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FL subjects > Final review > Flashcards

Final review Flashcards

1
Q

Note

A

2-party negotiable instrument - maker & payee Maker promises to pay sum of $ to payee

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2
Q

Draft

A

3 party negotiable instrument Drawer order second party (drawee or payor) to pay sum of $ to 3P payee

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3
Q

Reqs for negotiability (7)

A
  1. Writing
  2. Signed by maker/drawer (or authorized agent)
  3. Unconditional promise or order (BUT can refer to other doc re: collateral, prepayment, down payment, acceleration)
  4. Fixed amount of $
  5. Payable to order or bearer (order - IDs person to be paid or his order; bearer - person in posession, no payee ID’ed)
  6. Payable on demand or at definite time
  7. No additional undretaking or instructions
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4
Q

Holder

A

Issuance - delivery by M/D to either holder or nonholder for purpose of giving rights therein

negotiation - delivery by person other than M/D to another who consequenty becomes holder

  • Bearer instr - only requires transfer of possession
  • order insr. - requires transfer of posession and indorsement by holder
    • Special, blank, qualified, restrictive, anomalous
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5
Q

Holder in due course

A
  1. holder
  2. for value (give, do or forgive something of value)
  3. in good faith - honesty in fact, reasonable commerical standard of FD
  4. without notice of infirmatives (Ex: claim, defense, apparent forgery, alternation, overdue, dishonored)

Exclusions: Successor interest to estate, bankruptcy/creditor’s sale, bulk transctiosn

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6
Q

Transfer

A

Delivery by person othern than M/D for purpose of giving recepient right to enforce

*Shelter rule - transferee can acquire HDC’s rights by transfer even if not HDC

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7
Q

Transfer warranties

A

Transferor warrants:

  1. Entitled to enforce
  2. signtures are authentic and authorized
  3. No alterations
  4. No defenses/claims against transferor
  5. M/D/D not subject to insovlency (knowledge qualifer)

Must be consideration for above to apply

Instrument indorsed - covers all subsequent transferees

Instrument not indorsed - covers just the first one

Can disclaim unless it’s a check

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8
Q

Enforcement of instument

A

PF case - P is entitled to enforce and signatures are valid

D response - prove defense or claim in recopument

P resposne - reestablish right by proving HDC –> not subject to defenses

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9
Q

Lost, detsroyed, stolen instruments

A
  1. Must prorve terms and right to enforce instrument when it was L/S/D
  2. wasn’t a result of transfer or lawful seizure
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10
Q

Real defenses (9)

A
  1. incapacity
  2. infancy
  3. duress
  4. illegality
  5. fraud (factum only)
  6. discharge in insovlency
  7. alteration/forgery
  8. SOL (3 years)
  9. accomdation party
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11
Q

Personal defenses (5)

A
  1. issuance
  2. contract defenses
  3. claim in rcoupment (offset against amoutn owed)
  4. defenses/claims in recoupment of other persons
  5. claims to instrument
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12
Q

Unauthorized sigantures

A

generally ineffective against person whose named was signed

imposters: misrepresent as agents of payee - may be effective as indorsement of actual payee

fictitious/unintended payee: M/D doesn’t intend person ID’ed as payee to have interest in instrument, or just fictitious payee –>

  • person in possessoin is its holder
  • indosement by anyone in anem of payee may be effective
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13
Q

Presentment

A

demand for payment made to maker (note) or drawee (draft) by person entitled to enforce

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14
Q

Presentment warranties

A

Payee warrants to drawee (person cashing check warrants to bank):

  1. warrantor is (or was at time of transfer) entitled to enforce draft (for himself or on behalf of someone else)
  2. No alterations
  3. no knowledge of unathorized signature (of drawer)

Can’t be disclaimed if it’s a check

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15
Q

Dishonor

A

failure by drawer or maker to pay w/i required time after presentment (either day after due date or day of presentment)

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16
Q

Liability

A

issuer - primary liability

drawer - secondary liability

drawee - no liabiltiy unless accepts draft

acceptor - primary liablity upon acceptance

indorser - secondary liability (requires both dishonor and notice thereof) BUT can disclaim (“without recourse”) with signature

joint signers - J&S liability

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17
Q

Accomodation parties

A

Surety, guarantor - can’t receive direct benefit

Collection guaranteed v. payment guaranteed

Can enforce contribution against accomodated party, latter cannot enforce against former

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18
Q

Signatures by agents - Agent liability

A

Authorized - principle liable regardless of how agent signed

unauthorized - P not liable unless ratification or estoppel

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19
Q

Signatures by agents - Agent’s liability

A

Unauthorized/exceeds authority - liable in P’s capacity to person takes for value/pays in GF

Authorized:

  • P’s name only - not liable
  • Agent’s name & capacity - not liable
  • Agent’s name only or no capacity - liable to HDC who takes w/o notice that agent wasn’t intended to be personally liable
  • Agent’s name on P’s check - not liable
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20
Q

Payment

A

instrument paid when payment made by party obliged to pay to person entiteld to enforce (holder or someone who lost/had it stolen)

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21
Q

Types of payment

A
  1. provisional

final (can’t be recovered from person who took in GF, for value and detrimentally relied on payment)

Payment by mistake - drawee can recover draft amount or revoke acceptance if acted on mistaken belief (other than GF/FV exception)

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22
Q

Discharge

A

elimination of personal liablity on instrument (personal defense)

  • instrument itself - not discharged
  • underlying obligation - suspended until paid/dishonored
  • payment - discharge if made to person enetitled to enforce
  • tender of payment - governed by contratt law
  • cancellation or renunciation - voluntary act no to sue
  • secondary obligors - person entitled to efnorce release obligation of P obligor
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23
Q

Collateral - impairment

A

If there is secondary obligor and person entitled to enforce instrument has impaired value of interest in collateral, secondary O’s interest is discharged to extent of impairment

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24
Q

accord and satisfaction

A

When claim is unlquidted or otherwise in dispute, can be discharged if

preson against whom claim is asserted in GF:

  • tenders instrument WITH written statement that 1) has conspicious statement re: tender in full staisfaction of claim and 2) claimant obtains actual payment
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25
Q

Defeasible present fees

A

Potentionally last forever, termiante by occurence of event; alienable/defeasible/devisable

  • FS deterimable (so long as, while, during)
    • G has possibility of reverter
  • FS subject to condition subsequent (upon condition that, provided that, but if)
    • G has right to terminate, must specifically retain right to reeenter)
  • FS subject to exec interest - limited by specific durational/conditional language
    • automatically terminates upon event and title goes to 3P
    • Exec interest held by 3P
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26
Q

Life estate

A

present posssessory estate trasnferable during measuring life (unless measured by grantee’s life, then not devisable/descendible)

  • right to possess
  • right to rent/lease/sell/mortgage
  • duty to not commit waste
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27
Q

future interests

A
  1. reversion
  2. possiblity of reverter
  3. right of reentry
  4. remainder - 1) vested = no CPs, ascertainable grantee (unless class gift), 2) contingent - unascerteainable grantee, subject to express P
  5. executory interests - shifting = estate shifts from one grantee to another upon condition occuring; sprining = divests G’s interest or fills gap in possesion –> reverts to G

* 4 and 5 can be transferred IV and devisiable/descendible

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28
Q

TIC

A

TIC (default in FL if estate going to 2+ people)

  • unity of possession
  • No ROS
  • each co-T hold undivided interest, rights to possess whole
  • D/D
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29
Q

JT

A
  • Need express language
  • alienable (but not D/D)
  • PITT (unities): equaly right to possess whole, w/ identical equal interests, created at same time, by same title

Landowner can create one for himself and someone else in single deed but need specific langauge

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30
Q

TBE

A
  • Need PITT
  • Married couple
  • can’t alienate/encumber property w/o consent
  • transfer by 3P creates TE; can also create when title-holdingsposue conveys deed to either other spouses or both of them
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31
Q

Concurrent estates - Rights/obligations of Ts

A
  • Right possess entire proprety, no rent required
  • Liable to other co-Ts for 3P rents
  • collect contribution for operating expenses
  • compel other co-Ts to share expenses for repairs if 1) necessary, 2) other co-T seeks accoutning/parition
  • no right to reimbursemt for improvements
  • duty of fair dealing wit hother co-Ts but not fiduciary duty

TIC and JT can unliaterally partition - courts like partition in kind

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32
Q

Tenant duties

A
  • Pay rent (unless premises destroyed or material LL breach –> T’s enjoyment substantially impaired)
  • avoid waste
  • repair (see commerical leases)
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33
Q

LL remedies

A
  • noncompliance for at least 7 days
  • failure to pay rent
    • resdiential T must pay w/i 3 days
    • Nonresidential - L can file action to recover possession, but if he accepts late rent then considered waiver
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34
Q

LL duties

A
  • deliver actual physical possession
  • repair
  • warranty of habitability (residential - must be fit for basic human habitiation; comply with applicabile cides, maintain essential of home)
  • Coveannt of quiet enjoyment
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35
Q

Covenant of quiet enjoyment

A

No interference from LL in T’s enjoyment

L’s duty to control other tenatns’ nuisance in commons areas

Breach can equal eviction

  • actual eviction - lease terminated when LL excludes T from premises
  • partial - T must pay reasnoable rental avalue if partial evictio nby 3P with superior claim
  • constructive - substantial interfeernece caused by L’s actions/failure to; T must vacate premises if gives notice and LL fail to fix
  • Retaliatory
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36
Q

Assignment/sublease

A

Assignment -complete transfer of T’s remaining lease term

  • Assignee liable to LL for rent/covenants due to privity of estate

sublease - transfer for less thaen entire duration

  • not liable for rent/covenants to LL becuase no privity of estate or contrct with LL (unless assumes covenants)

Original T liable for covenants due to privity of contract

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37
Q

Doctrine of boundary acquiescence

(re: “hostile” for adverse possession)

A
  1. uncertainty/dispute re: true boundary
  2. location of boundary line btween parties
  3. acquiescence in location for 7 years
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38
Q

Deeds - delivery

A

G must intend to make prsent transfer of propret interest to grantee

Intent can usually equal delivery

Transfer to G’s agent - not delivery; transfer to grantee’s agent - delivery

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39
Q

Deeds reqs (5)

A
  1. identifies parties
  2. G’s signature
  3. words of transfer
  4. reasonably definition description of property (can look to extrinsic evidence)
  5. 2 subscribing witnesses
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40
Q

General warranty deed

A

present covenants:

  • seisen - G owns land as dsecribed
  • right to convey - has righ tto transfer title
  • against encumbrances - no undeclared Es against land

future covenants:

  • quiet enjoyment - no 3P lawful claims outstanding, won’t be disturbed once in possession
  • warrany - G will defend against 3p claim
  • further assurances - G will take reasonably necesaary action to pass title if title defect later appears
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41
Q

Special warranty deed

A

same as general warranty but only w/r/t defects arising during time G had title

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42
Q

Quitclaim deed

A

No covenants of title

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43
Q

Express easements

A

Affirmatively created in writing satisfying SOF, by grant or reservation

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44
Q

Implied easements

A

Necessity

  • person grants land w/ no accessible ROW
  • no other reasonable ingress
  • necessary for use and enojyment
  • unity of title

Statutory way of necessity - rural land to be used by otherwise shut off by land, fencing, improvements. Owner should be compensated

Implication

  • easement previously used on servient estate
  • was continous, apparent and reasonably necessary to demoninant estate
  • common ownership
  • existed at severance
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45
Q

Easement by Estoppel

A

GF, reasonable, detrimental reliance on permission by servient esetate holder, meant to prevent unjust enrichment

no easements by oral promise - can create irrevocable license instead

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46
Q

Negative easement

A

LASS

  • Light
  • Air
  • Support
  • Stream water

Must be expressly created in writing signed by G

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47
Q

Termination (6 ways)

A
  1. Release (SOF)
  2. merger - when 2 estates merge
  3. Severance = attempt o convey easement app. separate from benefitted land
  4. abandonment - affirmative act showing clear intent to abandon (mere statement is insufficient)
  5. destruction/condemnation
  6. express easement not recorded against BFP (unenforceable, not really terminated)
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48
Q

License

A
  • privilege to enter another’s land
  • freely reovcable unless estoppel
  • no SOF
  • invalid oral easements –> irrevocable license
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49
Q

Real covenants (running w/ land) (5)

A
  1. writing (SOF)
  2. intent - explicit language or implied from TOC
  3. touch/concern - benefit or burden affects promisee/promisor as owners of land
  4. notice (burden only)
  5. privity
    • horizonal (burden) - estate and covenant in same instruemnt
    • vertical (benefit) - mutaul/successive interest in land that’s B/B’ed by covenant
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50
Q

Equitable servitude

A
  1. in writing
  2. intent for restrcition to be enforceable against successors
  3. touch/concern (no prvity)
  4. if enforced against purchaser, need notice
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51
Q

Termination of equitable servitudes (5)

A
  1. release
  2. merger
  3. abandoment
  4. estoppel
  5. condemnation
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52
Q

Common interest ownership

A

individually own units burdened by covenant to pay association providng services, enforcement (HOAs, cooperatives)

Powers: levy assessments, manage/acquire/improve property adpot rules, enforce rules of governing docs

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53
Q

Zoning

A

void regulations - no authority; aribitrary/irrational

types: use, devleopment, special concerns

existing non-conforming property: can be grandfathered in, can be transferred, can’t be expanded

post-ordinance non-conforming: can request special excpetio npermit or admin variance

  • need to show unnecessary unique hardship, not self-induced, variance wound’t cause susbtantial harm
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54
Q

Other zoning

A
  • by contract (permits - promises)
  • floating (not linked to paritcular area)
  • cluster (zoning reqs considered as whole, not lot by lot)
  • planned unit development (focus on entirety, not plots)
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55
Q

Water rights

A
  1. riparian - proprety closest to watercourse, can’t be transferred without land
  2. prior appropriation - determined by priority of beneficial use, can be transferred separately from land
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56
Q

Support rights

A

right to have land supported in natural state

lateral - landowner who excavates on his own land -

  • undeveloped - strictly liable for damage to undeveloped adjoining land
  • imrpovement - strictly liable if adjoining land would have collasped in undeveloped state
  • improvement contributes to collapse - only liable if negligent

subjacent - owner of mineral rights is SL for failure to supprt land and any buildings on land at time rights were conveyed

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57
Q

Termination of offers

A
  1. lapse of time (specified, or reasonable if none stated)
  2. death/mental incapacity - unless option K becuase consideraetio nwas paid to keep open
  3. destruction/illegality
  4. revocation - any time prior to acceptance (even if it states will remain open for specific amount of time)
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58
Q

Limitations on revocation

A
  1. option K - need consideration usually to be enforceable
  2. UCC firm offer - irrevocable (reasonable time but no more than 90 days) if: 1) offeror = merchant, 2) assurance (in writing) made that it will remain open. No consideration needed
  3. promisorry estoppel - offeree reasonably/detrimentally rlies on offer
  4. partial performance - for all Ks, offeree must know of offer when beings performance
  • unilateral K - can’t revoke once offeree begins performance
  • bilateral K - beginning preformance = promise to render complete performance
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59
Q

Accepteance - shipment of goods

A

If B requests shipment = accepteance either by S’s promise to ship or prompt shipment

Nonconforming goods shipped = acceptance and breach, unless S notifies B tht good are accomation (counteroffier). B can accept or reject

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60
Q

Notice of acceptance

A
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61
Q

Acceptance - Bilateral and Unilateral Ks

A

Bilateral - exchange of promises --> both enforceable

Unilateral - promise to do something in rerturn for act (performance) by other party.

  • If party doing starts to perform, keeps offfer open for time to complete performance
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62
Q

Additional/differnet terms

A

Mirror-image rule

UCC:

no merchants or one merchant only - definite/timely express of acceptance usualyl acceptance of offer; new/different terms treted as proposed additions to be accepted separately by offeror

b_oth merchants_

additional terms automatically included in K unless:

  • materially alters original
  • expressly limits acceptance to new terms
  • offeror objects w/i reasonable time

Different terms - knock out rule

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63
Q

Consideration - Preexisting duty

A

CL - doesn’t qualify as consideration unless

  • promisor gives something new
  • preexisting duty changes in some way
  • party promises to 3P to perform act already obligated to perofrm under another K
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64
Q

Modifications

A

CL - need new consideration. Enforceable if:

  • rescission of existing K and entry into new one
  • unanticipated difficulties arise and mod is fair & equitable
  • both parties’ obligations change

UCC - just need GF, no consideration

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65
Q

Accord & satisfaction

A

accord: one party agrees to accept different performance from other party to staisfy existing duty

Satisfaction - performance of accord agreement => discharges both original and accord K

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66
Q

Illusory promise

A

Nonbreaching party must have ability to sue for damages and collect on judgment to have real K

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67
Q

Requirements and Output Ks

A

Requirements - B agrres to buy all that he requires

Output - S agrees to sell all she manufactures

Consideration = promisor’s legal detriment

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68
Q

Material benefit rule

A

If party performs unrequested service, can can enforce promise of payment for material benefits to extent necessary to prevent injustice

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69
Q

Promissory estoppel

A
  • Promisor should reasonably expect to induce action on part of promisee or 3P
  • promise does induce
  • injustice only avoided by enforcement of promise
70
Q

Defenses to formation (6)

A
  1. mistake (mutual; unilateral)
  2. misunderstanding
  3. misrepresentation
  4. undue influence
  5. duress
  6. capacity
71
Q

Mistake

A

Mutual - both parties mistaken re: essential element. Voidable by adversely affected party if:

  1. existed at time of formation
  2. relates to basic assumption of K
  3. mateiral impact on transaction
  4. affected party didn’t assume risk of mistake

can’t void if reformation will work

Unilateral - one party mistaken as to essential element. Mistaken party can void if didn’t assume risk of mistake and either

  • mistake makes enforcement of K unconscionable OR
  • other party caused mistake, should have known, had duty to disclose or failed to disclose
72
Q

Misunderstanding

A

Parties think they’re agreeing to different terms (but they’re not)

  • Neither party knows/has reason to know - no K if material term involved
  • One party knows/ has reason to - K formed based on meaning of term from unknowing party
  • both parties know terms ambiguous when K formed - no K unless they intended smae maining
  • waiver - one party can choose to enforce K with other party’s understanding
73
Q

Fraudulent misrepresentation

A

untrue assertion of fact

  • misrep is fraudulent (knowing/reckless false assertion with intent to mislead)
  • induced assent to K
  • justifiable reliance on misrep by other part
  • (Non-disclosure counts)

Void K if fraud in factum - misrep prevents character/essential ter mof transaction to be known

Voidable by affected party - fraud in inducment (misrep used to induce entry into K)

74
Q

Nonfraudulent misrepresentation

A

Innocent/negligent

Voidable by affected party who:

  • justifiably relied
  • on material misrep
  • was induced to assent to K as result

Can be reformed/avoided (reform to express what was represented)

75
Q

Undue influence

A

unfair persuasion of party to assent to K

  • Unfair persuasion - relationship beween dominant party and dependent party due to lack of expertise/experience, diminshed capacity
  • persusasion seriously impairs free & competent judgment
  • Confidential relationship
  • 3P undue influence (can’t void if 3P relied in GF or gave value w/o notice of UI)
  • Damages - restitution
76
Q

Duress

A

Improper threat depriving party of meaningful choice

  • criminal/civil action
  • breach K in violation of GF and FD
  • no reasonable alternative => threat induced assent

K voided when duress through phsyical compulsion; otherwise, voidable

77
Q

Capacity

A
  1. Infancy - infant can void
  2. mental illness - void if adjudicated mentally incompetent; voidable if no adjudication
  3. guardianship - void (except reasonable value of necessities)
  4. intxoication - voidable if person was unable to understand nature/consequences of K AND other part knew of intox
78
Q

Defenses to enforcement

A
  1. illegality
  • unenforceable if performance/consideration is illegal
  • void if contempmlates illegal conduct
  • performance discharged if becomes illegal after formation
  • less guilty/unkonwing party can sometimes get restitution damages
  • Look for divisble Ks, licensing violations
  1. unconscionability - so unfair to one party that no reasonable person would agree to it
  2. public policy - Unenforceable if violates significnat PP
79
Q

Implied in fact K

Quasi-K

A

IIF - conduct indicates assent/agreement (not words)

Quasi-K - P conferes benefit on D and has reasonable expection of comp => Court implies K to prevent unjust enrichment

Reqs:

  • P confered measureable benefit to D
  • Without gratutitous intent
  • unfair to let D retain benefit
80
Q

Warranties - Sale of goods

A

Express - promise/affirmation/description/etc. that’s part of basis of bargain unless it’s just S’s opinion

  • Disclaimer can’t unreasonably negate/limit

I_mplied warranty of merchantability_ - implied when S is merchant. Goods fit for ordinary purpose

Implied warranty of fitness for particular purpose - S has reason to know B has particular use for goods; B relies on S’s skill to select

Disclaimers of implied Ws

  • implied W of merchantability - oral/written, uses term “mrechantablity”, conspcious
  • Implied W of fitness for PP - general language in writing, conspcious
  • All implied Ws - language like “as is” ok, B inspects goods, course of dealing/performance, trade usage
81
Q

Discharge (5)

A
  1. impracticability
  2. frustration of purpose
  3. rescission
  4. release
  5. destruction/damage to goods
82
Q

Inpracticability

A
  1. unforseeable event occured
  2. nonoccurence was basic assumption of K
  3. Party seeking discharge not at fault

Look out for: AOR, partial impracticability, failure of particular source

83
Q

Frustration of purpose

A

unexpected event destory’s one party’s purpuose re: K, even if performance not impossible

can rescind K without damages

Event doesn’t need to be completely unofrseebble, just sever enough to not be in assumed risks

84
Q

Rescission -

A
  • K cancelled such that parties are in prior positions
  • grounds must exist at time of formation
  • Can mutual agree to rscind (surrender of rights under originl K = considretion)
  • canot rescind if 3P benefiiary rights already vested
85
Q

Release

A

Writing manifesting intent to discharge party from existing duty

  • CL - need consideration
  • UCC - in writing, signed/delivered by aggrieved party is enough
86
Q

Destroyed/damaged goods

A

Destruction - goods destroyed by no fault of either party before ROL passes to B –> K avoided, parties discharged, no breach

Damaged - K avoided or B can take goods at reduced price

ROL - if already passed to B, K not avoided and S may demand performance

87
Q

3P Beneficiaries

A

Intent and understanding that 3P will benefit from performance by a party to the K

Can only recover if intended B (not incidental - no contractual intent to benefit)

Rights vest when -

  • 3P detrimentally relies on rights
  • manifests assent to K at a party’s request
  • files lawsuit
88
Q

Assignment

A

Assigns rights, not duties

Need present intent to transfer immediatley

Irrevocable if there’s consideration

Assignee takes rights under K at time of assignment AND subject to defenses that could be raised

Prohibition on assignment in K = prohib. on assigning duties, not rights

89
Q

Delegation

A

allowed unless other party has substantial interest in specific individuals’ performance (special service Ks)

delegtor not released from liablity (without novation)

Enforceable if there’s consideration or substitute consideration

Sale of goods - can trigger reasonable grounds for insecurity => other party may aske for assurance

90
Q

Ks subject to sOF

A

MSOUR

  • Marriage
  • Suretyship
  • One year
  • UCC (exceptions: specially manufactured goods, part payment, receipt/acceptance, judicial admission, failure to object to memo /wi 10 days - merchants only)
  • Real property
91
Q

Exceptions to PRE

A
  1. Defenses to formation
  2. Defenses to enforcement
  3. Proving CP to existence of K
  4. Interepeting clarifying ambiguity
  5. UCC - trade useage, course of dealing
92
Q

Conditions

A

Relieves party of obligation to perform

Express - “on condition that”, “provided that”) - must be fully performed unless excused (no susbt. performance)

implied - agreement suggests parties truly intended it to be included by failed to expressly do so OR fairness requires. Substantial performance ok

93
Q

Perfect tender

A

UCC only

S must transfer ownerhsip and tender goods conforming to W obligations

B - inspects goods and obligated to pay upon acceptance

Methods: Shipment/destination/S’s POB

* ROL: on S if no breach and goods are destroyed unless complies w/ delivery obligations

94
Q

Divisible/installment Ks

A

CL - Various units of performance divisible into distinct parts

  • can only recover for particular segment

UCC - multiple shipments, each to separately accepted

  • No perfect tender rule
  • B’s rejection - substantial conformity rule => can only reject if nonconformity substantiallly impairs value to B and can’t be cured. Same for subst. impariment of entire K
95
Q

Anticipatory repudiation - CL

A

CL - promisor repudiates before time of performance due - clear and unequivocable (words or acts)

Nonbreaching party can:

  • treat as breach
  • ignore and demand performance, but suspend his performance if it would increase damages
  • have to wait for actual breach before suing if only outstanding performance is payment and not due yet
  • Ask for assurances
96
Q

Anticipatory repudiation - UCC

A

Unequivocal refusal by B/S to perform OR

reasonable grounds for insecurity arise, other party fails to provide adequate assurance w/i reasonable time (30 day max)

97
Q

Expectation damages

A

intended to put nonbreaching party in position he’d have if K was performed

  • need calculation w/ reasonable certainty
  • P may not get consequential and incidental damages

Partial performance - recovers work peformed + expectation damages for unperformed work

Defective performance:

  • construction Ks (generally cost to correct)
  • goods - different between value of goods as warranted, actual value
  • real estate - difference between K price and market value

Economic waste - construction Ks: if cost to fix/copmlete is clearly disproportional to economic benefit/utility gained, court can award damages = dimunition in market price of property

98
Q

Consequential damages

A
  • result from breach, but special circumstances unique to parties
  • caused by breach
  • reasonable foreseeable to breaching praty
  • reasonably certain value (otherwise, reasonable expenditures in connection with K)

UCC - only Bs can recover

No limitation in personal injury from consumer goods => unconscionable

99
Q

Mitigation

A

Party must avoid/mitigate damages to extent possible by taking reasonable steps (no undue risk, expense, inconvience)

  • reasonable conduct standard re: preventing loss
  • failure to mitigate reduces damages of nonbreaching party
100
Q

Restituion recovery

A

Restitutionary - restores benefit conferred to other party

  • measured by reasonable value of D getting benefit from other source OR increase in D’s wealth from benefit
  • P can’t recover if no substantial performance and in breach

Recovery - any benefit conferred on breaching party in part performance or reliance

101
Q

Reliance recovery

A

reasonable OOP expenses incurred by NB party

Can’t get both this and expectation damages

102
Q

Specific performance

A

equitable remedy possible when damages are inadquate.

Factors:

  • difficult to prove reasonably certain damages
  • D’s hardship
  • balance of equities
  • wishes/understandings of parties
  • practicality of enforcement
  • mutuality of agreement

UCC - possible when goods are rare/unique

Defenses - laches, unclean hands

103
Q

UCC remedies - Buyer

A

B remedies - when S fails to tender goods

  • cancel K
  • recovery of payment
  • damages
  • Cover
  • Specific performance
  • Reject (must give notice to S w/i reasonable time, no acceptance)
  • acceptance (plus damages based on lost value)

S has right to cure if time of peroframcne hasn’t yet elpased or reasonably beeliveed B would take them

104
Q

UCC remedies - Seller

A
  1. Right to price
  2. right to reclaim goods (insolvent B, must make demand w/i 10 days)
  3. stoppage of goods in transit
  4. wrong rejection by B - damages, resll goods, recover price, lost profit for lost volume S
105
Q

Actus reus

Mens rea

A

Actus reus - Voluntary, affirmative (or omission thereof) causing criminal proscribed result

Means rea - guilty mnd or legally proscribed mental state

106
Q

Parties to crime - before/during

A

Principal in first degree - acts/ommissions are actus reus of crime, but need not be actually/constructively present at commission

Principle in 2D - accomplice, physically/constructively present during commission

Accessory before the fact - treated same as princpal in 1D

107
Q

Accessory after the fac

A

aids/assists to avoid apprehension/conviction after commission of felony

must know felony was committeed

  • can be accessory after fact if principal committed/was acessory before fact to capital/life/1st degree/2nd degree felony or offenses against child (unless
  • 3D felonies - if not a close relative and principal committed 3D felony or was accessory before fact and meets AAF requirements, can be AAF
108
Q

M’Naughten test

A

Due to mental defect of reason due to mental disease, D did not know either

1) nature and quality of act
2) wrongfulness of act

(right from wrong test)

109
Q

1D murder

A
  1. result of premediation
  2. felony murder - (BARRK, drug trafficking sex. battery aggravated child/elder abuse, carjacking, aggrevated stalking, terrorism, human trafficking)
  3. results form unlawful distribtuion of controlled susbtances

Specific intent (SI defenses apply)

110
Q

2D murder

A
  • Results from imminently dangerous act evincing depraved mind,
  • no premeditation
  • by person other than D during attempt/perp of enumerated felony
111
Q

3D murder

A

D commits unlawful killing during commission of non-enumerated felony

112
Q

Manslaguther

A

D kills another by act, procurement or culpable negligence w/o lawful justification

113
Q

Aggrevated manslaughter

A

D by culpable negligence causes death of

  • disabled adult
  • minor
  • officer/firefighter/medical tech/paramedic engaged in duties
114
Q

Theft

A

Covers larceny, embezzlement, false pretenses - degrees based on value of stolen goods

115
Q

2D robbery

A

taking money/property from person or custody of another

involving use of force (violence, assault, etc.)

w/ intent to deprive person of rights in property

1D if D has weapon

116
Q

Crajacking

A

Same as robbery but w/ motor vehicle

117
Q

Burglary

A

Entering of another’s dwelling w/ itent to commit an offense

Dwelling -

  • structure, surroudning curtilage that has roof and dseinged for indivdiuals to lodge at night.
  • can be abandoned or under construction
118
Q

Arson

A

Willful/unlawful burning or burning during felony of another’s dwelling (no malice needed)

119
Q

Battery

A

actual and intentional touching/srking of another against their will

  • felony battery -D actually and intentionally causes great bolidy harm/permanent disability/disfigurement
  • domestic battery by strangulation
  • aggrevated battery - D uses deadly weapon or battery against pregnant woman
120
Q

Assault

A

intentional unlawful threat to commit violence upon another

apparent ability to do so

perform act creating well-founded fear of imminent violence

  • aggrevated assault - w/ deadly weapon but w/o intent to kill/commit felony

Misdemeanor stalking - D willfully, mlacioulsy, repeatedly follows/harasses

  • aggrevated stalking - + credible threat by D w/ intent to put V in reasonable fear of imminent death or injury
121
Q

kidnapping

A

D forcibly, secretly, or by threat confines, abducts, imprisons another agianst will w/ intent to:

  • hold V for ransom, reward, hostage
  • commit felony
  • infict bodily harm/terrorize V or another
  • interfere w/ performance of gov or political functions
122
Q

Rape

A
  • capital felony - adult; V under 12
  • Life felony - adult; V between 18 and 12
  • Life felony - minor; V under 12
  • life felony - using deadly weapon or pysical force against V over 12

Statutory rape - unlawful sexual activity w/ certian minors

lewd/lascivious offenses in prseence of persons under 16

contributing to delinquency/dependence of child

123
Q

Conspiracy

A
  • agreement bewteen 2+ people
  • to accomplish unlawful purpose
  • w/ intent to accomplish that purpose

No overt act required

Withdrawal - D manifests complete, voluntary renunciation of crim purposes, dissuades other/prevent commission of offense

124
Q

Defenses

A

homicide:

  • by accident during lawful act (ordinary caution, no unlawful intent)
  • by accident in HOP upon sudden/sufficient porovcation
  • by accident resulting from sudden combat w/o dangerous weapon
125
Q

Specific defenses

A
  1. Self defense
  2. defense of others
  3. defense of property
  4. arrest
  5. duress
  6. necessity
  7. consent
  8. entrapment
126
Q

Self defense

A

justfiable use of force = immune to crim/civil action unless force used against law enforcement officer in lawful perofrmance of duties and person knew (or should have)az

Deadly force - presumption of reasonable fear of imminent death/great bodily harm if

  • intruder unlawfully/forcefully enters dwelling/vheicle
  • forcibly removes another
  • person using force knew/thought forcible entry happened

does not apply if:

  • intruder was lawfully prseent
  • removed person was intruder’s child
  • Perosn suing force engaged in unlawful activity
  • person using force knew/should have that intruder was law enforcement

No duty to retreat if person reasonably believes deadly force is necessary to prevent death/great bodily injury or prevent forcible felony

127
Q
A
128
Q

FL Religious Freedome Restoration Act

A

Substantial burden on exercise not permitted unless resulted from rule of genreal applicability

  • furthers compelling governmental interest
  • least restrictive means of furthering
129
Q

Due process

A

Prohibits

  1. deprivation of: life, liberty, property without DP of law
  2. Can’t be put in jeopardy twice for same offense
  3. compelling self-incrimnation in criminal case

Covers both substantive and procedural DP

130
Q

Limitation on access to court

A

If 1) reasonable alternative provided (arbitration, admin court) or 2) “ovepowering public necessity” for abolishment of COA w/ no alternative method

131
Q

Standing

A

injury in fact (concrete and particularized)

causation (caused by violation of Const. right0

redressibility (relief must preveent/redress injury)

* Parental standing, organizational standing, assignee standing ok

132
Q

Content-based restriction

A

Restricts actual speech, not where and when it’s used (i.e TPM restrictions)

133
Q

Vague

A

Void for vaguess: fails to give person of ordinary intelligence fair notice of what’s prohibited

134
Q

Procedural due process - 3 factors

A
  1. interests affected
  2. risk of erroneous deprivation using current procedures, value of additional safeguards
  3. burden in providing additonal process

Suspended students in public schools - need to get oral/written notice of charges. If denies, needs explanation of evidence against him and opportunity to present his side.

135
Q

IIED

A

Intentionally/recklessly acting w/ extreme or outrageous conduct that causes P severe emotional distress.

E&O conduct - exceeds possible limits of human decenty => intolerable in civilized society

136
Q

Negligent parenting

A

Parent has duty to exercise RC to prevent minor from intentionally/negligently harming 3P, as long as parent (i) has ability to control child and (ii) knows (or should have) of necessity and opportunity to exercise control

137
Q

Privileges & Immunities Clause

(Commity clause)

A

States can’t discrminate against fundamental rights or essential activities of OOS residents

Examples:

  • Commericial rights
  • live
  • travel
  • particpate in judicial and political process

Doesn’t apply to corps

138
Q

Dormant Commerce Clause

A

States are prohibited from discriminating against or unduly burdening interstate commerce even if Congress hasn’t regulated particular activity

Congress has exlcusive power to regulate interstate commerce

* Prohibition includes taxes

139
Q

Violation of DCC

A
  1. Discriminates against OOS commerce
  2. unduly burdens interstate commerce
  3. regulates wholly OOS commerce
140
Q

Discrimination against OOS competition

A

Promotes instate economic interests at expense of OOS (reqs on OOS companies but no instate)

141
Q

Exceptions to violations of DCC

A
  1. Regulation necessary to achieve important gov interst and no reasonable non-discrim alternatives exist
  2. market particpant (state as conusmer/business)
  3. involves traditional gov function (trash collection)
  4. Expressly authorized by congress
142
Q

Necessary & Proper Clause

A

Congressional power to enact legislation N&P to execute authority

143
Q

Commerce Clause

A

Congress can regulate

  • interestate commerce - channels, instrumentalities, articles moving therein, substantially related activities
  • intrastate commerce
    • instate activities that susbtantially affect IC in aggregate
    • economic activites that substantially and directly affect commerical activity (Higher burden)
144
Q

General Welfare Clause

A

Congress has broad authority to lay and collect taxes for any public purpose

145
Q

Spending powe

A

Congress can pay debt and provide for common defense and general welfare of US

146
Q

Security interest

A

Secured party’s interest in personal property or fixtures to secure payment or performance of obligation of Debtor

147
Q

Tangible collateral

A

Goods

  1. consumer goods (personal/family/household)
  2. farm products
  3. inventory (goods other than FE used/consumed in business)
  4. equpiment (catchall - goods that aren’t any of the other 3)

Software (embedded in goods only)

148
Q

Other collateral

A
  1. chattel paper (records showing $ obligation or SI in specific goods)
  2. documents (showing ownership rights re: goods w/ bailees)
  3. instruments
  4. investment property
  5. accounts (accounts payable)
  6. commerical tort claims
  7. depsoit accounts
  8. LOC rights
  9. general intangibles
149
Q

Attachment

A

SI becomes enforceable when SI attaches:

  1. value given by SP
  2. D has rights in collateral
  3. Authenticated security agreement (w/ description) or control/possession
150
Q

Security agreement

A
  1. in a record
  2. contain sufficient descrption of collateral
  3. authenticated by D
151
Q

PMSI in goods

A

SP gave value to D and D used value to incur obgliation enabling D to acquire goods, OR

SP sold goods to D and D incurred obligation to pay SP all/part of purchase price

152
Q

Accession and Commingled goods

A

Accesssion: identity of original goods not lost (retains SI)

Commingled - identity of original goods lost (lose SI in original goods but can maybe have one in product/mass)

153
Q

perfection

A
  1. filing
  2. possession
  3. control
  4. automatic
154
Q

Filing

A

D’s authentication of SA = authoriation to file

Anyone can file

FL - any non-RP collateral must be filed w/ FL Secured Transaction Registry

155
Q

Possession

A

good, insruments, negotiable docs, money, tangible chattel paper, certificated securities

156
Q

Control

A

investment property, deposit accounts, LOC rights, electronic chattel paper, electronic docs

157
Q

Automatic perfection

A

PMSI in consumer goods - indefinite perfection

Temporary - new value under SI, delivery of collateral for sale, interstate movement of collateral or debt

158
Q

Proceeds

A

Temporary perfection - Original collateral perfected => SI in proceeds lasts for 20 days from attachment

Indefinite - pursuant to financing statement, cash proceeds, same filing office

159
Q

Vehicles

A

not controlled by Art. 9

FL - statutorily requires notation on cert of title, done via e-filing

160
Q

Priority - Creditors

A
  1. Perfected SI
  2. judicial lien crditors - acquired lien via judicial process (certain exceptions re: PMSI and advances)
  3. unperfected SI (unless it’s because value not yet given)
  4. General/unsecured creditor - no lien on or SI in collateral

* Statutory lien creditor (mechanic’s lien) possessory lien securing payment for goods/services furnished in OCB

161
Q

Priority - Transferees

A

B v. perfected SI - generally, SI remains in collateral unless authorized transfer free of SI

B v. unperfected SI - B wins if gave value, received collateral, didn’t know about SI

BOCB - genreally wins regardless of perfection

162
Q

BOCB

A

Buyer in ordinary course of business

  1. Buys goods (not FP) by giving new value
  2. in ordinary course
  3. from S in business of selling those goods
  4. in GF
  5. w/o actual knowledge of sale violating another’s rights in goods
163
Q

Priority among SPs

A

Perfected v. perfected - first to file or perfect wins (note: lapse restarts clock)

Perfected v.unperfected - always perfected

Unperfected v. unperfected - first to attach wins (first in time, first in right)

164
Q

Priority among PMSIs

A

PMSI v. non - genreally PMSI wins

PMSI in goods (non inventory or lifestock) v. SI - PMSI wins if perfected within 20 dyas of D receiving possession

PMSI in inventory/lifestock v. SI - PMSI wins if perfected before D receives possession

Perfected PMSI v. perfected PMSI - first to file or perfect (EXCEPT SEller wins over lender)

165
Q

Priority overall

A
  1. BOCB
  2. Perfected PMSI
  3. perfected SI
  4. unperfected SI/PMSI
  5. Debtor
166
Q

Default

A

SP rights:

  • repossession
  • Rigth to redeem
  • foreclosure
167
Q

Accepteances of collateral

A

Can be full satsifcation of obligation or partial - D must consent to either in authenticated record

Consumer debtor exceptions:

  • partial satisfaction not permitted - SP can only accept in full satisfaction
  • strict foreclosure - if conusmer goods in possession of SP, no SF if D has paid at least 60% of price or obligation. SP must sell goods, not keep them. (D can waive but has to be in writing)
168
Q
A
169
Q

Factors for equitable distribution

A

Presumped equal, modified as equity requires

  1. length of marriage
  2. economic circumstances of each spouse
  3. contribution of each spouse to marriage
  4. contributions of one spouse to education/career of other
  5. interruptions to personal careers or education
  6. interest one spouse has in retaining asset free from claims
  7. dissipation of marital assets
  8. interest of one spouse in retaining marital residence for dependent kids
  9. any other factors court finds necessary & just
170
Q

Spousal support - Factors

A
  1. standard living during marraige
  2. duration
  3. age and condition of each party
  4. financial resources
  5. earning capacities, vocational skills and employability
  6. education levels
  7. time necessary for either party to acquire qaulifications to find approrpaite employment
  8. contribution of each party to marriage
  9. expected responsiblities for minor children
  10. tax treatement/consequuences
  11. all sources of incoem availbale to either party
  12. any other factor necessary and just
171
Q

types of alimony

A
  1. pendente lite (temporary) - available from time of separation and competion of dissolution proceedings
  2. BTG - transition from being married to single, can’t exceed 2 years or be modified
  3. rehab - limited period of time; help establish self-support; need limited and specific plan re: educational/vocational expenses; can be modified/termainated based on substantial change, noncompliaince, completion
  4. Permanent - reaminder of dependent spouse’s life; court must include finding that no other alimoney is F&R
  5. Durational - awarded for general economic support; baesd on lenght of marriage (can’t be longer than marriage)
172
Q
A

FL subjects (15 decks)

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