MEE one sheets Flashcards

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1
Q

When determining whether an agency relationship exists, what are the two factors you firstly will look for?

A

(1) Consent (2) control.

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2
Q

Rule statement for when an agent can bind the principal?

A

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.

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3
Q

When is an agent liable to a third party?

A

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.

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4
Q

When is a principal liable in tort for the actions of their agent?

What are the agents duties to his principal?

A

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.

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5
Q

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

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.

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6
Q

Personal jurisdiction rule statement?

SMJ rule statement?

Removal rule statement

Venue rule statement

A

“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.

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7
Q

Summary judgement rule statement

When can a TRO be issued?

What is a preliminary injunction and what must the movant show?

A

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.

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8
Q

Work product rule statement?

Appeals rule?

A

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.

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9
Q

Claim preclusion and issue preclusion rule

A

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.

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10
Q

What are the rule for conflict of laws when combined with family law?

A

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.

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11
Q

What are the rule for conflict of laws when combined with Civ Pro?

A

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.

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12
Q

Choice of law rules with Decendent estates?

A

(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.

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13
Q

What is the commerce clause rule?

What is the negative commerce clause rule?

A

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.

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14
Q

To sue under the first, fourteenth and 15th amendments, P must show what?

A

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?

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15
Q

What is the freedom of speech rule statement?

A

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.

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16
Q

Eminent domain rule statement?

A

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.

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17
Q

what is the soverign immunity rule?

A

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.

  1. 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.
  2. Congress removes immunity as to actions created under the 14th amendment. - must be unmistakingly clear.
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18
Q

What is the rule statement when article 2 applies?

What are the general contract terms and defintions?

A

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.

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19
Q

What are the performance obligations under common law and UCC

What are buyer’ rights under the UCC?

A

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.

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20
Q

What is the rule on anticipatory repudation? Can it be revoked?

What is a prospective inability to perform?

A

(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.

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21
Q

What are the statute of fraud categories and how does a document satisfy the statute?

What are the exceptions?

A

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.

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22
Q

What is the damages rule statemetn?

What are the general defenses?

A

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.

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23
Q

When can a corporation be liable for a preincorporaton contract?

When are notice of shareholders meetings required?

What type of notice is requried for director meetings?

A

It is generally not unless it expressly or impliedly adopts or ratifies such contract. The promotoer is usually liable.

Between 10-60 days.

Notice is only required for special meetings 2 days prior to the meeting. DIrectors, unlike shareholders, may break qurom by leaving.

24
Q

What is the rule statement for director’s duties?

A

Duty of care - There is a presumption under the business judgement ruile that “ in making a business decision, the directors acted on (1) informed basis (2) in good faith (3) and in the honest beilef that the action taken was in the best interest of the corporation. DIrectors must be informed to an extent that they reaosnably believe is appropriate. The party claiming the directors breached their duties have the burden of proof, and must usually show gross neligence.

Duty of loyalty - A director must act in good faith and with a reasonable belief that what he does in in the corporations best interest. A duty of loyalty issues arises in three ways

(1) director is on both sides of a transaction
(2) competes with the corporaiton
(3) Corporate opportunity.

Defenses to breach of duty of loyalty are - (1) approved by disinterested directors (2) approval by disintrested shareholders (4) entire fairness. Procedurally and subtantively fair.

In an LLC - liabliity can be waived so long as it is not manifestly unreasonable.

25
Q

What are the voting requirements for shareholders?

When may a shareholder vote by proxy?

A

In order for a resolution to pass, there needs to a qurom present, and more votes must be cast in favor than against it.

The record owner of the shares on the record date are entitled to vote. 70 days prior to the meeting, who held record to the shares. Exceptions are when the person dies or through proxy.

A sahreholder can appoint a proxy by signing an appointment form or making a verifable electornic transmission. A proxy is generally reovcable, and any action inconsitent with the grant of a proxy works to revoke it. However, a proxy is not revocable if it states it isnt, and it is coupled with an interest.

26
Q

What are the rules on shareholder suits?

A

Direct suit - a direct suit is appropriate when the wrong done amounts to a breach of duty owed to the indiviudal personally.

Derivative suit - appropriate when the injury is caused to the corporation and a shareholder is trying to enforce the corporations rights. Procedurally speaking, the shareholder must have (1) standing (2) adequacy (3) and make written demand unless demand would be futile.

Peircing the corporate veil - Generally, shareholders are not liable for acts of the corporation. However, under the peircing the corporate veil doctrine, a court will disregard the corporate form. The P must show either that (1) alter ego (2) failure to follow corporate formailties (3) undercapitilzation (4) illegality or fraud.

27
Q

What is the accompilce liablity rule?

A

Dual intents required (1) intent to assist (2) intent that underlying crime be commited.

28
Q

What is the murder rule statement?

A

In order to be found guilty of murder, D must have the mens rea of malice aforethough which is satisfied in most jurisditions with intent to kill, with knowledge that his acts would kill, with intent to inflict great bodily harm, or with reglress disregard of an extreme risk to human life.

First degree - (1) premeditation (2) deliberation.

Second degree - Intent to inflict great bodily hamr or by acting with reckless disregard of an extreme risk to human life.

Felony murder - Any killing that occurs during the commmison of a felony, an attempt to commit a felony, or a flight from a felony. Felony must be inherently dangerous, and the purpose of the felenious conduct must be independent from the homicide.

29
Q

What is the attempt rule?

A

(1) intent to commit the crime (2) acts beyond mere preperation.

30
Q

What are the defenses to a crime?

A

Duress - performs a crime because threat or use of force by another which caused a reasonable belief that, if the D did not perform, either he or a third person would suffer imminent death or serious bodily injury.

Insanity - M’ Naughten - suffered from disease of mind that caused a defect of reasona, and as a result lacked the ability to know the wrongfulness of his actions or understand the nature or quality of her actions.

31
Q

Fourth amendment rule statement

What do you need to know when dealing with an issue of confession?

A

The fourt amendment applies to searches or seizure conducted by government agents in areas where the complianing individual has a reasonable expectation of privacy. An agent usually needs a warrant. However, there are many exceptions to this general rule, including, exigent circumstances, search incident to arrest, consent, the automoblie exception, plain view, inventory searches, and terry stops.

Plain view - (1) legitimately present (2) immedietely apparent.

Terry stops and friks - Reasonable, articuable suspicion that the individual has been recently involved in criminal activity.

14th amendment - The standard for exlusing an admission under the DPC is (1) coercive conduct (2) suffiicent to overcome the will of D.

6th amendment - as applied to the states through the 14th amendment, provides that the accused has the right to have the assistance of counsel for his defense. It attaches when judicial proceedings have begun, that is, the accused is formally charged via indictment, arraignment, prelimianry hearing. It does attach upon arrest. It applies to all critical stages of the prosecution after formal charges are filed. Once it attaches, any attempts to deliberately elicit an incrminating statement about the offense that the D was charged with, in the absence of counsel or a knowing, intelligent, voluntary waiver, vioaltes the 6th amendment.

5th amendment - Law enforcmenet officers are required to read miranda warning to a suspect when the suspect is subjected to a custodial interrogation. A miranda waiver must be knowing, intelligent, and voluntary.

To invoke, supsect must be explicit, unambigous, and uneqivocal.” i think I need a lawyer is not enough”.

If a violation occurs, statements are excluded from P’s case in chief. Physial fruits are not exlucded in the statements were made voluntarily.

32
Q

What is the essay approach for a hearsay question?

A

DIA

(1) define - hearsay is an out of court statement offered to prove the truth of the matter asserted.
(2) hearsay is not admissable unless it comes within an exception
(3) analyze. The common exception ares
(1) excited utterance - statement related to a starting event or condition made while the declarent was under the stress or excitement it caused.
(2) Present sense - statement decribing or explaining an event of condition immediately after declarent periceved it.
(3) Statement for purpose of medical treatement or diagnoses .
(4) business record - (a) at or near time of event (b)person with knowledge of the event. - ordaniry course of business.
(5) recorded recollection - (1) Used to job declarents memory, (2) didnt jog his memory (3) made or adopted (4) related to declarents perception.

33
Q

What is the rule on lay witnesses and expert witnesses?

A

Lay witness - A witness must have knowledge of the matter she testifies about. Lay witness must have personal knowldege. Her opinoin must be rationally based non her perception, helpful, and not based on scientific or techinical knowldege.

An expert witness does not need personal knowldege but can instead rely on facts he has been made aware of at trial or through some other means.

34
Q

What is the impeachment rule?

A

Generally, any party may impeach a witness. There are 7 ways to impeach a witness.

(1) Prior inconsistent statements - They can be used as substantive evidence if they fall within a hearsay exception or exlusion. The witness must be given the opportunity to explain or deny the statement if extrinsic evidence is used, unless the witness is the opposing party, not in court, or if the intrests of justice so require.
(2) Bias - must be confronted on the stand. Extrinsic evidence may he used only if the witness is asked first.
(3) conviction of crime - (1) nature of crime - if involving dishonesty, automatically allowed (2) amount of time passed (3) whether witness is D.
(4) bad acts - Questioning about acts that are probabtive of truthfulness or untruthfulness is permitted. Extrnisic evidence is not permitted.
(5) R or O
(6) sensory defiencies
(7) Contradicition - if witness made a mistake or lied on direct, she may be contradicted. Extrinisc evidence can be used if she does not admit her mistake.

35
Q

How do you establish a common law marriage?

A

(1) Capacity (2) agreement (3) cohabitation (4) holding out.

Recognition of marriage - a marriage valid under the law of the place in which it was contracted will be valid elsewhere unless it violates a strong public policy of the state that has the most significant relationship to the spouses.

End of marriage - virtually all states are no- fault divorce states.

36
Q

Child support and custody standard?

WHen a third party wants custody of child, what must they show?

A

Best interest of the child is examined.

Custody determinations, generally is determined by lookung at the best interest of the child. Custody modifcations can be modified only if there is a substantial change in circumstances. Generally, they must be unforseen.

Child support - All states employ numerical guildelines and estalbish a rebuttable presumption that the award results from applying the guidlines is correct. Child support can be modified if petintioner can show substantial change in circumstances.

Relocation - best interest of the child. (1) as long as there is no malcious intent.

Parent is unfit and granting custody to the parent would be highly deterimnetal to the child.

37
Q

What is the analysis for property division at divorce?

When will a court grant alimony?

A
  1. Premarital agreement - A court will enforce so long as it is voluntarily made, substantively fair, and if full disclosure of assets and obligation was made.
  2. Marital vs. Seperate property - BIG - before the marriage, inhertiance, and gift.

Courts will look at parties (1) financial resources and needs, marital contributions, and marital duration. Trial court has substantial discretion here.

Modification - substantial change in circumstances.

38
Q

What are the jurisdictional rules in family law?

A

Divorce - If P spouse is domiciled in the forum state, then that court has jurisidction to dissolve the marriage.

Property division order - uness the court has jurisidction over D spouse, it may not issue binding property division or support order.

Chlid custody and support - minumum contacts.

Child support - UIFSA - Once an order is registeered, it may be enforced by any state. The state that orignially issued a child support order has continuning jurisidction to mofity that order if the state remains the residence of the obligee, the child, or the obligor, and at least one of the parties does not consent to the jurisidction of another forum.

Child custody order - UCCJEA - Home state has exlusive jurisidction to mofidy a custody decree. A home state is a state where teh child has lived with a parent or a person acting as a parent for at least six consecutive months immeditaly before the commencement of the child custody proceeding.

39
Q

What is required for a valid deed?

What are the covenants in deeds?

What is the doctrine on merger?

Warranty of habitability for builder?

A

Deed must be lawfully executed and delivered. To be lawfully executed, it must identify the buyer and seller, describe the land, contains words denoting a present intent to convey, and be signed by the grantor.

quitclaim deed - Grantor gives no covenants and the grantee gets whatever the grantor has.

Warranty deed - the grantor gives six covenants - three present and three future. (1) right to convey (2) seisen (3) no encumberances. Future covenants include (1) further assurances (2) quiet enjoyment and warranty.

On the day of closing, contract for sale merges into the deed, so at that point, the buyer can only sue on the deed.

Implied warranty that the home is habitable anf fit for its intended purposes. This warranty applies to defects discovered within a reasonable time.

40
Q

When dealing with a notice issue, what is the rule statement?

What are notice and race notice statutes?

A

Under common law, a grantor can only convey rhose rights that the grantor had at the time of the conveyance. Thus, common law follows the first in time, first in right principle. All states have recording acts that change the results of the common law prinicple.

Under a notice statute, a subseqent bona fide purchaser for value who take without notice of the earlier transaction win. notice equal AIR.

Race notice - subsequent bona fide purchaser for value who take without notice and are the first to record.

41
Q

What are the mortagage liability rules?

A

Subject to - not personally liable.

Assumes - personally liable. However, paying the mortage may imply that he has assumed the mortgage.

Novation - they all agree that the purchaser is now liable.

42
Q

What are the different types of leases?

Eviction

What are the tenant’s dutys?

A

Term of years

Periodic tenancy - created by express agreement, implication, or operation of law. Valid notice - notice equal to rent payment term.

A tenant can sue for constructive evictoin if the tenant can prove that the landlord breached a duty to the tenant and this breach caused a a loss of substantial use and enjoyment of the premises, tenant vacated within reasonable time and gave the landlord adequate notice.

Implied warranty of habitbality - only resdential lease.

Pay rent and repair.

Duty to mitigate - under the common law, landlord has no duty to mitigate damages. Many states have abandoed this approach and require that the landlord make a reasonable effort to mitigate damages.

43
Q

How do you create and sever a joint tenancy?

A
  1. Four unities.

G SAM - giving it away during life, signing a contract for sale, actual judicial sale by judgement lien creditor, granting a mortgage in a title theory state.

44
Q

When does article 9 apply?

What are the article 9 classifications?

When does attachment of a security interest occur?

How can a security interest be perfected?

A

Article 9 applies to all security interests in personal property or fixtures by contract. Article 9 also applies to lease agreements which are not true leases.

Goods - (1) consumer (2) equipment (3) farming (4) inventory.

(1) value must be given (2) debtor must have rights in the collateral (3) must be binding security agreement which is (a) authenticated, intent to create security interest, and a description of the collateral.

Control and possession of the collateral by the secured party also may evidence a security agreement.

  1. Possession 2. Control 3. Automatic - PMSI in consumer goods (4) notation of lien by govermental authority on title (5) filing of a financing statement.
45
Q

What are the general priority rules for secured transactions?

What is the rule on secured party vs subsequent purchases?

What is the consumer to consumer goods exception?

Lien creditor

A

When two secured parties have a secutiry interest in the same collateral, the first to file or perfect ahs priority. If no party perfects, then the first to attach has priority. Moreover, a perfected security interst always beats an unperfected, even if it is a PMSI.

Generally speaking, a purchaser of collateral subject to a security interest takes collateral subject to the lien. However, there a few exceptions. (1) authorization (2) BIOC - a buyer in ordinary course generally will not take collateral subject to a security interest created by their seller. A BIOC buys for value, without notice that they are infirning on anothers rights, from a seller who ordaniarly deals in the type of goods purchased.

A buyer not in the ordaniry course will take subject to a perfected security interest. Will generally not subject to unperfected security interest if they didnt know about such interest.

A consumer who purchases from another consumer will not take subject to a security interest unless the secured party filed a financing statement.

General rule is that, as between a secured party and a lien creditor, priority belongs to the secured party, provided it perfects before the lien arsies. If the interest was unsecured or perfected after the lien creditor served the writ, then the lien creditor has priority.

46
Q

How may a secured party forclose on its collateral?

What are the debtor’s means of protecting himself?

A

Lender can demand payment or use self help to reclaim the goods so long as they do not breach the peace. Conduct which breaches the peace is conduct that would reasonably lead to violence.

  1. Sale must be commercially reasonable.
  2. Debtor must recieve written notifcation of the sale.
    (1) 10 days before.
    (2) nonconsumer transcation - notifcation should describe debtor and the secured party and the collateral, state the method of dispostion, state the debtor is liable for unpaid indebtness. In consumer transaction, notifaction must additionally contain a description of any liablity for a deficiency, telephone number consumer can call to discover the amount owed.

If secured party fails to comply - debtor can recieve (1) damages and there is (2) a rebuttable assumption that the collateral is worth the amount of the debt and the debtor’s defiency is nothing.

47
Q

What is the negligence rule statement?

What is the standard of care for a child?

What is the rule on premises liability?

What is negligence per se?

A

In any negligence action, a plaintiff must show that the defendent owed the plaintiff a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others, that the defendants conduct fell below the applicable standard of care, and the defendants conduct was both the cause in fact and proximate cause of the plaintiffs injuries.

Duty of care of a hypothethcial child of similar age, intelligence, and experience acting under simliar circumstances. However, there is an exception when the child is engaging in adult acitivity.

When dealing with premises liability, the duty of care owed depends on the legal status of the plaintiff.

Undiscovered trespasser - not owed any duty of care.

Discovered trespasser - warn or make safe any unreasonably dangerous concealed artificial conditions that the defendant knows of.

Attractive nusiance - (1) knows or has reason to know children likely to trespass (2)unreasonable risk of death or serious bodily harm (3) children do not discover or realize the risk invovled (4) burden of elimianting danger is slight (5) fails to exericse reasonable care.

Licensee - A social guest who does not confer economic benefit on posessor. Must warn or make safe all concealed dangers that the landowner knows of.

Invitee - confers economic benefit - warn or make safe all dangers that landowner knows or should know of. has a duty to inspect.

(1) defendant violated a statute without excuse (2) P was in class of people statutue was intended to protect (3) P recieved the injury the statute was intended to prevent. If a plantiff can establish the above elements, he has offeered conclusive proof of duty and breach.

48
Q

What is the battery rule statement?

False imprisonment?

Vicarious liability?

Strict liablity?

A

Battery is an act with the intent to cause a harmful or offensive contact or imminent apprhension of that contact and a harmful or offensive contact directily or indirectly results.

An act with intent to confine or restrain a person to a bounded area, actual confinement occurs, and the plaintiff knows of confinoment or is hurt by confinement.

Employers are vicariously liable for torts of their emplyess if the torts are commited within the scope of employment. Intentional torts are usually outside the socpe of employment unless they were done for the purpose of serving the employer of if they were naturally foreseeable.

  1. D must be merchant. Under manufacturing defect theory, the product must be defective from the time it left the manufactures hands. ALl commercial sellers, are liable for manufacturing defects.
49
Q

Trust rule statement

Is a trust revocable?

When may a trust be terminated?

A

To create a valid trust, the settlor must (1) deliever legal title of trust corpus (2) to a trustee (3) for the benefit of ascertained beneficaries (4) with an intent to create a trust (4) for a valid purpose.

Under the uniform trust code, there is a presumption of revocablity. A trust is revocable unless expressly stated otherwise.

By the settlor - if all beneficiaries are in existence and all agree to termination

By beneficiaries after settlor dies - if both income benficiaries and the remainderman unanimously consent and if there is not material purpose for the trust yet to be performed.

50
Q

What are the different types of trusts?

A

Pour - over will - A will that makes a gift to a trust is valid so long as the trust is indentifed in the will and the terms are incorporated in a writing executed before or corcurrenty with the execution of the will. Under the modern approach, later - made amendments to the trust are valid. Under common law, amendments made after execution of the will are not valid.

Discretionary trust - Trustee has discretion to decide when to make a distrubitoin to a benefiticary. The beneficiary, nor can a creditor, demand any party of the income or principal unless it shows the trustee acted dishonestly or in a state of mind not contemplated by the settlor. Exeption under UTC for child support and alimony.

Support trust - trustee must pay what is necessary for the the beneficaries support.

Spendthrift - spendthrift restrains both the voluntary and involuntary transfer of a beneficaries interest. Generally, a creditor may not reah part of a beneficiaries distribution. However, there are some favored creditors (1) child or spousal support (2) judgement reditor (3) a claim of the state or united states (4) creditors with claims for necessaries in some states.

Charitable trust - A chartiable trust may be created for a charitable purpose. It must have a large number of not readily idenfitifable individuals.

Cy pres - A charitable trust may terminate if the charitable purpose becomes unlawful, imporactaible, or ipmossible. HOwever, cy pres may save the trust. Cy pres is a common law doctrine also apart of the UTC and states that if a particlar charitable purpose becomes unlawful, impractiable or impossible to achieve, no alternative charity is named in the trust, and the court finds that the settlor had general, rather thatn speficic charitable intent, then the court may apply cu tres to mofidy or terminate the trust by directing the trust corupos in a manner consistent with such general chartiable purpose.

51
Q

What are the duties of a trustee?

What are remedies?

A

Duty of loyalty - A trustee has a duty of loyalty to act in the best interest of the beneficaries.

Duty of care - prudent adminstration - Trustee must administer the trust as a prudent person would, using reaosnable care, skill and caution. Portfolio view. The hall mark of prudent administration is the duty to diversify.

The remedies include (1) suspending or removing trustee (2)decreasing compensation (3) compelling trustee to perform duties (4) damages and in self dealing cases, the trust beneficaries may rescind the transaction and ask for the self dealing purcahse to be set aside or recover any profits from the trustee.

52
Q

What is a power of appointment?

A

A person writing a will or trust can give her beneficaries a power of apoointment, which enables the beneficary to designate who will recieve specific property.

General power of appoiintment - the class of people that the beneficary can exercise the power of appointment in favor of is unlimited. In most states, a general residuary clause does not exercise a power of appointment. However, if the general residuary clause is coupled with a blanket exericse clause, any power of appoinment held by the donee is exercised, unless the donot of the power specifically requires reference to it.

Special power of appointment - The class of people that the beneficary can exericse in favor of is limited. Special testamentary power needs to be specifically exericsed. The UPC adopts the substantial complicane rule which says that if it can be shown that the powerholder intented to exericse a power, a blanket exericse clause may be suffiicent.

53
Q

What is the rule on intestate succession?

What is the rule on advancements?

What is ademption by satisfaction?

A

When a decedent dies without a will, or the will is invalidated, tehre are two vailable schemes to divide property among the decedents children. Per capita at each generation and per capita with representation.

Per capita at each generation - find the first generation where there are issue living. Give one share for each such living issue and one share for each person in that generation who predeceased the decedent but left issue suriving. Combine the share belonging to the deceased persons and distrubute them equally at the next generational level.

Per capita with representation - same as above, but simply pass each deceased person shares to their issues.

Common law - lifetime transfer to an heir was presumptively treated as a down paymet on the heirs intestate share and thus is taken into account when computing their share. At common law, this only applied to a gift to a child.

Majority law - Presumption is that it is a gift, not an advacement, unless there is evidence to show that the decedent intended the gift to be an advacement.

When there is a will, UPC states that a lifetime gift is not a prepayment unless (1) will says so (2) contemporanous writing or (3) devisee acknowldeges such in a writing.

54
Q

What are the requirements of a valid will?

What is incorporation by reference?

A

Will must be (1) in a writing (2) signed by the testator, (3) and witnessed by two witnesses. Any mark that is made with intent to adopt the will is sufficent.

Holographic wills - Unwitnessed wills. Holographic wills are valid if signed and if the material prortions are in the testator’s handwriting.

A writing that is not valid as a will may be incorporated by reference into a will if the will manifests an intent to incoporate the writing and the writing is idenfified with reasonable certainity. The writing must exist at the time the will is executed.

55
Q

Will contentest?

A
  1. Standing
  2. Capacity - 1. nature of property, 2. persons who are the natural objects of his bounty 3. nature of the the instrument he is signiing (4) nature of his disposition.

Undue influence - destroy the free agency of the testator. - SODA . Suseptiabliity, opportunity, disposition to exert, appears to be product of influence.