July '23 Flashcards
personal injury SoL
two years
slip and fall contributory negligence
In the context of a slip and fall claim, the Supreme Court of Virginia has held
that when a plaintiff knows of the existence of a condition but without reasonable excuse forgets about the
condition and falls into, off of, or over it, he is guilty of contributory negligence as a matter of law.
counterclaims
Under Virginia procedural rules, counterclaims are permissive. More specifically, a defendant may plead
as a counterclaim any cause of action the defendant has against the plaintiff whether or not it arises out of
the same transaction that is the subject of the plaintiff’s complaint and whether it is in tort or contract.
While a counterclaim arising out of the same transaction identified in plaintiff’s complaint will relate back to
the date the complaint was filed for purposes of statute of lim
nonsuit
Under Virginia procedural rules, a party may take a nonsuit during trial before a motion to strike the
evidence has been sustained or before the jury retires from the bar. Under Virginia procedural rules, a party cannot nonsuit a cause of action, without the consent of the
adverse party who has filed a counterclaim, if the counterclaim arises out of the same transaction or
occurrence as the claim of the party seeking to nonsuit. This rule does not apply if the counterclaim can
remain pending for independent adjudication by the court.
how many nonsuits
Under Virginia procedural rules, a plaintiff has one nonsuit as a matter of right if done so timely. While the
court has discretion with additional nonsuits, there is no language in the nonsuit statute qualifying the right
to a nonsuit based on a trial continuance.
fraudulent transfers between husband and wife
Transfers between an indebted husband and his wife are presumed to be
fraudulent and are voidable at the suit of either existing or future creditors. This presumption of fraudulent intent can be
rebutted if the wife shows that she gave consideration for the transfer or that the transfer was a bona fide gift.
lender requirements to set aside fraudulent transfer
As the Lender was a present creditor at the time of the transfer, Lender can file a motion to set aside the transfer
as fraudulent or voluntary. They need to establish clear, cogent, and convincing evidence of David’s fraudulent intent
through these badges of fraud
tenancy in the entirety + creditors
Under Virginia law, property held as tenancy by the entireties can only be used to satisfy joint debts of the husband
and wife. An individual spouse’s debt cannot be enforced against property held as tenancy by the entireties.
creation of express warranty
Under such statute, “(a) Any affirmation of
fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain
creates an express warranty that the goods shall conform to the affirmation or promise. (b) Any description of the goods
which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.”
Further, Va. Code § 8.2-313(2) provides that “[i]t is not necessary to the creation of an express warranty that the seller use
formal words such as “warrant” or “guarantee” or that he have a specific intention to make a warranty.
what is not a creation of an express warranty
a statement purporting to be merely the seller’s opinion or commendation of the goods does not
create a warranty
disclaiming implied warranty of fitness
When the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or
has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the
circumstances to have revealed to him.
causes for annulment
Willa’s best argument is that at the time of marriage, without her knowledge, Harold had conceived a child who
was born to someone other than his spouse within ten months of the date of the solemnization of the marriage. Va. Code §
20-89.1(B). Here, Harold conceived a child with his old girlfriend before he married Willa, Willa did not know this fact before
the solemnization of the marriage, and the child was born within ten months of the date Harold and Willa legally married.
Specifically, in late July 2021, Harold engaged in sexual relations with his old girlfriend, which resulted in the girlfriend’s
pregnancy. Harold and Willa married on August 1, 2021. Then, Harold’s child was born on April 1, 2022, which is only eight
months after the date Harold and Willa’s marriage was legally solemnized.
Willa could also argue she is entitled to an annulment because Harold had been convicted of a felony prior to the marriage.
Va. Code § 20-89.1(B). As discusse
counteract annulment
states that an annulment cannot be granted on any grounds set forth in § 20-89.1(B) if the
parties cohabited together after learning of the facts constituting grounds for an annulment. H
marital prop
marital property is determined as of the date of the
last separation of the parties. Thus, there is no basis to treat the funds as marital due to fraud or concealing
assets.
ould also reject the argument that the funds used to purchase the ticket mere marital and, thus, the
winnings are marital. The facts state that the parties did not have a joint bank account and that Willa relied on her parents
for all of her financial support after she left Harold. As such, the funds used to purchase the lottery ticket were separate
ademption
A will is construed in light of the circumstances as they existed at the execution, but the will does not take effect
until the death of the testator. When the testator makes a specific bequest, and the identified property is not part of the
testator’s estate at her death, the gift is adeemed, and the beneficiary receives nothing. Only in limited circumstances can
other property be substituted for the adeemed property. A specific bequest disposes of an identified item of property
owned by the testator. Ademption by extinction can occur by an intentional act of the testator, including when an inter vivos gift of the property is made to another. An inter vivos gift occurs when there is (1) donative intent; (2) delivery; and (3)
acceptance. Once this occurs, absolute title to the property passes to the donee.
