind a partner who has not been served?

Answer 58

No.

Question 59

What must a judgment creditor do before they seek satisfaction of the judgment from the partners personally?

Answer 59

They must first seek satisfaction from the partnership and then from the partners personally to the extent that the judgment was not covered by the partnership

Question 60

What is the Full Faith and Credit for Child Support Orders Act?

Answer 60

The FFCCSO Act holds that full faith and credit must be given to another court’s child support order if the court had jurisdiction over the matter and the parties, and the parties had reasonable notice and an opportunity to be heard.

Question 61

What does the Uniform Interstate Family Support Act hold?

Answer 61

The UIFSA allows a court to ask another court which has jurisdiction over the child support order, to enforce or modify the order they issued

Question 62

Can a new jurisdiction modify a custody order if one of the parties continues to reside in the issuing state ?

Answer 62

The FPKPA prohibits a state from modifying a custody order if one of the parties continues to reside in the issuing state and under the state’s laws, the court continues to have and does not decline jurisdiction

Question 63

What court has jurisdiction over a custody matter if a party moves?

Answer 63

The UCCJEA holds that the court that made the intiial custody determination has continuing, exclusive jurisdiction over the matter until that court determines that neither the child nor the parents continue to reside in the state, or the child no longer has a significant connection with the state and substantial evidence relating to the child’s care, protection, training, or personal relationships is no longer available in the state

Question 64

When will a court warrant a modification of a custody order?

Answer 64

A court will warrant a modification of a custody order if there is a substantial material change of circumstances warranting the modification

removal of a child from the jurisdiction is an example

Question 65

If a parent wrongfully removes a child from the jurisdiction will it weigh against them?

Answer 65

Yes. They should ask for modification before and show why such a move is in the child’s best interest

Question 66

When will a court modify child support?

Answer 66

A court will modify child support if there is a substantial change of circumstances

Question 67

What is the limitation on congress’s power to investigate?

Answer 67

Congress is limited to investigate on matters for which it may legislate

Question 68

What must a party show when suing an attorney for malpractice?

Answer 68

(1) the attorney’s negligence and (2) that they would have won without the negligence

Question 69

What is required to validly conduct a shareholder meeting?

Answer 69

A quorum must be present to conduct a shareholder meeting

Question 70

What does a quorum require?

Answer 70

If the articles and bylaws are silent, a quorum requires the presence, in person or by proxy, of a majority of the OUTSTANDING SHARES (not shareholders) entitled to vote at the meeting

Question 71

Ordinarily, failing to raise defects related to service of process in the party’s first answer or motion to dismiss waives the defect. Why will the court allow an amendment?

Answer 71

In some situations, such as the amendment is only a couple days later, and the plaintiff has not yet responded to the motion,
The court will allow it because (1) The federal rules should be construed to do justice as between the parties (2) the rules permit liberal amendments of pleadings when no prejudice or delay would occur. (3) and no prejudice or delay could occur if the court were to allow the motion to be amended

Question 72

If the issue is: under Erie, whether a state’s choice of law rules are substantive or procedural, what should you state in your rule statement?

Answer 72

“Under Erie, a federal court must apply the substantive law of the state in which it sits but it is free to apply federal procedural law.”

Then say “it is well established by the Supreme Court precedent (klaxon) that choice of law rules are substantive for Erie purposes”

Then: “The federal court must apply the state choice of law rules in which it sits”

Question 73

Can parties agree to a choice of law provision in a contract?

Answer 73

Yes and the provisions will govern the contract.

exception: If the chosen state has no substantial relationship to the parties of the transaction, and there is no other reasonable basis for the parties’ choice, the choice of law provisions will be invalidated.

Question 74

what is another example of when a choice of law provision will be invalidated?

Answer 74

A choice of law provision will be invalidated if:
(1) it is contrary to a fundamental policy of a state with a materially greater interest than the chosen state in the determination of the particular issue; and

(2)which under the “most significant relationship” test would be the state of the applicable law in the absence of an effective choice of law by the parties.

Question 75

If a class member in a “common question” class action does not opt out at first, will they be able to opt out later?

Answer 75

A judge may refuse to approve a settlement of a class action unless the class members are given a second opportunity to opt out

Question 76

Can a person who negligently puts themself in peril be sued by a rescuer if the rescuer is injured?

Answer 76

Yes if the rescuer did not act reckless

Question 77

If a seller assigns their rights to payment for a contract to a third party, and the buyer knows of the assignment, can the buyer pay the seller instead of the third party?

Answer 77

NO, they could be held liable even if they pay the seller. They must pay the third party

Question 78

Under common law burglary, when must the defendant have intent?

Answer 78

The defendant’s intent must arise at the time of entry

Question 79

When is a structure a dwelling?

Answer 79

A structure is a dwelling if it is used regularly for sleeping-it doesn’t matter if there is a store on the first floor-still a dwelling

Question 80

If someone asserts incapacity as a defense for adverse possession, when must the incapacity have arose?

Answer 80

the party seeking to assert incapacity must have been incapacitated on the day adverse possession started.

Question 81

If a person promises not to sue on a claim in exchange for something, and it turns out it was a mistake of fact that made both parties enter the agreement, is it valid?

Answer 81

Yes it is still good consideration to support the agreement even if the claim turns out to be invalid.

Question 82

Are parents vicariously liable for their children’s intentional torts?

Answer 82

NO

However, they can be held negligent if they had reason to know their child would commit such a tort

Question 83

When may intoxication be a viable defense for a crime?

Answer 83

If the crime required intent and they were so fucked up they could not form the intent to commit the crime

Question 84

Whether a lease is intended for security depends on what?

Answer 84

it depends on the economic realities of the transaction

A transaction will be deemed to create a security interest rather than a lease if (1)the rental obligation is not terminable by the lessee and (2) at the end of the lease, the lessee had an option to purchase the goods

Question 85

what remedies are available to a secured creditor after the debtor’s default?

Answer 85

On the debtor’s default, a secured party may repossess and sell the collateral securing the debt

Question 86

How does repossession and sale affect junior interests?

Answer 86

If a secured party sells the collateral after default by the debtor, all subordinate security interests in the collateral are discharged.

Question 87

How can a witness’s character for truthfulness be attacked by introduction of a crime?

Answer 87

A witness’s character for truthfulness may be attacked by (1) any felony or (2) any crime, if it can be readily determined that conviction of the crime required proof or admission of an act of dishonesty or false statement

Question 88

When does a court have discretion to exclude evidence of a past crime?

Answer 88

If a felony is not one that involves dishonesty or false statement, the court has discretion to exclude it if it fails the rule 403 balancing test (if the probative value of introducing the evidence is substantially outweighed by the danger of unfair prejudice, confusing the issues, etc).

Question 89

Does a trial court have discretion to disallow impeachment by convictions of crimes involving acts of dishonesty or false statement?

Answer 89

No, a trial court does not have discretion they must admit it.

Question 90

Can a perjury conviction be too remote to admit?

Answer 90

Yes

Question 91

When can a court exclude a prior criminal conviction that is otherwise admissible to impeach a witness?

Answer 91

If it fails the rule 403 balancing test (ex-because of its inflammatory nature)

when doing this analyze before the balancing test why it would be admissible otherwise
“felony conviction, not too remote, act of dishonesty/not act of dishonesty so court discretion)

Question 92

When can a witness be impeached by prior act of misconduct that did not result in a conviction?

Answer 92

A witness may be cross examined as to any prior act of misconduct that is probative of truthfulness (i.e. an act of deceit or lying)

Counsel must have a good faith basis for such inquiry

Question 93

Can a judge call a witness and examine witnesses?

Answer 93

The court is allowed to call a witness and examine any of the witnesses called by either party. If a judge calls a witness the parties are allowed to cross examine that witness.

Question 94

Can an attorney impeach a witness with a crime that is probative of truthfulness if the witness has not been convicted?

Answer 94

Yes, if they act in good faith when asking the question

Beware of answers that state they can because the witness was convicted. Those answers will likely be wrong and the right answer will probably be that the attorney acted in good faith when asking.

Question 95

Can a local or state government set up their own postal service?

Answer 95

NO-this violates the federal postal monopoly-they would need consent from congress

Question 96

An attorney for the US Dept of Health is fired after expressing her concern that her office has not instated a no smoking policy. what interest does she have?

Answer 96

She has a liberty interest. The court must balance the attorney’s rights as a citizen to comment on a matter of public concern that is not made related to her official duties.

Question 97

When does a public employee have a property interest in their job?

Answer 97

A public employee has a property interest in their job if they are subject to removal for “cause”.

The employee will need to be given notice of the charges against her that are the basis of her job termination, and pre-termination opportunity to respond to those charges.

Question 98

What is res ipsa loquitor?

Answer 98

Res ipsa loquitor is appropriate where an injury does not usually occur unless someone was negligent and the plaintiff does not know which of the defendants caused the injury.

Usually not available if more than one person may have been in control of the instrumentality that caused the injury. BUT it is available if someone had the power or control over the site of the injury

Question 99

In a defamation suit, who will have a qualified privilege to speak on someones professional competence?

Answer 99

A former employer has a qualified privilege. But they cannot be reckless or act with malice.

Question 100

Is mere regulation of property a taking?

Answer 100

No, and the government will not have to compensate for a mere regulation

(example; requirement for floodlightS)

Question 101

When will a taking almost always be found?

Answer 101

A taking will usually be found if there is an actual physical appropriation or destruction of a person’s property

Question 102

When will a regulation constitute a taking?

Answer 102

A regulation will constitute a taking if:

(1) It amounts to a physical appropriation
(2) denies an owner of all economic use, or
(3) unreasonably interferes with distinct investment-backed expectations of the owner

Question 103

Can a city force landowners to convey interests in their land to the city in exchange for permission to build improvements on the property?

Answer 103

No. These usually violate the 5th amendment takings. clause.

Exception: The city can impose such a requirement if (1) a close nexus exists and (2) proportionality exists

Question 104

Define close nexus in regards to a takings issue

Answer 104

Close nexus means the government can show that the condition relates to a legitimate government interest

Question 105

Define “proportionality” in regards to a takings issue

Answer 105

Proportionality exists if the adverse impact of the proposed building/development on the area is roughly proportional to the loss caused to the property owner from the forced transfer of occupational rights

these problems are usually conditions cities require for dealing with permits

Example: City ordinance regarding surveillance equipment because increased patronage “might” increase crime and the surveillance “might” alleviate crime is too speculative

Question 106

What is required to assign a contract?

Answer 106

To assign a contract, a party must manifest an intent to transfer his rights under the contract to an assignee

Question 107

Can a contract be assigned orally?

Answer 107

Yes

Question 108

Can most contractual rights be assigned?

Answer 108

Yes, unless
1.the contract forbids assignment,

2. assignment is forbidden by law
3. assignment would substantially change the obligor’s duty of risk; OR
4. it is a personal service contract where the service is unique

Question 109

are contracts for unique personal services assignable?

Answer 109

No, however money due under a personal service contract are assignable.

Question 110

What is an incidental third party beneficiary

Answer 110

One that will benefit from the contract but was not intended by the parties to benefit

they have no rights under the contract

Question 111

What is a delegation?

Answer 111

A delegation occurs when a party to a contract manifests a present intention to transfer duties under the contract to another party

note-pay attention if assigning a contract right results in delegating the duty to pay

Question 112

What happens when a party to a contract delegates a duty?

Answer 112

The delegator becomes secondarily liable, as a surety, for performance of the duty if the delegate does not perform

They delegator will not be a surety if a novation occurred.

Question 113

can a price quotation be considered an offer?

Answer 113

Yes, if given in response to a specific inquiry.

“how much for the Iphone 8? $100.” prob an offer

Question 114

If there is a unilateral mistake in a contract, will the contract be enforceable?

Answer 114

Yes, unless the nonmistaken party knew or should have know of the mistake.

Question 115

Once a buyer accepts goods, can he reject the goods for nonconformity?

Answer 115

Generally no, his remedy will be a suit for damages.

Question 116

Can police with a valid search warrant search persons found on the premises that are not named in the warrant?

Answer 116

Only if they have probable cause to arrest the person, and the search of them is incident to a lawful arrest.

pay attention to if the search happens before the arrest
(example: the woman sleeping in the bed when the police searched her purse before arresting her)

Question 117

In a wills’ issue, that has specific bequest what should you state as part of you rule statement?

Answer 117

You should state:

“A specific bequest is a gift of property that is particularly designated and is to be satisfied only by the receipt of the particular property described”

also any other law regarding the type of property and all that Jazz

Question 118

Do courts consider bequests of stocks to be general or specific bequests?

Answer 118

Courts usually consider bequests of stocks to be specific bequests of property

Question 119

What is ademption?

Answer 119

The doctrine of ademption holds that when specifically bequeathed property is not in the Testator’s estate at death, the bequest is adeemed, meaning it fails

Question 120

How do courts decide ademption issues?

Answer 120

Courts decide ademption issues two ways:

First, a court may apply the objective test, simply whether the property is a part of testator’s estate, and do not consider Testator’s intent.

the second way is the intent theory of ademption which is more lenient, and provides that a beneficiary is entitled to substitute property owned by the testator if the beneficiary can prove that the testator intended the beneficiary to take the substituted property

Question 121

Under the UPC, what happens if property bequeathed in a will is replaced by different property during testator’s life time?

(ex: A house sold that was bequeathed and the proceeds are used to buy a new home)

Answer 121

Under the UPC, the beneficiary has a right to the replacement property

Question 122

How should a will’s language be construed?

Answer 122

A will’s language should be construed upon the circumstances and properties as they exist at the time of the testator’s death. (“a will speaks at the time of death”)

Question 123

What happens if a beneficiary disclaims their interest in a will?

Answer 123

It passes as if they predeceased the testator

If there is disclaimed property, analyze what happens to the property through anti-lapse statutes

Question 124

Do Anti-lapse statutes apply to Wills or Trust questions?

Answer 124

Anti-lapse statutes apply to wills questions, however it will apply to a trust question in limited circumstances.

Question 125

What implied warranties apply to contracts for a builder’s sale of new residential building ?

Answer 125

The implied warranty of fitness or quality applies to contracts for a builder’s sale of any new residential building

It holds that the new house to be designed and constructed in a reasonable workmanlike manner and suitable for human habitation

Question 126

What is a latent defect?

Answer 126

A latent defect is a fault in the property that could not have been discovered by reasonably thorough inspection before the sale.

Question 127

what is the difference between a grantee taking subject to a mortgage and a grantee assuming a mortgage?

Answer 127

Subject to a mortgage the grantor remains liable

Assuming the mortgage, the grantee becomes liable and the grantor is a surety

Question 128

How does a grantee assume a mortgage?

Answer 128

Majority rule: The grantee signs an assumption agreement, promising to pay the mortgage loan

• A grantee who does not expressly assume the mortgage does not become personally liable on the loan
• but they can take his land (shrug)

Minority rule: A grantee can impliedly assume a mortgage-(do the analysis where adding the balance of the mortgage to the sale of the property)

Question 129

What warranties accompany a quitclaim deed?

Answer 129

A quitclaim deed contains no warranties, and is simply a release of whatever interest the grantor has in the property if any.

Question 130

What is an equitable servitude?

Answer 130

An equitable servitude is a covenant enforced in equity against successors through injunctive relief

Privity is not required.

the person suing will be seeking an injunction not damages

Question 131

If a defendant is on trial for a crime not involving honesty, can he submit character evidence of his character to be truthful if he is not testifying?

Answer 131

No, because if he is not testifying his character is not at issue.

Question 132

Can congress compel the president to deploy the armed forces?

Answer 132

No the president is the commander in chief and this violates separation of powers.

Congress can declare war. Not deploy troops to enforce shit.

Question 133

What prohibits a federal court from hearing a case that is pending in state court?

Answer 133

Nothing unless an abstention doctrine applies.

The primary reason a federal court will abstain from hearing a case is when the constitutionality of a state statute is at issue.

-The court will retain jurisdiction over the case but defer ruling on the state constitutional issue until the state court rules on the case

Question 134

What are the requirements for class actions under the federal rules?

Answer 134

(1) The class must be so numerous that joinder of all members is impracticable
(2) The case must have common questions of law or fact

(3)The named party's interest must be typical of the class 
and 

(4) Named party must be able to fairly and adequately represent the absent class member
(5) The class action must fall into a 23(b) category (separate flash card)

Question 135

What are the 23(b) categories for class actions?

Answer 135

(1) Risk of inconsistent results or risk that separate trials would impair rights of all plaintiffs;
(2) Defendant must have acted or refused to act on grounds applicable to the whole class and injunctive or declaratory relief would be appropriate
(3) Common questions of law or fact predominate and class action is superior method of adjudication

Question 136

If there is a possibility that someone is contributorily negligent you should….

Answer 136

Mention that states that apply pure comparative negligence will simply reduce the amount of damages the plaintiff can recover

Question 137

If a tort question asks you to determine landowner liability you should state….

Answer 137

A landowner/occupier’s duty to those on their premises requires a determination of the legal status of the plaintiff (trespasser, licensee, invitee)

Then state that most states got rid of the distinction between licensees and invitees, and simply apply a reasonable person standard. But that the trespasser standard still exists.

Question 138

What are the requirements to establish an attractive nuisance?

Answer 138

(1) There is a dangerous condition present on the land of which the owner is or should be aware
(2) the owner knows or should know that young person frequent the vicinity of this dangerous condition
(3) the conditions is likely to cause injury
(4) the expense of remedying the situation is slight compared to the magnitude of the risk

Question 139

What is the standard of care owed if there is an attractive nuisance?

Answer 139

the landowner must exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by the artificial condition on his property.

Question 140

If there is a rescuer problem state…

Answer 140

“No duty is imposed on a person to come to the aid of another absent a special relationship between the parties”

“If a person gratuitously comes to the aid of another, the actor must exercise due care to providing assistance, and must not leave the person in a worse position than she found him”

Question 141

When must a motion to remand back to state court be filed?

Answer 141

It must be filed within 30 days of the notice of removal
(even if the removal was not timely)

-the only exception is if the reason for removal is lack of subject matter jurisdiction

Question 142

Are insurance policies admissible in discovery?

Answer 142

Yes, they are part of initial disclosures.

Question 143

What is the unilateral theory of conspiracy?

Answer 143

Only one party in the conspiracy is required to have general criminal intent

Question 144

Can a person be guilty of conspiracy if the violated statute is made to protect them?

Answer 144

No. (example: sale of alcohol to minor case)

Question 145

What is the standard for capacity to make a will?

Answer 145

The standard for capacity to make a will is quite low. One may have capacity to make a will even though one lacks capacity to make a contract.

The law presumes that every person is of sound mind unless the contrary is shown.

Question 146

When is testamentary capacity measured?

Answer 146

Testamentary capacity is measured at the time the will is executed

Question 147

Who bears the burden of proof of contesting a will?

Answer 147

the contestant

Question 148

What must a will contestant for lack of capacity show?

Answer 148

The contestant must show that when the will was executed the testator did not have sufficient capacity to:
(1) understand the nature of his act (that he was writing a will)

(2) Know the nature and character of his property
(3) Know the objects of his bounty(closest living relatives) AND
(4) relate these factors to formulate a disposition of property according to a plan

Question 149

Who bears the burden of proving undue influence for executing a will?

Answer 149

the contestant

Question 150

What must a contestant show that is asserting that Testator was subject to undue influence?

Answer 150

The contestant must show that:

(1) specific acts of influence were exerted
(2) the effect of the influence was to over power the mind and free will of the testator AND
(3) the product of the influence was the will or gift that would not have been made but for the influence

Question 151

Is a party’s opportunity to exert influence and a testator’s susceptibility to influence sufficient to establish undue influence?

Answer 151

No, they must actually exert

Question 152

What must a will contestant show to establish fraud?

Answer 152

The contestant must show:

(1) there was a knowingly false representation of material fact
(2) The representation was made to induce the testator to write a will in a particular way AND
(3) the testator reasonably believed and relied on the statements in making the will

Question 153

What is a no-contest clause?

Answer 153

A no contest clause is a clause in a will that states anyone who contests the will wont receive what is gifted to them from the will

They are enforceable in most states. However, the beneficiary challenging the will does not forfeit their legacy if the court finds that they challenged the will in good faith and on the basis of probable clause.

Question 154

How can a trust be modified?

Answer 154

A trust can be modified by the beneficiaries if all beneficiaries consent and the modification will not interfere with a material purpose of the trust.

Question 155

Can a court modify a trust due to changed circumstances?

Answer 155

YES under the doctrine of equitable deviation:

At common law, a court may authorize or direct a trustee to deviate from the administrative terms of a trust (including permitting acts that are forbidden by the trust instrument) if the settlor did not know or anticipate the new circumstances and compliance with the terms of the trust would defeat or substantially impair accomplishment of the trust purposes.

Question 156

If a question looks at modifying a trust due to unanticipated circumstances, determine what interest in the trust is primary and which is secondary. Then what happens under the UTC?

Answer 156

Under the UTC, if an unanticipated circumstance threatens the purposes of the trust, the court will permit modification.

Question 157

What type of inspections/searches don’t require a warrant or even probable cause?

Answer 157

A search of a parolee’s home even absent probable cause does not violate the 4th amendment if a statute provides for such searches.

Question 158

What authority does a partner have to bind the partnership in dealings with third parties in the absence of an express agreement defining such authority?

Answer 158

Partners have an equal right to manage the business of the partnership, absent an agreement otherwise.

A particular act within the ordinary course of partnership business must be approved by a majority of partners.

Question 159

What fiduciary duties does a partner owe?

Answer 159

A partner must account for profits, property, opportunities, or other benefits derived by him in conjunction with the partnership business and must not compete with the partnership

Question 160

When is a partner dissociated from a partnership?

Answer 160

A partner is dissociated from a partnership upon notice of the partner’s express will to withdraw as a partner

Question 161

What is an at will partnership?

Answer 161

An at will partnership is the type of partnership created when no definite term or particular understanding is specified

Question 162

What happens if a partnership continues after a partner dissociates?

Answer 162

The partnership must buy out the dissociated partner’s interest

Question 163

Does dissolution terminate the authority of a partner to act as an agent of the partnership?

Answer 163

Absent an agreement to the contrary, the dissolution terminates the authority of a partner to act as an agent except for purposes of winding up (wrongful dissolution cant participate in winding up though)

Question 164

Does a partnership wind up a new contract?

Answer 164

No, new contracts are considered new business and are not appropriate for winding up

Question 165

What are the rules regarding legal parents and artificial insemination?

Answer 165

The spouse of a woman who gives birth to a child through artificial insemination is the child’s legal parent, unless within 2 years after learning of the child’s birth he commences an action in which it is determined that he did not consent to the assisted reproduction.

Question 166

what is the rule for custody for parent v. non-parent?

Answer 166

courts favor parent unless it is shown that the parent is unfit.

Question 167

who is the legal father of a child born during wedlock as a result of the wife cheating?

Answer 167

There is a presumption that the child of a married woman is the child of her spouse.

However, this presumption can be rebutted. Paternity can be rebutted by a preponderance of the evidence in some states and clear and convincing evidence in others.

Question 168

What happens if a child is left with a third party to rear?

Answer 168

Then the best interest of the child test should apply.

Question 169

Do majority shareholders owe minority shareholders fiduciary duties?

Answer 169

Generally no. Shareholders are free to act for their own benefit.

Exception: A Controlling shareholder must refrain from using his control to obtain a special advantage or to cause the corporation to take action that unfairly prejudices the minority shareholders

A controlling shareholder has a duty to disclose material information to the minority shareholders

Question 170

When analyzing a duty of care question for corporations, you should look for….

Answer 170

How long did the discussion take regarding the decision? Did they seek expert opinion? Any reason the experts may be bias?

Question 171

What is required for a security interest to attach?

Answer 171

A security interest attaches once:

(1) the parties agree to create a security interest, which may be evidenced by the debtor signing a security agreement describing the collateral;
(2) the creditor gives value; and
(3) the debtor has rights in the collateral

Question 172

What is inventory?

Answer 172

Inventory are goods held for sale or lease

Question 173

what should you do with the classified collateral in a secured transactions problem?

Answer 173

You should state why the collateral is classified in such a way

Example: this is a consumer good because it is used for personal, family, or household purposes.

Question 174

Does a buyer in the ordinary course take free of nonpossessory security interests?

Answer 174

A BIOC takes free of non-possessory security interests created by his seller unless he knows the sale violates a security agreement

Question 175

What is a PMSI?

Answer 175

A PMSI arises when :

(1) a creditor sells goods to a debtor on credit and
(2) retains a security interest in the goods for the purchase price

Question 176

Does a consumer who buys goods from another consumer take free of any security interests?

Answer 176

A consumer who buys goods from another consumer before a financing statement has been filed, and without knowledge of the security interest, takes the goods free of the security interest

Question 177

For the former testimony exception to hearsay, may a party ‘s deposition testimony of a prior law suit be admitted into evidence?

Answer 177

YES If the statement was made under oath at a prior deposition or proceeding.; AND

There must be a sufficient similarity of parties and issues;

The exception applies, however, only if the declarant is unavailable to testify

Question 178

What is the hearsay exception for excited utterances?

Answer 178

An excited utterance is a statement relating to a startling event, made while under the stress or the excitement caused by the startling event.

Question 179

What does the hearsay exception for statements of physical condition for diagnosis or treatment require?

Answer 179

the statement must be made to medical personnel (includes anyone involved in treatment or diagnosis)

Statement must be pertinent to assisting in the diagnosis or treatment of a condition (related statements about an injury causing event are usually inadmissible-Example: statement by declarant to an emergency room doctor that she was shot will be admissible but the identity of the shooter will not, as it is not pertinent to treatment)

Question 180

When a question has a confrontation clause issue state:…

Answer 180

“Under the confrontation clause, an accused has the right to be confronted by the witness against him”

“A hearsay statement will not be admitted when (1) the statement is offered against the accused in a criminal case; (2) the declarant is unavailable (3) the statement was testimonial in nature; and (4) the accused had no opportunity to cross-examine the declarant’s testimony prior to trial”

Question 181

When are statements testimonial for purposes of the confrontation clause?

Answer 181

When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial

Question 182

When can congress act pursuant to its 14th amendment power to prohibit (non-suspect class) discrimination?

Answer 182

Section 5 of the 14th amendment is an enabling clause giving congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the 14th amendment.

Under section 5 Congress may not expand existing constitutional rights or create new ones.

Congress may only enact laws to prevent or remedy violations of rights already recognized by the courts.

Question 183

What is section 5 of the 14th amendment?

Answer 183

Section 5 of the 14th amendment is the enabling clause of the 14th amendment which states“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”

Question 184

What does the enabling clause (sec. 5) of the 14th amendment do?

Answer 184

Section 5 of the 14th amendment gives congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the 14th amendment

Question 185

Can congress expand existing constitutional rights or create new ones under section 5 of the 14th amendment?

Answer 185

No, they can only enact laws to prevent or remedy violations of rights already recognized by courts.

Question 186

If congress uses its power under section 5 of the 14th amendment, what must be shown for the law to be valid?

Answer 186

To be valid, laws must be congruent and proportional to solving a history or pattern of violations of such a right.

Question 187

Are declarations of then existing physical conditions admissible?

Answer 187

Declarations of existing physical condition are admissible as an exception to the hearsay rule. Under the Federal Rules, these declarations are admissible even though not made in the context of medical diagnosis or treatment.

Example: In a medical malpractice action, the plaintiff sought to have her neighbor testify that, the day after receiving treatment on her back from the defendant, the plaintiff told the neighbor that her back was getting worse.

The neighbor’s testimony is admissible under the then existing physical condition exception

Question 188

Are statements made to show the effect on the listener an exception to hearsay?

Answer 188

No they simply are just not hearsay (its not being offered for the truth of the matter asserted, its being offered to show its effect on the listener).

Question 189

Is testimony of a declarant’s then existing state of mind admissible?

Answer 189

Yes under the present state of mind exception to the hearsay rule.

A statement of a declarant’s then-existing state of mind is admissible as circumstantial evidence tending to show that the intent was carried out.

Example:
The defendant was on trial for statutory rape. He denied that the alleged victim was even in his presence on the night of the alleged offense, when he was working as the night clerk at a convenience store. The prosecution offers to have a witness testify that, in a phone conversation on the evening in question, the victim, who is available to testify at the trial, said that she had to leave because the defendant wanted her to stop by the store while he was working. The defense objects to the proposed testimony

Admissible under the present state of mind exception as circumstantial evidence that she was with the defendant that nigh

Question 190

What is the first thing you write for every contracts essay question?

Answer 190

Whether the contract is governed by the common law or the UCC

Question 191

What is the rule of law you write for contracts for the sale of goods?

Answer 191

Contracts for the sale of goods are governed by Article 2 of the UCC.

“Goods” are all things movable at the time they are identified

A (insert good) is movable; thus, this is a contract for the sale of goods governed by article 2

Question 192

What can a party do if he reasonably believes the other party in a contract will not perform?

Answer 192

He may demand assurances that the performance will be forthcoming at the proper time

And until he receives such assurances he may suspend his own performance

Question 193

Must a demand for assurances be in writing?

Answer 193

Yes

Question 194

when must adequate assurances be given?

Answer 194

Within a reasonable time

Question 195

What happens if a party fails to give adequate assurances?

Answer 195

If proper assurances are not given within a reasonable time, not to exceed 30 days, the party demanding assurances may treat the contract as repudiated

Question 196

What remedies does the non-repudiating party have?

Answer 196

Repudiation gives rise to several possibilities for the non-repudiating party including (1) treating it as a total breach and sue immediately, (2) suspending his own performance and waiting to sue until the performance date (3) treating the repudiation as an offer to rescind and treating the contract as discharged, or (4) ignoring the repudiation and urging the promisee to perform

Question 197

Can a repudiating party withdraw the repudiation?

Answer 197

Yes at any time before his performance is due.

Exception: A repudiating party may not withdraw his repudiation if the other party has (1) canceled the contract (2) materially changed his position in reliance on the repudiation or (3) otherwise indicated that he considers the repudiation final

Question 198

How can a repudiating party withdraw the repudiation?

Answer 198

In any manner that clearly indicates an intention to perform but must include any assurances justifiably demanded

Question 199

What is the effect of a party’s retraction of their repudiation?

Answer 199

A retraction of a party’s repudiation will reinstate the repudiating party’s rights under the contract

Question 200

What is the covenant of quiet enjoyment?

Answer 200

The covenant of quiet enjoyment is when the grantor promises the grantee will not be disturbed by a third party’s claim of lawful title

Question 201

What is required for a tenant to claim constructive eviction?

Answer 201

(1) the landlord or someone acting for the landlord caused the injury
(2) The breach substantially and materially deprived the tenant of her use and enjoyment of the premises
(3) the tenant gave the landlord notice and a reasonable time to repair; and
(4) the tenant then vacated the property within a reasonable time

Question 202

Does a landlord have a common law duty to repair or maintain the premises?

Answer 202

No, a duty to repair or maintain may be provided for in a lease or required by statute or by implied warranty of habitability

Question 203

What can a landlord do if a tenant unjustifiably abandons the property?

Answer 203

The landlord may do nothing or she may repossess

Question 204

If a landlord repossesses or relets the premises, what is the tenant’s liability?

Answer 204

The tenant’s liability depends on whether the landlord has accepted a surrender on the premises

Question 205

When must a surrender be in writing?

Answer 205

A surrender must be in writing if the unexpired term is more than one year

Question 206

what is a tenant liable for if a surrender is not found?

Answer 206

If surrender is not found, the tenant remains liable for the difference between the promised rent and the fair rental value of the property

Question 207

What is a tenant liable for if surrender is found?

Answer 207

If surrender is found, the abandoning tenant is free from any rent liability accruing after abandonment

Question 208

What is a landlord entitled to if they fail to mitigate their damages after a improper termination of a lease?

Answer 208

If the landlord could have mitigated but does not attempt to do so, her recovery against the tenant will be reduced accordingly

Question 209

When is a killing reduced to voluntary manslaughter?

Answer 209

A killing that ordinarily would be murder is reduced to voluntary manslaughter when the killing is committed under the stress of adequate provocation (e.g., being subjected to a serious battery, being confronted with deadly force, or discovering one’s spouse in bed with another person).

Question 210

What is double jeopardy?

Answer 210

The 5th amendment guarantees the right to be free of double jeopardy for the same offense

Two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes.

Question 211

Can a jury instruction presume that an element of a crime has been met?

Answer 211

No, a mandatory presumption that shifts the burden of proof to the defendant violates the 14th amendment’s requirement that the state prove every element of a crime beyond a reasonable doubt.

Question 212

What needs to happen if substantive law provides that a sentence may be increased beyond the statutory maximum for a crime if additional facts are proved?

Answer 212

Then additional proof of the facts must be submitted to the jury and proved beyond a reasonable doubt

If a judge makes the determination that additional facts were proved, the defendant’s right to a jury trial is violated

Question 213

When dealing with a final judgment or whether something is immediately appealable issue, you should state…

Answer 213

“Under the Federal Rules, when multiple claims of multiple parties are involved in an action, the court may enter a final judgment as to fewer than all of the claims or parties on (1) an express determination that there is no just reason for delay and (2) an express direction for the entry of judgment”

“Unless the trial judge makes the express determination, the order determining the merits of fewer than all of the claims or dismissing fewer than all of the parties is not a final judgment and is not appealable.”

Question 214

When is an order appealable?

Answer 214

Only a final order is ordinarily appealable. A final order is one that disposes of the whole case.

Question 215

What is the difference between wrongful birth and wrongful life actions?

Answer 215

Wrongful birth is brought by parents. Wrongful life is brought by the child.

Question 216

When does jeopardy attach?

Answer 216

When the jury is empanaled and sworn in.

Exception: If judge holds a mistrial, then jeopardy wont attach. However, if judge holds a mistrial wrongfully, then jeopardy is attached.

Question 217

If a question asks if a court will have jurisdiction for an equitable/injunction claim and the case is filed in state court…

Answer 217

REMEMBER that the 7th amendment does not apply, and that an answer stating the 7th amendment does something will be wrong

Question 218

When does the best evidence rule apply?

Answer 218

The best evidence rule applies only to attempts to prove the contents of a written document. It does not apply when a witness merely refers to the existence of a writing or the date of the writing.

Question 219

What is the duty of care for a professional (e.g. doctor)?

Answer 219

A person who is a professional is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing.

For doctors courts will apply a national standard of care to evaluate their conduct.

Question 220

What is part of a doctor’s standard of care when proposing a course of treatment?

Answer 220

The doctor has a duty to provide the patient with enough information about risks to enable the patient to make an informed consent to the treatment

Question 221

When can a product be the basis of a products liability action?

Answer 221

When the product is in a defective condition unreasonably dangerous to users

Question 222

What is a manufacturing defect?

Answer 222

A manufacturing defect is when the product supplied is different than the way it should have been supplied

Question 223

When is a product deemed defective?

Answer 223

A product is deemed defective if it was dangerous beyond the expectation of the ordinary consumer

Question 224

Remember, if it is a products liability issue, mention the implied warranty of merchantability-the rule of law states:

Answer 224

To establish an action based on breach of implied warranty of merchantability under the UCC, the plaintiff must show that (1) the defendant is a merchant who deals in the kind of goods sold (2) the goods were not fit for the ordinary purposes that such goods are sold for (3) The goods were the actual and proximate cause of injury to the plaintiff and (4) the plaintiff suffered economic loss or damages to person or property

Question 225

In products liability, the plaintiff need not show that the commercial supplier were at fault, they must show…

Answer 225

that they supplied the defective product

Question 226

Remember to mention the alternative liability approach with strict liability claims

Answer 226

Alternative liability is a legal doctrine that allows a plaintiff to shift the burden of proving causation of her injury to multiple defendants, even though only one of them could have been responsible. (summers v. tice)

Elements:
(1) all possible tortfeasors are before the court;

(2) all have breached a duty toward the plaintiff;
(3) the conduct of one of the defendants has caused plaintiff’s injuries and;
(4) the defendants, as a group, have better access to information concerning the incident than does the plaintiff.

Question 227

What is the alternative liability approach for market share damages ?

Answer 227

First, the defendants in court must constitute substantially all of the market.

Second, the products must be fungible (i.e. interchangeable—they must be of the same composition).

Third, the defendants (potential tortfeasors) must all have been in the market within the specific timeframe surrounding the incident.

Fourth, the inability to point to a specific tortfeasor must not be the plaintiff’s fault.

Question 228

What is marketable title?

Answer 228

Marketable title is title reasonably free from doubt, i.e., title that a reasonably prudent buyer would be willing to accept. Generally, this means an unencumbered fee simple with good record title. Every land sale contract contains an implied covenant that the seller will provide marketable title at closing. While it need not be perfect title, it must be free from questions that might present an unreasonable risk of litigation.

Question 229

What is integration?

Answer 229

Integration of a will is the process of embodying several sheets of paper or documents into a single, entire will, validated by a single action of execution

Question 230

What must be shown to prove that integration happened?

Answer 230

The will proponent must show:

(1) That the pages were present when the will was executed and
(2) Were intended by the testator to be part of the will.

Question 231

What is admissible to prove integration requirements?

Answer 231

Witness testimony and other extrinsic evidence

Question 232

When are intent and presence presumed for purposes of integration?

Answer 232

Intent and presence are presumed when there is a physical connection of the pages, there is an internal coherence by provisions running from one page to the next, or the pages, when read together, set out an orderly dispositive plan

Question 233

Remember, testator and witnesses must…

Answer 233

Sign the will in each other’s presence

Question 234

What is a codicil?

Answer 234

A codicil is a later testamentary instrument that amends, alters, or modifies a previously executed will

Question 235

Does a codicil need to be a separate document?

Answer 235

No, it may appear on the same piece of paper as the will it amends

Question 236

what is the doctrine of dependent relative revocation?

Answer 236

Under DRR a court may disregard a revocation if the revocation was premised on a mistake of law or fact and would not have occurred but for the testator’s mistaken belief that another disposition of his property was valid

The disposition that results from disregarding the revocation must come closer to effectuating what the testator tried, but failed to do than would an intestate distribution

Question 237

How can paternity be established ?

Answer 237

The father’s marriage to the mother after the child’s birth, adjudication in a paternity suit, or proof in the probate proceedings (usually by clear and convincing evidence)

Question 238

Is extrinsic evidence admissible in court to determine the Testator’s intent regarding distribution of the will?

Answer 238

No

Question 239

When is it presumed that Testator understood and approved the terms of the will when he signed it?

Answer 239

Absent any fraud, duress, or suspicious circumstances, it is presumed that testator understood and approved the terms of the will when he signed it.

Question 240

Does a restrictive covenant that limits development on the land render title unmarketable if the buyer waives title defects?

Answer 240

No, a restrictive covenant that limits development on the land does not render title unmarketable if the buyer waives title defects in the land sale contract. Every land sale contract contains an implied covenant that the seller will provide marketable title at closing. Marketable title is title reasonably free from doubt, which a reasonably prudent buyer would accept. While it need not be perfect title, it must not present the buyer with an unreasonable risk of litigation. Generally, this means an unencumbered fee simple with good record title. Restrictive covenants, regardless of whether the covenant benefits the owner in his use of the land, render title unmarketable unless the buyer waives them. The fact that a land sale contract calls for a quitclaim deed, which does not contain any covenants for title, does not affect the contract’s implied covenant to provide marketable title

Question 241

What are the damages for breach of a real estate contract?

Answer 241

The usual measure of damages for breach of a real estate contract is the difference between the contract price and the market value of the land on the date of breach

Incidental damages, such as the buyer’s title examination and moving or storage costs, also can be recovered.

Question 242

What are the damages for breach of a real estate contract?

Answer 242

The usual measure of damages for breach of a real estate contract is the difference between the contract price and the market value of the land on the date of breach

Incidental damages, such as the buyer’s title examination and or storage costs, also can be recovered.

Question 243

If a seller of land breaches the implied covenant of marketable title, can the closing date be extended to allow the seller time to cure?

Answer 243

Yes. When a seller of land breaches the implied covenant of marketable title, the closing date may be extended to allow the seller time to cure

Question 244

When the government takes property under eminent domain what must they demonstrate?

Answer 244

They must demonstrate that the taking is for public use.

Question 245

If a defendant pleas guilty, what must the court do?

Answer 245

The court must establish that the plea is voluntary and intelligent by addressing the defendant in open court on the record.

The judge must make sure that the defendant knows and understands: (1) the nature of the charges against him (2) The maximum possible penalty and mandatory minimum (3) That he has the right to plead not guilty and if he does plead guilty, that he waives the right to trial.

If the defendant is not fully advised of each or does not knowingly/voluntary waive each, the plea will be subject to a motion to set it aside.

Question 246

When is voluntary intoxication a valid defense?

Answer 246

Voluntary intoxication is only a defense to specific intent crimes such as First degree murder, inchoate crimes, assault, and theft crimes.

Question 247

What is the trustee’s duty to act personally?

Answer 247

A trustee has a duty to perform her trust duties personally. Traditionally this means the trustee could not delegate investment decisions.

Under most statutes, however, a trustee may delegate investment and management functions that a prudent trustee of comparable skills could properly delegate under the circumstances.

Question 248

What must a trustee do if they select an agent to manage a trust?

Answer 248

The trustee must exercise reasonable care, skill, and caution in selecting the agent, establishing the scope of the delegation, and periodically reviewing the agent’s actions to monitor the agent’s performance and compliance with the terms of the delegation.

Question 249

What happens if a trustee improperly delegates her duties?

Answer 249

The trustee becomes a guarantor of the fund

Question 250

Can a trustee delegate discretionary functions such as making discretionary distributions?

Answer 250

No, this is usually not permissible.

Question 251

What does a trustee’s duty to protect the trust corpus and make it productive include?

Answer 251

It includes the duty to invest

Question 252

How must a trustee or their agent invest and manage the trust assets?

Answer 252

As a prudent investor would, taking into account purposes terms, distribution requirements, and other circumstances of the trust.

To satisfy this standard, the trustee must exercise reasonable skill, care, and caution-if they do they wont be liable for decisions made by the agent

Question 253

How must a trustee deal with investments?

Answer 253

A trustee must diversify investments of the trust unless the trustee reasonably determines that because of special circumstances the purposes of the trust are better served without diversification

Question 254

How is a limited partnership formed?

Answer 254

A limited partnership must have at least one general partner and one limited partner.

A certificate of limited partnership must be filed with the secretary of state and signed by all general partners.

Question 255

What is required for a general partnership?

Answer 255

A general partnership is formed as soon as two or more people associate to carry on as co-owners as a business for profit

(make sure you analyze what the business is- example-Andy Ben and Carol hired Marketing to develop a campaign to resell the land they owned together, and this qualifies as co-owning a business for profit)

Question 256

Are general partners personally liable for partnership obligations?

Answer 256

General partners are jointly and severally liable for partnership obligations

Question 257

If a partner in a general partnership has not been personally served, will they be bound to a judgment?

Answer 257

No, a judgment will not personally bind a partner who has not been served.

Question 258

What is the difference between a limited partnership and an LLP?

Answer 258

In a limited partnership, the general partner has unlimited liability for company losses and debts, while a limited partner has limited liability protection against company debts and losses.

In an LLP, all partners have limited liability protection against company obligations and debts.

Question 259

What are General Intent crimes?

Answer 259

General intent crimes can be stated simply as an intention to make the body move so as to create the act which the crime requires. Basically, did you do the crime? Did your body voluntarily do the action? Snap; you qualify!

Battery – Intentional or reckless unlawful application of force to the person of the victim.

Rape – Unlawful sexual intercourse with a woman without her consent.

False Imprisonment – Intentional unlawful confinement of one person by another.

Kidnapping – False imprisonment plus asportation.

Murder (2nd degree)
Battery
Rape
Imprisonment (false)
Kidnapping

Question 260

What is the difference between first and second degree murder? What about common law murder?

Answer 260

The intentional killing of a person with a pre-planned scenario and deliberation is categorized in first-degree murder.

The intentional killing of a person at spot due to sudden uneven situation or fight. No planning involved in it. This kind of murder is categorized under the second degree of murder.

Common law murder is the unlawful killing of a human being with malice aforethought. Malice aforethought exists if there are no facts reducing the killing to voluntary manslaughter or excusing it and committed with one of the states of minds:

(1) Intent to kill
(2) Intent to inflict great bodily harm
(3) Reckless indifference to an unjustifiably high risk to human life (malignant heart)
(4) Intent to commit a felony therein

Question 261

What are specific intent crimes?

Answer 261

Specific intent crimes require a subjective desire, specific objective or knowledge to accomplish a prohibited act. This is different than general intent because it adds the element of requiring there be an intention to cause the specific consequence of the act. If you break and enter into the home of another to keep warm from the cold then you are not intending to commit a felony therein; unless they make entering homes to stay warm from the cold a felony

BRAM ACTS

Burglary
Robbery
Assault
Murder, 1st degree premed.

Attempt
Conspiracy
Theft crimes (embezzlement, larceny, false pretenses, forgery)
Solicitation

Question 262

What are inchoate crimes?

Answer 262

Attempt to commit a crime

conspiracy to commit a crime

solicitation to commit a crime

Question 263

What are malice crimes?

Answer 263

Malice crimes require a reckless disregard of a high risk of harm. At common law, malice crimes include arson and murder.

Common law murder
Arson

Question 264

What does inventory include?

Answer 264

Supplies used in manufacturing

Question 265

What is an after acquired property clause?

Answer 265

An after acquired property clause is a clause that gives a security interest in property acquired by debtor using funds loaned pursuant to the security agreement

e.g.-L loans $5k to D, secured by attachment of D’s gold watch as collateral; security agreement includes an after acquired property clause; L will have a security interest in the gold watch as well as property D acquires using the $5k

Question 266

When does a security agreement that includes an after-acquired property clause attach?

Answer 266

When a debtor obtains an interest in the property

Question 267

What happens when a seller delivers goods to a buyer and attempts to reserve title in the delivered goods until they are paid for?

Answer 267

The seller’s interest will only be treated as a security interest

Question 268

How can a security interest in inventory be perfected?

Answer 268

A security interest in inventory can be perfected by filing a financing statement or by the secured party’s possession of the collateral

Question 269

May be worth mentioning on the exam–

Answer 269

If there is a PMSI in inventory, say something like “although they have a PMSI, only PMSIs in consumer goods are auto perfected”

Question 270

REMEMBER TO WRITE WHEN THERE IS TWO COMPETING SECURITY INTERESTS

Answer 270

“Between two parties with competing interests in the same collateral, a perfected security interest prevails over an unperfected security interest”

Question 271

What is a settlement agreement?

Answer 271

A settlement agreement is an agreement entered into during the marriage, before the issuance of the divorce in which the parties may resolve economic issues.

Question 272

What are settlement agreements governed by?

Answer 272

General contract principles

Question 273

What is required in settlement agreements?

Answer 273

Most states require full and fair disclosure by both parties

Most states require a settlement agreement to be fair and entered into voluntarily-without undue influence

Question 274

What happens if a spouse’s fraud duress, or coercive behavior results in an unfair agreement?

Answer 274

The settlement agreement may be set aside

Representation by independent counsel lessens the chances of the agreement being overturned

Question 275

Will a spouse’s marital fault affect the property settlement or alimony award?

Answer 275

Marital fault is generally not a factor in the division of property although some courts will consider it to the extent it led to a dissipation of assets.
(spouse spent marital funds in connection with adulterous relationship)

Some states will consider marital fault in deciding whether to award alimony but in others its not a factor

Question 276

Is a professional license distributable property in divorce?

Answer 276

Most jurisdictions ruled that neither a spouse’s earning capacity nor the professional license or degree on which it is based is distributable

Question 277

Is a license or degree classified as marital property even when its attainment was made possible through support of the other spouse?

Answer 277

No.

Question 278

Is there any way a spouse can collect from a professional license?

Answer 278

Some jurisdictions have compensated supporting spouses for their contribution in other ways such as by: employing the theory of unjust enrichment, making a supporting spouse’s contribution a factor on which alimony may be based, and awarding reimbursement of alimony

Question 279

When dealing with an alimony/spousal support question state:

Answer 279

The purpose of spousal support is to ensure an adequate income stream for persons whose economic dependency has resulted, at least in part, from the marital relationship.

The court has wide discretion in awarding as much spousal support as is necessary for the maintenance of the party requesting it

Question 280

What factors does a court consider for awarding spousal support?

Answer 280

(1) standard of living during the marriage
(2) the duration of the marriage
(3) Age and physical/emotional conditions of parties
(4) Financial resources of the parties
(5) The contributions of each party to the marriage
(6) The time needed to obtain education or training to enable either party to find employment
(7) the ability of a spouse from whom support is sought to meet his needs while paying support

Question 281

When is permanent alimony granted?

Answer 281

Only in the case of a long term marriage, alimony is paid regularly to provide for a spouse who has neither the resources nor the ability to be self-sustaining

Question 282

What is rehabilitative alimony?

Answer 282

Rehabilitative alimony consists of periodic payments for a limited time to enable a spouse to gain the skills or education necessary to become self-supporting

Question 283

What is reimbursement alimony?

Answer 283

Reimbursement alimony awards a fixed sum to a spouse who supported the other spouse while the latter obtained a degree or license

Question 284

What is a proper purpose in terms of a shareholder’s inspection of books and records rights?

Answer 284

A “proper purpose” is a purpose related to the shareholder’s status as a shareholder

Question 285

What must a shareholder do to exercise their right to inspect books and records?

Answer 285

The shareholder must give 5 days written notice

The notice must state the reason they want to inspect records

Question 286

Who can the shareholder bring with them to inspect the records?

Answer 286

An accountant, attorney, or other agent with him to facilitate the inspection

Question 287

Is a suit to compel a stock dividend a direct or derivative suit?

Answer 287

Direct

Question 288

What is the difference between a direct and a derivative suit?

Answer 288

A derivative action seeks to vindicate wrongs done to the corporation. A direct action seeks to enforce duties that a corporation owes to the shareholder.

Question 289

Does a shareholder have a right to receive a dividend?

Answer 289

A shareholder has no right to receive a dividend until it is declared by the board of directors. The board has the sound discretion on whether to declare a dividend.

Question 290

What is the Dead Man’s Act

Answer 290

A typical Dead Man Act provides that a party or person interested in the event, or her predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased when such testimony is offered against the representative or successor in interest of the deceased. Such statutes are designed to protect those who claim directly under the decedent from perjured claims.

Question 291

What is the difference between the implied warranty for particular purpose and implied warranty of merchantability?

Answer 291

Warranty of merchantability states that their fit for their “ordinary purpose”

Warranty of particular purpose buyer has a particular purpose that the seller knows of

Question 292

What is malice?

Answer 292

Malice is broader than the intent required for specific intent crimes and has nothing to do with ill will or evil motive. Malice asks “did the defendant undertake an obvious risk which a harmful result is expected?” only need to ask for common law murder and arson

Question 293

What is the test to determine if someone is in custody for Miranda purposes?

Answer 293

Two step inquiry:

(1) Is the person’s freedom of action limited in a significant way? (would a reasonable person in the circumstances feel free to leave?) If so then..
(2) Did the environment present coercive pressures similar to those found in a police station?

Question 294

What is an exception to the Miranda doctrine?

Answer 294

Public safety exception

if the police interrogation was reasonably prompted by concerns for public safety, responses to the questions may be used in court even though the suspect was in custody, was interrogated, and Miranda Warnings were not given.

Question 295

What is too long for “immediately after” for the present sense impression exception to hearsay?

Answer 295

according to a barbri answer “20 minutes” later is not immediately after

Question 296

REMEMBER for the excited utterance exception….

Answer 296

Always analyze the excited utterance exception if the facts indicate a “startling event”. Shooting, explosion, etc.

Question 297

What hearsay exceptions require unavailability?

Answer 297

Former testimony 
Statement against interest
Dying Declaration
Statements of Personal or Family history
Statements offered against the party procuring declarant's unavailability

Question 298

When dealing with commandeering issues, as part of your rule of law state–

Answer 298

The federal government is a government of limited power. Under the 10th amendment, those powers not granted to the federal government are reserved for the states.

Question 299

When talking about conditional grants from the federal government as part of your rule of law state–

Answer 299

Congress has the power to spend for the general welfare. This spending may be for any public purpose.

Congress may put conditions on the grant of money so long as (1) conditions are closely stated (2) relate to the purpose of the program, and (3) are not unduly coercive.

Question 300

Don’t forget for UCC contracts

Answer 300

sale of goods $500 or more requires a writing

when this is an issue state before it, “normally oral contracts are sufficient”

Question 301

contract for the sale of an antique doll for $12,000 was made via oral contract. Buyer sends a letter later describing the doll adequately, signed, and that there was one doll. The buyer wrote the letter to say they did not want the doll anymore

Answer 301

This writing was sufficient to satisfy statute of frauds

Question 302

What is repudiation of a contract?

Answer 302

Repudiation is a party’s refusal to perform their part of the contract.

Question 303

When does anticipatory repudiation occur?

Answer 303

Anticipatory repudiation occurs if before the time set for performance of his promise a party indicates that he will not perform when the time comes.

Question 304

In the case of an anticipatory repudiation, what alternatives does the nonrepudiating party have?

Answer 304

(1) treat the AP as a total repudiation and sue immediately (2) suspend his own performance and wait to sue until performance date (3) treat repudiation as an offer to rescind and treat the contract as discharged or (4) ignore the repudiation and urge the promisor to perform.

Question 305

Can a repudiating party withdraw their repudiation?

Answer 305

Yes, unless the other party has canceled, materially changed her position in reliance on the repudiation, or otherwise indicated that she considers the repudiation final.

Withdrawal of the repudiation may be in any manner that clearly indicates intention to perform, but it must include an assurances justifiably demanded.

Question 306

When dealing with damages under the UCC, make sure you state…..

Answer 306

Under the UCC, the purpose of remedies is to put the non breaching party in the position she would have been in had the promise been performed.

Question 307

What do incidental damages include?

Answer 307

Expenses reasonably incurred by a seller in storing, shipping, and reselling the goods as a result of the buyer’s breach.

Question 308

What must a seller do if he chooses to resell after the other party breached?

Answer 308

He must resell in good faith, and give the breaching party notice of intention to resale.

Question 309

Guy burns book in federal building and is arrested under statute that prevents lighting fires in public buildings, is his first amendment right violated?

Answer 309

NO-not because its “conduct” but because the state law is narrowly drawn to further a substantial govermental interest.

Questions like these asks, is the state trying to ban because of speech? Here its ban because fires burn shit and that’s bad. (Which is not a conduct restriction)

Question 310

What is required for adverse possession?

Answer 310

To establish title by adverse possession, the possessor must show:

(1) Actual and exclusive possession that is
(2) Open and notorious
(3) Adverse (hostile)
(4) Continuous throughout the statutory period.

If an owner does not within the statutory period, take legal action to eject an adverse possessor, title to the property vests in the possessor.

An adverse possessor gains title only to the tract he actually occupies

Question 311

What is required for Actual possession?

Answer 311

Possessor must physically occupy the property

Question 312

When is possession open and notorious?

Answer 312

Possession is open and notorious when it is the kind of use the usual owner would make of the land. It must put the true owner on notice that a trespass is occurring.

Question 313

When is possession hostile?

Answer 313

Possessor does not have the owner’s true permission

Question 314

When can separate periods of adverse possession be tacked together?

Answer 314

Separate periods of adverse possession may be tacked together to make up the full statutory period with the result that the final adverse possessor gets title provided there is privity between the successive adverse holders.

Question 315

When is privity satisfied for tacking (adverse possession)?

Answer 315

Privity is satisfied if the subsequent possessor takes by descent, by devise, or by deed purporting to convey title.

Question 316

A general warranty deed normally contains 6 covenants of title what are they?

Answer 316

3 present covenants

• Right to convey
• Covenant of seisin
• No encumbrances

pReSeNt

3 future covenants

• Further assurances
• Quiet Enjoyment
• Covenant of Warranty

FEW

Question 317

What is the covenant of seisin?

Answer 317

a present covenant that warrants the grantor has the estate or interest that she purports to convey

Question 318

What is the covenant of right to convey?

Answer 318

Present covenant that the grantor has power and authority to make the grant (similar to seisin)

Question 319

What is the covenant of no encumbrances?

Answer 319

Present covenant that there’s no encumbrances (easements, liens, etc.)

Question 320

What is the covenant of further assurances?

Answer 320

A covenant of further assurances is a promise that the grantor will do whatever is necessary to remove a defect associated with title, such as an encumbrance, if it arises, and if the problem is not fixed, damages will be awarded.

Question 321

What is the covenant of quiet enjoyment?

Answer 321

If the covenant of quiet enjoyment is included in the deed, it is in essence a warranty that the title of the land will be good against any hostile claims, such as liens, mortgages, or easements,

Question 322

What is the covenant of warranty?

Answer 322

Grantor agrees to defend against reasonable claims of title by a third party and to compensate the grantee for any loss sustained by the claim of superior title

Question 323

What are the two requirements to satisfy personal jurisdiction?

Answer 323

For a state court to exercise personal jurisdiction over a defendant, there must be:

(1) A state statute granting the court jurisdiction (because a federal court must analyze personal jurisdiction issues as if it were a state court in the jurisdiction), (LONG ARM STATUTE) and
(2) the grant must be constitutional.

Question 324

What makes a grant of personal jurisdiction constitutional?

Answer 324

Personal jurisdiction is constitutional if the defendant has engaged in such minimum contacts with the state that it would not offend traditional notions of fair play and substantial justice. The court considers whether the defendant purposefully availed himself of that state’s jurisdiction.

Question 325

How do you determine whether to transfer venue?

Answer 325

First, you must determine if venue was properly laid to begin with

Then, if properly laid, whether a transfer for convenience would be warranted.

Question 326

When is venue proper?

Answer 326

Venue is proper in a judicial district in which:
(1) any defendant resides, if all defendants are residents of the state in which the district court is located;

(2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated or
(3) If neither (1) or (2) are met, then venue is proper where any defendant is subject to the court’s PJ with respect to such actions,

Question 327

if the original venue was proper, when can the case be transferred?

Answer 327

For the convenience of the parties or witnesses, to another venue in which the action “might have been brought” or to another which the parties have consented

Question 328

What is required for a deed to be valid?

Answer 328

A deed must be:

(1) in writing
(2) sufficiently describe the land
(3) Identify the grantor and grantee
(4) evidence an intention to convey the land
(5) signed by the grantor

Question 329

Under a notice statute, who wins between a subsequent BFP who doesn’t record and a prior grantee?

Answer 329

The subsequent BFP prevails.

Question 330

Remember if dealing with a recording statute issue …

Answer 330

mention the three types of notice: Actual, inquiry record,

Question 331

What creates a joint tenancy?

Answer 331

4 unities
Time
Title (instrument)
Interest
Possession

Question 332

What do joint tenants have?

Answer 332

The right of survivorship

Question 333

What is required in the conveyance to create a joint tenancy?

Answer 333

An intention to create rights of survivorship must be expressed or else it’ll be a tenancy in common

Question 334

What happens if a JT does an inter vivos conveyance?

Answer 334

Her entire undivided interest destroys the joint tenancy, so that the transferee takes the interest as a tenant in common

Question 335

What happens if a JT conveys a lesser interest like a mortgage?

Answer 335

May not effect a severance if it is a lien theory state. (unless mortgage is foreclosed upon or they die before paid off)

If it is a title theory state the joint tenancy is severed because title has transferred

Question 336

What is the shelter Rule?

Answer 336

Under the shelter rule, a person who takes from a bona fide purchaser will prevail against any interest that the transferor-BFP would have prevailed against. This is true even if he has knowledge of the prior unrecorded interest.

Question 337

What is the covenant against encumbrances?

Answer 337

The covenant against encumbrances assures that there are neither visible encumbrances (easement, servitude, etc.) nor invisible encumbrances (mortgages etc.) against the title or interest conveyed. Because this is a present covenant, this is breached, if at all, at the time of conveyance.

Question 338

Do present covenants run with the land?

Answer 338

Majority rule- no

Minority-Remote grantee can sue unless they had knowledge of the encumbrance

Question 339

When addressing issues that deal with fee simple subject to condition subsequent and fee simple determinable, make sure you…

Answer 339

Mention the future interests (right of reentry and possibility of reverter)

What type of language creates each (conditional and durational)

Question 340

When terms are ambiguous regarding FSSCS and FSD, what happens?

Answer 340

Courts want to avoid forfeiture of estates, so they favor FSSCS

Question 341

How is an easement terminated by abandonment?

Answer 341

An easement may be terminated when the easement owner demonstrates, by physical action, the intent to permanently abandon the easement

Mere nonuse is insufficient.

Question 342

Remember when analyzing recording acts, first analyze the common law rule which states

Answer 342

At common law when a grantor conveyed the same land to multiple grantees, priority went to the earlier grantee

(first in time is first in right)

Then state modern statutes change the common law rule with a recording statute

Question 343

Remember to define what a BFP is when analyzing a recording statute

Answer 343

A BFP is a purchaser for value and without actual knowledge of the prior grants

Question 344

Can a subsequent purchaser be charged with record notice for wild deeds?

Answer 344

A subsequent purchaser will not be charged with record notice of deeds outside their chain of title

Question 345

What is inquiry notice?

Answer 345

A grantee is charged with knowledge of any fact that would have been revealed through reasonable inquiry

bonus: In a majority of states, a grantee who takes a quitclaim deed cannot be charged with inquiry notice

Question 346

What will be sufficient to satisfy inquiry notice?

Answer 346

A grantee is on inquiry notice of what an inspection of the premises would have revealed; the physical appearance of the land can give notice of an adverse interest

Question 347

What happens when an dominant estate purchases the servient estate?

Answer 347

The easement is extinguished through merger if it becomes owned by the same person

Question 348

When is an easement implied from existing use?

Answer 348

(1) before a tract is divided, an apparent and continuous use exists on the servient part
(2) the use is reasonably necessary for the enjoyment of the dominant parcel and
(3) a court determines that the parties intended the use to continue

Question 349

Who has priority between obligatory advances made pursuant to a mortgage, and a second mortgage placed on the land and recorded before the final advance was made?

Answer 349

If a mortgage obligates the lender to make further advances of funds, those future advances will have the same priority as the original mortgage.

What if the further advance is optional?

The optional advance does not have priority over the second mortgage

Question 350

When does a landlord constructively evict a tenant?

Answer 350

A tenant can claim constructive eviction if:

(1) the landlord or someone acting for the landlord caused the injury
(2) the breach substantially and materially deprived the tenant of her use and enjoyment of the property
(3) the tenant gave the landlord notice and a reasonable time to repair
(4) the tenant vacated the property within a reasonable time

Question 351

what can a landlord do if the tenant unjustifiably abandons the property?

Answer 351

She may do nothing or she may repossess

Question 352

If a landlord repossess and/or relets the tenant’s liability will depend on whether the landlord has accepted a surrender of the premises. What happens if a landlord accepts the surrender?

Answer 352

A surrender must be in writing

If surrender is not found, tenant remains liable for the difference between the promised rent and the fair rental value of the property

If surrender is found, the tenant is free from any rent liability accruing after abandonment

Question 353

What implied warranty applies to contracts for a builder’s sale of any new residential building under construction ?

Answer 353

the implied warranty of fitness or quality

Question 354

What is the implied warranty of fitness or quality?

Answer 354

That the new house is designed and constructed in a reasonably workmanlike manner and suitable for human habitation

Not every jurisdiction will apply the warranty to remote grantees

Question 355

How does a grantee assume a mortgage?

Answer 355

Grantee signs an assumption agreement promising to pay the mortgage loan. He becomes primarily liable and the original mortgagor becomes a surety. MAJORITY STATES REQUIRE EXPRESSED ASSUMPTION

Question 356

Some jurisdictions allow for implied assumption of a mortgage, this occurs when

Answer 356

a grantee pays the seller of real property an amount equal to the value of the real property minus the outstanding balance on the mortgage might be deemed to have assumed the mortgage by implication

Question 357

Remember to mention with quitclaim deeds

Answer 357

Unlike deeds that contain covenants of title, a quitclaim deed is a release of whatever interest the grantor has in the property, if any

Question 358

What rule of law should you state for summary judgment?

Answer 358

Summary judgment must be granted if, from the pleadings, affidavits, and discovery materials, it appears that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.

Question 359

What is required for claim preclusion to apply?

Answer 359

(1) there must have been a valid, final judgment on the merits;
(2) both parties must be the same (or be in privity with a party in the prior suit), and
(3) the new action must involve the same causes of action (same T/O)

Question 360

What is required for issue preclusion to apply?

Answer 360

(1) Issues in both actions must be the same
(2) there must have been a final judgment as to that issue
(3) the party against whom collateral estoppel is asserted must have had a fair opportunity to be heard on the matter
(4) the posture of the case must be such that it would not be unfair or inequitable to apply collateral estoppel (issue preclusion)

Question 361

In order to make a renewed motion for judgment as a matter of law, a JMOL must have been made at some point during the trial in order to move for a renewed JMOL

Answer 361

A party is limited to the grounds raised in the initial JMOL OR a party is unable to “renew” an objection that was not raised in the initial motion

Question 362

What is the standard to grant a JMOL or renewed JMOL?

Answer 362

The court must find that a reasonable jury would not have a legally sufficient basis to find for the party on the issue-must view the evidence in the light most favorable to the nonmoving party

Question 363

When can a motion for new trial be granted?

Answer 363

a new trial can be granted if some serious error occurred during trial (an error in the admission of evidence, error in instructing the jury, the verdict is excessive etc.)

Or if the jury verdict is a clear miscarriage of justice

Question 364

What law applies if a transfer of venue is made solely on convenience grounds?

Answer 364

The law of the transferee court will apply.

Question 365

What law applies if transfer of venue is based on a forum selection clause?

Answer 365

The law of the transferee court will apply.

Question 366

When can a party be permissively joined as plaintiffs or defendants?

Answer 366

Whenever:

(1) some claim is made by each plaintiff and against each defendant relating to or arising out of the same T/O AND
(2) There is a question of law or fact common to all parties

Question 367

What does supplemental jurisdiction require?

Answer 367

Supp. Jurisdiction requires the claim arise from the same CNOF as the claim that invoked original federal SMJ

The addition of a PLAINTIFF by means of supp. jurisdiction cannot destroy complete diversity

Question 368

What claims made by plaintiffs cannot be heard under the court’s supp jurisdiction?

Answer 368

Claims by compulsory joined plaintiffs or by plaintiffs seeking to intervene may not be heard under the court’s supp jurisdiction.

Question 369

Ask if supp jurisdiction is being used to support a claim by a permissively joined party or against a permissively joined party

Answer 369

If it is being used to support a claim by a permissively joined party, the use of supp jurisdiction is not restricted

Question 370

What is numerosity for class actions?

Answer 370

class must be so numerous that joinder of all members is impracticable

Question 371

What is commonality for class actions?

Answer 371

Common questions of law or fact

Question 372

What is typicality for class actions?

Answer 372

Named party’s interest must be typical of the class

Question 373

What is adequacy for class actions?

Answer 373

The attorney for the named party must be able to fairly and adequately represent the absent class members

Question 374

What is consideration?

Answer 374

A bargained for exchange of legal value

Question 375

When can a modification of a service contract occur without additional consideration?

Answer 375

If the modification is “fair and equitable” in view of the circumstances not anticipated when the contract was made

Usually means a party encountered difficulties in performing bordering on impracticability

Question 376

Does a UCC contract modification require new consideration?

Answer 376

No, under the UCC contract modifications sought in good faith are binding without consideration

Question 377

Does a UCC contract modification require new consideration?

Answer 377

No, under the UCC contract modifications sought in good faith are binding without consideration

good faith=legitimate commercial reason

Question 378

What is a merchant’s firm offer?

Answer 378

If a (1) merchant (2) offers to sell goods in a signed writing, and (3) the writing gives assurances that it will be held open, THEN

(4) the offer is not revocable for lack of consideration during the time stated

Question 379

Remember to state what a merchant is for UCC issues when necessary

Answer 379

A merchant is one who regularly deals in goods of the kind sold or who otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved

Question 380

In service contracts, when is substantial performance sufficient?

Answer 380

If the breach is minor, then performance is substantial

Question 381

What are expectation damages?

Answer 381

For breach of contract, the party is entitled to expectation damages, which intend to put the injured party in the same position as if the contract had been performed.

Question 382

What are consequential damages?

Answer 382

Consequential damages consist of losses beyond those covered by the standard measure that a reasonable person would have foreseen would occur as a result of the breach

Question 383

What is the full rule of law you can state for whether there is a valid contract?

Answer 383

Common law of contracts applies for service contracts

To form an enforceable contract there must be mutual assent (offer and acceptance) , consideration and the absence of any defenses to formation

Then decide whether offer, acceptance, consideration, or defenses is an issue and go from there (see ROL on other cards)

Question 384

What is consideration?

Answer 384

Consideration is a bargained for exhange that has legal value.

No bargain when a party gives a gift.

Legal value is usually considered to be either a benefit to the promisor or detriment to the promisee.

The promise must induce the detriment and the detriment must induce the promise.

Question 385

What is promissory estoppel?

Answer 385

If necessary to avoid injustice, a court will enforce a promise without consideration if (1) the promisor should have expected the promissee to change position in reliance on the promise (2) the promisee did change his position and (3) the change in position was to the promisee’s detriment

Question 386

What is an offer?

Answer 386

An expression of a promise, undertaking, or commitment to enter into a contract

An offer contains terms that are definite and certain and is communicated to the offeree.

Question 387

What is an acceptance?

Answer 387

An acceptance is a manifestation of assent to the terms of an offer in the manner prescribed or authorized by the offer

Question 388

For purposes of defamation a newspaper that publishes a defamatory statement made by a columnist is?

Answer 388

liable a primary publisher

Question 389

What is a republisher in terms of defamation?

Answer 389

a republisher is one who repeats a defamatory statement. Usually held liable on the same general basis as a primary publisher

Question 390

What are the requirements for common law defamation?

Answer 390

(i) Defamatory language on the part of the defendant;
(ii) Defamatory language “of and concerning” the plaintiff (i.e., identifying the plaintiff to a reasonable reader, listener, or viewer);
(iii) Publication of the defamatory language by the defendant to a third person; and
(iv) Damage to the reputation of the plaintiff.

As to (iii), the publication may be made either intentionally or negligently. As to (iv), damages is an element of the prima facie case even though in some cases damages may be presumed. Falsity of the defamatory language is not an element of common law defamation. The element of falsity is constitutionally required when the defamation refers to a public figure or involves a matter of public concern

Question 391

Defamation on matters of purely private concern do not require..

Answer 391

Malice

Question 392

What is colloquium?

Answer 392

Colloquium involves pleading additional facts to show that a defamatory statement refers to a plaintiff. A statement may be actionable even though it has no clear reference to the plaintiff on the face of the statement. In such a case, the plaintiff must introduce additional extrinsic facts that would lead a reasonable reader, listener, or viewer to perceive the defamatory statement as referring to the plaintiff.

Question 393

For a prima facie case of interference with business relations is an existing contract necessary?

Answer 393

No

Question 394

Whose statements are privileged in judicial proceedings?

Answer 394

Judges, attorneys, jurors, witnesses, and parties

Question 395

What is slander?

Answer 395

Slander is spoken defamation

Question 396

What is libel?

Answer 396

Libel is written defamation (along with TV broadcasts and radio)

Question 397

What are the 4 slander per se categories?

Answer 397

1. Disparages the plaintiff in the conduct of her business or occupation;
2. Asserts that the plaintiff is suffering from a loathsome and communicable disease;
3. Alleges that the plaintiff has committed a serious crime or crime of moral turpitude; or
4. Imputes unchastity to a female plaintiff.

Question 398

Does plaintiff have to prove special damages for libel?

Answer 398

No

Question 399

Does plaintiff have to prove special damages for slander?

Answer 399

Yes, unless it is slander per se.

Question 400

What are the defenses to defamation?

Answer 400

Consent
Truth
Privilege (qualified or Absolute)

Question 401

What is appropriation?

Answer 401

Appropriation is an invasion of privacy tort where the defendant uses Plaintiff’s name or likeness for commercial purposes

Newsworthiness exception-no liability

Consent and privilege are defenses

Question 402

What is false light?

Answer 402

Widespread publication of a falsehood or material misrepresentation about Plaintiff that would be highly offensive to a reasonable person

Includes mischaracterization of P’s views or conduct

If it is a matter of public concern defendant must have acted recklessly or with malice

Consent and privilege are defenses

Question 403

What is intrusion upon seclusion?

Answer 403

Intrusion upon plaintiff’s private affairs in a manner that would be highly offensive to a reasonable person

1. Plaintiff must have a reasonable expectation of privacy

2 Intrusion must be highly offensive (peeping eavesdropping)

No newsworthy exception

consent and privilege are defenses

Question 404

What is the tort of disclosure?

Answer 404

Public disclosure of plaintiff’s private information

(1) Disclosure must be highly offensive to a reasonable person
(2) publicized-made available to public audience

public activities are not objectionable

No newsworthiness exception

consent and privilege are defenses

Question 405

What is the difference between malicious prosecution and abuse of process?

Answer 405

Malicious prosecution defendant initiates a frivolous charge with improper purpose (e.g. filing false police report)

Abuse of process is when defendant uses the legal system as an ulterior purpose to threaten or act against the plaintiff

Question 406

what are the elements for intentional interference with business relations?

Answer 406

1. P has a valid contractual relationship or business expectancy
2. D has knowledge of the relationship or expectancy
3. D intentionally interferes with that relationship
4. Ds interference causes a breach or termination in Ps contract or expectancy
5. Damages

Question 407

what is a private nuisance?

Answer 407

Private nuisance is a substantial, unreasonable interference with an individual’s use or enjoyment of her property

it must be annoying or inconvenient to the average person in the community-P cannot be hypersensitive

Question 408

What is a public nuisance?

Answer 408

Public nuisance is an unreasonable interference with health safety or property rights of the community at large

A private party can only recover if she received special damages not suffered by the public at large

Govt usually brings public nuisance actions

Question 409

Defense to nuisance actions

Answer 409

Plaintiff cannot come to the nuisance for the sole purpose of bringing suit

Contributory negligence is available if P acted negligently in creating nuisance

Question 410

How do you determine the reasonableness of a search or seizure?

Answer 410

(1) Is there govt conduct constituting a search or seizure?
- meaning is it the police

(2) Does D have standing?
- does he have a reasonable expectation of privacy

(3) Is there a valid search warrant?
(4) if no valid search warrant, was there a valid exception to the search warrant requirement?

Question 411

What are the exceptions to the search warrant requirement?

Answer 411

(1) Search incident to arrest
(2) Plain view search
(3) Automobile search
(4) Valid consent to search
(5) Exigent circumstances
(6) Stop and frisk

Question 412

Plaintiff must have a reasonable expectation of privacy to have standing

Answer 412

Areas outside the curtilage are unprotected by the 4th amendment

Automatic standing-Owns, has a right to possess, or lives in the premises to be searched OR is an overnight guest of the premises to be searched

Question 413

What are the requirements for a valid search warrant?

Answer 413

(1) Based on probable cause-usually an affidavit demonstrating probable cause that the search or seizure will produce evidence
(2) Precise on its face- warrant must describe with reasonable precision, the place to be searched and/or items to be seized
(3) Issued by a neutral and detached magistrate

Question 414

What is the good faith exception to valid search warrants?

Answer 414

Exclusionary rules does not apply if police act in good faith on an invalid search warrant

However, the affidavit for the warrant cannot completely lack probable cause

Question 415

What is the proper manner to execute a search warrant?

Answer 415

Timing-The search warrant must be executed without unreasonable delay after it is issued

Knock and announce (not required if possibly dangerous or inhibit investigation)

Scope of search limited to what is reasonably necessary to discover items described in warrant
-Police can detain people found on the premises however they cannot search them unless they are specifically named in the warrant or a valid warrantless search exception applies

Question 416

Can police search the vehicle of an arrested person?

Answer 416

Police may search the vehicle’s interior, including the glove box, if at the time of the search

(1) Arrestee is unsecured or (2) They reasonably believe evidence of the crime for which the arrest was made may be found in the vehicle

Police cannot search trunk without probable cause or consent

Question 417

What is the automobile exception?

Answer 417

Police can search anywhere in the car if they have probable cause that arose before the search began can even open packages and search the passengers

Question 418

What is the exclusionary rule?

Answer 418

The exclusionary rule prohibits the introduction of evidence obtained in violation of defendant’s constitutional rights in a criminal trial

Question 419

What is the fruit of the poisonous tree doctrine?

Answer 419

Evidence derived or obtained from illegal government conduct is excludable against the defendant
-arises when illegal police action leads to evidence

Exception illegally obtained evidence admissible if govt can “break the chain” between the illegal govt conduct and the seized evidence

Question 420

What does the exclusionary rule not apply to?

Answer 420

Grand jury proceedings, civil proceedings, parole hearings, or administrative cases

violations of the knock and announce rule

Evidence seized as a result of miranda violations

Question 421

What is the difference between 5th and 6th amendment right to counsel?

Answer 421

5th amendment right to counsel applies after being in custody and read miranda. 6th amendment requires a criminal proceeding to begin (e.g. indictment filed).

5th amendment applies when in police custody. 6th amendment applies to all critical stages of a criminal proceeding.

Once 5th amendment right is invoked the police cannot question suspect on ANY MATTER. While 6th amendment is offense specific.

Question 422

What is solicitation?

Answer 422

Inciting, urging or otherwise asking another to commit a crime with the intent that they commit the crime-no need for the person they ask to agree

Question 423

What is conspiracy?

Answer 423

Agreement between two or more people to commit a crime or unlawful objective

Question 424

What is attempt?

Answer 424

An act done with the specific intent to commit a crime that constitutes an overt or substantial step towards committing the crime-an incomplete act that would have been a crime if completed

Overt act means beyond mere preparation

Question 425

What is the M’naghten defense to insanity?

Answer 425

Defendant does not know right from wrong due to a mental disease or defect at the time of the offense

Question 426

What is the irresistible impulse defense to insanity?

Answer 426

Defendant acted due to an irresistible impulse due to a mental illness

Question 427

What is the MPC defense to insanity?

Answer 427

Mix of M’naghten and irresistible impulse. As a result of mental disease D lacked the capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law

Question 428

What is the Durham defense to insanity?

Answer 428

But for defendant’s mental illness, he would not have acted

Question 429

What is the infancy defense?

Answer 429

Under 7 years old-no criminal liability

7-14 years old rebuttable presumption against criminal liability

Question 430

What is the diminished capacity defense ?

Answer 430

Available if D can show that he has some mental defect short of insanity that prevented him from forming the mental state required for the crime

Question 431

Due process and defendant’s mental condition-

Answer 431

Due process clause forbids defendant from being tried, convicted, or sentenced if, as a result of his mental disease or defect, defendant is unable to either understand the nature of the proceedings or assist his lawyer in prep of his defense

Question 432

Capital punishment defense

Answer 432

Defendant cannot be executed if he is incapable of understanding the nature and purpose of the punishment at the time of execution

Question 433

What crimes is involuntary intoxication a defense to?

Answer 433

All crimes

Question 434

What is Embezzlement

Answer 434

The fraudulent conversion of another’s personal property by one in lawful possession

This is different than larceny because a person embezzles when they had a right in the property

If D takes property with the intent to restore the exact property -no embezzlement

No embezzlement if Defendant believed they had a right

Question 435

What is the difference between false pretenses and Larceny by trick?

Answer 435

False pretenses requires obtaining title to another’s property using false statements of past or existing fact with intent to defraud

Larceny by trick obtains possession of another’s personal property using false statements of past or existing fact

False pretense-obtains title
Larceny by trick-obtains possession

(remember same amount of syllables)

Question 436

Receipt of stolen property

Answer 436

is a crime if known to be illegally obtained and they had intent to permanently deprive

Question 437

What is forgery?

Answer 437

Creating or altering a written document with the purported legal significance to be false with the intent to defraud

Question 438

What is IIED?

Answer 438

Extreme or outrageous conduct by D causing Ps severe emotional distress

(physical symptoms not necessary)

Question 439

What is bystander IIED?

Answer 439

A bystander closely related to a person physically injured or killed by Defendant’s conduct may recover for emotional distress

1. D conduct seriously injured or killed a 3rd person
2. P is closely related to the injured person
3. P was present when the injury occurred
4. D knew elements 2 and 3
5. P suffers severe emotional distress

Question 440

What is NIED?

Answer 440

P may recover for emotional distress resulting from D’s negligence

1. D’s negligence results in a close risk of bodily harm to P
2. D’s negligence results in P’s severe emotional distress
3. P exhibits some physical manifestation attributable to her emotional distress

A bystander can recover if:

1. P and the injured person are closely related
2. P was present at the scene of the injury; and
3. P personally observed or perceived the event

Question 441

What are the three types of product defects for products liability?

Answer 441

Manufacturing defect

Design defect

Inadequate warning