kaplan_foundation_questions_copy_20190724170349 Flashcards

Question

last clear chance" doctrine is applied

Answer 1

in contributory, not comparative, negligence jurisdictions.

Answer 2

According to Prosser, certain results, by their very nature, are obviously incapable of any logical, reasonable, or practical division. Death may be such a result, and so may be a broken leg or any single wound, the destruction of a house by fire, or the sinking of a barge. Where two or more causes combine to produce such a single result, incapable of any logical division, each may be a substantial factor in bringing about the loss, and if so, each must be charged with all of it. In this situation, most courts place the burden of proof on the issue of causation upon the two defendants. Unless the innocent defendant can prove that he is not culpable, liability will be imposed. This is the rule enunciated in the case of Summers v. Tice [1999 P.2d 1 (1948)]

Answer 3

The Examiners try to accomplish this by employing "distracters" and "red herrings".

Answer 4

A comparative negligence statute only applies when the two negligent parties (e.g., liable plaintiff and the liable defendant) are suing one another.

Answer 5

NONE. A comparative negligence statute only applies when the two negligent parties (e.g., liable plaintiff and the liable defendant) are suing one another.When a plaintiff who was injured by the combined negligent acts of both the fan and the truck driver. The defendants are joint tortfeasors who would be jointly and severally liable for the full amount of the friend's damages. Plaintiff may recover full damages from one of the defendants, who could then seek contribution from the other defendant

Answer 6

Restatement of Torts 2d, Section 885(1) provides: "A valid release by one tortfeasor from liability for harm, given by the injured person, does not discharge others liable for the same harm, unless it is agreed that it will discharge them." However, subsection (3) states, "A payment by any person made in compensation of a claim for a harm for which others are liable as tortfeasors diminishes the claim against the tortfeasors, at least to the extent of the payment made, whether or not the person making the payment is liable to the injured person and whether or not it is so agreed at the time of payment or the payment is made before or after judgment."

Answer 7

In order to answer this question, it is necessary to determine what duty is owed to the plaintiff. Since the facts indicate those entering the premises will be viewed as invitees (or "business" visitors). A person may be classified as an invitee even though she does not actually confer an economic benefit to the possessor. The important consideration is whether there is a potential pecuniary profit to be gained. This same issue is often tested where a person enters a business with no intention of buying anything but to change a $1 bill for the parking meter. He nonetheless was an invite

Answer 8

Prosser states, "If the intervening cause is one in which ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, he may be negligent, among other reasons, because he has failed to guard against it; or he may be negligent only for that reason." Furthermore, Prosser notes, "Even though the intervening cause may be regarded as foreseeable, the defendant is not liable unless his conduct has created or increased an unreasonable risk of harm through its intervention." Thus, "there may be an appreciable danger that the plaintiff will be struck by lightning, or by an automobile in the street, or a mail sack thrown from a train, or that a kerosene lamp will explode in his face, but there is no liability unless what the defendant has done has increased the risk."

Answer 9

It is well established that a defendant is held liable for foreseeable intervening causes. Examples of foreseeable intervening causes include: 1) subsequent medical malpractice; 2) negligence of rescuers; 3) subsequent disease; and 4) subsequent accident. Where the defendant suffers a subsequent injury following her original injury, and the original injury was a substantial factor in causing the second accident, the original tortfeasor is usually held liable for damages arising from the second accident.

Answer 10

Is the failure to act where action is required - willfully or in neglect.

Answer 11

Is the willful and intentional action that injures a party.

Answer 12

Is the willful inappropriate action or intentional incorrect action or advice.

Answer 13

Consequently, some transporting products that are considered abnormally dangerous is subject to strict liability based upon Restatement section 519, which states: "One who carries on an abnormally dangerous activity is subject to (strict) liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm."

Answer 14

According to Restatement of Torts, 2d, Section 507, "A possessor of a wild animal is subject to (strict) liability to another for harm done by the animal to the other, his person, land or chattels, although the possessor has exercised the utmost care to confine the animal, otherwise to prevent it from doing harm."

Answer 15

If such an accident was foreseeable and the manufacturer and it failed to warn purchasers of the danger then the manufacturer is strictly liable

Answer 16

Always remember the main difference between assumption of risk and contributory negligence is that assumption of risk is a subjective standard. The plaintiff must subjectively be aware of the danger and knowingly expose himself to the danger. On the other hand, contributory negligence is an objective standard where the plaintiff's conduct falls below the applicable standard of care necessary for his own protection.

Answer 17

Strict liability claims must include necessary that the auction company be engaged in the business of selling automobiles to be held strictly liable. Negligence claims include the failure to inspect

Answer 18

1) there must be a material misrepresentation, 2) the defendant must act with scienter, 3) the defendant must intend to induce reliance, 4) the plaintiff must justifiably rely on the misrepresentation, and 5) the plaintiff must suffer pecuniary damages. The key to this question is understanding the element of scienter. This element is satisfied in two situations: 1) when the defendant lies, or 2) when the defendant makes a statement of fact not knowing whether it is true or false.

Answer 19

Prosser states, "The plaintiff cannot, by devoting his own land to an unusually sensitive use," recover for nuisance. Law of Torts,

Answer 20

1) A false, defamatory statement of fact was made; 2) Reasonably understood as relating to the teacher; 3) Intentionally or negligently published to a third party; 4) Causing her damage; 5) Made with the requisite degree of fault as to the truth or falsity of the statement. Under Gertz v. Welch [418 U.S. 323 (1974)], A private person suing a media defendant for defamation must show that the defendant was at least negligent with regard to the truth or falsity of the printed statement, where the statement involves a matter of public concern

Answer 21

Sections 571-574 of the Restatement 2d, Torts provides that "an action for slander will lie without proof of special harm only where (1) the words impute a criminal offense which, if committed in the place of publication (a) would be punishable by death or imprisonment, or (b) regarded by public opinion as involving moral turpitude; (2) the words impute to the plaintiff a presently existing venereal or other loathsome and communicable disease; (3) the words impute to the plaintiff conduct, characteristics, or a condition incompatible with the proper conduct of his lawful business, trade, profession, or with his public or private office, whether honorary or for profit; and (4) the words impute to a woman unchastity.Slander per se, wherein the plaintiff can recover damages without proving that he has suffered any special harm at all. The cause of action is complete when the plaintiff proves that such a type of slander has been published about him and that he has suffered "actual injury" as a result of the defamatory statement. It is important for students to note the four per se categories for either slander or libel.

Answer 22

It is important to remember that the defamatory meaning of a statement must be communicated. Thus, the utterance must be understood by the third person. Accordingly, Prosser notes that "words spoken in a foreign tongue are not actionable unless they are heard by one who understands the language.

Answer 23

Remember that invasion of right of privacy is not a single tort but comprises the following four distinct causes of action: 1) appropriation, 2) false light, 3) public disclosure of private facts, and 4) intrusions on one's seclusion and solitude. In order to recover for public disclosure, the facts disclosed must be private facts, not public ones.

Answer 24

Appropriation is defined as the unauthorized use by defendant of plaintiff's picture or name for defendant's commercial advantage.

Answer 25

Under the constitutional standard imposed by the "case and controversy" requirement of Article III, personal standing requires a minimum concrete "personal stake" in the outcome by a two-fold showing of, first, "distinct and palpable injury" and, second, a "fairly traceable" causal connection between the claimed injury and the challenged conduct.

Answer 26

federal court jurisdiction will not be exercised absent an actual and definite dispute between parties having adverse legal interests.

Answer 27

Is tested under "intermediate scrutiny" to satisfy this the requirement of Standing because the unequal treatment by an ordinance deals with males versus females might adversely affect the legal interests of all males who wish to engage in certain conduct afforded to females, thereby constituting an actual and definite dispute.

Answer 28

federal offenses. The President is not empowered to grant pardons for state offenses.

Answer 29

An inconsistent executive agreement or order. President's actions, Restatement of Foreign Relations Law, 3d, takes the position that an executive agreement is effective and binding as long as it "does not supersede inconsistent provisions of earlier acts of Congress."

Answer 30

As a general rule, matters involving foreign affairs are non-justiciable and immune from judicial review. The decided cases relate to foreign policy or international affairs (e.g., Cambodian bombing and legality of Vietnam War non-justiciable).

Answer 31

However, executive agreements relating to economic matters are generally subject to judicial review. For example, in United States v. Guy W. Capps, Inc. [348 U.S. 296 (1955)], a corporation had standing to challenge an executive agreement between Canada and the United States regulating potato exports by Canada. By the same token, private litigants were given standing to challenge President Carter's executive order freezing Iranian assets.

Answer 32

Congress may delegate its power to do so to the President. First, the President has no authority to set regulatory standards. This is a legislative action. Congress has the power to legislate under its power to regulate interstate commerce. Second, Congress may delegate certain of its enumerated powers to the President, the courts, or other administrative agencies.

Answer 33

(1) the power must be one which Congress may delegate. Certain powers are constitutionally stated such that a delegation would be invalid (i.e., the power to declare war, to ratify treaties, to try cases of impeachment, etc.); and (2) the delegation must contain at least some general guidelines such that a court could determine whether the delegatee had exceeded the authority granted by Congress. This would be a limited delegation of a small portion of Congress's power to regulate interstate commerce. Moreover, the President's determination of the proper percentage is subject to "specific standards" and "detailed procedures," which would ensure that a court could determine if the President overstepped the authority granted by Congress.

Answer 34

As a general rule, the actions of federal agencies may preempt state law. "Federal regulations have no less preemptive effect than federal statutes. Where Congress has directed an administrator to exercise his discretion, his judgments are subject to judicial review only to determine whether he has exceeded his statutory authority or acted arbitrarily. When the administrator promulgates regulations intended to preempt state law, the court's inquiry is similarly limited" [Fidelity Federal Savings & Loan Association v. De la Cuesta, 458 U.S. 141 (1982)].

Answer 35

The Supremacy Clause provides that when Congress intends to occupy a given field (preemption) or where an actual, direct conflict between a federal law and a state law exists, the state law will generally be invalidated.

Answer 36

However, if the subject matter has traditionally been left to the states, it is less likely to be found to be the subject of federal preemption. This is especially true in cases involving health and safety regulations.

Answer 37

The U.S. Supreme Court held that there was no preemption to Federal Law because the regulation of health and safety matters is primarily and historically a matter of local concern.

Answer 38

federal property used for proprietary purposes is not immune from nondiscriminatory state taxation.

Answer 39

Such "property interest taxes" tax the user's right to the use and enjoyment of federal property, although the property itself is exempt from the state taxation. As long as the property interest tax is nondiscriminatory, it is not constitutionally prohibited. Note that if the state attempted to tax the federal government directly (e.g., a state tax on rental receipts, including the federal government's receipts from its concession lease to the plaintiff), would not be permittedDetermine if the tax is on the user leasing federal land in a state, or the federal government itself

Answer 40

Use of this broad federal property power is subject to congressional discretion and not subject to state regulation. The federal property power is plenary and has been applied to the following areas: the establishment of legislative courts with powers not derived from Article III; and regulation of (1) wild animals on federal lands, (2) federal buildings and enclaves, (3) military ships and airplanes, and (4) Indian reservations. In light of the federal property power, Congress may validly convey the 1,000 acres of federal land to one group and not another.

Answer 41

The court should treat the action of Congress as presumptively valid because the Constitution expressly gives Congress power to dispose of the territory or other property belonging to the United States.

Answer 42

Any attempt by the state or local governments to create a substitute or competitive currency will be struck down as violative of the exclusive federal power. Such as vouchers being used as a substitute for U.S. currency in the state. Thus, the state is substituting its own currency for legal U.S. tender in violation of the exclusive federal power to coin money.

Answer 43

Struck down as violative of the Supremacy Clause of Article VI.

Answer 44

Penalizing, restricting or excluding the citizens of nations hostile to the US have been held could seriously undermine the efforts of the federal government to negotiate with these nations. Even when the federal government has not directly prohibited the states from acting in a particular area of regulation, state laws that act as an "obstacle to the accomplishment and execution of the full purposes and objectives of Congress," have been struck down [Hines v. Davidowitz 312 U.S. 52 (1941)].

Answer 45

Fundamental right worthy of substantive due process protection. The Supreme Court has held in an analogous situation that public education is not a fundamental right [San Antonio v. Rodriguez, 411 U.S. 1 (1973)]. In addition, denial of admission to the state university would be unlikely to warrant procedural due process protection either because there is nothing for a hearing to resolve.(1) attending a state university is not a "privilege or immunity" of the Fourteenth Amendment; and (2) only U.S. citizens are protected under this clause of the Fourteenth Amendment. Students should recognize that the Privileges and Immunities Clause of the Fourteenth Amendment is extremely limited.

Answer 46

Congress has the power to appropriate funds for the general welfare, even though disparate treatment is given to different groups.In United States v. Butler [297 U.S. 1 (1936)], the court held that Congress is not limited to spending only to achieve the specific powers granted in Article I of the Constitution. Congress may spend in any way it believes would serve the general welfare, as long as it does not violate another constitutional provision. An aid bill to subsidize one group over another for economic loss is clearly constitutional under Congress's spending power.

Answer 47

Unconstitutional because Congress cannot "commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program" [New York v. United States, 505 U.S. 144 (1992)]. In New York, the court held that there are limits to Congress's right to interfere with the states' lawmaking processes, and Congress will violate the Tenth Amendment if it exceeds those limits.Congress cannot commandeer the states to enact and enforce legislation.

Answer 48

may freely govern matters that do not require uniform national regulation.

Answer 49

The State statute must be found reasonable and nondiscriminatory upon balancing the benefit to the state against the burden imposed on interstate commerce, such that no less restrictive alternative means of regulation is available. Where a state statute may pose a discriminatory or undue burden on out-of-state interests, the USSC applies a "balancing test" [Pike v. Bruce Church, 397 U.S. 137 (1970)].

Answer 50

only to actions by state and local governments, not to private companies, even where licensed by the state.

Answer 51

do not involve state action. The state laws regulate only the licensing and solvency of insurance companies, not the premiums charged. State licensing of a private entity is not sufficient to render the discriminatory practices of the private entity state action within the meaning of the Fourteenth Amendment [Moose Lodge v. Irvis, 407 U.S. 163 (1972)]

Answer 52

This has been interpreted by the U.S. Supreme Court to allow the state to regulate in a discriminatory manner, which would, absent the authorization of Congress, violate the negative implications of the Commerce Clause. However, this conferral of discriminatory power does not allow the states to discriminate in a manner that would be so arbitrary, capricious, or irrational as to violate the Equal Protection Clause

Answer 53

NO. There is has to be state action present requiring the insurance company to justify its discriminatory premium in order to have an equal protection claimBecause a company is only a private company that has not engaged in "state action," it does not need a good reason to discriminate.

Answer 54

that state action exists, which discriminates and treats one group different than another

Answer 55

to intermediate scrutiny whereby the government bears the burden to show that the action being challenged is substantially related to an important interest. In fact, based on the holding in United States v. Virginia [518 U.S. 515 (1996)

Answer 56

gender discrimination cases now require the government to show an "exceedingly persuasive justification," a more vigorous test that is closer to strict scrutiny than to the "substantial relation to important governmental objectives (intermediate scrutiny)" analysis. This test applies where the statute is intended to classify on the basis of gender.

Answer 57

focus on the government conduct itself. Such as was the state law neutral on its face, not intended to discriminate based on gender. Second, the state action for rejecting the male/female was based on failure to conform to the local building code or something, not based on intentional gender discrimination

Answer 58

the plaintiff is required to show a discriminatory purpose, not merely a discriminatory effect

Answer 59

the Rational basis analysis applies instead, and the woman will have the burden of persuasion.

Answer 60

the state may interfere with such a decision only when it shows the regulation is necessary for the fulfillment of a compelling public interest. Here, we are dealing with a state law regulating childbirth, which will be subject to a "strict scrutiny" standard of review. Because the facts indicate that the regulation was enacted because of public health concerns, it does further a compelling state interest.

Answer 61

Unconstitutional. The ordinance would deny her substantive due process. Under the Supreme Court decision in Moore v. City of East Cleveland [431 U.S. 494 (1977)], a city may not define a "family" to include only certain categories of related individuals. In Moore, the court struck down an ordinance that would have precluded a grandmother and grandson from living together, holding that the Fourteenth Amendment Due Process Clause protects freedom of choice in matters of marriage and family life

Answer 62

However, that municipalities may validly prohibit unmarried, unrelated individuals from sharing the same residence [Village of Belle Terre v. Boraas, 416 U.S. 1 (1974)].

Answer 63

When the statute imposes an undue burden on the right to obtain an abortion.

Answer 64

As a result of Casey, the states may restrict abortion as long as they do not place any "undue burden" on the woman's right to choose. When the state statute does place an "undue burden" on the right to abortion because after the first three months, a woman can only have an abortion to protect her health and life

Answer 65

The state must demonstrate that the law is necessary to further a compelling state interest. (1) to reduce voter confusion, and (2) to maximize the probability that the winning candidate will have received a majority of the popular vote. In Storer v. Brown [415 U.S. 724 (1974)]The court determined that the "disaffiliation" statute furthered the state's compelling interest in the stability of the political system, and its interest in having "intraparty feuds" resolved in primaries, rather than in the general election.

Answer 66

The court noted further in Storer that the state must adopt reasonable alternative means for independent candidates and minor political parties to get a ballot position, and the alternative means must not place too heavy a burden on the right to vote and the right to associate.

Answer 67

Are not a fundamental right. The petitioner must show that the age restriction is not rationally related to a legitimate government interest.the Supreme Court has consistently applied the rational basis test for government classifications based on age. Under this "soft" test, the Supreme Court has never struck down an age classification as unconstitutional. See, e.g., Vance v. Bradley [440 U.S. 93 (1979)] (federal law requiring retirement at age 60 for employees in the Foreign Service Retirement System, held constitutional); Gregory v. Ashcroft [501 U.S. 452 (1991)] (Missouri mandatory retirement age of 70, for most state judges, held constitutional).

Answer 68

a violation, and out of state citizens are protected by Article IV, Section 2--the right to pursue a livelihood

Answer 69

This clause protects non-residents from being discriminated against by state or local governments with respect to certain "basic rights" and "essential activities" of state citizenship. Among these are the right to own property, equal access to medical care and the courts, and the right to earn a living.

Answer 70

City's commuter tax discriminates against non-resident workers. Where discrimination against the employment rights of non-residents is found to exist, the law will be struck down unless the responsible state or local government can show such discrimination is closely related to a substantial government interest.

Answer 71

The Supreme Court has required the government to show that the non-residents are a "peculiar source of the evil the law was designed to redress." Here, if the city businesses are not making enough money, the court is not likely to allow the city to tax non-residents who (quite conveniently, are not able to vote in the city elections) are not shown under the facts to be the sole cause of poor business revenues of local merchants.

Answer 72

rationally related to a conceivable public purpose.

Answer 73

If the government satisfies the Public Use Clause if it can demonstrate that the "exercise of the eminent domain power is rationally related to a conceivable public purpose." The Supreme Court reaffirmed that the courts must give broad deference to a legislature's judgment as to what constitutes a public use. In Kelo, a divided Supreme Court ruled that a broad economic redevelopment plan by a city to eradicate economic blight and high unemployment is a legitimate public use under the Fifth Amendment.

Answer 74

Unconstitutional bill of attainder. When a state legislature passed a licensing law that expressly revoked the practitioner's license without the benefit of a trial. Because he was singled out by name in the law and punished without a trial, the state law is an unconstitutional bill of attainder. There is no discrimination against non-residents of the state, which would be required for an effective Article IV, Section 2, privileges and immunity challenge.

Answer 75

both the states and the federal government from enacting retroactive criminal laws. The most common sort of an Ex Post Facto law is one which creates a new crime and applies it retroactively to conduct not criminal at the time committed. the Ex Post Facto Clause prohibits the retroactive application of an increase in the punishment for a crime that carried a lesser penalty when committed.Another aspect of the ex post facto prohibition is concerned with retroactive changes in evidence and procedure that operate to the disadvantage of the criminal defendant by making conviction easier. Thus, a statute that changes the burden of proof on the prosecution from the usual rule of "beyond a reasonable doubt" to one of "preponderance of the evidence" is ex post facto, if retroactive.

Answer 76

The ordinance deprives persons of their liberty without due process of law because the ordinance is not related to any legitimate community interest.

Answer 77

attacked as a violation of protected First Amendment freedom of expression because it prohibits all singing and chanting for 12 hours every day in areas which are traditionally viewed as public forums.

Answer 78

When achieved by reasonable content-neutral regulations that further a significant governmental purpose. Such an ordinance must be narrowly drawn so as not to establish a total ban on protected rights of free speech. Because a city ordinance does not appear to satisfy this standard, a First Amendment free-speech attack by the students will be a strong challenge.

Answer 79

A strong challenge in the form of the vagueness and overbreadth doctrines. By proscribing protected as well as prohibited speech for half of each day everywhere in the city, the ordinance is clearly overbroad on its face. Similarly, due to the uncertainty as to what conduct is restricted by the words "singing and chanting of songs" and "audible (to whom?) off the premises," a vagueness challenge should be successful

Answer 80

Are certainly areas of protected speech--are when being treated differently than religious songs, thereby raising an equal protection challenge to be reviewed using the strict scrutiny standard.

Answer 81

Government-owned property is a public forum that the government is constitutionally required to make available for speech-related activities. Parks, sidewalks, and city streets are traditional classic public forums.

Answer 82

The government may regulate speech thereon if the following standards are met: (1) the regulation must be content neutral (unless strict scrutiny is met); (2) the regulation must be a reasonable time, place, manner restriction that serves a significant governmental interest; (3) the regulation must leave open adequate alternative places for speech; and (4) the regulation must give clear guidelines to the licensing official that leaves no room for arbitrary discretion

Answer 83

Constitutionally protected non-commercial speech. A regulation of speech may not prefer commercial speech over protected non-commercial speech.The Supreme Court invalidated a similar San Diego ordinance because of impermissible content regulation, but expressly left open the question of whether all billboards could be prohibited in a content-neutral fashion.

Answer 84

the power to violate the First Amendment's freedom of expression. A government regulation of the time, place, or manner of outdoor signs cannot make content-based distinctions that disfavor constitutionally protected speech.

Answer 85

This distinction is based upon the content of the expression and is an unconstitutional distinction according to the Supreme Court

Answer 86

are constitutional

Answer 87

Once the government voluntarily decides to open public property to some forms of speech, it creates a "limited or designated public forum"; and any "restriction must not discriminate against speech on the basis of viewpoint and must be reasonable in light of the purpose served by the forum." In addition, any licensing or permit system that leaves significant discretion to the licensing official or "unfettered discretion" to award or deny permits is facially unconstitutional

Answer 88

unconstitutional because of a lack of articulated standards or objective factors.

Answer 89

as valid because regulations of commercial speech must be "narrowly tailored" and should be no more extensive than is necessary. When the state is attempting to regulate unprotected commercial speech (i.e., vice advertising). A state will not be permitted to completely ban commercial advertising, but must use a means narrowly tailored to achieve the desired objective.

Answer 90

(1) religiously neutral, and (2) of general applicability.

Answer 91

By a compelling governmental interest and must be narrowly tailored to advance that interest. When a law meets the neutrality and general applicability standard, the rational basis test applies.

Answer 92

The Supreme Court unanimously ruled that the school board's regulation violated the Free Speech Clause of the First Amendment because it constituted viewpoint discrimination.

Answer 93

it can be said that despite having intentionally avoided looking to see what was in the package, the acquaintance did indeed know. In cases of "willful blindness" where the defendant is deliberately ignorant of certain facts, he can be held criminally liable. The Ninth Circuit Court of Appeals concluded that the defendant's "willful blindness" was sufficiently culpable to "where it can almost be said that he actually knew" that drugs were present.

Answer 94

In cases of "willful blindness" where the defendant is deliberately ignorant of certain facts, he can be held criminally liable

Answer 95

that voluntary intoxication is no defense: As a general rule, voluntary intoxication is not a defense for a "general intent" crime.

Answer 96

Arson is a "general intent" crime because it does not require a specific mental state of intent. As a general rule, voluntary intoxication is not a defense for a "general intent" crime.

Answer 97

Larceny at common law may be defined as the (1) trespassory (2) taking and (3) carrying away of the (4) personal property (5) of another (6) with the intent to permanently deprive the owner thereof. The crime of larceny requires an intent to steal, that is, an intent to deprive the owner of the possession of his property permanently or for an unreasonable length of time.

Answer 98

The defendant lacked the requisite state of mind.

Answer 99

As a general rule, if the defendant is not the aggressor, then he is justified in using a reasonable amount of force against his adversary when he reasonably believes (1) that he is in immediate danger of unlawful bodily harm from his adversary, and (2) that the use of such force is necessary to avoid this danger.

Answer 100

Deadly force is justified when an individual is threatened with serious bodily injury or death

Answer 101

A person is considered “insane“ if “at the time of committing of the act, the party accused was laboring under such a defect of reason, arising from a disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong.“ A man who is mentally retarded and did not understand what he was doing would satisfy the test.

Answer 102

the defendant will be guilty of involuntary manslaughter

Answer 103

that failure to act is accompanied by the requisite mens rea for murder.

Answer 104

Common carriers, innkeepers, possessors of land, custody keepers, parents, and spouses have a special or higher duty of care to act for the protection of those persons with whom they have a special relationship. The typical example is the duty of a parent to rescue her imperiled infant who is drowning face down in the bathtub. Failure to rescue the infant would be murder if the parent intends to kill the child, either by desiring the death or by failing to act, despite knowing that death is substantially sure to result from failure to rescue. Similarly, the common law imposes an affirmative duty upon spouses to aid one another.

Answer 105

Is an example of intent-to-inflict serious bodily injury murder

Answer 106

Is an example of "depraved-heart" murder.

Answer 107

Is an example of felony murder.

Answer 108

Is characteristic of involuntary manslaughter or misdemeanor manslaughter. Note that the defendant committed a battery (which at common law was a misdemeanor) by pushing the victim into the pool.

Answer 109

(1) felony-murder; (2) intent to kill; (3) extreme reckless conduct likely to cause death or serious injury; or (4) intent to cause serious bodily injury that results in death.

Answer 110

he defendant may properly be convicted of second degree murder.

Answer 111

Requires that the provocation be adequate, i.e., cause a reasonable person to lose self-control under the circumstances.

Answer 112

Will not reduce homicide to manslaughter

Answer 113

Modernly, however, the strictly objective reasonable man test for determining adequacy of provocation has been considerably broadened. Under the Model Penal Code, "at least some individual peculiarities should be taken into account because they bear upon the inference as to the actor's character that is fair to draw upon as the basis of his act" [Model Penal Code, Section 20.3 Comment].Therefore, such a physical condition should be considered by the court

Answer 114

Traditionally, an objective standard is applied to the question of whether there is adequate provocation. The provocation must be adequate enough to excite uncontrollable passion in a reasonable person. The fact that the defendant possessed some peculiar physical or mental characteristic was uniformly held not to be considered in determining provocation (i.e., head injury, sunstroke, and sexual impotence). The test was how the victim's conduct affected a reasonable man, not how it affected a man with the defendant's physical characteristics (LaFave and Scott, Criminal Law, p. 578).

Answer 115

Intent to commit a felony crime is a sufficient substantial step that creates liability under the felony murder doctrine. The felony murder rule encompasses both completed and attempted dangerous felonies.

Answer 116

The jury did not believe that the defendant was engaged in the commission of a felony crime, and the felony-murder rule would not apply.

Answer 117

which is usually codified as second degree murder. In accordance with the statutory definition, second degree murder "covers all other unlawful killings with express or implied malice aforethought.

Answer 118

which now covers all four types of murder: (1) intent to kill murder; (2) felony-murder; (3) depraved-heart murder; and (4) intent-to-do-serious-bodily-injury murder.

Answer 119

may not have acted with express malice, butt his conduct involved implied malice

Answer 120

A person has "knowledge" of a material fact if he is aware of the fact or he correctly believes that it exists. Most jurisdictions also permit a finding of knowledge of an attendant circumstance when the defendant is said to be guilty of "willful blindness" or "deliberate ignorance," i.e., if the defendant is aware of a high probability of the existence of the fact in question, and he deliberately fails to investigate in order to avoid confirmation.

Answer 121

The crime solicited need not be committed. It is only necessary that the actor, with the intent that another person commit a crime, has enticed, advised, incited, ordered, or otherwise encouraged that person to commit a crime.

Answer 122

That it is not a defense to a solicitation charge that, unknown to the solicitor, the person solicited could not commit the crime. Similarly, it is also no defense that the person solicited is an undercover agent and under no circumstances would have committed the crime solicited.

Answer 123

An essential element of the crime is an agreement (for an unlawful purpose) between two or more persons. There is no conspiracy when one of the defendants does not have the required intent-to-commit the crime's mental state. Therefore, if one defendant has the intent but the other defendant lacks the intent, then neither one can be charged

Answer 124

(1) an intent to do an act or to bring about certain consequences, which would in law amount to a crime; and (2) an act in furtherance of that intent which, as it is most commonly put, goes beyond mere preparation. As such, attempt is a specific intent crime.

Answer 125

he would be found not guilty of the incohate crime of attempted murder.

Answer 126

(1) an agreement between two or more persons (which constitutes the act); and (2) an intent to achieve a criminal or unlawful objective.

Answer 127

there must be a combination of two or more guilty persons.

Answer 128

The "plurality" requirement is not satisfied because a defendant is an innocent party who believed that he was the true owner of the chattel being taken. In addition, if each defendant never entered into an agreement with the others, but rather intended individually to commit a theft inside a home, there is no conspiracy

Answer 129

Under the MPC, agreement between "two or more" persons is not required. Only agreement by a single actor agreeing with another is needed. Furthermore, a mere tacit understanding will suffice, and there need not be any written statement or even a speaking of words that expressly communicates agreement.

Answer 130

"The agreement need not be shown to have been explicit. It (agreement) can instead be inferred from the facts and circumstances of the case." "It is possible for various persons to be parties to a single agreement (and thus one conspiracy), even though they have no direct dealings with one another, or even though they do not know the identity of one another, and even though they are not all aware of the details of the plan of operation or were not all in on the scheme from the beginning

Answer 131

All co-conspirators are liable for all crimes committed by any conspirator in furtherance of the original agreement

Answer 132

The defendant is guilty of the crimes or "attempting the same crimes" because he took a substantial step toward the commission of the robbery, even if he was prevented from participating on crime day

Answer 133

generally two requirements must be met: (1) the individual must have the intent to promote or facilitate commission of the crime; and (2) he must "aid" and "abet" or give encouragement in the commission or attempted commission of the crime.

Answer 134

That an accomplice must intend that his acts have the effect of assisting or encouraging another.

Answer 135

in order for the defendant to be liable, an intent plus an act to commit an unlawful application of force (i.e., a battery). If the defendant did not intend to commit any application of force on the partner, which is what the facts state, then, if the jury believes him, he will be not guilty due to lack of intent to cause physical injury

Answer 136

For the crime of solicitation to be completed, it is only necessary that the defendant entice, advise, incite, order, or otherwise encourage another person to commit a crime with the intent that the crime be committed.On the other hand, conspiracy requires an agreement between two or more individuals to commit a criminal offense.

Answer 137

So make sure under the given facts, no true agreement to commit a battery actually occurred. Rather, that one defendant solicited the other defendant to recklessly engage in conduct, knowing that it would create a high risk of causing injury to the others

Answer 138

the physical movement (asportation) of the property of another without consent (caption) with intent to permanently deprive the owner thereof. The crime is complete once the defendant moves the property (any distance) with the intent to permanently deprive.

Answer 139

Is no defense.

Answer 140

The defendant is guilty of theft one she possesses and conceals the item, even if she did not leave the store because he intended to steal the item and concealed it.

Answer 141

the fraudulent conversion of the personal property of another by one already in lawful possession.

Answer 142

When the defendant held another's property conditioned that the true owner might return and a bailment situation was created. The defendant was given lawful possession of the item, not mere custody. The owner's subsequent sale amounted to a conversion--serious interference with the owner's rights to his property--sufficient for embezzlement

Answer 143

A defendant takes another's property and then intentionally destroyed it, thereby permanently depriving the true owner of its use.

Answer 144

the (1) malicious (or intentional) (2) burning (3) of a dwelling (4) of another.

Answer 145

It is only necessary that the defendant (with the requisite intent) have enticed, advised, incited, ordered, or otherwise encouraged another person to commit a crime

Answer 146

If it were committed as a result of the solicitation, the act of soliciting is itself not criminal. The court held that legal impossibility precluded a defendant from being guilty of the attempted sale of heroin when it turned out to be non-narcotic. Therefore, a defendant intended to defraud by selling a substitute for a drug, cannot be guilty of an attempted sale.

Answer 147

is unconstitutional as a denial of due process, because it shifts the burden of proof to the defendant.

Answer 148

The prosecution must prove every element of a charged crime beyond a reasonable doubt, which cannot be shifted to the defendant

Answer 149

is ultimately a jury question.

Answer 150

petty offenses--only for serious offenses, e.g., felonies

Answer 151

is for more than six months is authorized under the penal code statute. so if the defendant only gets 3 months, but the statute says the conviction can be more than 6 months, the defendant is entitled to a jury trial

Answer 152

all defendants charged with an offense for which imprisonment is imposed, whether classified as petty, misdemeanor, or felony.

Answer 153

However, if the offense is a misdemeanor, the constitutional right to counsel applies only if imprisonment is actually imposedAn accused charged with a misdemeanor who has not waived the right to counsel and is not represented by an attorney is not subject to imprisonment.

Answer 154

that of standing, both in constitutional law as well as in criminal procedure.

Answer 155

Does not to have standing to challenge a search of the vehicle. This decision is founded on the principle of no reasonable expectation of privacy

Answer 156

A person must show that his own rights were violated. Standing is proper if a person owns or has a right to possession of the place or thing searched, or if the place searched is the person's home

Answer 157

is insufficient grounds to assert standing by itself, without proof of some possessory interest.

Answer 158

his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection [Simmons v. United States, 390 U.S. 377 (1968)].

Answer 159

he may be subjected to a search of his person, either incident to lawful arrest or as an inventory incident to his booking into jail

Answer 160

a search for Fourth Amendment purposes and is generally upheld because it protects the arrestee's property and also protects the police from claims of not properly safeguarding the arrestee's property.

Answer 161

applies only if the arrestee has no privacy interest in the effects being held for him. The police have "custody" of a prisoner's property during the incarceration. and they may reasonably do whatever "they were entitled to do incident to the usual custodial arrest and incarceration.

Answer 162

infringes on a person's reasonable expectation of privacy--a privacy expectation that society is prepared to recognize as reasonable

Answer 163

Is not a "search" because of the limited intrusion by the dog."A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth AmendmentThe alert by the dog provided the probable cause for the warrantless search of the trunk

Answer 164

Neither consent by the owner of the vehicle nor reasonable suspicion of drugs is required provided (1) the stop of the vehicle is lawful; and (2) the stop is not "prolonged beyond the time reasonably required to complete the mission." In short, government "conduct that does not compromise any legitimate interest in privacy is not a search subject to the Fourth Amendment; any interest in possessing contraband cannot be deemed 'legitimate.

Answer 165

The Supreme Court ruled that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search

Answer 166

vehicle involved a search of a lawfully stopped on a public street is not a search under the 4th amendment

Answer 167

(police examination of defendant's telephone records to determine numbers dialed, held not a search compromising a person's reasonable expectation of privacy);

Answer 168

subjecting suspected substance to a chemical field test for the presence of contraband held not to be a search if the substance has lawfully been seized

Answer 169

lawyer has no standing to complain of any police trespass on the neighbors' property.

Answer 170

the warrant was obtained based on information discovered pursuant to an illegal search, if the search was in fact illegal

Answer 171

Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the occupants

Answer 172

joint access and control of the premises is required.

Answer 173

not have authority to allow the police to search her mother's bedroom. Moreover, because the defendant locked the bedroom door, she did not assume the risk that her daughter would gain entry.

Answer 174

is neither a search nor seizure under the Fourth Amendment; i.e., no reasonable expectation of privacy is violated

Answer 175

if a police officer has probable cause that contraband may be located in a movable automobile, the officer may search those areas of the car where probable cause exist

Answer 176

not required prior to the use of a trained dog in a public place. The use of the dog does not have to be related to the initial reason for the traffic stop.

Answer 177

Accordingly, once the only object of that search--the package--was discovered, the warrant did not authorize a further exploratory search of the house

Answer 178

Officers may conduct a "protective sweep" of a home only if they have reason to believe others inside the home may pose a danger to them

Answer 179

"a cursory visual inspection of those places in which a person might be hiding." Thus, even an authorized sweep would not extend to unreasonable places where a danger would not be inside

Answer 180

Accordingly, the police could not properly interrogate the man without first providing him with Miranda warnings.

Answer 181

the police from using deliberate efforts to acquire incriminating information from a suspect who has been formally charged, unless the suspect's attorney is present or the right to counsel has been waived. Once the defendant requested an attorney, the police may not renew any attempt to further interrogate him, by putting an undercover agent in his jail cell.

Answer 182

the suspect "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communications, exchanges, or conversations with the police."the government "deliberately elicited" statements from him in violation of his Sixth Amendment right to counsel

Answer 183

In short, the defendant's Fifth Amendment right to counsel under Miranda was violated and his Sixth Amendment right to counsel was also violated.

Answer 184

is that which tends to make the existence of a fact of consequence more (or less) probable than it would otherwise be.

Answer 185

where its probative value is substantially outweighed by the danger of unfair prejudice; confusion of the issues; misleading the jury; or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence (F.R.E. 403).

Answer 186

"statement" under F.R.E. 801(a).

Answer 187

is attempting to prove the contents or terms of a writing. Note that sometimes a writing recites or records a perceivable event or condition such as a marriage (marriage certificate), payment of money (receipt), or the utterance of certain words (transcript).

Answer 188

When the proponent is not attempting to prove the terms of a writing, but merely is presenting evidence of an event perceived by a witness with firsthand knowledge, which is someone who is not relying on the writing or video to learn of the event or factsThe proponent wishing to prove the underlying event may offer testimony as an observer with first hand knowledge.

Answer 189

The person testifying was present and overheard it.

Answer 190

proving each and every element of a crime beyond a reasonable doubt

Answer 191

define something that you are responsible for memorizing. Oftentimes they will insert subtle changes that differ from the common law rules.

Answer 192

is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

Answer 193

always," "invariably," "customarily" and "habitually."

Answer 194

Conversely, if a person "generally" behaves or "often" acts in a particular situation, that is not sufficient to constitute habit.

Answer 195

when offered to show ownership or control.

Answer 196

Always remember that in order to exclude statements or admissions made during settlement negotiations, there must be an actual dispute between the parties.

Answer 197

will be excluded, but there must be a dispute

Answer 198

admissions are severed for the statement of offer to pay medical expenses, and the admissions are admitted in the trial

Answer 199

dispute or, at least, an apparent difference of view between the parties as to the validity or amount of a claim.

Answer 200

determine if the party is making a spontaneous statement immediately following the incident to settle knows that there is a dispute, and if at the there is no dispute at the time of accrual, then the statement is admissible

Answer 201

In accordance with F.R.E. 404(a) (1), an accused may offer evidence of his good character by reputation and opinion,

Answer 202

may not use specific acts, to prove his innocence

Answer 203

NOT permitted until the defendant must first "open the door" by presenting such evidence of his good character before the prosecution is entitled to rebut the good character of the accused.

Answer 204

the prosecution in rebuttal may offer evidence of the same character trait of the accused (reputation and opinion). Because the defendant attacked the victim's character for violence on the issue of self-defense, the prosecution may offer rebuttal evidence that the defendant has a bad reputation for violence.

Answer 205

not admissible in civil trials unless it is impeachment evidence in the form of reputation or opinion evidence about a witness's truthfulness, or a question asked of the witness herself about prior bad acts relating to truthfulness.

Answer 206

An essential element of a charge, claim, or defense. Therefore, under F.R.E. 405(b) proof of character by using specific instances of conduct is permitted. Reputation or opinion evidence, though not offered here, would also be allowed to show that the plaintiff cheated on his taxes, because all three types of character evidence may be used to prove the essential character issue in this defamation case. This is one of the instances where, in a civil case, evidence of specific bad acts may be used to prove a character trait.

Answer 207

by specific instances of that person's conduct." Federal Rules of Evidence allow specific instances of misconduct as proof of character in cases in which character is in issue.

Answer 208

may not be proved by extrinsic evidence

Answer 209

Bias. Courts generally permit the impeaching party to prove bias either on cross examination or by adducing extrinsic evidence, either from witnesses or documents.

Answer 210

sensory defects

Answer 211

is to show that the witness does not have knowledge of the fact or facts about which they are testifying. This can be done on cross-examination or by using extrinsic evidence.

Answer 212

collateral matter.

Answer 213

If it is an impeachment question, you must apply Rules 608 and 609. Conversely, if you are confronted with a character evidence question, you should apply Rules 404 and 405. According to F.R.E. 608, "specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility, may not be proved by extrinsic evidence

Answer 214

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment

Answer 215

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction, unless the court determines in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

Answer 216

Usually in a criminal case, on rebuttal, the prosecution may use otherwise inadmissible character evidence for some purpose other than to show the defendant acted in conformity therewith. This evidence will be admissible under F.R.E. 404(b)

Answer 217

Admissions are the words or acts of a party-opponent (or his predecessor or representative) that are offered against him.

Answer 218

an admission is non- hearsay. A person's statement related to civil or criminal wrong will be admissible as an admission, and not subject to hearsay

Answer 219

As "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. The hearsay rule applies when the proponent offers the declarant's assertion for a purpose that requires the trier to accept as true the facts it embodies.

Answer 220

then the hearsay rule is inapplicable.

Answer 221

(1) verbal acts (e.g., proof of oral utterances by parties in a contract action constituting the offer and/or acceptance); (2) utterances and writings offered to show the effect on hearer or reader (e.g., patron sues a grocery store for injuries sustained from slipping on the contents of a broken ketchup bottle; the store calls a checkout clerk who will testify that he heard the manager call out to the patron: "Lady, please don't step on the bottle of ketchup."); and (3) statements disclosing declarant's state of mind (e.g., witness testifies that several months before testator died, he said, "My nephew is an incorrigible spendthrift who is too lazy to hold a job.") This declaration is admissible to show that testator intended to omit nephew from his will, not as proof that nephew possessed those traits

Answer 222

describe "medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."

Answer 223

are considered irrelevant to medical diagnosis or treatment and do not fall within the exception

Answer 224

describe or explain an event or condition while the declarant was perceiving the event or condition or immediately thereafter. NOT when time has elapsed.

Answer 225

Even though the diary was lawfully seized under the "plain view" exception to the warrant requirement and would not be subject to the exclusionary rule, the diary, (i.e., the writing itself) is not what is being offered into evidence.

Answer 226

excludes from the hearsay rule, even though the declarant is available, the following: "A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term 'business' as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit." For a business record to be admissible, a foundation must be laid to authenticate the writing.

Answer 227

However, note that the declarant of the entry need not testify. The business record may be introduced by either the custodian or a reliable qualified witness with personal knowledge.

Answer 228

(a) the activities of the office or (b) a matter observed pursuant to duty imposed by law as to which there is a duty to report. This is equivalent to the business records exception of F.R.E. 803(6)

Answer 229

that evidence that a matter is not included in records which qualify under F.R.E. 803(6) is admissible to prove the non-occurrence or nonexistence of the matter (unless the source of information or other circumstances indicate lack of trustworthiness)

Answer 230

a similar "non-occurrence" rule for public records. F.R.E. 803(10) permits use of absence of an entry or record to prove the non-occurrence of the matter which would otherwise have caused an entry to be present

Answer 231

F.R.E. 803(10) provides an exception that obviates the hearsay rule.The foundational elements of the public record (or business record) exception may be established by the custodian of the records or any "qualified witness"; a similarly qualified witness may testify that a diligent search failed to disclose any such record.

Answer 232

a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. The neighbor's testimony as to the victim's statement moments after he was stabbed will be admissible as an excited utterance.

Answer 233

applies to hearsay statements that are testimonial in nature where the hearsay declarant does not testify at trial and the accused did not have any prior opportunity to cross-examine the declarant. In two cases following Crawford, the Court made a distinction between statements made to police to explain what is happening versus statements made to police telling what had happened.

Answer 234

Because the primary purpose of the officer's interrogation was to establish or prove past events potentially relevant to later criminal prosecution, the woman's statement is testimonial in nature under Crawford, and not admissible

Answer 235

must be unavailable. it is important to point out that a witness is rendered unavailable if he or she simply refuses to testify, despite all appropriate judicial pressure to do so.

Answer 236

as "testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or in civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination"...if the declarant is unavailable as a witness, and is admissible, therefore, not treated as hearsay

Answer 237

and it applies to the following statements of personal or family history made by an unavailable declarant: " A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though the declarant had not means of acquiring personal knowledge of the matter stated; or

Answer 238

Bibles, inscriptions on family portraits, and engravings on tombstones. A statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared."

Answer 239

should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. Note that the entire matter of whether or not to allow leading questions is discretionary and the judge's action will not be reviewed, unless it is charged that it contributed to the denial of a fair trial.

Answer 240

The spousal communication privilege protects confidential communications between the spouses made during the marriage. The spousal testimony privilege, on the other hand, prevents one spouse from testifying against the other in a criminal case. The spousal testimony privilege or incapacity blocks adverse testimony based on knowledge gained in any way, at any time, as long as the accused and the proposed witness are married at the time of trial. As such, the spousal testimony privilege applies to "pre-marital" acts.

Answer 241

is limited to those opinions or inferences that are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

Answer 242

those communications which the client either expressly made confidential or which she could reasonably assume under the circumstances would be understood by the attorney as so intended. The witness' presence in the hallway breaks the privilege. Although the statement was made out-of-court, it is the statement of the defendant and therefore not hearsay, but rather an admission.

Answer 243

is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it."

Answer 244

a commitment by the offeror that he reasonably intends to be bound upon acceptance by the offeree, rather than a mere statement of present intention or preliminary negotiations. This determination is often difficult to make. Generally, such equivocal language as "I am asking..." or "I quote you..." is construed as inviting an offer.

Answer 245

as preliminary proposals inviting offers.

Answer 246

that an advertisement in a newspaper proposing the sale of a coat “first come, first served“ did, in fact, constitute an offer because the language in the ad indicated a promise to sell. Therefore, make sure that the advertisement includes under th facts specific promise to sell a specified item or enumerated list of items.

Answer 247

a reasonable time.

Answer 248

(1) the subject matter of the offer; (2) its rate of price fluctuation; (3) the period within which the offeror's known purpose in inducing the contract can be effectuated; and, of lesser importance, (4) the mode of communication of the offer.

Answer 249

ever-changing market fluctuations (such as those involving stock purchases)

Answer 250

an offer expires at the conclusion of a face-to-face conversation (unless there is an acceptance).

Answer 251

(1) an expression of intent to enter a present contract; (2) a sufficient articulation of the essential terms of the proposed bargain; and (3) communication of that intent and those terms to another person (the offeree) who has the capacity to form a contract by a timely and conforming acceptance.

Answer 252

"Why don't you think it over until tomorrow?"

Answer 253

inviting acceptance in any manner and by any medium that is reasonable under the circumstances."

Answer 254

is an offer relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer." Be advised that an offeree's power of acceptance is terminated by his making of a counter-offer.

Answer 255

invites acceptance either by a prompt promise to ship or by prompt or current shipment

Answer 256

the shipment is an acceptance and at the same time a breach.

Answer 257

if the offeror has reason to know that none is intended, where the offeree promptly notifies him that non-conforming goods are being shipped and are offered only as an "accommodation" to himSince the manufacturer did not indicate that the shipment was being offered for accommodation purposes, it will be regarded as an acceptance (and a simultaneous breach).

Answer 258

as soon as the offeree has started to perform the actThis rule is deemed essential to prevent hardship to the offeree where his part performance does not benefit the offeror and so would give him no recovery in quasi-contract

Answer 259

ONLY Mere preparation for performance, no matter how detrimental to the offeree, will not affect the offeror's power and privilege to revoke a unilateral offer.

Answer 260

As a general rule, the offeror may at any time before acceptance, terminate her offer by revoking it

Answer 261

Revocation takes effect only when communicated to the offeree. This is true even when the offeree learns through a third party that the offeror is no longer willing to enter into the proposed contract. By the same token, Restatement of Contracts 2d, Section 43, states, "An offeree's power of acceptance is terminated when the offeror takes definite action inconsistent with an intention to enter into the proposed contract and the offeree acquires reliable information to that effect."

Answer 262

right, interest, profit, or benefit to one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other.

Answer 263

as a benefit to the promisor. It is immaterial whether the consideration does in fact benefit the promisee or a third party or is of substantial value to anyone

Answer 264

sufficient consideration to make a promise based on that forbearance a valid contract. Refraining from something that one is entitled to do is a sufficient detriment to create an enforceable contract.

Answer 265

The doctor will recover under quasi-contract, if the person treated was unconscious because there is no actual mutual assent to create a contract. Therefore, the doctor must proceed in quasi-contract if he is to recover.

Answer 266

the test of good faith. If the manufacturer acted in bad faith, then the modification would be ineffective and unenforceable.

Answer 267

Common law principles, not UCC rules, will therefore apply

Answer 268

An express provision against oral modification, or circumstances where the statute of frauds applies, any contract can be modified or rescinded by the oral agreement of the parties, even if the original contract is in writing.

Answer 269

Are unenforceable being themselves contracts must be supported by consideration.

Answer 270

will overcome the “pre-existing duty" rule and serve as valid consideration.

Answer 271

constitute a legal detriment when a party performs an act that she is legally obligated to do and had a pre-existing duty to perform this service, any additional promise is not supported by consideration and therefore unenforceable

Answer 272

always ground for avoidance of a contract

Answer 273

However mutual mistake to the true value may not rescind the contract or and recover the chattel

Answer 274

as where A sells to B a stone for $2,000, both of them thinking it to be a diamond, and it turns out to be a zircon, worth about $5. In that case B may rescind and recover the price paid, on the grounds of mutual mistake.

Answer 275

all contracts are assignable and delegable except personal service contracts and long-term requirement contracts

Answer 276

It does not prevent the assignor from assigning his rights. When an assignor makes an assignment in violation of an anti-assignment clause, the assignment is valid. However, the obligor does have a cause of action against the assignor for breach of contract (but ordinarily, damages will be nominal

Answer 277

personal services are not. A an example of a non-delegable contract because the socialite hired the artist because of the artist's specific talents; An express contractual agreement is not needed in this situation. It is not so much the words, but the parties that are important

Answer 278

are those in which the parties' obligation(s) arise from actual agreement and intent. It is clear from their conduct that an "implied in fact" contract was created.

Answer 279

the contract is said to be "express."

Answer 280

the contract is said to be "implied in fact."

Answer 281

(1) money damages are generally available and (2) it is impossible for courts to properly supervise employment contracts.

Answer 282

for the sale of a unique item of personal property. Here, the subject matter of the contract is a chattel

Answer 283

It is well established that a minor is liable for necessaries furnished her, and it is generally recognized that this liability is quasi-contractual rather than contractual, and responsibility of her parentsAs a consequence of the quasi-contractual nature of the action, the girl may disaffirm an executory contract for necessaries. Moreover, the girl is not liable for the contract price, but for the reasonable value of the necessaries furnished

Answer 284

if certain elements have been satisfied by the Buyer under the doctrine part performance will be sufficient to enforce their oral agreement.

Answer 285

a signed writing

Answer 286

In an overwhelming majority of states, equity will decree specific performance of an oral land agreement, despite the statute of frauds, only where the buyer has taken possession of the property and paid part of the purchase price. Moreover, the taking of possession together with other acts normally to be performed by a buyer (i.e., taking possession of the property and paying part of the purchase price) have been held to justify specific performance. However, payment of the price alone is not sufficient part performance, unless possession has been delivered and taken.

Answer 287

prohibits an an oral promise to satisfy the SOF's requirement, "secondary," or collateral, promises are within the rule and are voidable unless in writing.

Answer 288

If the consideration for the promise is in fact or apparently desired by the promisor mainly for his own economic advantage, rather than in order to benefit the third person." And can be done orally, and does not have to be in writing according to the statute of frauds

Answer 289

A 3rd party promisor sought to act as surety for a promisee's primary loan for the 3rd party promisor's own economic advantage then the 3rd party promisor's oral promise to guarantee the loan is enforceable

Answer 290

a rule of substantive contract law, states that "when the parties to a contract have put in writing the full and final expression of their agreement, evidence of any other prior or contemporaneous oral or written agreements are inadmissible to vary or contradict the terms of the writing.

Answer 291

is a question of fact to be decided by the judge.

Answer 292

if reasonable parties would have included the extrinsic matter (i.e., the substance of the oral agreement) in the writing, and these parties did not, then evidence of the extrinsic matter may not be admitted, unless used to explain an ambiguity. In this instance, the extrinsic evidence contradicted, rather than explained, the integrated writing.

Answer 293

Where the parties agree that a condition precedent must occur before the contract is effective, it is generally agreed that the failure of the condition to occur may be shown despite what otherwise would be deemed a total integration. Thus, even if there is a merger clause, it may be shown that the instrument was handed over to another with an oral condition attached to delivery. The theory is that the agreement is not to take effect until the condition occurs and thus there is no contract to be added to or contradicted until that time.

Answer 294

invites acceptance either by a prompt promise to ship or by prompt or current shipment.

Answer 295

"An offer by a merchant to buy or sell goods in a signed writing which by its terms gives assurance that it will be held open is not revocable, for lack of consideration, during the time stated or if no time is stated for a reasonable time, but in no event may such period of irrevocability exceed three months." No consideration was necessary to make the plant owner's offer irrevocable

Answer 296

because the quantity to be delivered can be objectively determined. So a contract by a buyer to buy all the goods of a stated kind required by the buyer in his business for the period is held not invalid for uncertainty as to quantity

Answer 297

A term which measures the quantity by the output of the seller or the requirements of the buyer means such actual output or requirements as may occur in good faith, except that no quantity unreasonably disproportionate to any stated estimate may be tendered or demanded

Answer 298

the buyer may recover from the seller as damages the difference between the cover price and the contract price plus any incidental and consequential damages.

Answer 299

excuses the promisor's duty where that which was promised has become objectively impossible of fulfillment without fault of the promisor after the time of contracting, provided the promisor has not assumed the risk of its now happening

Answer 300

"The mere personal inability of a promisor to perform is no excuse. It is only where because of the supervening event the performance cannot be rendered by anyone that the duty is discharged."

Answer 301

donee beneficiary. Such intention is clear where performance of the promise will result solely in benefit to the third party and not to the promisee

Answer 302

Under the majority common law view, the rights of a donee beneficiary, as well as those of a creditor beneficiary, vest when the third party with knowledge assents to the promise. Before the time such rights are vested, a beneficiary cannot prevent modification or rescission of the contract by the promisee and the promisor.

Answer 303

The donee can bring a valid action against the promisor. Even though the promisor can assert against the beneficiary any defense he could assert against the promisee, however, the builder will not be excused from performance if there is no valid defense against the promisee

Answer 304

1) receive performance directly from the promisor; (2) be expressly designated in the contract; (3) have decisional rights regarding the performance (such as time and location of performance); or (4) stand in such a relationship with the promisee that it can be inferred that the promisee wished to benefit the third party.

Answer 305

a divisible contract is one in which the parties have divided their respective performances into separate units. So that performance of a given installment on one side is a constructive condition to the duty of performance on the other.

Answer 306

tendering "non-conforming" goods

Answer 307

That were generally foreseeable. The court held that: “the loss of profits cannot reasonably be considered such a consequence of the breach of contract as could have been fairly and reasonably contemplated by both the parties when they made this contract."

Answer 308

That the shipper knew any delay would cause a loss in profits if it was not delivered on time, UNLESS it is written into the contract.

Answer 309

In writing, demand adequate assurance of due performance." The UCC further provides that after a reasonable time not exceeding 30 days has passed, the party seeking the assurances can treat the contract as repudiated

Answer 310

the buyer or seller may suspend his own performance.

Answer 311

is an estate in fee simple that may be terminated by the conveyor, or those claiming under him, upon the happening of a named event.

Answer 312

upon the happening of the named event, but the estate continues despite the breach of the specified condition until it is divested by the grantor's power of termination or right of re-entry

Answer 313

Is optional. It may be accomplished by either making an entry on the land or bringing an action to recover the estate (ejectment)

Answer 314

it is necessary to determine what interest was conveyed

Answer 315

Always remember that a contingent remainder must follow the natural termination of the preceding estate while an executory interest terminates the prior estate before its natural termination

Answer 316

If this condition occurs, title to the property would pass from grantor to the grantee

Answer 317

contingent upon the occurrence of a specified even

Answer 318

"cut short" the preceding fee estate owned by grantor

Answer 319

A life tenant can convey his or her estate to a third person. A life tenant cannot convey a greater estate than his own. As such, the life estate will extend for the lifetime of life tenant ONLY.

Answer 320

void where the restraint may continue in effect after the future interest becomes possessory (i.e., mortgage by the life tenant)

Answer 321

transfers ownership to the mortgagee (in a title theory jurisdiction). Applying this rule, a mortgage of joint tenancy property, given by one of the joint tenants, results in a termination of the joint tenancy because it terminates the unity of title as well as the unity of interest

Answer 322

unity of interest

Answer 323

1- Death of one of the joint tenants2- joint tenant takes a mortgage in a Title Theory Jurisdiction 3- Joint tenant conveys his/her interest4- Joint tenant reclassifies their interest as tenants in common

Answer 324

in the severance of a joint tenancy. The rationale for this rule is that the complaint may be withdrawn at any time before the equity court compels partition. Moreover, the right of survivorship will attach if a joint tenant dies prior to that time.

Answer 325

when a person executes an instrument conveying a larger estate than he has in land and subsequently acquires such larger estate, it inures by estoppel to the benefit of the grantee.

Answer 326

no application and any after-acquired estate which comes to the grantor may be kept by him free from the operation of the doctrine"

Answer 327

permits one person to come onto land in the possession of another without being a trespasser. Because a license is revocable

Answer 328

a mere license that is always revocable.

Answer 329

The easement is terminated by operation of law and extinguished because of the merger doctrine. The apparent rationale is that one cannot have an easement in his own property.

Answer 330

non-use PLUS some act that demonstrates the easement holder's intent to abandon.

Answer 331

contractual obligation in the title that is created in connection with the transfer of real property. As a general rule, a covenant not only binds and benefits the original obligor and obligee, but it will also "run with the land" to be enforceable against successors in interest.

Answer 332

assure that each lot owner, even those who did not purchase from the original owner will be obligated to the covenanted terms in the deed

Answer 333

is in privity of estate with the landlord, but not privity of contract if the sublease was only between the tenant and the subtenant

Answer 334

privity of estate as well as privity of contract

Answer 335

while privity of estate continues or until the assignee (sub-leasee) in turn assigns the leasehold, but not for any rent that might have been owed by the original tenant

Answer 336

the tenant transfers his right of possession for a time shorter than the balance of the leasehold, so that tenant retains a reversion within the leasehold.

Answer 337

in privity of estate nor privity of contract with the landlord.

Answer 338

not liable to the landlord to pay rent because the subtenant will pay the tenant

Answer 339

if the tenant transfers the entire estate, or the balance thereof, to the third party.

Answer 340

the transfer is properly classified a sublease.

Answer 341

is not prohibited by the provisions in the lease

Answer 342

did not relieve the tenant from the duty of paying rent.

Answer 343

This doctrine is generally referred to as the independence of covenants.

Answer 344

that the common law doctrine applies

Answer 345

the premises were not uninhabitable, but if the premises is habitable, then constructive eviction is does not apply

Answer 346

inasmuch as the tenant had no duty to make such repairs when it is not written into the lease

Answer 347

possession of the premises at the beginning of the term

Answer 348

The landlord does not have an obligation to actually deliver possession to the tenant

Answer 349

In a month-to-month tenancy, a full month's notice must be given. This means that if the landlord tells the tenant a day after the rent is due, the tenant has the remainder of the month and the following month

Answer 350

is an absolute right inherent in the land itself.

Answer 351

is that recovery is limited to damage to the land in its natural condition and may not include any damage to the artificial structures on the land. This is called the American rule.

Answer 352

The land be in its natural condition. The right of lateral support does not include the right to have the additional weight of artificial structures supported.

Answer 353

then the defendant is liable for all damages that proximately result, including damages to both the land and artificial structures

Answer 354

(1) exclusive; (2) open and notorious (meaning not secret or clandestine); (3) continuous and peaceable (meaning without interruption); and (4) hostile and adverse (meaning without the dispossessed owner's permission). The period of adverse possession of one possessor can be "tacked" to the period of adverse possession of another possessor when there is privity between the two.

Answer 355

The key element in this question is hostile and adverse. Under the majority view, it is generally stated that the adverse possessor must intend to hold adversely against the whole world, including the rightful owner, but the really significant fact is that he hold against the rights of the legal owner (i.e., in derogation of, not in subordination to, the rights of the legal owner) The motives of the adverse possessor are irrelevant. Whether he intends a wrongful disseisin or whether he occupies what he believes to be his own, he acquires title, because it is the visible and adverse possession with intent to possess that constitutes its adverse character, not the remote views or mistaken belief of the possesson

Answer 356

the only unity is that of possession. Each tenant owns an undivided fractional part of the property. Upon the death intestate of a tenant in common, his interest descends to his heirs. There is no right of survivorship.

Answer 357

the state of mind of the grantor. Courts look to the intention of the grantor that the deed shall operate as a conveyance. To effectuate such a conveyance, title will pass to the grantee if there be a physical deed and the grantor intends it to operate as a conveyance, even if the grantor retains possession of the physical paper on which the deed is written. It is not material whether the physical deed is in the possession of the grantee, the grantor, or a third person

Answer 358

acts as a risk allocator in land-sale contract situations. In its original application, the doctrine treats the purchaser in a land-sale contract as the owner of the property from the moment the contract is signed, even if legal title will not pass until closing.

Answer 359

The purchaser bears the loss.

Answer 360

placing the risk of loss during such a period on the seller until either (1) the purchaser takes possession of the property (when she would presumably realize she needed to insure it); or (2) legal title passes

Answer 361

the "equitable" owner of the land, although legal title remains with the seller. In the absence of a contract provision to the contrary, the weight of authority applies the equitable conversion doctrine and shifts the risk of loss to the vendee for casualty losses that occur during the existence of the vendor-vendee relationship. By the same token, the doctrine also "shifts the benefits to the purchaser as well"

Answer 362

seller is entitled to rely upon the proceeds of sale to retire an outstanding encumbrance which could otherwise render title unmarketable.

Answer 363

"an unrecorded conveyance or other instrument is invalid as against a subsequent bona fide purchaser for value and without notice." Under this type of recording statute, the subsequent bona fide purchaser prevails over the prior interest whether the subsequent purchaser records or not.

Answer 364

after there has been a valid delivery. The facts indicate that a valid delivery occurred. Not only did the owner intend for the deed to be effective, but it was also duly recorded.

Answer 365

difference between personal liability and the lack thereof on behalf of the grantee. In a conveyance of land "subject to" a mortgage, the grantee is not personally liable for the debt that the mortgage secures. Conversely, in a sale of land in which the purchaser "assumes the mortgage," the purchaser or grantee is personally liable for the mortgage debt.

Answer 366

the grantee must "assume the mortgage.

Answer 367

protects a bona fide purchaser for value without notice who records first.

Answer 368

The mortgagee does NOT already own the property when he borrowed money from

Answer 369

over a judgment lien.

Answer 370

once the original mortgagee conveyed the property to another party (who "assumed the mortgage" by promising to repay it), the subsequent owner became secondarily liable as surety. Therefore, the lender must first proceed against either the property or the party who assumed the mortgage (who is primarily liable) before asserting its rights against the original borrower

Answer 371

is entitled to exoneration against the person or property primarily bound to pay the debt.