MBE rules Flashcards

Question

Landowner right to light

Answer 1

generally no right to light, UNLESS (a) statute, (b) express agreement creating negative easement/covenant regarding light with other landlowner

Answer 2

Larceny = unlawful taking of the property of another with intent to permanently deprive - larceny complete upon the initial taking, so even if change mind about permanently depriving later, larceny was still committed) Larceny by trick = larceny accomplished by knowing misrepresentation relied upon by the VICTIM (not the D's agent they trick to go steal)

Answer 3

Amend once as matter of right within 21 days of (a) serving their pleading, or (b) being served with responsive pleading Demand jury (1) within 14 days of last pleading to the issue (usually the answer), and (2) filed with the court

Answer 4

Unlawful breaking and entering of another's dwelling at night with intent to commit felony within - NO BREAKING AND ENTERING IF VOLUNTARILY INVITED, THEN BROKE SOMETHING LATER TO ESCAPE WITH STOLEN GOODS - aka common law burglary is complete upon entry, not upon exit

Answer 5

Then strict scrutiny (1) legitimate gov interest (2) no alternative means

Answer 6

D only liable if (a) knew, or (b) should of known, of special damages P would suffer from breach

Answer 7

Entitled to: (a) fair market rental value during time period they are denied use of the property, (b) interest on the value of the property that has been made unproductive by the breach

Answer 8

Can't understand nature of criminal act or know actions are wrong - BASICALLY: UNDERSTAND

Answer 9

Can't control acts/conform conduct to law - BASICALLY: CONTROL

Answer 10

Can't appreciate criminality OR conform conduct to law - NOTE: ESSENTIALLY COMBINES M'NAGHTEN AND IRRESSISTABLE IMPULSE (aka understand or control)

Answer 11

ACCEPTANCE is effective on dispatch - BUT: -- OFFER/REVOCATION/REJECTION all effective only upon RECEIPT

Answer 12

(1) REASONABLY believe, (2) unlawful, (3) imminent, (4) deadly force

Answer 13

Lesser included offenses (crimes , all the elements of which, are encompassed in another crime), are merged into the greater crime if the greater crime is found committed, such that you cannot be convicted of both a lesser included offense and the greater offense

Answer 14

(1) taking in first place?, (2) public purpose and just compensation? Physical: Possession/Physical invasion of property Regulatory: 3 part test: (1) economic impact on P, (2) interference with P's intended use, (3) character of government action Conditional regulatory taking (benefit in exchange for gov taking), constitutional if: (1) nexus between benefit and taking, (2) proportional

Answer 15

Larceny: (1) unlawful, (2) taking of the property of another, (3) permanent intent to deprive Robbery: (1) unlawful, (2) taking of property of another, (3) permanent intent to deprive, (4) with force/intimidation from the person of another - NOTE TEMPORAL MOMENT WHEN FORCE IS USED, BEFORE/AFTER THE TAKING: Even if the force is used after taking (ie pushing after grabbing the purse, that CAN be robbery,) - NOTE AMOUNT OF FORCE REQUIRED FOR ROBBERY: THE USE OF MORE FORCE THAN NECESSARY TO PHYSICALLY TAKE THE ITEM, is enough for ROBBERY (ie, takes the purse then shoves the person (the shove is more force than necessary to physically take the purse, therefore it is robbery) - NOTE LOCATION OF ITEM TAKEN: even if the item is not physically being held by the person (ie sitting next to them) it can be robbery if they use force after grabbing the purse

Answer 16

REQUIRES (1) commercial seller of that product, (2) defective when left control, (3) no change after left control (4) defect caused the harm - NOTE: so someone who simply uses a defective product and harms someone is not themselves strictly liable under products liability, because they are not the commercial seller/can't meet the other elements above

Answer 17

(1) Cost of cover (K price v cover goods price) (2) incidental (reasonable costs of covering), (3) consequantal (particular to P losses if (1) D knew of it at time of K, (2) no way to avoid) - NOTE: UNDER UCC NO ATTORNEY'S FEE PROVISION, so not recoverable

Answer 18

(1) DIRECT LIABILITY: (a) Special relationship, (b) know/should know, (c) business, (d) custody, (e) common carrier, (f) innkeeper (2) INDIRECT LIABIITY: "respondeat superior" (1) employee, (2) scope of employment

Answer 19

Hearsay exception: (1) declarant unavailable, (2) testimony given at prior trial/hearing/deposition, (3) involving similar parties/issues, (4) offered against party who had similar motive/opportunity to develop the testimony (cross examine)

Answer 20

Constitution only protects from GOVERNMENT actors, UNLESS: (1) private actor performing government function, and (2) government has significant involvement in private actors actions

Answer 21

Warranty of marketability = title is free from doubt AND no threat of litigation - "encumbrances" violates marketability Although an existing mortgage is technically an "encumbrance", since hte mortgagee can pay it off at closing, selling a house with a mortgage on it doesn't violate the warranty of marketability BUT, existing easements are "encumbrances" that destroy marketability if easement "reduces property value". UTILITY easements aren't considerd encumbrances because they allow some government service provider to benefit the property. BUT right-of-way easements give someone a right to use the property in a detrimental way and therefore lower property value and are therefore considered encumbrances that destroy marketability

Answer 22

Convey titles with no warranties (like implied warranty of merchantability that says no encumbrances)

Answer 23

INJURY AFTER SELLING PROPERTY: - (1) INJURY OCCURRED ON PROPERTY (2) NATURAL/ARTIFICIAL condition existed at time of sale, (3) seller knew or should have known of conditions unreasonable risk of harm, (4) buyer did not know/should know condition, (5) seller had reason to believe buyer would not discover, seller liable for injuries until buyer discovers/opportunity to discover condition and has reasonable opportunity to remedy - (1) INJURY OCCURRED OFF PROPERTY (2) ARTIFICIAL (man-made) condition (3) seller knew or should have known artificial condition existed and posed unreasonable risk to persons off land

Answer 24

(1) criminal case, (2) crime punishable by more than 6 months in jail Minimum 6 members unanimous verdict

Answer 25

IN BAR TERMINOLOGY THIS MEANS THAT THE DEBTOR DID NOT PUT UP CONSIDERATION, the wording makes no fucking sense but if there is "no consideration to support X's promise" that means that Y DID NOT PUT UP VALID CONSIDERATION

Answer 26

THINK ABOUT WHAT ITS ATTEMPTING TO PROVE - ie: Officer testifying about dispatch's description of robber being charged with false arrest, the description of robber statement not being used to prove the actual description of robber, just the effect on the officer that it made him believe he had probable cause to arrest...

Answer 27

PURE ECONOMIC HARM (aka only damage to product itself) NOT recoverable in tort, must sue under K law PHYSICAL HARM is recoverable however (this includes (a) physical harm to person, AND (b) harm to anything not the defective product itself, ie a building or another object)

Answer 28

If no monetary amount asserted in complaint or only equitable claim for relief, AIC can be calculated as the larger of: (1) cost to defendant, or (2) worth to plaintiff, of the equitable relief.

Answer 29

Landowner can convey deed to their property on oral promise that lendor who is loaning them money will reconvey the land back after loan repaid (aka absolute deed aka equitable mortgage) Even if the reconveyance conditions was made orally, since the court can use the oral agreement as extrinsic evidence to show parties intent as being to create a mortgage Thus the party with lendor possessing the deed can bring a foreclosure action against the debtor who conveyed the land once they default

Answer 30

Non-deadly self-defense: no duty to retreat Deadly self-defense: (majority: no duty to retreat) (minority: duty to retreat if possible with reasonable safety, AND not in own home)

Answer 31

(1) defect, (2) commercial supplier, (3) defect when left D's control, (4) no change circumstance, (5) injury occurred when product being used in FORESEEABLE way - NOTE: Therefore, even if P is committing a crime with the product, and the product is being used in a foreseeable and intended manner, they can sue the D for strict liability

Answer 32

"zone of danger" theory: P was in zone of danger of D's negligence, causing them severe emotional distress "Bystander" theory: (1) family member, (2) injured in front of them, (3) they saw it happen, (4) by D's negligence, (5) caused severe emotional distress

Answer 33

ONLY available if NOT a homicide case - SO can't be coerced/threatened into killing someone

Answer 34

Appointment OF EXECUTIVE OFFICERS: - (a) principal officer: appointed by president, approved by senate - (b) inferior officer: appointment can be delegated to president, federal courts, or head of executive departments Removal: President has absolute authority to remove FEDERAL EXECUTIVE OFFICERS, - UNLESS: (a) belong to multi-member body that is balanced along partisan lines and exercises no executive power, (ex: committees that conduct investigations for congress) OR (b) lack policymaking or administrative authority (ex: independent counsel who investigates and prosecutes alleged crimes by gov officials)

Answer 35

There IS a duty to protect somone you have special relationship with (ICCSHEP) (a) innkeeper (b) common carrier, (c) custody, (d) shopkeeper, (e) hospital/patient, (f) employer/employee, (g) parent/child THIS ONLY ESTABLISHES DUTY, still need to establish BREACH

Answer 36

Defamation is not actionable if made against a dead person, UNLESS (a) made when they were alive then estate can sue, or (b) defamation of dead person that in pracicality amounts to defamation of a living person

Answer 37

(1) warn of known defects (not open and obvious) (2) safely perform repairs (3) COMMON AREAS SAFE (a) reasonable care, (b) safe common areas, (c) remain under landlord's control, (d) owed to tenants and foreseeable persons on premises (guests) (4) maintain safe premises (eg walls, roof) (5) dangerous condition on land leased for public purpose

Answer 38

MUST FIRST PROVE EACH D WAS INDIVIDUALLY NEGLIGENT, then the burden shifts to each D to prove their negligence wasn't the cause of P's harm

Answer 39

(1) same nucleus of operative facts, (2) claim could have been raised in first action, THEN VALID CLAIM PRECLUSION

Answer 40

D intentionally or negligently published to 3rd party

Answer 41

Generally needs to be signed by party to be charged, BUT if BOTH PARTIES MERCHANTS, then a written confirmation not signed by party to be charged will bind both parties if not objected to in writing within 10 days - AND NOTE: to satisfy the UCC (sale of goods) WRITING requirements, needs to have QUANTITY OF GOODS

Answer 42

must REASONABLY believe emergency

Answer 43

SCOTUS: Zoning ordinances regulating adult-entertainment business target SECONDARY EFFECTS of the business on the surrounding community, the CONTENT of their business, therefore they are considered CONTENT-NEUTRAL speech restrictions subject to intermediate scrutiny - Thus, an ordinance that (1) doesn't ban adult entertainment business everywhere, and (2) is justified by a substantial interest in keeping its commercial center free of harmful uses, passes intermediate scrutiny and is constitutional

Answer 44

Requires: (1) knowing misrepresentation of material fact with (2) intent to defraud

Answer 45

GENERALLY protected: Intermediate Scrutiny (1) narrowly tailored (no greater than necessary, (2) substantial government interest BUT: misleading/unlawful advertising receives NO 1st amendment protections - EVEN IF D didn't know it was false

Answer 46

(1) man-made condition, (2) D knows/should know children likely to trespass, (3) D knows/should know condition unreasonable risk of serious harm/death, (4) CHILD OF P'S AGE CANNOT REASONABLY DISCOVERY or APPRECIATE RISK, (5) risk of harm outweighs utility/burden of eliminating manmade condition - NOTE: -- COMPLETE BAR to recovery if child of P's age would have appreciated the risk -- REDUCTION of liability for child who failed to exercise the reasonable care of a child that age (comparative fault)

Answer 47

Must be served ON A PARTY TO THE LAWSUIT, NOT A WITNESS. Requests for production of documents can be served on non party though

Answer 48

- A possibility of reverter vests immediately, and thus an owner conveying a property and retaining a possibility of reverter cannot violate RAP

Answer 49

(1) actual, (2) apparent, (3) implied by law - BUT: CONSENT IS INVALIDATED IF: ONLY IF: (D knew of the mistake, or D caused mistake by misrepresentation/fraud)

Answer 50

ONLY requires state prove every element beyond reasonable doubt - THEREFORE: Due process does not apply to affirmative defenses (because they require proof separate from the underlying elements of the crime itself), and a state can thus freely completely remove affirmative defenses or place the burden on any party at any burden level)

Answer 51

K implied warranty of title: Implied warranty that D will convey marketable title (title free from doubt and litigation) - MERGES with deed once deed has been conveyed, thus no longer owe implied warranty of marketable title 6 covenants of title: (essentially D owns title, will convey it, will defend title agianst other interests) THUS, just because D conveys land that is landlocked, that does not breach 6 covenants of title, and implied warranty of title no longer applies after conveyance since it merged

Answer 52

Applies to a person's habit, AND ALSO A COMPANY/ORGANIZATIONS HABIT - (aka a person from a company can testify and introduce evidence showing a companies regular habit and that it therefore acted in conformity with that habit on this occasion)

Answer 53

MIRANDA only applies if D knows they are speaking with police (therefore undercover informant in jail DOES NOT violate miranda) BUT: 6TH AMENDMENT right to counsel applies to any "critical stage" after being charged/indicted, including police interrogations, which occur when police engage in conduct designed to deliberately elicit incriminating information, such as when an informant is placed in a jail cell SYNOPSIS: 6th amendment violated if informant placed in jail cell, BUT NOT miranda

Answer 54

Generally NOT appealable (because public policy disfavors drawn out removal disputes), thus federal appeals court lacks jurisdiction over appeal - UNLESS: class action, civil rights issue, removal by federal government, federal deposit insurance corporation

Answer 55

Fair market value at time of conversion

Answer 56

ALL state CIVIL/CRIMINAL liability FEDERAL CIVIL liability - BUT NOT: FEDERAL CRIMINAL liability

Answer 57

(1) party added by impleader or required joinder, (2) served within 100 miles of the federal court, regardless of whether service technically occurs in another state (3) federal court rule only

Answer 58

(a) expert witness relies on statement from treatise, or (b) expert witness establishes treatise itself is reliable, THEN hearsay exception, can be read into record, CANNOT be introduced as actual exhibit though

Answer 59

Duty to deliver only attaches AFTER payment has been tendered

Answer 60

Duration = determinable RAP ONLY applies to specific future interests (contingent remainders, vested remainders subject to open (held by group), executory interest, appointment, first refusal, option) NOT to future interests held by the GRANTOR THEMSELF

Answer 61

Ordinary industries: Still need warrant but less stringent PC standard (reasonable/neutral objective or public interest) Highly regulated industries: NO WARRANT NEEDED if: (a) statute/regulatory scheme involves substantial government interest, (b) warrantless search necessary to further statute's purpose, (c) statute provides constitutionally adequate substitute for warrant (ie notification and limits search degree)

Answer 62

be very careful about THE ENTIRE statement being said by the out-of-court declarant - EXAMPLE: "when I paid rent this morning, I told the landlord he had better fix that torn carpet" Is actually 2 hearsay statements, the first statement to the current declarant, and the second statement to the landlord - THe first statement is hearsay with no exception - The second statement is not hearsay because its being offered ot prove notice - THUS SINCE BOTH NOT EXEMPTED, entire statmeent isn't admissible

Answer 63

P using product in unforeseeable way negates strict liability

Answer 64

Content-based restriction: NARCO (1) narrowly tailored (no alternative), (2) compelling Content-neutral: NARSUB (modified intermediate scrutiny) NARSUB (1) narrowly tailored, (2) substantial government interest, (3) alternative channels open NON-PUBLIC FORUM: rational basis RATLEG (1) rationally related, (2) legitimate gov Designated (limit to intended purpose) IF viewpoint neutral

Answer 65

Joint and several liability if (1) multiple negligent tortfeasors, (2) indivisible injury OR acted in concert Several liability: (1) multiple negligent tortfeasors, (2) DIVISIBLE injury

Answer 66

K provision that specifically identifies damages the non-breaching party is entitled to upon breach - NOTE: NOT ENFORCEABLE IF MORE THAN %15 OF K VALUE

Answer 67

Common law: ONLY physical property MPC: INCLUDES INTELLECTUAL/INTANGIBLE PROPERTY

Answer 68

Venue: (a) D resides, (b) events occurred, (c) PJ PJ: (a) traditional (service/consent/waiver), (b) long-arm (minimum contacts fair play equal justice) (specific: events occurred) (general: "D at-home")

Answer 69

Mortgage requires ONLY INTEREST payments now: Life tenant must pay entire balance, future holder pays principal later Mortgage requires INTEREST AND PRINCIPAL payments now: Life tenant and future holder must pay in proportion to the present value of their property interest

Answer 70

death penalty on accomplice ONLY IF (1) major participant in underlying felony, and (2) act with reckless indifference to human life - BUT NOT: accomplice who did not intend to kill

Answer 71

Mere presence with criminal or in vehicle where probable cause for crime has occurred, is NOT SUFFICIENT PROBABLE CAUSE to search the bystander or have a warrant granted at all

Answer 72

K duties are generally delegable, UNLESS (a) P substantial interest in having D specifically perform (ie work requires expert knowledge), or (b) K says delegation requires permission - If either a or b, then D needs permission to delegate - Official "novation" completely substituting/releasing original party, ONLY OCCURS if P officially signs a "novation" or "release" absolving D, ORALLY AGREEING IS NOT ENOUGH MAIN TAKEAWAY: "RELASE"/"NOVATION" REQUIRES AGREEMENT TO OFFICIALLY RELEASE, NOT JUST PERMISSION TO DELEGATE DUTIES, CAN STILL SUE D AFTER AGREEING TO DELEGATE K DUTIES TO ANOTHER PARTY WITHOUT OFFICIAL RELEASE

Answer 73

D is excused from performing, even if its due to a unique health issue only they have if (1) condition makes it impossible for them to do job, (2) neither party at fault, (3) basic assumption of K that condition wouldn't occur

Answer 74

school officials ACTING ON THEIR OWN don't need warrant/probable cause, they need reasonable suspicion of breaking school rule/law - BUT IF: the school official is doing the search as DIRECTED BY POLICE, then the exception doesn't apply and they need warrant based on probable cause since acting as police agent

Answer 75

Tax directly on federal government: INVALID, unless congress consents Tax on federal government affiliates/people doing business with federal government: VALID, unless congress gives immunity or tax discriminates against or substantially interferes with federal duty

Answer 76

EVEN IF case involves ambassador (aka SCOTUS has original jurisdiction), that DOES NOT PRECLUDE the case from being filed in district court, and it shouldn't be dismissed from DC just because SCOTUS has original jurisdiciton - instead cases involving ambassadors are typically policitcal questions that should be discmissed under the political-question doctrine

Answer 77

Yes! Acting with higher/more culpable mental state naturally encompasses lesser mental states - EX: must recklessly burn, but D acted purposefully,/intentionally, YES LIABLE despite statute only requiring reckless

Answer 78

(1) D reasonably believes, (2) statement affects important interest 3rd party, (3) statement is made is socially acceptable (aka it was asked for) HOWEVER: Privileges lost if (1) know false, or (2) reckless disregard substantial likelihood false

Answer 79

Answer = every state where member (partner) is domiciled - NOTE: citizenship is determined at the moment suit is filed (thus if partner lived in state before or moves there after, doesn't defeat diversity anymore)

Answer 80

Fixture = (1) attached to property with intent to remain (2) part of larger component (eg lighting, draining, plumbing, septic, etc.) Chattel = everything else on land not a fixture FIXTURES are part of property and thus mortgage (creditor) has an interst in them/owns them on default even if added before or after mortgage CHATTELS are not part of the property and thus mortgage (creditor) DOES NOT have interest in them

Answer 81

Tax/spend, commerce, war/armed forces, coin/money, immigration, mail, copyright/patent, federal courts, DC, BANKRUPTCY, captures

Answer 82

Judge must discuss - (1) nature of charge/essential elements, (2) maximum and minimum sentences, (3) constitutional rights to be waived (like jury trial) - DONT NEED TO DETERMINE THEY ACTUALLY DID IT, DON'T NEED TO RULE ON MOTION FILED PREVIOUSLY, THOSE ARE WAIVED ON PLEA

Answer 83

If (1) improperly suggestive out-of-court identification of D (police tell witness before they identify D they are "pretty sure its him"), IDENTIFICAITON SUPPRESSED UNLESS (2) prosecutor shows identification is sufficiently reliable

Answer 84

(1) costs/fees of foreclosure sale, (2) mortgage being foreclosed (3) THEN GENERAL LIEN PRIORITY LIST (aka: purchase money mortgages) (4) first in time liens (5) junior second-in-time liens based on filing date, (6) debtor/mortgagee with anything left over

Answer 85

CANNOT charge monetary penalty against plaintiff represented by attorney for LEGALLY FRIVOLOUS CLAIM, but can FOR ANY OTHER TYPE OF SANCTION (makes sense because plaintiff themself doesn't know the law), but they can be liable for lying about facts etc.

Answer 86

K IMPLIES duty of good faith and fair dealing, meaning deal is EXCLUSIVE and buyer CANNOT go buy from anyone else

Answer 87

YES for lying to police to help person get away NO for simply not telling the police anything

Answer 88

KNOWN: (1) warn, (2) artificial (man-made) conditions, (3) that pose serious bodily injury - UNLESS OPEN AND OBVIOUS UNKNOWN: no duty (except don't intentionally/recklessly injure them)

Answer 89

PROBABLE CAUSE (of evidence of crime will be found)= ANYWHERE/including closed container/passenger's closed containers where evidence of crime may be found - NOTE: so this doesn't apply if arrested for DWLS, because no probable cause to believe evidence of that crime can be found in the car (BUT YES for drug related probable cause) SEARCH INCIDENT TO ARREST/DEFENDANT IN REACHING DISTANCE = only passenger compartment/closed containers (BUT NOT TRUNK) - concern: office safety so D must not already be arrested

Answer 90

TEST: "endorsement test" (does context lead reasonable person to believe government display endorses a religion?) - THEREFORE: Government displaying a religious item without any other non-religious items tending to negate the view that government is endorsing religion is UNCONSTITUTIONAL

Answer 91

TEST: "coercion test" (does reasonable person believe government action is coercing participation in religion?)

Answer 92

CANNOT BE guilty of solicitation if you cannot be guilty of the underlying crime - EX: (sale of narcotics which criminalizes the act of selling, you canot be guilty as the BUYER of SOLICITATION because you are not guilty of the crime by buying) - UWORLD puts it: "cannot be guilty of solicitation if you are the party the statute is intending to protect" ie: the narcotic statute protects buyers by making it illegal to sell

Answer 93

Negligence if: (1) didn't disclose risk (2) duty to disclose (always unless: known risk, unconscious, waived, patient harmed if risk disclosed) (3) failure to disclose caused patient to consent, (4) undisclosed risk materialized and patient was harmed Battery INSTEAD of negligence if: (1) no consent at all MAIN TAKEAWAY: Patient must actually have the risk MATERIALIZE and BE HARMED BY IT for doctor to be negligent

Answer 94

ANYTHING besides (a) race, (b) ethnicity, or (c) gender, - AGE IS OK

Answer 95

CANNOT use extrinsic evidence outside 4 corners of K to modify/contradict terms of fully integrated agreement - DOES NOT APPLY if AMBIGUOUS terms, extrinsic evidence is allowed to clarify ambiguous terms

Answer 96

DISPOSSESION: (1) intentional (2) interfere with chattel possession through dispossession (taking) - NO HARM REQUIRED, ITS INFERRED USE/INTERMEDDLING: (1) intentional (2) interfere with chattel possession through use/intermeddling, (3) damages (actual, substantial loss of use, or bodily harm to P) MAIN TAKEAWAY: If P is alleging trespass to chattel by interfering with use THEN DAMAGES REQUIRED, but if P alleging trespass to chattel through actual dispossession then damages inferred

Answer 97

Residential: Duty to repair under implied warranty of habitability Commercial: NO DUTY to make ORDINARY repairs, unless K or statute says otherswise - but yes duty to repair if repair so substantial that it primarily benefits the landlord's property value (ex: large structural repairs, but not leaky pipes) TAKEAWAY: Landlord generally has not duty to repair under COMMERCIAL leases

Answer 98

Majority: INTEND TO BOTH: (1) contact, and (2) harmful/offensive Minority INTEND TO ONLY (1) contact

Answer 99

(1) intend, (2) harmful/offensive, (3) contact, (4) WITH PERSON of another - NOTE: If D is hallucinating and doesn't realize they are contacting a person they are not liable (ie: person believes they are throwing rock at a monster because of hallucinations, no battery) MAIN TAKEAWAY: must believe they are making contact with A PERSON, mental illness is defense if they don't believe they are contacting a person

Answer 100

(1) REASONABLE, (2) objective, (3) belief of imminent, (4) unlawful, force - OBJECTIVELY REASOANBLE TEST: - therefore: mental illness not an excuse to use self-defense, since reasonable person must believe self-defense is necessary

Answer 101

(1) avoid greater danger, (2) incapacity (CHILD), (3) impossibility, (4) reasonable ignorance (couldn't know of tail-light being out) - SO NOTE: if person violating the statute is a child, may not be negligence per se

Answer 102

Free speech: - Content: NARCO (strict) - neutral/commercial: NARSUB (modified intermediate) equal protection: - suspect: NARCO (strict) - Quasi: SUBIMP (intermediate) - other: RATLEG (rational) Dormant commerce: - Facial: NARLEG (strict) - non-facial/burdens: RATLEG BURDEN CLEARLY EXCEEDS BENEFIT (modified intermediate)

Answer 103

SOF requires signed writing to CREATE or MODIFY, but not to RESCIND - (thus mutual oral rescission of a contract for land is valid)

Answer 104

1st degree murder: (1) unlawful, (2) killing, (3) malice aforethought ((a) intent to kill, (b) intent to cause serious bodily injury, (c) reckless disregard substantial and unjustified risk to human life)), and (4) premeditation - Felony murder (1st degree murder): (1) killing, (2) during inherently dangerous felony 2nd degree murder: (1) unlawful, (2) killing, (3) with malice aforethought Voluntary manslaughter: (1) intentional, (2) killing, (3) committed upon adequate provocation/heat of passion OR imperfect self-defense Involuntary manslaughter: (1) unintentional, (2) killing, (3) criminal negligence OR unlawful act

Answer 105

Forum Non-conveniens: Federal court can dismiss/stay case if another STATE or FOREIGN judicial system is better suited to hear the dispute - Note: Fed court can't directly transfer to those other courts since they are separate judicial systems, can only dismiss and have P refile Transfer: Federal court can transfer to another FEDERAL court if (a) suit could originally be brought there (PJ, SMJ, venue), or (b) all parties consent

Answer 106

Lay witness admissibility: Court must hold witness has (1) sufficient knowledge, and (2) experience, to testify about a fact Relevance of testimony based on preliminary fact: Court must hold (1) sufficient evidence for jury to find existence of preliminary fact TAKEAWAY: lay witness with no formal training in identify controlled substances can testify about their own lay opinion that the object found on D was controlled substance as long as court holds WITNESS has sufficient knowledge/experience to identify the controlled substance

Answer 107

Negligent attempt to rescue that further harms victim IS FORESEEABLE Negligent medical doctor at hospital that further harms victim IS FORESEEABLE

Answer 108

Forgery: (1) create/alter document, (2) with LEGAL significance, (3) intent to defraud - Legal significance = checks, wills, diplomas False pretense: (1) obtaining title to another's property (2) through knowing misrepresentation of material fact (3) with intent to defraud MAIN TAKEAWAY: - Forgery = Requires forged document have LEGAL significance (check, will, diploma, BUT NOT forged historical letter since no legal significance behind letter) - False pretenses = MORE GENERAL since it simply requires knowing misrepresentation with intent to defraud (thus, a forged historical letter person sells to collector is false pretenses since they got money through knowing misrepresentation of historical document that wasn't technically a legally significant document

Answer 109

(1) confidential communication, (2) between psycho-therapist and patient, (3) purpose of obtaining treatment/diagnosis - NOTE: does NOT apply to nurse who works at hospital, and only statements for purpose of obtaining treatment Takeaway: threat to someone's life by mental patient not statement made intending to get treatment and if its to a nurse also doesn't apply

Answer 110

Bona Fide Purchaser = person who buys property without notice of a prior competing interest in the property Recording acts - Race = first to record wins - Notice = BFPs always prevail over prior (meaning if the prior person didn't record their deed, the subsequent BFP wins) - Race Notice = (1) BFP (2) records first, wins (meaning even if you are BFP you still need to record before the previous person to win, otherwise they win) "Shelter Rule" = person WHO BUYS FROM a BFP is "sheltered" from their own actual notice, and are imputed the notice of the BFP they are purchasing from, MEANING if someone has actual notice of a prior interest, but buys a deed from a BFP, they are imputed BFP status even though they actually have notice of the prior interest, thus they take BFP and title

Answer 111

ROBBERY = (1) larceny, (2) from person/presence of another, (3) with force or intimidation Force = more physical compulsion than necessary to physically take possession of the property (ie: no force or just enough force to grab the property is LARCENY, but more than necessary is ROBBERY because "force" Intimidation = threat of death/serious physical injury TO THE PERSON THEMSELF, FAMILY MEMBER, PERSON PRESENT - note: thus, you can't threaten property damage and be robbery, has to be a threat to the person

Answer 112

Buyer must select the assortment of goods to be delievered, if they (1) fail to choose assortment by required deadline and (2) delay materially impacts sellers performance, seller can: - Proceed in reasonable manner (eg: choose the assortment they will deliver themselves) OR - treat buyer's non-selection as breach (ex: P and D contract for 1000 candy bars, with buyer to select the type of candy bars by certain date. P does not select the type of candy bars by the date. 1 day late the buyer selects but D says they won't deliver now. D IS LIABLE for breach, since it was only 1 day late and seller didn't sell the candy bars and had them all on hand 1 day later, thus no "material impact" and seller must perform still

Answer 113

Facial: Strict scrutiny Incidental: Rational basis

Answer 114

Generally: Any movement, even a short distance - BUT: if moved in order to commit another offense, the movement must be MORE THAN NECESSARY to COMPLETE the OTHER offense - (ie: shoving bank teller into the back room for him to the open the safe in order to rob, that isn't enough, since it wasn't more than necessary to complete the robbery)

Answer 115

Danger invites rescue: D liable to PHYSICAL HARM caused to rescuers attempting to rescue people D injures

Answer 116

(1) in writing, (2) signed by grantor, (3) UNAMBIGUOUSLY describe grantor/grantee, (4) UNAMBIGOUSLY describe land, (5) include words of transfer - Ambiguous identification of grantors = "the leaders of the protestant churches in County A" (because how do we define who the leaders are) - Unambiguous identification of grantors = "the present members of the US Congress" (because this is a specific identifiable group Takeaway: Deed only valid if it unambiguously defines who it is being granted to

Answer 117

(1) D asks for mistrial, or (b) "manifest necessity (1) unforeseeable event necessary to mistrial, (2) sound/rational discretion (allowing both sides to speak and considering alternatives to mistrial)

Answer 118

ONLY IF: (1) appropriate notice of suit (mail, email, other means), (2) ability to opt out (so they can sue individually if they want) Takeaway: Even if appropriate notification email sent, if technical errors prevents it from actually reaching class members, they are not barred from separate suit since they didn't have ability to opt out

Answer 119

Robbery requires SUCCESS of the elements, otherwise it's attempt - (ex: threaten to shoot person to get their property, but victim doesn't believe them and hands them the money instead out of pity, robbery NOT SUCCESSFULLY completed with force or intimidation, thus it's attempted robbery Main takeaway: criminal elements are subjective to the victim. Meaning robbery not completed if victim didn't feel intimidated, and not larceny by trick if victim wasn't mislead by a misrepresentation to give the property but instead subjectively gave item out of pity

Answer 120

MY LEGS - but: leases/easements lasting less than 1 year, even though technically land , are exempted out

Answer 121

Portion of co tenancy as to dead person is void. Half interest vests in the live grantee, half is retained by the original grantor

Answer 122

Title by adverse possession IS NOT marketable title, because it is not "reasonably free" from potential litigation

Answer 123

Witness that originally testified to the good character: cross examine about specific instances of conduct that rebut Different witness that did NOT originally testify to the good character: ONLY reputation/opinion testimony from that witness, NOT specific instances of conduct that rebut

Answer 124

Multiple claimaints claim stake in piece of property, possessor of the property can interplead the multiple claimaints into one lawsuit to litigate ownership among themselves Rule interpleader: Normal Diversity jurisdcition requiremsnets Statutorty interpleader: Minimal diversity among claimants's (one claimant has different state than another claimaint), AIC more than $500, all states have PJ, Venue proper in any district where claimant resides TAKEAWAY: statutory interpleader is super relaxed

Answer 125

ONLY defense to SPECIFIC INTENT crimes (because it negates the specific intent)

Answer 126

STATES: NO RIGHT FEDERAL: (1) money claim, (2) greater than 20 dollars, - BUT NOT: equitable claims (injunctions)

Answer 127

If d is acquitted of the underlying felony at the first trial, if the victim dies and D is later tried for felony murder as a result of the death, the second prosecution IS BARRED by double jeopardy because an element of felony murder is proving the previously acquitted underlying felony required for felony murder

Answer 128

General test: Historical practices and traditions Gov display: "endorsement" of religion test School: "coercion" to religion test

Answer 129

EVERY commercial supplier who sold the product with a defect in it is strictly liable, even if they didn't know about the defect

Answer 130

Duty to maintain: only easement holder (person who is benefitting) Duty to contribute: anyone who USES the easement

Answer 131

"lateral land support" = adjacent landowner excavating underground and damaging the foundational ground/property of their neighbor Liability rules = - If excavating/damage neighbor's later land support WOULD have damaged the neighbor's land had it been in it NATURAL STATE (aka damage even if neighbors land hadn't have a building/improvements on it) then STRICTLY LIABLE - If If excavating/damage neighbor's later land support WOULD NOT have damaged the neighbor's land had it been in it NATURAL STATE (aka damage only because neighbor's land had improvements on it, then NOT STRICTLY LIABLE, only liable for NEGLIGENCE damages

Answer 132

Federal: Doesn't exist, UNLESS diversity case and underlying state law recognizes it (because choice of law in diversity case says apply state substantive law) State: typically does exist under state law Confidential communication between physician-patient for purpose of medical treatment: - UNLESS: -- PATIENT'S PHYSICAL CONDITION AT ISSUE -- communication part of crime/tort -- dispute between physician-patient -- patient contractually waived (ex: so dispute between surgeon/patient about surgeon causing back issue, surgeon wants to introduce patient's medical record from patient's other general doctor to show back condition already existed, ADMISSIBLE because physical condition at issue

Answer 133

Senior lien loses priority if mortgage modification "materially prejudices" junior lienholders - (aka: changing interest rate/loan amount is "material prejudice" - but: changing how long the loan is payed back (loan amortization) is not material prejudice

Answer 134

tenants ARE NOT adversely using any property owned by their landlord because tenants are deemed "to stand in their landlord's place" during a lease, thus any of their actions are not deemed adverse for purposes of adverse possession (ex: landlord leases to tenant, tenant starts using driveway of landlord's other lot for 13 years. No prescriptive easement because since its landlord's property, its not deemed adverse)

Answer 135

If P owed same pre-existing duty to 3rd party (not party to current K), then promise to the new party for that same promise IS VALID consideration (ex: detective owed duty to employer to find stolen painting, painting owner promises 10,000 to detective to find the painting, IT IS VALID consideration since pre-existing duty was to 3rd party (employer) not to painting owner

Answer 136

When the agreed-upon act was created in order to protect a CERTAIN CLASS OF PERSONS, that class of persons CANNOT supply a guilty mind for conspiracy, even if they agree to it (aka: 18 year old and 14 year old minor agree to have sex, the 14 year old DOES NOT have the ability to conspire to commit statutory rape because they are among the class the statutory rape law is intended to protect)

Answer 137

NON-delivery contract: when buyer receives goods SHIPMENT K (no specific location): buyer when 3rd party carrier receives goods DESTINATION K (specific delivery location "FOB"): buyer when buyer receives goods

Answer 138

UCC: no consideration Common law: consideration

Answer 139

If owner grants life estate, with the remainder in the OWNER's heirs, the remainder is invalid, and the remainder is deemed in the owner themself instead of the owner's heirs Doctrine of merger: if person holds present interest in property, AND a remainder, the two interests merge into fee simple

Answer 140

Prior bad acts are admissible to prove identity, rather than bad character, BUT still needs to pass 403 balancing test, SO: the prior bad acts needs have a "signature" or have some additional probative value to prove the identity, otherwise FRE 403 bars its admission due to unfair prejudice

Answer 141

Assumption of mortgage = buyer becomes primarily liable, seller becomes secondarily liable Release of mortgage = buyer becomes solely liable, seller no longer liable at all - Note: "subject to mortgage" means buyer doesn't assume mortgage liability at all, and seller still needs to pay mortgage Logistics for default of an assumption = creditor can sue either party individually or both, BUT secondarily liable party can then seek reimbursement from primarily liable party - NOTE: NO requirement as to timeline of who they sue, they can immediately go after secondarily liable if they want, secondarily liable can then sue for reimbursement

Answer 142

REASONABLE insecurity if: buyer/seller enter 2 separate Ks for crops. sellers repudiates on one of the crop contracts. Even though separate Ks, this gives buyer REASONABLE insecurity to demand assurances on the other K MY NOTE/TAKEAWAY: It appears the bar to meet "reasonable" insecurity is pretty low

Answer 143

Current charges = duty to pay all charges UP TO financial benefit received from property - (note: thus if life tenant not actually receiving any benefit, no duty to pay anything)

Answer 144

RELIABILITY (bias, prior inconsistent, sensory defect) = extrinsic CHARACTER FOR TRUTHFULNESS - reputation/opinion = extrinsic - specific instance of conduct (conviction felony or crime of dishonesty) = extrinsic - specific instance of conduct (not conviction) = intrinsic

Answer 145

DOES NOT only apply to actual "SALES", due on sale clause triggers on any TRANSFER the property in any way (such as by gift by deed)

Answer 146

If adverse possessor attributes their adverse possession to another, then the adverse possession timer is attributed to the person who is being attributed from EXAMPLE: owner A, A grant life estate to B, B rents to C, B dies, (ownership reverted back to owner A here), but C continues to pay rent to B's heir son, son then owns fee simple after statutory period because C's adverse possession after life estate lapsed is attributed to the son

Answer 147

"Main-purpose" exception: sof DOES NOT apply if the "main purpose" of promise to pay for 3rd party's liability was for the promisor's OWN economic benefit

Answer 148

termination only if both dominant/servient estates owned in FEE SIMPLE, thus if there is any type of future interest attached to either lot, technically not merger and therefore easement remains

Answer 149

"act pursuant to common plan or scheme" - ex: two people simply competing in a drag race ARE acting in concert, thus liable for torts committed by the other

Answer 150

Even if K is facially illegal, court WILL enforce it if party seeking to enforce it belonged to the class of people the law was intended to protect - ex: insurance policy leaves out coverage required by statute, P attempts to enforce it when they are injured, D says its void because violates law, K IS enforceable because P is member of class the law was intended to protect (expanded coverage for people with insurance)

Answer 151

If the parties to the main K don't perform, performance is excused for the party also needing to act for the intended beneficiary, since each party's performance is an implied (constructive) requirement of the others duty to perform

Answer 152

IS VALID, to create an unidentified intended beneficiary (ie: Promise to pay whoever son buys a car from), that unintended beneficiary can later enforce the K when they are identified --- AND suretyship SOF DOES NOT apply because the promise is to the son, NOT the intended beneficiary