Final Review Flashcards
Torts - Strict Liability
- Who can be sued?
- Commercial = yes
> Occasional sellers and those supplying services (dentist) = No
for negligence only
Torts - Strict Liability
- Consumer expectation test
- Design Defects
> Product is defective = unreasonably dangerous when = more dangerous than contemplated by the ordinary consumer w/ the ordinary knowledge common to the community
Torts - Strict Liability
- Danger-utility test
- Design Defects (NOT manufacturing defect)
> It’s defective if danger outweighs its utility to society
Torts - Strict Lability
- Waring defect
- Product is so obviously dangerous that a warning is unnecessary
> Fireworks, knives, etc.
Torts - Defamation
- Truth includes
Video of what actually happened / what he saw
Torts - Defamation
- Publication
- If they knew someone would hear false statement
Torts - misrepresentation
> Damages
Benefit of the Bargain theory
> Bought property worth $500,000 in good condition - but actually worth $400,000 = $100,000 damages
Torts - Invasion of Privacy
> Damages
- Compensatory and Punitive
Torts - Publication of Picture by news
Recover?
NO - b/c publication was newsworthy.
Torts - Slanderous per se
(1) P commission of a crime that involves moral turpitude (2) P has a loathsome disease (3) imputes dishonesty or incompetency in the operation of a business or profession (4) accuses a woman of being unchaste
> damages are presumed
Torts - Negligence
- Husband / Wife
- Kids vs. Parents
- Yes = Allowed
2a. Barred in areas dealing with the exercise of ordinary parental discretion
2b. Majority of jurisdictions now state parents not immune from suits by
children - But Parental discretion allowed in making decisions to raise minor children
Torts -
> NIID
> Wrongful Death
- Bystander in the Zone of Danger / Physical manifestation ~or ~ Close family member / observes and understands accident / physical manifestation
> Loss of consortium only available to legally recognized spouse
> Wrongful Death = only family member
Family Law - Settlement Agreement
- Generally valid if Voluntary
> Resulted from fraud, overreaching, or duress may be set aside if substantially unfair
> Lack of independent counsel for each may be a significant factor
Family Law - Fault Based
- Some states have eliminated fault-based divorce
> Adultery is ground for dissolution in fault
> Under modern law, fault is eliminated from consideration in property distribution in many states w/ respect to matters not related to the parties’ finances
Family Law - Professional Degree : Property distribution
Most states hold that a professional degree or license is not property interest subject to equitable distribution
Family Law - Alimony
i. the parties’ respective financial resources and needs;
ii. contributions each has made to the marital relationship, financially or providing care within the home;
iii. the duration of the marriage
> Some state statutes allow consideration of spousal misconduct
> Some consider one spouse’s support for the other’s
education or training and may mandate reimbursement
Property - Builder Claim
- poor workmanship
Implied warranty of quality for sale of new or remodeled homes imposed on contractors / developers / commercial vendors
> Covers significant latent defects caused by poor workmanship
> discovered within a “reasonable time”
> Privity w/ builder
Property - Mortgage
- silent as to Subject to or Assign
- Stick w/ Subject to
> Not personally liable
Property - quitclaim deed
> No warranties that the man can recover upon
Property - Gen. Warranties
- Seisin: Seller owns the property described
- Right to Convey: the power to convey the property.
- Covenant against Encumbrances: there are no encumbrances on the property.
- Quiet Enjoyment: will not be disturbed by a third party asserting a valid claim
- Warranty: defend against any third-party claim.
- Further Assurances: do everything reasonably necessary to perfect title
Will - Ademption
Real Property in Will - A gift fails because property specifically bequeathed is NOT in Testator’s estate at his death
- General description = “My car” = they get the car
- Specific = they don’t get it
Wills - Abatement
If the assets of Testator’s estate are insufficient to satisfy all the bequests - reduced in order • Property that would pass via intestacy • Residuary bequests • General bequests • Demonstrative bequests • Specific bequests
Will - Disclaimer
- Disclaims general bequest, bequest passes as if disclaimant had predeceased testator
> Antilapse statutes apply to relatives of testator, if not then back into estate
Corp - Inspect Records
- Good Faith
- Describe the reason + purpose
- Directly connected w/ purpose
- Written notice + allow time
Corp - Demand on corp before suit?
No - not an individual suit
Yes - if suit must make demand on corporation to bring derivative suit on behalf of Corp.
Corp - Suit to compel payment of dividend
The business judgment rule protects directors from liability for breach of their fiduciary duties
> BJR is presumption that in making business decisions, the directors act on an informed basis, in good faith, and in the honest belief that the action being taken is in the best interests of the corporation
> no inherent right to be paid a dividend
> Must prove that it amounted to fraud, bad faith, or an
abuse of discretion;