FINAL REVIEW 161-180 Flashcards
Forced Sale and Equitable Division
Forced sale and division of the proceeds is allowed where a fair and equitable physical division of the property is not possible
Rule Against Perpetuties
RAP APPLIES:
- Contingent remainders/Class gifts
- Option to purchase connected with a fee
- Powers of appointment
- Executory Interests
- Rights of First Refusal
NOT:
- Possibility of Reverter - Automatic
- Right of Rentry - Manual
Summary Judgement and Timing
Party can prevail at SJ by showing absence of admissible evidence in the discovery record to support claim by opposing party. Anytime until 30 days after discovery
Expert Testimony Requirement
Expert testimony is not required for negligence matters where an ordinary person is expected to have the knowledge, or where the lack of skill or care is so clear as to render expert testimony unnecessary.
Economic losses and negligence
Generally, there is no negligence recovery by those suffering purely economic losses.
Novation
Either replacing an obligation to perform with a new obligation, or replacing a party with a new party.
TIP - Discharges previous duties under new agreement
TIPS FOR MULTIPLE CHOICE QUESTIONS
Correct Statement of law over statement of fact
Two answers that are the same cannot be correct
Reading Comprehension - Least, not, inadmissible, always, never, any whenever - QUESTIONABLE
If you dont know what an answer choice is stay away
Told the unlikely party won - Generally apply minority position
Choose a more specific answer
Elements that are there are good, elements missing is better
MPE FORMULA:
- Issue
- Apply Law
- Remove wrong answers
Accomplice Liability Theory
Requires:
1. Intent that the crime be committed
- Encourage someone to perform the unlawful acts
Assumption of the Risk
Express Assumption - Plaintiff releives D of any legal duty either:
- By contract
- By overt language agreeing to waive liabilty and not sue
Results in Complete Bar
Implied Assumption - Plaintiff voluntarily agrees to encounter a known risk
- Doctrine has merged into compartive fault in most places
- Not a complete bar to recovery
- Assume joint and several liability
Misrepresentation
Requirements:
- False representation of a past or present material fact
- Non-disclosure in the case of fiduciary relationship - Scienter
- Actual and justifiable reliance by P
- Damages
Generally, no duty to disclose information exists unless there is special relationship
Res Ipsa Loquitor
Provides “inference” of negligence
Establishes duty and breach
Procedural effect: enough to avoid directed verdict
Res Ipsa may be applied when multiple defendants and insturmentalities may have caused accident, provided there is a finite group to blame.
Control over Instrumentality
Issue is whether D had the right to control and not actual control.
Easement Rights
Holder of an easement has the right to enter upon the land of the servient tenement and make reasonable use of the easement.
Impeachment by Conviction
Crimes are admissible for credibility impeachment if within last 10 years:
- Punishable by death or imprisonment in excess of one year.
- Crime involved dishonesty or false statement