Final Review Flashcards
1
Q
UCC Art. 9
Contracts / Property
A
UCC Art. 9 applies to security interests in TRADE fixtures
2
Q
Agency Theory of Liability
Crim
A
Under the agency theory, a felon is only responsible for the deaths he caused or his accomplice caused, NOT deaths caused by other third parties; i.e., store clerk or police)
3
Q
Proprietor Liability
Crim
A
Absent a statute, mere knowledge that crime MIGHT result from the sale of ordinary goods at ordinary prices is NOT enough to hold a proprietor under accomplice liability (because proprietor does NOT have the required intent)
4
Q
False Pretenses
Crim
A
False pretenses = taking “title” (look to see what victim intended to convey; cash = title)
5
Q
Burglary
Crim
A
Burglary is NOT just about theft, it is the intent to commit ANY felony
6
Q
Show-Up / Line-Up & DP
Crim Pro
A
A “show-up” is a one-on-one confrontation between the witness and the suspect for the purpose of identification; A “line-up” or “show-up” violates DP when the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification (a very difficult test–must be extremely suggestive)
7
Q
ID / Independent Source Factors
Crim Pro
A
Identification independent source factors include: (1) opportunity to observe defendant at the time of the crime; (2) ease in which witness can identify defendant; and (3) existence or absence of prior misidentifications.
8
Q
First Degree Murder
Crim
A
First degree murder is committed with deliberation and premeditation
9
Q
Voluntary Intoxication
Crim
A
It is generally geld that voluntary intoxication will NOT mitigate murder down to manslaughter
10
Q
Insanity and Diminished Capacity
Crim
A
Include a “diminished capacity” analysis with any insanity analysis
11
Q
Codicil
Wills
A
[“RAM”] A codicil is a testamentary instrument intended to modify, amend, or revoke an existing will
12
Q
Consent & Necessity
Torts
A
Differentiate between defense of consent (defendant acts for the benefit of the plaintiff) and necessity (defendant acts for the benefit of others besides the plaintiff)
13
Q
Superseding Factors
Torts
A
Superseding factors break the causal connection; defendant is NOT liable for unforeseeable results from foreseeable or unforeseeable forces
14
Q
Accommodation
Contracts
A
Accommodation shipment rules apply only when shipment is used as a form of acceptance. Watch out for a fact pattern in which a party accepts an order by promising to ship, he then discovers he lacks the specified goods and ships “nonconforming goods”as “accommodation.” This is an acceptance and breach; NOT an accommodation. There was a contract at the promise of shipment. The shipment was NOT the acceptance and, thus, the accommodation is NOT possible.
15
Q
SoF NOT req’d for Goods >$500
Contracts
A
[“SWAP”] When a writing signed by the party to be charged is NOT required for the sale of goods, even if $500 or more: (1) specially made goods; (2) written confirmation by a merchant; (3) admission in court; or (4) performance. These facts take the contract out of the SoF.
16
Q
Mitigate
Contracts
A
The duty to mitigate only REDUCES a recovery; it does NOT prohibit recovery
17
Q
Takings Clause
Con Law
A
Government must pay just compensation when it takes private property for public use
18
Q
Government Takings
Con Law
A
(1) Possessory Taking (“Per Se” Taking);
(2) Regulatory Taking: (a) deprivation of all economic value (usually a taking); or (b) decrease in economic value–use balance test: (i) economic impact, against (ii) distinct, investment backed expectations (usually NOT a taking).
19
Q
Taking for Public Use
Con Law
A
Government acts out of reasonable belief its actions will benefit the public
20
Q
Just Compensation
Con Law
A
Government must pay fair market value (FMV) of what was taken, measured by loss to owner at time of taking
21
Q
Piercing the Corporate Veil
Corps
A
[“After I Pierce - FU”] - May pierce the corporate veil to hold SH’s personally liable in the following situations to prevent Fraud or Unfairness: (1) Alter Ego (corporate formalities ignored AND injustice resulted); (2) Inadequate capitalization; or (3) to Prevent fraud. (Usually for tort cases; contract cases harder)
22
Q
Derivative Suits
Corps
A
[“Sow D”] Requires: (1) Standing–ownership at the time of the wrong; AND (2) Demand requirements (written demand-90 day wait period). Will be dismissed if NOT in corp’s best interest; need court approval to discontinue or settle; and court may order payment of expenses.
23
Q
Fundamental Corporate Changes
Corps
A
Regular issues can be approved by a majority of the shares cast at a meeting, as long as there is a quorum; whereas a fundamental corporate change must be approved by a majority of all votes entitled to be cast–NOT just those case for a meeting.
24
Q
Types of Fundamental Corp Changes
Corps
A
[“MAC SD”] - (1) Merger; (2) Amendments; (3) Consolidation; (4) Sale of substantially all of the assets; (5) Dissolution
25
Dissenters Appraisal
| Corps
Dissenters from the fundamental corporate change have the right to force the corporation to buy back their shares at FMV. Must "perfect the right" by documenting their opposition, voting against the fundamental change, and making a written demand.
26
Rule 10b-5
| Corp
["IP'ed MF"] - Rule 10b-5 makes it illegal for any person to (i) use any means of Instrumentality of interstate commerce; (ii) in connection with the Purchase or sale of any security; (iii) to Employ any scheme to Defraud, make an untrue statement of Material fact (or omit a material fact), or engage in any practice that operates as Fraud. (Fraudulent conduct--(1) materiality and (2) scienter/intent.)
27
Rule 10b-5 "Insider Trading"
| Corp
Insider info; breaches a duty of trust and confidence owed to (1) the issuer/corp; (2) SHs of the issuer; (3) in the case of misappropriators, another person who is the source of the material non-public info (insiders, tippers/tippees, misappropriations)
28
```
Section 16(b)
(Corps)
```
(1) Director, officer, or SH owning more than 10% of a class of stock; (2) Purchase or sale of any equity security within SIX month period. Applies to publicly held corps with more than $10 million in assets AND (i) at least 2,000 SH or 500 unaccredited SH; (ii) whose shares are traded on a national exchange (STRICT LIABILITY)
29
Objections
| Evidence
["CANS LC"] (1) Calls for narrative; (2) Assumes facts NOT in evidence; (3) Nonresponsive; (4) Speculation; (5) Leading; (6) Compound
30
Legal Relevance Public Policy Exceptions
| Evidence
["I MRS. G'S"] (1) Liability insurance; (2) Subsequent remedial measures; (3) Settlement offers; (4) Payment or offer to pay medical expenses; (5) Guilty pleas; (6) CA only--Sympathy statements
31
NOT Hearsay
| Evidence
["LEND"] - (1) Legal operative facts; (2) Effect on hearer / listener; (3) Nonhuman declarations; (4) Declarant's state of mind via circumstantial evidence
32
Non-Hearsay
| Evidence
["PA"] - (1) Prior Statements - (i) Prior Inconsistent Statements; (ii) Prior Consistent Statements; (iii) Prior Identifications; (2) Admissions - (i) Party; (ii) Vicarious; (iii) Adoptive (tacit / silent); (iv) Co-conspriators statements (watch Confrontation Clause)
33
Hearsay EXCEPTIONS
| Evidence
["UR DO"]
(1) Unavailability ("DDF") - (a) Declarations against interest; (b) Dying declarations; c) Former testimony;
(2) Reliability ("EPBP") - (a) Excited Utterance / Spontaneous Statement; (b) Present Sense Impression / Contemporaneous Statement; c) Bodily Condition; (d) Present State of Mind;
(3) Documentary ("OBP") - (a) Official records; (b) Business records; c) Part recollection recorded
(4) Others ("LAF") - (a) Ancient documents; (b) Learned treaties; c) Federal catch-all
34
Types of Leaseholds
| Property
(1) Tenancy for Years; (2) Periodic Tenancy; (3) Tenancy at Will; (4) Tenancy at Sufferance
35
Termination of an Easement
| Property
["END CRAMP"] - (1) Estoppel; (2) Necessity; (3) Destruction; (4) Condemnation; (5) Release; (6) Abandonment; (7) Merger; (8) Prescription
36
Touch and Concern
| Property
More VALUABLE and more USEFUL
37
General Warranty Deed
| Property
(1) Present Covenants - (a) Seisen; (b) Right to Convey; c) Against Encumbrances;
(2) Future Covenants - (a) Quiet enjoyment; (b) General warranty; c) Further assurances
38
Former Government Lawyer
| PR
ABA - If government lawyer worked "personally" and "substantially" on a "matter" (specific dispute, between specific people, over specific issue)
39
Organizational Representation
| PR
ABA - Mandates "reporting up" and permits limited "reporting out"
CA - Permits "reporting up" but prohibits "reporting out" (but because of federal preemption, a CA lawyer cannot be disciplined for complying with federal law
40
Class Actions
| Civ Pro
FIRST, Initial Requirements: ("CANT") (1) Commonality--at least one question of law or fact is common to the class; (2) Adequacy of Representative--rep will fairly and adequately represent the class; note that court can remove adequacy problem by appointing another rep; (3) Numerosity--so numerous that joinder of all members would be impossible or impractical; (4) Typicality--reps claims / defenses are typical of those of the class.
SECOND, must fit into one of three categories: ("DIP") (1) Damages--when the common questions of law and fact by the class predominate over individual differences and class action is the superior method to handle the suit (i.e., bus crash or cigarette cases); (2) Injunctive or Declarative Relief--if the entire class requests injunctive relief (i.e., employment discrimination or dumping in a pond); (3) Prejudice--class treatment necessary to avoid harm either to the class member or to the party opposing the class (i.e., limited funds)
41
CA Class Actions
| Civ Pro
Must have: (1) Ascertainable class; (2) Well-defined community of interests ("CAB")--(a) Commonality; (b) Adequate Class Rep; c) Whether certifying the class will result in a substantial Benefit to the court and parties
42
Motions to Dismiss
| Civ Pro
Evidence viewed in the light most favorable to the moving party
43
Strict Products Liability (SPL)
| Torts
SPL: (1) Defendant is a commercial supplier; (2) Defendant produced or sold a defective product; (3) the defective product was the actual and proximate cause of the Plaintiff's injury; and (4) the Plaintiff suffered damages to person or property
(note: keep rules of SPL and NPL separate!)
44
Inadequate Warnings
| Torts
Inadequate warnings are analyzed the same as design defects
45
Actual and Proximate Cause
| Torts
Need actual and proximate cause for everything (SPL / NPL / Negligence)!
46
Expert Testimony
| Evidence
Expert testimony factors ("HQ CFR"): (1) Helpful to a jury; (2) Qualified as an expert; (3) holds his opinion to a reasonable degree of Certainty; (4) opinion based on sufficient Facts or data; (5) opinion based on Reliable principles and method (FRE - Daubert; CA - Kelley/Frye)
47
Daubert Test
| Evidence
("PERR") (1) Publication / peer review; (2) Error rate low; (3) Recently tested and can be retested; (4) Reasonable level of acceptance.
48
Kelley/Frye Test
| Evidence
Generally accepted by the experts in the field
49
Real Covenants / Equitable Servitudes (Burden or Benefit)
| Property
Burden: WITCH NV
Benefit: WITV
Equitable Servitude: TWIN
Remedies: RC=real cash; ES=injunction
50
Adverse Possession
| Property
("COAH") (1) Continuous; (2) Open and notorious; (3) Actual, physical entry; (4) Hostile
51
Easements Types
| Property
Easements are non-possessory and for another's the use and enjoyment.
("PING") (1) Prescriptive; (2) Implied; (3) Necessary; or (4) Grant
52
Mutual Mistake
| Contracts
("BAM-ER") Contract is voidable by adversely affected party if: (1) mistake concerns Basic Assumption on which contract was made; (2) mistake has a Material Effect; AND (3) party seeking avoidance did not assume Risk
53
Impossibility / Impracticability
| Contracts
```
Impossibility = Objective Test
Impracticability = Subjective Test
```
54
Promissory Estoppel
| Contracts
Contract still enforceable to prevent injustice, regardless of a lack of consideration IF: (1) the promisor should reasonable expect to induce action or forbearance, AND (2) such action or forbearance is in fact induced
55
Outside the Scope of Parol Evidence Rule
| Contracts
"STARVIN" - validity / formation issues
56
Discharge of Duties by Parties
| Contracts
"MRNA" - Modification; Rescission; Novation; Accord and Satisfaction
57
Unmarketable Title
| Prop
("DA FEZ") - (1) Defects in record chain of title; (2) Adverse possession; (3) Future interests held by unborn or unascertainable persons; (4) Encumbrances; or (5) Zoning restrictions
58
Mortgages Priorities
| Prop
(1) Foreclosure expenses; (2) Legal fees / Court costs; (3) Principal; (4) Junior interets; (5) Mortgagor
59
Water Rights
| Prop
Water Front Property:
Riparian = domestic, reasonable use;
Prior Appropriations = "first in time, first in right" (beneficial use)
Ground Water:
Reasonable Use
Surface Water:
Common Enemy Rule = protective reasonable or unreasonable measures
Natural Flow = (majority) cannot alter natural drainage patterns
60
Dormant Commerce Clause - Discriminatory on Its Face
| Con Law
Invalid unless: ("MINE DAT") (1) state Market participant; (2) law further an Important, Non-Economic interest and there are no reasonable Non-Discriminatory Alternatives; or (3) Traditional government function
61
Dormant Commerce Clause - Non-Discriminatory Law
| Con Law
If the law is discriminatory in its purpose or effect: (1) balance the state's interest against the burden on interstate commerce; and (2) consider other less burdensome alternatives
62
```
Prior Restraints
(Con Law)
```
If government prevents speech before it occurs, the government must show some societal harm due to the speech
Requirements: ("NIP") - (1) Standards must be Narrowly drawn, reasonable, and definite; (2) an Injunction must promptly be sought; and (3) must be Prompt and final determination of validity of restraint
63
Vagueness
| Con Law
Reasonable person not given reasonable notice of what is prohibited
64
Overbreadth
| Con Law
Regulates both protected and unprotected speech
65
Obscenity
| Con Law
("PP-Laps") (1) appeals to the prurient interest (average contemporary community standard); (2) patently offensive (average contemporary community standard); (3) lacks literary, artistic, political or scientific value (national standard)
66
Public Forums
| Con Law
Government required to make available for speech (i.e., sidewalks, parks) (1) regulations must be subject matter and viewpoint neutral or SS must be met; (2) TPM regs must serve important government purpose, narrowly tailored, and leave open adequate alternative channels for communication
67
TPM Regs
| Con Law
(1) Content neutral; (2) Narrowly tailored; (3) Leaves open adequate alternative channels for communication
68
Non-Public Forums
| Con Law
Government may regulate as long as it is reasonable and viewpoint neutral
69
Standing and State Action
| Con Law
For Con Law essays, mention standing and state action if there is time
70
Federal Questions - SMJ JDX
| Civ Pro
FQ requires that the case arise from the laws, treaties, etc. of the US, as presented in the plaintiff's well-pleaded complaint
71
Agent Duties Owed to Principal
| BA
("LOE") - (1) Loyalty ("SUS" - no Self-dealing; no Usurping; no Secret profits); (2) Obey reasonable instructions; (3) Exercise reasonable care
72
Principal Duties Owed to Agent
| BA
("CCR") - (1) Compensation (if not in agency agreement, than reasonable compensation); (2) Cooperation; (3) Reimbursement
73
Partnership Duties
| BA
GPs are fiduciaries of each other and the partnership. Partners owe a duty of loyalty ("SUS")
74
De Jure Corporation
| Corps
("A PAIN") - (1) Authorized shares; (2) Purpose; (3) Agent; (4) Incorporators; (5) Name of Corp
File Articles of Incorporation with the Secretary of State
75
De Facto Corporation
| Corps
("G CK") - (1) Good faith, colorable attempt to comply with corporate formalities; and (2) no Knowledge of lack of corporate status
76
Corporation by Estoppel
| Corps
Estoppel rules - contract issue only
77
Foreign Corporation
| Corps
Requires a filing a Certificate of Authority that includes all the requirements of the AOI
78
Meeting Notice
| Corps
Meeting's notice 10-60 days before
79
Director's Fiduciary Duties
| Corps
(1) Care (prudence / BJR); (2) Loyalty ("SUS")
80
Controlling Shareholder's Duty
| Corps
Controlling SH has a fiduciary duty to minority SHs and must not sell to a "looter"
81
Tender Offer
| Corps
Widespread public offering to purchase a substantial percentage of the target's shares; if more than 5%, must filed a Schedule 14D disclosure re: bidder's identity, source of funds, past dealings with the target, and plans concerning the target; offer open for 20 days and revocable (Williams Act)
82
Business Judgment Rule (BJR)
| Corps
("GBP") - BJR generally protects directors from personal liability to corporation / SH; (1) director must act in Good faith; (2) with the care that an ordinary Prudent person in a like position would exercise; AND (3) in a manner reasonably believed to be in the Best interests of the corp
83
Trustee Duties
| Trusts
("LIIL' CA CD") - (1) Loyalty; (2) Impartiality / Fairness; (3) Invest--(a) state lists / statutes; (b) CL prudent person test, each investment individually scrutinized; c) Uniform Prudent Investor Act, each investment NOT individually scrutinized; (d) duty to DIVERSIFY; (4) Duty to Label / Earmark; (5) Duty of Care; (6) Duty to Account; (7) Duty to NOT Commingle trust property; and (7) Duty to NOT Delegate
84
Integration
| Wills
(1) Intent to be part of the will; and (2) Presence
85
Incorporation by Reference
| Wills
(1) Document or writing; (2) In existence at time of execution; (3) Clearly ID'd in the will; AND (4) Intent to incorporate
86
Acts of Independent Significance
| Wills
"I leave my car at the time of my death to my son"
87
Tchaskee Letters
| Wills
(1) Referred to in the will, dated, signed, and handwritten; (2) Describes items / beneficiary with reasonable certainty; (3) Tangible personal property (NOT cash)--each item NOT more than $5k and NOT more than $25k in the aggregate
88
UTATA
| Wills
Pour over wills - Testator can make gifts by will to a trust, even a revocable and amendable trust, provided that the trust instrument was executed before or concurrently with the will and is adequately identified in the will
89
CP Rules in General - SP clause
| Comm Prop
SP ("GDB, RIP") - "or acquired by gift, devise, or bequest with rents, issue, or profits thereon."
90
Marvin Actions
| Comm Prop
Courts will enforce express contracts, unless the contract is for illegal sex services (arises in re Cohabitation issues or Domestic Partnerships)
91
Valuing Assets Rule
| Comm Prop
Courts will value assets and liabilities as close to the time of trial as possible.
92
Lucas (Death)
| Comm Prop
At death, Lucas applies. Under Lucas, when a married couple takes title in joint and equal form, it is inconsistent with the preservation of a SP interest in the asset. Any SP used to acquire the asset is presumed to be a gift of the SP to the community, unless there is an oral or written agreement to the contrary.
93
Anti-Lucas (Divorce)
| Comm Prop
At divorce, all property taken by a married couple in any joint form is presumed to be CP. Any SP used to acquire the jointly titled asset does NOT give the SP a pro rata ownership interest in the asset, but the spouse who contributed SP is entitled to reimbursement without interest or appreciation.
Put otherwise, the spouse who contributed SP will get back dollar-for-dollar off the top of SP put into CP for the Downpayment, Improvement, or Principle reduction of that property (but NOT interest, taxes, dividend, insurance, or maintenance). ["DIP"]
94
Pereira Formula - Business
| Comm Prop
Pereira accounting is used when the increase in value of an SP business is primarily the result of community labor (i.e., personal skill and effort caused the increase in value). Using Pereira, we first determine the value of the SP at the beginning of the business and give it a fair rate of return over the course of the marriage. Normally, this is the legal interest rate of 10%, calculated annually. The SP is then given the initial value plus the fair rate of return. The remainder is CP.
Community Benefits:
[( ii x 10%) x # of years] + ii = SP; remainder = CP
95
Van Camp Formula - Business
| Comm Prop
Van Camp accounting is used when the increase in value of a business is primarily the result of the unique nature of the SP asset. Using Van Camp, we first determine a fair salary for the community labor. Multiply that by the years of the marriage. Subtract any salary already received and any amounts paid for community expenses. The result is the CP share. The rest is SP.
Separate Prop Spouse Benefits:
(FMV of salary x # of years of marriage) - salary / expenses already paid to CP = CP; remainder = SP
96
Distribution at Divorce / Equal Division Rule
| Comm Prop
The basic rule at divorce is to divide each community asset equally in kind. Thus, each spouse is given 1/2 of each community asset.
97
Hug Formula - Stocks
| Comm Prop
If the divorce court determines that the stock options were awarded primarily to REWARD spouse for his PAST services, as a form of deferred compensation; the court should employ the Hug Formula, under which the starting point for both the numerator and denominator of the fraction is the date of EMPLOYMENT. The fraction is then multiplied by the number of shares of stock that can be purchased under the options
[Date of Employment - Date of Separation] / [Date of Employment - Date of Vesting] = CP
98
Nelson Formula - Stocks
| Comm Prop
If the divorce court determines that the stock options were awarded primarily to ENCOURAGE spouse to remain with the company; the court should employ the Nelson Formula, under which the starting point for both the numerator and denominator of the fraction is the date the options are GRANTED. The fraction is then multiplied by the number of shares of stock that can be purchased under the options
[Date of Granting - Date of Separation] / [Date of Granting - Date of Vesting] = CP
99
Brown Formula - Retirement Plans
| Comm Prop
Pro rata rule:
of months employed whiled married / # of months employed (i.e., date of employment to date of retirement)
100
Gilmore Formula - Retirement Plans
| Comm Prop
(Use if spouse continues to work AFTER date of maturity; operates as an election for the unemployed spouse--available after maturity):
of months employed while married / total # of months employed until Gilmore election = CP % that the spouse must pay OUT OF POCKET
101
Fiduciary Duties of Spouses
| Comm Prop
(1) Loyalty; (2) NO Reckless Investments; (3) NO Undue Influence; AND (4) Post-marriage, disclose ALL assets
102
Restitution Unavailability
| Remedies
Restitution / unjust enrichment is NOT applicable to encroachment or nuisance
103
Replevin and Damages
| Remedies
Replevin is almost ALWAYS coupled with damages for lost use and benefit
104
Ejectment Availability
| Remedies
Ejectment is available only against a defendant who has possession of property (i.e, an adverse possessor or holdover tenant; NOT a trespasser).
Also, almost ALWAYS coupled with damages for lost use or profits
105
Equitable Restitution Applicability
| Remedies
Apply equitable restitutionary remedies when defendant has taken TITLE to the property
106
Constructive Trust Applicability
| Remedies
Apply CT when defendant has taken TITLE to the property and it INCREASES in value
107
Equitable Liens Effect
| Remedies
Equitable liens = immediate, court directed sale
Apply EL when defendant has taken TITLE to the property and it DECREASES in value
108
Preliminary Injunction Elements
| Remedies
("I Bake Like Nine Breads") - (1) Irreparable harm; (2) Balance the hardships; (2) Likelihood of success on the merits; (3) Noticed hearing; (5) Bond requirement
109
TRO Elements
| Remedies
(1) Immediate irreparable harm; (2) Ex parte (but good faith to provide notice and chance to appear); (3) Limited duration (CA - 10 days; FED - 14 days)
110
Permanent Injunction - Balance of Hardships Element
| Remedies
(Permanent Injunction = "I Prefer Free Base Drugs")
Balance of hardships element: there will be NO balancing if the defendant's conduct is WILLFUL (but balancing is ALMOST always a primary discussion with TORT nuisance or trespass to land)
111
Erroneous Injunctions
| Remedies
An erroneous injunction must be obeyed until modified or dissolved
112
Liquidated Damages and SP
| Remedies
A valid liquidated damages clause will NOT prevent a plaintiff from getting Specific Performance
113
Quasi-K (Plaintiff Breaching Party)
| Remedies
(Modern) If plaintiff is the breaching party for a Quasi-K, recovery is allowed but will be reduced by any damages suffered by the defendant and CANNOT be greater than the contract rate
(Traditional) No recovery
114
Forfeiture Clauses - Equity Maxin
| Remedies
"Equity Abhors Forfeitures"
115
Specific Performance - Unique Prop
| Remedies
Unique property will satisfy the inadequate legal remedy element. Land is ALWAYS unique.
116
Specific Performance - Plaintiff's Condition Satisfied
| Remedies
Plaintiff must be able to show his contract conditions have been fulfilled (i.e., already perfumed; ready and able to perform; or excused from performance).
117
Specific Performance - Defect
| Remedies
If you decide that SP should be granted even though a defect exists, you MUST note that the court will ABATE the purchase price to account for the defect
118
Unclean Hands and Laches
| Remedies
Unclean hands and laches are defenses to almost ALL equitable remedies
119
Covenant NOT to Compete
| Remedies
Enforceable if: (1) the services are UNIQUE; (2) the SCOPE (geographic and duration) is reasonable.
120
Unconscionability
| Remedies
Unconscionability must be procedural and substantive
121
Rescission
| Remedies
If plaintiff sues for damages FIRST, this is considered an affirmation of the contract and rescission is NO LONGER available (note: still can sue for BOTH rescission and damages, just choose rescission first).
122
Unilateral Mistake
| Remedies
Unlike the unilateral mistake exception for rescission, the non-mistaken party must actually know of the mistake (NOT "should have known")
123
Non-Defenses to Reformation
| Remedies
(1) Negligence; (2) SoF; (3) PER
124
Purchase Money Resulting Trust
| Remedies
A court may impose a PMRT after a sale of property in which one person takes title in the property and another person supplies consideration before or at the same time the other person takes title. The person who obtained legal title is deemed the trustee of a resulting trust, and the person who furnished consideration is deemed the beneficiary. The trustee's sole duty is to convey his title to the beneficiary. However, where the beneficiary pays only part of the purchase price, the resulting trust in her favor will be for only a pro rata portion of the title. Because resulting trusts are implied by the court, NO writing is necessary.
125
Mercy Rule - Defendant's Character
| Evidence
A defendant may introduce evidence of his GOOD character in the form of reputation or opinion evidence. The prosecution may rebut by (1) calling additional witnesses who can testify in the form of reputation or opinion evidence to the defendant's BAD character; or (2) CROSS-exam the defendant's witnesses with specific instances of conduct.
[*CA - only allows reputation and opinion evidence on direct and cross]
126
First Aggressor Rule - Victim's Character
| Evidence
A defendant may introduce reputation and opinion evidence of a BAD character trait of the victim. The prosecution may rebut by (1) calling additional witnesses who can testify in the form of reputation or opinion evidence to the (a) DEFENDANT's same BAD character; or (b) the VICTIM'S same GOOD character; or (2) CROSS-exam with specific instances of conduct.
[*CA - allows reputation, opinion, AND specific instances on direct AND cross, but only allows evidence of victim's character for violence]
127
CA Statement Describing Threat of Physical Injury
| Evidence
(aka "OJ Exception") - UNAVAILABLE declarant describes or explains the infliction or threat of physical injury upon the declarant. For the exception to apply, the statement must be (1) made at or near the time of the infliction or threat; (2) made under circumstances that indicate its trustworthiness; and (3) in writing or made to law enforcement or medical personnel.
128
Excited Utterance / Spontaneous Statement
| Evidence
Look for exclamation points in the statement!
129
Limited Admissibility
| Evidence
May be admissible for one purpose, even though it is inadmissible for another purpose, as long as the judge gives the jury a limited instruction. This rule is subject to 403 / 352 balance test
130
Authentication of a Telephone Call
| Evidence
(1) Witness recognizes the speaker's voice; (2) speaker has knowledge of certain facts that only a particular person would have; or (3) the speaker has ID'd himself.
131
Lay Opinion
| Evidence
(1) Rationally based on perception; AND (2) Helpful to a clear understanding of her testimony or to the determination of a fact in issue (CANNOT be based on specialized skill or scientific data)
