MEE one sheets Flashcards
When determining whether an agency relationship exists, what are the two factors you firstly will look for?
(1) Consent (2) control.
Rule statement for when an agent can bind the principal?
An agent may bind the principal when they are acting with authority. Authority may be either (1) actual or (2) Apparent.
Actual authority can either be (a) express or (b) implied. Implied acutal authority is present when the principals conduct leads the agent to believe it has authority. This can be inferred from custom, past course of conduct by the principal, necessity or an emergency circumstance.
Apparent authority exixts when (1) the person dealing with the agent reasonably believes in the agents authority and (2) the belief is generated by some act or neglect on part of the principal.
However, even if the agent does not have authority, the principal may nonetheless be bound if they ratify the agents conduct. A principal ratifies conduct when they expressly or impliedly affirm or accept the benefit of the acts, so long as the pruncipal knew the material facts and has capacity.
When is an agent liable to a third party?
When he enters into a contract without actual or apparent authority and if the principal is undisclosed or partially disclosed. Moreover, the agent is liable to the principal for breach of contract if they act beyond their authority.
When is a principal liable in tort for the actions of their agent?
What are the agents duties to his principal?
Respondeat superior - THe emplyer is liable in tort for the acts of agent or employee if the agent or employee (1) was acting within scope of employment (2) made a minor deviation from employment or commited an intentional tort for the priniapals (1) benefit (2) the prinicpal authoritzed it (2) or it arose naturally due to the nature of the employment.
The principal may also be directly liable for negligent hiring, firing, or failure to properly supervise.
Duty of care, duty of loyalty, and duty of obedience.
What is a general partnership and how is it created?
Are partners jointly and severally liable for partnership debts?
What are the fiduary duties of partners to the partnership?
What are the steps to end a partnership?
What are creditor rights regarding a partnership?
A partnership is the association of two or more persons to carry on as co- owners, a business for profit, whether or not the persons indented to form the partnership. Moreover, profit sharing creates a presumption that a person is ap artner unless the profits were recieved in payment of debt, rent, or wages etc.
Yes. An incoming partner is not personally liable for prior debts of the partnership, altough his capital contributions can be used to satisfy such debts. Outgouing partners are personally liable for debts incurred during their time in the partnership.
Partners are in a fiducary relationship with one and another and must act honestly and in good faith. They are charged with a duty of loyalty, the duty of care, and the duty to account.
(1) dissacotioan (2) winding up (3) termination.
Partners are jointly and severally liable for the obligations of the partnership. Even if a partner enters into a contract without actual authority to do so, the partnership and partners are bound so long as the partner had apparent authority. The creditor must obtain a judgement against the partners personally to go after each partners assets. However, the creditor should attempt to collect from the partnership before seeking personal assets of the partner.
Personal jurisdiction rule statement?
SMJ rule statement?
Removal rule statement
Venue rule statement
“Federal district courts may exercise personal jurisidction over nonresident defendants to the extent authorized by both the states long arm statute and the due process clause of the 14th amendment. The Due Process clause of the 14th amendment permits states to assert personal jurisdiction over nonresident defendants who have established minimum contacts with the state such that the exerice of personal jurisidction would not offend traditional notions of fair play and substantial justice. To establish minumum contacts, it must be shown that the nonresident defendant purposefully availed themsevles of the benefits and protections of the state”
SMJ is the pwoer of a court to hear a certain type of case. Federal court are courts of limited jurisdiction , as they can only hear certain types of cases.
To invoke FQ jurisidction, the federal question must appear on the plaintifss well - plead complaint. The P must show that they are asserting a right under federal law. Moreover, P cannot merely anticipate a federal defense.
Diversity jurisidction - To invoke diveristy jurisdiction, two requirements must be met. (1) there must be complete diversity of citizenship between the parties and (2) the amount in contrversey must be over 75,000. When looking at diversity, a person is domiciled where it is her permenanent home, where they intend to permanently stay, and the place to which the person intends to return when they are temporaily absent. Look to see where the P is domiciled when the case is filed.
Supplemental jurisdiction - When there is a jurisidctional basis for the original claim, supplemental jurisidction may be used. Did the second claim arise out of the same transaction or occurence? Howver, P cannot use supplemental jurisidction in an orginial case based on diversity.
Under rule 1441, defendants may remove an action from state court to the federal court that embraces it if the plaintiff could have initially brough the case in federal court. However, D cannot remove a case if he is sued in his home state and the only basis for removal is diversity.
Venue is proper where (1) any defendant resides if all defendants reside in the same state (2) in the district where a substantial part of the events or omissions giving rise to the claim occured or (3) a substantial part of property that is subject to the action is situated.
Transfer to a more approaite forum - the federal court has the authority to transfer a case to another federal district for the convience of the parties and witnesses and in the interest of justice. The new forum must have SMJ and personal jurisdiction. The court will apply the law of the transferor forum. A motion to transfer to a more appropriate forum should be denied if the case could not have been filed there to begin with.
Summary judgement rule statement
When can a TRO be issued?
What is a preliminary injunction and what must the movant show?
56(a) allows a summary judgement motion to be granted only if there is no genuine issue as to any material fact and the movant is entilted to judgement as a matter of law. A motion for summary judgement may be supported by depos, documents, ESI, or other materials. The moving party must produce evidence to show there is no genuine issue of material fact. THe burden then shift to the nonmoving party, which must then produce eviedence to show that there is a genuine issue of material fact for trial. The motion is looked at in the light most favortable to the nonmoving party.
A TRO can be issued without notice to the adverse party. To secure a TRO without notice, the P needs to show a risk of immediate and irreprerable injury. Cannot be for longer than 14 days unless the court extends it for good cause.
A preliminary injunction is equitible relief with the objective of preserving the status quo. Notice to the adverse party is required. Movant must show (1) Harm (2) evalutation of injuries (3) liklihood of prevailing on the merits (4) public interest.
Work product rule statement?
Appeals rule?
Work product is any material prepared in anticpation of litigation. Written statements given by witnesses might be discoverable even if they are considered work product if the other party can show substantial need and undue harship. However, mental impressions are never discoverable.
Generally, a court of appeals will not entertain an appeal if there was not final judgement on the merits. However, a few exceptions apply. Orders involving injunctions, and collateral issues. A collateral issue. (1) important question of law and (2) essentillay unreviewable if delayed.
Claim preclusion and issue preclusion rule
Claim preclusion - (1) Same claimant (2) final judgement on the merits (3) acutally litigated.
Issue preclusion - (1) Essential to the judgement (2) actually litigated (3) final judgement on the merits.
What are the rule for conflict of laws when combined with family law?
Full faith and credit - A state must recognize final judgement of other states so long as the judgement is on the merits and the other state had jurisdiction.
Recognition of marriage - A marriage which is valid under the law of the state in which it was contracted will be valid elsewhere unless it volates a strong public policy of the state that has the most significant relationship to the spouses and the marriage. some examples are incest and polygamy. - common law marriage is not a valid public policy refusal.
Jurisdiction over divorce vs. jurisidction over spousal support and property division - Personal jurisidction over both spouses is not nevessary to render a divorce devree. The state rendering the decree only needs jurisidction over the P spouse. However, personal jurisdiction over both spouses is necessary to issue a binding property division over or support order. (divisible divorce decree).
Recognition of divorce - a divorce decree must be granted full faith and credit by other states if the court rendering had jurisidction.
Which states law governs premarital agreements? - some states apply law of state where it was executed. Other states apply the law of the state with the most signifcant relationship to the parties and transaction.
What are the rule for conflict of laws when combined with Civ Pro?
Klaxon Doctrine - A federal district court in a diveristy case must apply the choice of law approach of the state in which it sits.
Change of venue - If a case is transferred to a more appropriate forum, the law of the transferor court applies.
Statute of limitaitons - Generally, a court will apply its own procedural laws even if the substantive laws of another state are applied to the case. A SOL is generally conssidered procedural. Generally, a court applies its own SOL unless the claim would be barred by the law of the state with a more significant relationship to the parties.
Exception - borrowing statute
Exception - Characterization - specific SOL to cause of action, then it is considered substantive.
Exception - interest analysis - some states will simply use an interest analysis to resolve choice of law issues.
Choice of law in contract alim - If K specifies that specific state law will apply, generally that law will apply. The restatement provides that the law chosen by the parites will apply unless (1)the chosen states has no substnatial relationship to the parties or the transaction or (2) application of the law of the chosen state would be contrary to a fundemantal policy of a sate that has a materially greater interest then the chosen state.
Choice of law in tort claim - most signifcant relationship test. (1) injury (2) conduct (3) domicile (4) relationship.
Real property - law of the situs applies.
Choice of law rules with Decendent estates?
(1) personal property - postmoretem distrbution of personal property is governed by the law the state in which the decedentw as domiciled at the time of death.
(2) real property - law of the situs.
(3) inhertiance - whether a child is entitled to inherit, depends on the law of the intestate domicle at the time of death. Howver, this inapplicable to real property as the law governing real property is the law of the situs.
What is the commerce clause rule?
What is the negative commerce clause rule?
Congress can regulate the channels and instrumentalities of commerce, or anything that has a substantial affect on interstate commerice - meaning it can regulate anything economic or noneconomic that substantially affects interstate commerce in the aggregate. Congress cannot however commandeer states and force state to enforce fedeal laws. Congress will have to either regulate directly or regulate indirectly by threatning to take away fundinig if the state does not adopt a law (however, cannot be unduly coercive).
States lack the power to discriminate against interstate commerce or unreasonably burden it. If a law disciminates against interstate commerce, it is invalid unless the state can show it was neccessary to to serve a compelling government interest. Presumptively invalid. If a state law is non discriminatory on its face, it is valid only if it serves an important state interest and does not impose an unreasonable burden on interstate commerce. However, there are a few exceptions. Congressional authorization, market particpant, and favoring entites for traditional governmental roles.
To sue under the first, fourteenth and 15th amendments, P must show what?
State action - must find a government actor or action fairly attirubutable to the government. - is the private actor engaged in a traditional and exclusive government function?
What is the freedom of speech rule statement?
The first amendment applies to the states though the due process clause of the 14th amendment. The government faces strict scrutinity if it engages in content based discimintation or viewpoint based discrimination.
Symbolic speech - narrowly tailored to an important governmental interest and is unrelated to the suppression of speech.
Unprotected speech - RBR.
Commercial speech - central hudson - (1) speech much be lawful and not misleading (2) Substantial governmental interest (3) directly advances such intrest (4) narrowly tailored.
Sexual or indecent speech - substantial governmental interst and leave open reasonable alternative channels of communication.
Time, place, and manner - public forum or limited designated public forum - content neutral, narrolw tailored to serve an important governmental intrest and leave open alternative channels.
Non public forum - viewpoint netural and reasonably related to legitmate governmental intrest.
Eminent domain rule statement?
Neither the federal government nor the sate may take private property for public use without just compensation. This arise from the 5th amendement and and is applied to the states through the 14th amendment.
Exaction - legitimate government interest and rough proportionality.
what is the soverign immunity rule?
THe 11th amendment precludes a federal court from exericisng jurisdiction over a suit by a private party seeking to recover damages from the state. However, there are a few execptions.
- Certain actions against state officers - (1) actions to enjoin an officer from future conduct that violates the constitution or federal law and (2) actions for damage against an officer personally.
- Congress removes immunity as to actions created under the 14th amendment. - must be unmistakingly clear.
What is the rule statement when article 2 applies?
What are the general contract terms and defintions?
Adticle 2 of the UCC applies to transactions in goods. Goods are things moveable at the time of identification of the contract. A contract under article 2 may be made in any manner sufiicent to show agreement, including conduct by both parties which regonzies the existence of a contract.
Offer - manifestation of intent to be bound. Terms of offer must be reasonably certain (parties, subject matter, price, quanitity).
Acceptance - manifestation of asset to the terms of an offer made in a manner invited by the offer.
Rejection - effective upon reciept.
Conisderation - bargained for exhange.
What are the performance obligations under common law and UCC
What are buyer’ rights under the UCC?
Under common law, a party must substantially perform its contractual obligations in order to demand performance. Under the UCC, the perfect tender rule applies for one shot deals. HOwever, there is an exception for divisiable contracts. A contract is divisable as long as it is apportiable and the parties would have contracted for each part seperately
Rejection - a buyer can generally reject goods for any reasona under the perfect tender rule. However, for installment contracts, the buyer can only reject if the nonconformity substantially effected the value of the goods.
Revocation - if a buyer accepts the nonconforming goods, he can no longer reject them. However, in certain circumstances, the buyer may revoke his acceptance. The buyer can do this when
(1) the nonconformity substantially imparis the value to him (2) Reaonable belief the nonconformity would be cured or he did not discover the nonconformity because it was difficult or he relied on sellers assurances (3) he revokes within a reasonable time after discovering the nonconformity and (4) no substantial change in condition of goods.
What is the rule on anticipatory repudation? Can it be revoked?
What is a prospective inability to perform?
(1) uneqivocal manifestation that the party cannot or will not perform its obligations under the contract and this statement is made before the repudiating parties performance is due. THe other party may wait for a reasonable time for performance or resort to any remedy for BOC.
A party who has repudiated can retract his repudiation unless the other party cancelled the K, materially changed his position on reliance, or indicated that she considers the repudiation final.
(2) Party has reaosnable grounds for insecurity that other party is uable or unwilling to perform. UNder the UCC, the party may then, in writing, demand adequate assurance of perofmrance, and untill she recieves it, may suspend her performance. If they dont get the assurance within a reasonable time, not exceeding 30 days, other party may treat is as a repudiation.
What are the statute of fraud categories and how does a document satisfy the statute?
What are the exceptions?
MYLEGS
(1) signed by the party to be charged (2) subject matter (3)suffiicent to indicate contract has been made (4) essential terms.
Confirmatory memo, land performance, one year completon, PAWS.
Payment, admission in court, confirmatory memo, substantial start on custom made goods.
What is the damages rule statemetn?
What are the general defenses?
THe normal measure of damages for BOC is expectation damages, which aim to give the non breaching party the benefit of his bargain. Expectation damages must be foreseeable and proved with reasonable certainity.
Duress - a contract is voidable when it is established that a parties manifestation of assent is induced by an improper threat that leaves the party no reasonable alternative.
Breach of express warranty - Under article 2, affirmations of fact relationg to the goods that are part of the basis of the bargain create express warranties that the goods will conform to those affirmations and descirptions. This warranty is breach if they do not conform.
