MEE Flashcards
1
Q
Does the police’s failure to inform the suspect that the lawyer is trying to talk to him to see him violate 6 & 5 amendment right
A
No, as long as adversary judicial proceedings have not commenced
-Voluntary confessions admissible
2
Q
A Miranda waiver must be?
A
Knowing and Voluntary
3
Q
What does it mean that the Sixth Amendment right to counsel is offense specific?
A
If a defendant’s sixth amendment right to counsel has been attached regarding on charge, he may be questioned without council to an unrelated issue that he has not yet been charged with.
4
Q
Subject Matter Jurisdiction - Supplemental Jurisdiction
A
Once a court has subject matter jurisdiction over a case in , it will have supplemental jurisdiction over any other claims arising from the common nucleus of fact. This standard is broader than the same action or occurrence standard for motions. Rather to analyze whether there is a common nucleus of operative fact courts will ask if much of the evidence will be the same and if the underlying occurrences are largely the same.
A court must have independent grounds for each claim
5
Q
What procedural rules do Federal courts apply when exercising federal question jurisdiction?
A
Federal Rules
6
Q
What law do federal courts generally apply when hearing a state law claim (State or Federal)?
A
State
7
Q
When should the forum selection clause in a contract not be applied
A
When there are extraordinary circumstances unrelated to the coven or the parties
(1) what law applies
(2) is the community burdened with jury service
(3) keep local controversy local
8
Q
Public forum speech restriction must be?
A
Content neutral narrowly tailored to significant government interest and leave open alternative channels of communication
9
Q
An easement is Implied from existing use when:
A
before tract is divided, apparent and continuous use on the servant part and the parties intended to use to continue after division
10
Q
The doctrine of equitable subrogation states:
A
A person other than the mortgagor who pays off a mortgage can step into the shoes of the now-paid-off mortgagee.
11
Q
Counterveining Equity
A
Countervailing equity refers to the concept of balancing competing equities or interests in legal disputes. It involves taking into account the various interests and factors at play in a situation and determining an equitable solution that addresses these competing interests. The idea is that the court should consider not only the interests of one party but also the interests of other parties or the public interest, and then balance these interests to arrive at a fair outcome.
12
Q
What does the removing party need to do in order to remove from federal court
A
-Files notice with the federal district court and division in which the action is pending
-Copies of notice set to parties and state
-Filed within 30 days of receipt of the complaint by D
-If based on diversity no more than 1 year from the case being filed ) unless bas faith by p
-All Ds must join
-No removal if D is Citizen of forum state
13
Q
Permissive Joinder of Ps
A
Parties may be joined as Ps or Ds whenever: (i) some class is made by each P and
against each I, relating to or arising out of the same series of transactions/occur-
rences (T/O); and (i) there is a question of law or fact common to all the parties
14
Q
What does supplemental Jurisdiction Require
A
The tye supplimantal claim arises out of tye same nucleus of fact as the claim invoking tye original SMJ
Note: Supplimantal Jurisdiction cannot be used to destroy DoC jxd
15
Q
What is JMOL
A
16
Q
What is Summary Judment
A
Summary judgment is usually granted when one party (the moving party) can show that there is no genuine issue of material fact in the case and that they are entitled to judgment as a matter of law. In other words, the moving party argues that even if all the facts are taken in the light most favorable to the other party, there is still no way the other party could win the case as a matter of law
17
Q
What is a renewed JMOL and when can it be filed
A
Can be filed no longer than 28 days after judgement in entered and cannot be extended.
18
Q
Explain The Rule Against Perpetuities (RAP) and what interest it applies to
A
The RAP voids any interest if there is a possibility that the interest may vest more than 21 years after some life in being at the creation of the interest. The RAP applies to the following future interests in personal or real property: (i) contingent remainders; (ii) executory interests; (iii) class gifts (EVEN if vested remainders); (iv) options and rights of first refusal; and (v) powers of appointment.
19
Q
Are statements made during settlement negotiations in a private civil action admissible in a subsequent criminal case that arises out of the same incident?
A
No
20
Q
What rule(12)b defenses are waived if not put in the first Rule(12)b response (motion or answer)?
A
-A lack of personal jurisdiction
-Improper Venue
-Improper Process (a problem with the papers)
-Improper Service of Process
21
Q
What Rule (12)b defenses can be raised until trial
A
-Failure to state a claim
-Failure to join an indispensable party
22
Q
Elements for strict products liability
A
(1) Commerical Supplier
(2) Production or sale of the defective product
(3) actual and proximate cause
(4) damages
23
Q
Effect of divorce on a will
A
-UPS everything revoked from ex-spouse and ex-spouses relatives
-the majority of states everting revoked only from the ex-spouse
24
Q
How can a will be revoked
A
By a subsequent written instrument or physical act
-To revoke a will by written instrument, there must be a present intent to revoke and the instrument must be executed with the same formalities as required for execution
25
What is needed for a will contract
Well a common law a contract to make a gift by will not being writing unless the land is involved, some states have enacted statutes requiring all contracts to Make a gift by well to be in writing. In those states following the uniform probate code UPC, a contract to make a will can be established by (1) Provisions in the well stating the material provisions of the contract;(2) an express reference in the will to the contract and extrinsic evidence proving the terms of the contract; (3) for a writing sign by the decedent evidencing the contract.
26
What is Quantum meruit?
A reasonable sum of money to be paid for services rendered for work done when the amount due is not stipulated in a legally enforceable contract
27
What is the cypres doctrine?
The cy-près doctrine is a legal doctrine that allows a court to amend a legal document to enforce it "as near as possible" to the original intent of the instrument, in situations where it becomes impossible, impracticable, or illegal to enforce it under its original terms
28
When does the membership of a class gift close (ie when can people stop being added or qualifying)
When some member of the class can call for distribution.
29
When can a beneficiary disclaim a trust?
A beneficiary can disclaim a trust within a reasonable time of being notified of it. In most states, a disclaimer is not effective unless it is in writing and is filed within nine months of the decedent's death.
30
Trustees in a revocable trust versus a irrevocable trust
Irrevocable trus- Jose duty to act for the benefit of all beneficiaries including the Setlor and the beneficiaries
Revocable Trust -has duty to act for the benefit of only the Setlor because set lure is treated as owner of the trust assets
31
If an Agent has actual authority to act but acts for themself or a third party is the principal still liable?
No
32
Does the state where divorce is granted have effect on disputes over marital property
Only property in that state where the divorce was granted
33
What factors does a court look at when awarding custody
Parents wishes, child wishes, interrelationship with the parents, siblings, child's adjustment to home, School, and community, and mental and physical health of parties
34
What is needed for actual authority in a partnership
Majority vote for normal matters, unanimous vote for matters outside of the business
35
Apparent authority in partnership
Partner acts in the ordinary course of the partnership business or of the kind carried out by the partnership will bind the partnership unless the third party knew that the partner had no authority.
36
Can child support be modified retroactively
No
37
Under the uniform child custody jurisdiction enforcement act (UCCJEA) wish has been adopted in nearly every state, the court that made the initial custody germination has continuing, exclusive jurisdiction over the matter until that court determines that:
Neither the child nor the parents continued reside in the States, or the child no longer has a significant connection with the state and substantial evidence relating to the child's care, protection, training, and personal relationship is no longer available in the state
38
Under the full faith and credit for child support orders act (FFACCSOA) full faith and credit must be given to another court's child support order if:
The court had jurisdiction over the matter and the parties, and the parties had a reasonable notice and opportunity to be heard
39
Three requirements for full faith and credit to be satisfied for conflicts of law
Correct jurisdiction, on the merits, finality
40
What are examples of judgments not on the merits
Lack of jurisdiction, misjoinder, improper venue, failure to state a claim
41
Our public policy and mistake reasons for a recognizing court to not recognize the rendering courts judgment
No
42
In a secure transaction when can the right to redemption be waived
Only after default
43
When can a secured party be prevented from collecting a deficiency
Arco-9 provides that a secure party will be liable to the debtor for any damages caused by failure to fall and even its rules and will be prohibited from collecting any deficiency if it's default rules are broken unless the secure party can show that the breach did not cause the deficiency
44
What are the rules article 9 provides for when it's secure party can use self-help to repossess after it's been a default
After there's been a defaults the creditor can use self-help to repossess the collateral however a secured party can use self-help to repossess collateral only if it can do so without a breach of the piece. If it breaches the piece then Article 9 is violated
45
What happens if a secure party violates article 9
A secure party reliables or debtor for any damages caused by failure to follow Article 9 rules
46
Directors conflicting interest transaction will not be set aside if:
: (1) the director disclosesall material facts and deal is approved by disinterested majority of directors (2) the shareholders of (3) the deal is fair
47
Can a shareholder allow someone else to vote for them
Yes by proxy issue 100 can allow someone else to vote on with the shares proxies are generally revocable unless connected with an interest and if stated a irrevocable
48
Does holding a proxy vote at a shareholder meeting count as being present with those shares for calculating quorum
Yes
49
What is needed for a public figure to bring a defamation case
The statement must have been made with actual malice
50
When is a lease actually a security agreement
A transaction will be deemed to create a security interest rather than a lease if the rental obligation is not terminatable by the lessee and at the end of the lease the lease has an option to purchase the goods for no or nominal consideration
51
What happens when all of the funds are used in the foreclosure sale with respect to the third partie creditors of lower priority that don't get any money
The creditors interest in the collateral that was sold is discharged
52
Does the builder sell the new house carry implied warranty of fitness and quality
Yes the house must be designed and constructed in a reasonably and work like manner and suitable for human habitation. Some courts will even extend this implied warranty to someone who buys a house from the original owner
53
If you buy something subject to a recorded mortgage are you liable before it
If a mortgage or sells property and conveys a deed, the grantee takes subject to a recorded mortgage, which remains on the land. If the grantee signs an assumption agreement, promising to pay the mortgage loan, he becomes primary liable to lender, while the original mortgager becomes secondary liable has a surety
Minority: In some jurisdictions a grantee who pays the seller of real property and amount equal to the value of the property minus the outstanding balance on the mortgage might be deemed to have assumed the mortgage by implication
54
For redemption purposes does a specific gift of stock include additional dividends
Under common law specific bequest of stock includes any additional shares produced by a stock split but does not include shares produced by a stock dividend
The majority role in most states and under the UPC is that specific quest of stock also includes shares of stock produced by a stock dividend
55
What happens when a property that is specifically bequest under a testator's estate is destroyed sold or given away
Under the common law doctrine of redemption, when specifically bequest property is not in the testators estate at death ie it was destroyed sold given away or lost the request is a deemed thus it fails
Most courts decide the redemption issue solely on the basis of an objective test whether the specific quest property is a part of the estate and does not consider intent. Some states have adopted a more lenient intent test under which the beneficiaries entitled to substitute property owned by the testator if the beneficiary can prove that the testator intended the beneficiary to take the substitute property
56
Under the federal rules of evidence explain impeachment based on a felony, a crime, and a misdemeanor
Also talk aby remoteness of the crime
Hey what is his character for truthfulness maybe attacked by 1 and he felony or 2 any crime 3 misdemeanor, if it can be readily determined that conviction of the crime required proof or admission of an act of the assignment state or false statement.
If a conviction is for a felony does not involve dishonesty or false statement, the court has discretion to exclude it if it fails the rule 403 balancing test (ie danger of unfair prejudice outweighs probably value)
Under the federal rules a conviction is usually two remote and inadmissible if more than 10 years have passed since the date of conviction or the date of release from the confinement imposed for the conviction whatever is the later dates
57
Are any prior acts of misconduct admissible for impeachment of a witness
No, only prior axis misconduct that are probative of truthfulness, even if the witness was never convicted. Extrinsic evidence of the prior act is not permitted. Even if the witness denies the act the cross examiner cannot refute the answer by calling another witness or producing other evidence.
58
When can the government take private property for public use under the fifth amendment
Want to provides just compensation to the owner
59
Does a restriction of how real property is used constitute a taking under the fifth amendment
Generally it does not but it can if it (1) amount to a physical appropriation (2) denies an owner of all economic use, or (3) unreasonably interferes with the distinct investment back expectations of the owner
60
When will it taking under the 5th amendment of public property generally be found
It taking will be almost found if there is an actional physical appropriation or destruction of a person's property
61
Can the government force a landowner to convey interest in their land in exchange for permission to build improvements on the property
Generally cannot these force conveyances usually violate to taking cause of the fifth amendment
Exceptions: however a city can impose such requirement if (1) a close Nexus exists (The government can show the condition relates to a legitimate government interest) and (2) proportionality exists (The Everest impact of the proposed building / development on the area is roughly proportional to the lost caused to the property owner from the forest transfer of occupation rates)
62
What is needed to validly assign a contract
To sign a contract a party must manifest the intent to transfer his rights under the contract to an assignee. Oral assignments are generally effective. Most contracts are rights may be assigned unless the contract for business assignment, assignment is forbidden by law, or the assignment with substantially changed duty or risk. Contract or personal services cannot be assigned if the performance of the service so involves the personality or personal characteristic of the onligor such that it would be unfair to require the obligore to perform for a third party.
63
What are the elements of false pretenses
(1) obtaining title, (2) to the property of another, (3) by knowing (or in some states intentional) false statement of past or existing fact, (4) what the intensity fraud another.
The crime of false pretenses the title must pass if it does not pass the crime will be larceny by trick.
If the defendant believes the statement to be true even if unreasonable he is not committed false pretenses.
Intensive fraud can be proven by showing that the defendant intended for the victim to rely on the misrepresentation.
The knowingly element can be proved by showing that the defendant had notice of a high probability of the statement of falsity and made a deliberate decision to avoid learning the truth.
64
When can I party demand for assurances?
Under the UCC if a party has reasonable ground for insecurity with respect to other parties performance, he may demand assurances did that performance will be forthcoming at a proper time
-must be in writing
65
When a party demands rightfully accurate assurances what are that party's rights
If the other party does not give adequate assurances within a reasonable time (usually 30 days)
The demanding party may treat the contract as repudiated.
66
What are the remedies for a repudiated contract?
-treat the repudiation as a total bridge in sue immediately
-suspend his own performance and wait until performance date
-treat the repudiation as an offer to resend and treat the contract as discharged
-ignore the repudiation and urge to build it to perform
67
Can I repudiating party withdraw his repudiation
A repeating partying at any time before it's performance is due withdraw his repudiation unless the other party is canceled the contract, entirely changes position and reliance on the repudiation, or otherwise indicates that he considers a repeatation final
-withdrawal of the repudiation maybe in any manner that clearly indicates an intention to perform but must include any assurances justifiably debated. This reinstates the reputating parties rights.
68
An agreement that a seller will retain title to deliver goods into the buyer has paid for them is treated as a ?
Security interest
69
For the purpose of a security agreement does the debtor have to have title in the collateral for it to count as having rights in them
No
70
A security interest in property to be acquired in the future +such as a clause that states all inventory present and in future) attaches when
The debtor obtains an interest in it
71
What part of a corporation ordinarily has so discretion to manage the normal affairs of the corporation
Directors, shareholders generally have a direct voice in management decisions only with respect to fundamental corporate changes.
72
When a director is approving a transaction he owes what !
His normal fiduciary duty to act in good faith, in the best interest of the corporation using the degree of care that an ordinary prudent person would under like circumstances
73
What is the three elements needed to know if an absent party must be joined into a lawsuit
(1) should the absentee be joined, (2) can the absentee be joined; (3) if she cannot be joined candy action proceed in her absence
74
What are the factors to look at when a necessary party can't be joined when deciding if the case should continue
Whether (1) The judgment in her absence would prejudice her or existing parties. (2) The prejudice can be reduced by shaping the judgment (3) a judgment in the parties absence would be adequate; and (4) The plans if we'll be deprived of an accurate remedy if the action is dismissed
75
Can the board of directors authorize a sale of company assets
Yes the board of directors can authorize the sale of company assets unless it is all or substantially all of the corporations assets outside ordinary scope of business (At least 75%)
76
If a director has a personal interest in transaction what must they do
All material facts in the transaction must disclose all material facts about the transaction
77
Do interested directors votes count in a transaction in which they have it personal interested in
No
78
What factors are needed to have capacity to enter into a will:
At the time of testating the testator must
1. Understand the nature of his act (that he is writing a will)
2. No the nature and character of his property
3. No the objects of his bounty
4. Late these factors to formulate a disposition of property according to the plan formed in his own mind.
The burden of proof of invalidating a will based on this is on the contestant
79
What is needed to show undo influence in a well contest
1. Specific acts of influence were exerted
2. The effect of the influence was to overpower the mind and free will of the testator, and
3. The product of the influence was the will or gift that would not have been made but for the influence
The presumption of undue influence that arises when a bequest is made to one in a confidential relationship does not apply to a spouse
80
What are the elements needed to show fraud in a will contest
(1) someone made a false representation of material fact, knowing it to be false
(2) The representation was made for the purpose of inducing the testator to write the will in a particular way
(3) The test theater reasonably believed and relied on the statement in making the will.
81
Any well generally a no contest clause is enforceable but the beneficiary will not forfeit the legacy if
The court finds that the challenge of the will was made in good faith and on the basis of probable cause
82
What is the Caplan doctrine with respect to beneficiaries modifying a trust
A trust maybe modified by the beneficiaries only if all beneficiaries consent and the modification will not interfere with the material purpose of the trust.
If a beneficiaries dead then this cannot work because they cannot consent
83
Does the court itself have a power to modify a trust due to change circumstances. Under common law and the UTC
Common law: At Camelot a court and equity may authorize or direct a trustee to deviate from the administrative terms of a trust (including permitting acts that are forbidden by the trust instrument) if the set lower did not know or anticipate new circumstances in compliance with the terms of the trust would defeat or substantially impair accomplishment of the trust purposes.
UTC: court sanction modification can be sought if the trust could have been modified if all the beneficiaries had consented and the interests of any non-concentive beneficiaries will be adequately protected. A court made modify the trust terms if circumstances unanticipated by the setlor threats in the purpose of the trust. To carry out this at Laura's primary intent which is the welfare of the beneficiaries The court may ignore a specific direction of the settlor and Grant the trustee powers specifically prohibited in the trust instrument
84
Many states give courts the power to invade principal for an income beneficiary if
The court finds that support of the income beneficiary was the primary purpose of the trust
85
In a partnership in Acton ordinary course of business must be approved by
Majority go to the partners
86
In an atwell partnership if a partner disassociates is there a way to prevent the partnership from dissolution
Yes dissolution may be retroactively nullified if there is unanimous votes to continue the partnership business but the partnership must buy out the dissociated partners interest
87
Can partners in a partnership enter into contracts as agents of the partnership during disillusion
Absent a coubtrarty agreement there is no authority of a partner to act as an agent for the partnership except for winding up
88
What gives rise to tenants ability to use constructive conviction and what are the elements needed
If a landlord doesn't act or fails to provide some service that she has legal duty to provide, thereby making the property uninhabitable, the tenant may terminate the lease and seek damages under constructive eviction.
Elements: (1) The landlord or someone acting for the landlord causes the injury (2) The breach substantially and maturely deprived tenant of her use enjoyment of the premises (3) The tenant gave landlord notice and reasonable time to repair, and (4) lieutenant then vacated the property within reasonable time.
Is important to remember that the landlord has no common lock duty 2 repair or maintain premises to duty must be provided for in the lease or required by statute or by the implied warranty of habitability. The implied warranty of habitability is only implied in tenancies
89
If attendant unjustifiably abandons the property the landlord has two options:
She made you nothing or she may repossess
The tenants liability well depend on where the landlord has accepted the tenants surrender of the premises. If the surrender is not found the tenant remains liable for the differences between the promised rent and the fair rental value of the property.
90
What are the are the formalities needed for a tenant to surrender a lease.
Is surrender must be in writing if the unexpired term is more than one year.
91
Under UPA is the spouse of a woman who bears a child through assistive reproduction the child's legal parent?
Yes unless within two years after learning of the child's birth he commences action in which is determined he did not consent to assist the reproduction
92
A parent has right to custody over non-parent unless
Voluntary relinquishment or the parent is unfit.
If a parent is deemed unfit then the best interest of the child test should apply
93
There is a reputable presumption that the child of a married woman is the marital child of her spouse
94
Many states have ruled that when a child has been left with a third party to rear, the biological parent has lost the right to raise a child and the best interest of the child test should be applied
95
What fiduciary duties do shareholders have
Generally shareholders are free to act for their own benefits.
Exception: controlling shareholders must refrain from using control to obtain special advantages or cause corporation take action that unfairly prejudices minority shareholders.
Must disclosed material information to majority shareholders
96
What duties do directors owe
Director of duty (1) to act in good faith (2) with the care then ordinary prudent person in the like position would exercise under similar circumstances (3) in a manner of the director believes is in the best interest of the court
97
BIOC takes free of not possessory security interest created by his seller unless
He knows the sale violets is security agreement
98
A consumer who buys guns from another consumer before a financing statement has been filed:
Takes the goods free of even a perfected PSMI
99
If sentence maybe increased if additional facts are proved, who must decide on those facts
Proof must be submitted to jury improve beyond reasonable doubt
100
In a criminal case a mandatory presumption or a presumption that shifts the burden of proof to the defendant violates
The 14th amendment requirements that estate prove every element of a crime beyond a reasonable doubt
101
Under the federal rules when multiple claims or multiple parties are involved in action, the court may enter a final judgment as to fewer than all of the claims or parties on:
(1) an express determination that there is no just reason for delay, and (2) a direction from the entry of judgment.
Unless the trial judge make such express determination, the order determining the merits of fewer than all of of the claims or dismissing fewer than all of the parties is not a found judgment and is not appealable
102
A final order is one that
Disposes of all claims and parties
103
Explain the writs of mandamus exception to the final order appeal rule
Mandamus commands a trial judge to act, and prohibition commands the judge to refrain from acting. The Ritz are available only if an appeal will be insufficient to correct the problem and the trial court's action constitute a serious abuse of power that must be immediately corrected
104
Elements of battery
(1) an act by defendant; (2) intending to cause harm or offensive conduct to plaintiff; and (3) that does cause such conduct
105
Speech that incites imminent laws action and fighting words is
Not protected by the first amendmet
106
Generally a regulation of speech will not be upheld if it's over broad ie prohibits substantially more speech than necessary
107
What are fighting words with regard to the first amendment
Fighting words has been defined as personally abusive epithets that when addressed to an ordinary person are likely to incite immediate physical retaliation
108
Explain default judgment
A default judgment is a judgment entered by the court against the defendant because they have failed to defend the case or respond to the lawsuit.
To obtain a default judgment, the moving party must first file a motion for default with the court. This motion typically includes evidence that the defendant was properly served with the lawsuit and that they failed to respond within the time allowed by law. The court will then review the motion and, if satisfied that the defendant has failed to respond, may enter a default judgment in favor of the moving party.
109
Explain respondent superior and what is the definition of scope of employment
Under the doctrine of respondent superior an employee can be held liable for employee's torts if the tort was committed within the scope of employment.
Scope of employment: an actual be considered to be within the scope of employment if it was expressly authorized by the employer, or of the same general nature as the employee's job and motivated by a desire to serve the employer
110
Pproximate Cause
Approximate causation is a limitation on liability The general rule for proximate cause is that a defendant is liable only for the harmful results that are normal incidents of and within the increased risks caused by the defendant. Liability is generally determined by a foresee ability test.
111
What are the domestic relation case that federal courts will not exercise subject manager's diction over
The issuance of a divorce decree, alimony, or child custody decree
112
Parties may be joined as defendants whenever:
(1) some claim is made by each plaintiff against each defendant relating to or arising out of the same series of occurrences or transactions; and (2) there is a question of fact or law common to all the parties.
113
What is needed to form a partnership
An association of two or more persons to carry on as co-owners a business for profit. There is no requirement that the parties subjectively intend to foreign partnership, only that they intend to run a business as co-owners. A person who receives a share of the profits of a business is presumed to be a partner unless the share is to repay a debt as compensation.
114
Parent has rights raide child and is entitled to custody unless
Unfit or relinquishes custody
115
What is the two-step process for adoption
(1) biological parents rights must be terminated; (2) new parent-child relationship must be created
116
What are the special circumstances in which custody will be awarded to a third party
The most common example is where apparent leaves a young child with a third party for a period of years and then wants to regain custody
117
What are the elements needed to violate the confrontation clause
(1) statement is offered against the accused in a criminal case; (2) did a Clarence is unavailable to be cross-examined at trial; (3) the accused had an opportunity across examine the unavailable declarance statement prior to trial; (4) The statement is testimonial in nature
118
What is a spendth provision in a trust
Generally a spendthrift provision prohibits the voluntary or involuntary transfer of beneficiaries interest in the trust. In other words the beneficiary cannot assign his interest to another, and the interest is free from the claims of creditors. However some states do not enforce spend thrift provisions against certain type of creditors, such as dependents of the beneficiary.
119
Can a creditor reach a future interest in a trust
A creditor cannot reach a future interest in a trust only a present interest
120
When can a trust be terminated
Termination of a trust is usually permitted if all the beneficiaries content to termination and determination does not interfere with a material purpose of the trust.
121
What are the elements for the business record exception
(1) made in regular course of business (2) regular practice of business to make the record (3) made at or near time of event (4) made by person with duty to record and personal knowledge (5) authenticated
122
What are the elements for lay witness opinions
(1) rationally based on perception of the witness (2) helpful to a clear understanding of testimony and determining fact an issue (3) not based on scientific comic technical, or other specialized knowledge
123
A private action is a state action when
(1) The private actor is performing a traditional and exclusive public function; or (2) State is significantly involved in the private action
Traditional exclusive public function = running town or election
Significant state involvement = use of courts or when private actors in state actors intertwined
124
Do courts ever allow a common law contract to be modified without consideration
Some courts not allow a contract to be modified without additional consideration if the modification is fair and equitable in view of circumstances not anticipated when the contract was made. This usually means that a party encountered difficulties in performing boarding on impracticability.
Ex constructor unexpectedly hits bedrock
But Financial troubles is not in a fair and equitable reason for a modification without consideration
125
What is a codicil
A later testamentary instrument that amends alters or modifies a previously executed will
126
To incorporate a document by reference in a will:
(1) The document must be in existence at the time the world was executed, (2) The language of the well must sufficiently describe the writing to permit its identification, and (3) The well most manifest an intention to incorporate the document.
127
Article II, Section 2 of the Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law
128
Federal Rule of Civil Procedure (FRCP) 16(e) states that a final pretrial order may be amended only:
only to prevent manifest injustice.
129
Under the economic loss doctrine, parties are prohibited from recovering in tort when:
the negligence of another results in purely economic loss, as opposed to personal injury or property damage
130
The correct standard for authentication under Federal Rule of Evidence (FRE) 901 is
whether there is “sufficient evidence to support a finding” that the evidence is what the proponent claims it to be.
131
Federal Rule of Evidence 613(b) permits proof of a witness’s prior inconsistent statement through extrinsic evidence so long as
the witness has an opportunity to explain or deny the statement.
132
Does a real estate broker have a duty to make full disclosure of any interest the broker or a family member of the broker may have in the purchase of the property?
Yes
133
Under the economic loss rule, there is no recovery on a strict products liability theory if a defect in a product causes damage only to the product itself, as opposed to personal injury or injury to other property.
134
Is the traditional assumption of risk a complete defense:
Yes
135
For deed to be valid it needs
(1) in writing, (2) sufficiently describe the land, (3) then if I the Grand tour and grantee, (4) evidence of intention to convey the land, and (5) signed by the grantor
136
Anytime someone enters possession of land with invalid deed is the possession hostile for terms of adverse possession
Yes
137
Do recording statutes protect a subsequent purchaser against interest that arise out of law (e.g implied easements, title by adverse possession)
No
138
Lieutenant goes into possession under a failed lease agreement ( for example the lease doesn't comply with statute of frauds) what type of tendency is created
A tendency at will. And once rent is paid it becomes a periodic tendency
139
Rules for notice when tenant terminating a lease
Notice must be in writing and be delivered
140
What is the notice requirement for a special shareholder meeting
Written notice must be given at least 10 days before, stating date, time, place, and purpose
141
Does a proxy need to be in writing
Yes
142
Miranda warnings are required
Before interrogation were defendant is in custody
143
What is in custody mean for purposes of Miranda
For their persons in custody depends on whether a person's freedom of action is denied in a significant way. The more the situation resembles formal arrest, the more likely the court will find the person to have been in custody
144
Weather a seizure is reasonable under the Fourth amendment depends on
Discover the seizure and the strength of suspicion prompting the seizure
145
A secured party may purchase collateral A public or a private sale if
The collateral is a type customarily sold in a recognized market or is of a type on which there are widely distributed price quotations
146
When does a secured party not need to give notice of a sale of a repossessed collateral
If the collateral is perishable or threatens to decline rapidly in value or is of a kind ordinarily sold in a recognized market
147
What are the three approaches of deficiency judgments when collateral is consumer goods
(1) three butterball presumption rule, which states that the value of the collateral is presumed to equal the amount of debt and less to secured party approved otherwise (2) The absolute bar rule which denies the secured party at efficiency regardless of whether the secured party can prove that the collateral is worth less than the debt (3) this set off rule which allows the secured party to recover the deficiency minus the actual damages that the that are can prove.
148
When can a secure party lose the right to a deficiency judgment
When the foreclosure sale rules were not followed
149
What is a spendthrift provision
If your vision that means that the beneficiary is prohibiting from transferring his interest voluntarily and his creditor cannot reach the interest to satisfy their claims
150
What happens if a beneficiary assigns their interest even when there is a valid spendthrift provision that prevents it
The transfer is not void but the assignee cannot enforce it if the beneficiary later revokes the assignment thus the assignment is revocable
151
Under the doctrine of dependent relative revocation a court may disregard a revocation if it determines that
The actor revocation was premised on a mistake of law or fact that would not have occurred but for the testators mistaken believe that another disposition it was property was valid
152
How to define the word "children" in a will
Generally the word children in a well is interpreted consistently with the definition of the word children used in determining rights to interstate succession
153
Can a trustee delegate The function of making discretionary decisions
No
154
What is needed to form a limited partnership
The name must be LP
Certificate filed with state
Certificate signed by all general partners
155
Interest of seller who reserves title and deliver goods until paid is treated as
Security interest okay cool
