Jul 2012 Flashcards
BFP =
Subsequent purchaser for value without notice of previous transfer
Desertion as ground for divroce if:
1) breaking of cohabitation
2) intent to desert
Can mutual agreement to separate = desertion?
No
When is a written property settlement agreement valid and effective?
Upon execution
If PSA not incorporated into court order,
Still enforceable if filed with court before entry of final decree
If PSA enforceable, can court modify PSA?
NO
If W admits in court that W and H modified agreement orally, can that count as an enforceable modification?
Yes
Can W seek contempt of court?
Only if PSA was part of court order.
Divorce - which court to file in?
1) last cohabited place or
2) where P is domiciled and has lived for last 6 months
If party is partnership, what is partnership’s citizenship for PJ?
Every state where partner is citizen
Can claims be aggregated for diversity $75K requiremenet
Yes
Where can D properly transfer venue to?
Where substantial part of COA arose AND where all Ds reside, if all the same
Where does D reside for venue requirement purposes
Where it would be subject to PJ
When can D implead a 3PD?
When D believes 3PD is liable for some or all of D’s liability
3PD requirements:
SMJ and PJ
If no SMJ, can use supplemental JXN (same T/O)
Trust beneficiaries include both
Current or future beneficial interests
Duties that trustee owes to beneficiaries:
Duty of loyalty, prudence, and impartiality
Duty of loyalty in trust context =
Not favouring own interests over B’s
Prudence
Administer trust as a prudent person would, considering circumstances, terms, etc. reasonable caref
Duty of impartiality:
Not favouring one B over another
Even if trust allowed trustee to give in sole discretion, needs to be:
in GF and in accordance with terms and Bs’ interests
Remove and replace trustee if
1) serious breach of trust OR
2) unwillingness/unfitness/persistent failure to administer trust
UCC contract - how to get J to deliver 100 tons of apples?
1) Specific performance
2) Detinue or pre-trial seizure
3) Temporary injunction
SP ok for contracts even if goods not unique?
Yes, UCC requirement on that relaxed now
Pre-trial seizure - need to sow
at least one ground for attachment (e.g. about to sell in violation of law/obligation)
defenses to SP/Detinue/Pre-trial seizure/TRO in UCC contract situation?
1) lack of consideration (not a good defense in requirement contracts, so requirement Ks don’t need consideration, just GF and commercial fair dealing)
2) Misrepresentation/fraud - hard if not material
Voluntary intoxication only a defense against mens rea requirement for
first-degree murder
Conspiracy requires:
Shared intent and agreement to commit crime
Who can bring breach of fid duty of loyalty claim against corporation?
Corporation itself or shareholders as derivative action on behalf of corp (not by SH individually)
Business Judgment rule
GF and reasonable
Cap on liability for officers and directors for breach of fid duty ok?
Yes, but doesn’t cover wilful misconduct
Sometimes court can enter judgment against defaulting defendant
for the relief appearing to the court to be due
