mee_civ_pro_copy_20190711104647

Question 1

Ceremonial Marriage requires

Answer 1

License, Capacity, and Solemnization (ceremony)

Question 2

Common-law marriage requires

Answer 2

Agreement they are married, cohabitation, and holding themselves out as married.

Question 3

Marriages are void for what three things?

Answer 3

Prior existing marriages, Incest, and mental incapacity at the time of marriage

Question 4

Marriages are voidable for?

Answer 4

Age, impotence, intoxication, fraud, duress, or lack of intent

Question 5

Are children of an anulled marriage considered marital children?

Answer 5

Yes

Question 6

Putative marriage doctrine allows what?

Answer 6

A party of a ceremonial marriage who believed in good faith that the marriage is valid to use a state’s divorce provisions if the marriage is later found to be void

Question 7

What are the seven grounds for at fault divorce?

Answer 7

Adultery, cruelty, desertion, habitual drunkenness, bigamy, imprisonment, institutionalization for insanity

Question 8

What defenses are available to at fault divorce?

Answer 8

Many: recrimination, unclean hands, connivance, condonation, collusion, provocation, insanity, consent, justification, religion

Question 9

Nonmarital property includes?

Answer 9

Property acquired before the marriage, property excluded by the parties valid agreement, property acquired by gift or inheritance, and awards or settlements for causes of action accruing before the marriage

Question 10

What types of alimony (spousal maintenance) are there?

Answer 10

Lump sum, permanent (long marriage), limited duration (short marriage), rehabilitative (improve earning capcity), reimbursement (rarely granted).

Question 11

Can visitation rights be denied for nonpayment of child support?

Answer 11

No

Question 12

Can nonmarital children inherit from their father’s estate?

Answer 12

Yes, if paternity was proven prior to the fathers death, the father adopted the child, the father holds himself out as the father

Question 13

A husband can be estopped from denying his obligation to pay child support for his wife’s non-biological child when?

Answer 13

There is a representation that he would provide, the wife relied on this representation, and the wife would suffer economic detriment if he did not.

Question 14

Courts have personal jurisdiction over out of state parents for child support by?

Answer 14

The long-arm provision of the Uniform Interstate Family Support Act

Question 15

What does a child receive under the income-shares model?

Answer 15

The same proportion of parental income as if the parties continued to live togeter

Question 16

When can child support be modified?

Answer 16

There is a substantial change in circumstances

Question 17

When can child support be terminated?

Answer 17

Emancipation, child marries, or death

Question 18

What courts have jurisdiction to modify child support?

Answer 18

The court that rendered the order if that court has continuing jurisdiction, otherwise a state where there is a significant connection.

Question 19

Under the Uniform Child Custody Jurisdiction and Enforcement Act, what courts have jurisdiction to enter, modify custody or visitation orders?

Answer 19

Home state first, significant connection, default jurisdiction.

Question 20

What is the standard for determining child custody?

Answer 20

Best interest and welfare of the child.

Question 21

When does an unwed biological father have a right to contact with his child?

Answer 21

When he demonstrates a commitment to the responsibilities of parenthood

Question 22

When can a parents religious beliefs be overriden by a court for medical care?

Answer 22

When necessary to prevent serious harm to the child

Question 23

What can a separation agreement define?

Answer 23

Property divsion, spousal support, child support, custody, and visitation

Question 24

Premarital agreements are enforceable if?

Answer 24

There is full disclosure of finances, the agreement is fair and reasonable, and the agreement is voluntary. (also in writing and signed by party to be charged)

Question 25

Are provisions of a premarital agreement preventing modification of child support enforceable?

Answer 25

No

Question 26

Are provisions of a premarital agreement preventing modification of property rights and spousal support enforceable?

Answer 26

Yes

Question 27

Under the adoption and Safe Families Act, when can a state move to terminate parental rights?

Answer 27

When the child has been outside of the home and not with a relative for 15 of the past 22 months and reunification attempts have been provided

Question 28

What courts have jurisdiction for divorce and alimony?

Answer 28

Ones with personal and subject matter jx

Question 29

The state may intervene and terminate parental rights when…

Answer 29

it is in the best interests of the child. Grounds for termination include failure to support.

Question 30

What are the factors in equitable distribution

Answer 30

Some of the relevant factors in this case include the length of the marriage, the age, health, earning potential, and needs of both spouses, the value of separate property, the spouses’ standard of living, and economic circumstances of each spouse at the time of divorce.

Question 31

When is a PMA enforceable

Answer 31

In many states, a premarital agreement is enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary. However, under the UPAA, which applies here, the party against whom enforcement is sought must prove (1) involuntariness or (2) both unconscionability at the time of execution and lack of disclosure and adequate knowledge of the other’s assets and obligations.

Question 32

Is appreciation during the marriage of nonmarital property subject to equitable distribution?

Answer 32

Whether the appreciation in nonmarital property will be subject to equitable distribution will depend on whether the appreciation can be attributable to spousal labor.

Question 33

The court will generally enforce separation agreements unless

Answer 33

it is unconscionable (substantively, but procedural indicates substantive(i think) or based on fraud.

Question 34

A court has subject matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state is:

Answer 34

(i) the child’shome stateand has been the home state for a period ofsix months; or (ii) was the child’s home state in thepast six monthsand the child is absent from the state,but one of the parents (or guardians) continues to live in the state.

Question 35

A court can enter or modify an order if

Answer 35

(i)no other statehas or accepts home state jurisdiction, (ii) the child and at least one parent have asignificant connectionwith the state,and(iii) there issubstantial evidencein the state concerning the child’s care, protection, training and personal relationships.

Question 36

The Supreme Court has held that a fit parent has a fundamental right to

Answer 36

the care, custody, and control of his children and state courts must give “special weight” to a fit parent’s decisions on care, custody, and control.

Question 37

Separation agreements can be invalidated, in whole or in part, if the court makes a finding of

Answer 37

fraud or unconscionability

Question 38

Who is liable for pre-incorporation transactions?

Answer 38

Promoters (they are fiduciaries) unless a later novation.

Question 39

The articles of incorporation must include

Answer 39

the name, the agents, names and addresses of incorporates, duration, the purpose (usually any lawful activity) and authorized shares

Question 40

When is the corporation incorporated?

Answer 40

When the secretary of state accepts the fee and files the articles

Question 41

If by laws and articles of incorporation conflict, which wins?

Answer 41

Articles

Question 42

What is the de facto corporation rule?

Answer 42

When a corporation isnt properly formed but acts as a corp, it will be treated as a corp if there was a good faith attempt to incorporate and there was no actual knowledge of the faulty corporate status.

Question 43

What are the three factors to pierce the veil?

Answer 43

Alter ego, undercapitilization, and fraud

Question 44

What are issued shares?

Answer 44

Number of authorized shares actually sold

Question 45

What are outstanding shares?

Answer 45

Shares that were once issued and remain in the possession of shareholders

Question 46

What are treasury shares?

Answer 46

Shares one issued but subsequently reacquired by the corporation

Question 47

Par value is?

Answer 47

The minimum value to sell a share at (it is not required)

Question 48

Watered stock is?

Answer 48

Stock sold for less than the par value. Shareholders who buy watered stock are liable to creditors of the corp.

Question 49

How long is a stock subscription irrevocable for pre incorporation?

Answer 49

six months

Question 50

Preemptive rights allow what

Answer 50

The person to maintain their percentage of ownership when new shares issue

Question 51

Who can authorize dividends?

Answer 51

Directors unless would cause insolvency

Question 52

Must every corp hold an annual meeting?

Answer 52

Yes.

Question 53

Special meetings are for?

Answer 53

Voting on fundamental changes

Question 54

Notice for meetings must occur?

Answer 54

no fewer than 10 days and no more than 60 days before the meeting

Question 55

Directors must set a record date when?

Answer 55

no fewer than 10 days before the meeting and no more than 70 days before the meeting

Question 56

A proxy must be?

Answer 56

In writing, signed by the shareholder as of the record date, sent to the secretary, state that it authorizes another to vote, and cannot be valid for more than 11 mos

Question 57

Quorum of shareholders is?

Answer 57

A majority of the outstanding shares, not shareholders

Question 58

Necessary vote of shareholders is?

Answer 58

When more of the votes of a shareholder quorum for the proposal exceed the votes against

Question 59

Shareholders can inspect corp records so long as they?

Answer 59

State a proper purpose

Question 60

Shareholders can sue

Answer 60

Directly or derivatively (on behalf of the corp)

Question 61

Derivative law suits require

Answer 61

Claim made in corp name, contemporaneous stock ownership, was a shareholder at time of harm, fairly represents interests of the corp, and made a demand to board unless it would have been futile

Question 62

A controlling shareholder may owe a duty to a minority shareholder if

Answer 62

There is sale of stock to an outsider or lotter, the shareholder is transacting with the corporation

Question 63

For directors, a quorum is

Answer 63

A majority of the total number of directors

Question 64

Directors may dissent and avoid liability by

Answer 64

Entering dissent in minutes of the meeting, filing a written dissent before the meeting adjourns, or provide a written dissent to the secretary

Question 65

Directors and officers owe what to the corporation?

Answer 65

A fiduciary duty of care (duty of care and duty of loyalty)

Question 66

The business judgment rule is?

Answer 66

Absent fraud, illegality or self dealing, courts will not disturb good-faith business decisions

Question 67

A self-interested transaction may be upheld if?

Answer 67

It is ratified by a majority of disinterested directors or shareholders.

Question 68

Fundamental changes require approval of?

Answer 68

Both shareholders and directors

Question 69

Merger is

Answer 69

when two or more corps combine and one survives assuming the assets and liabilities of the others

Question 70

Consolidation is

Answer 70

the combination of two or more corps when neither survives and a new one is created assuming the assets and liabilities

Question 71

Involuntary dissolution can occur by?

Answer 71

Creditors showing a corp is not paying its debts, shareholders show the corp is wasting assets, the directors are committing fraud, or the directors and shareholders deadlock.

Question 72

Appraisal rights are?

Answer 72

When a shareholder dissents from a fundamental change he can demand his shares to be purchased by the corp for FMV.

Question 73

LLCs require filing ___ and its owners are called ____ instead of shareholders?

Answer 73

An operating agreement; Members.

Question 74

When members agree to voluntarily dissolve an (LLC) entity, the entity must … (2 things)

Answer 74

Wind up its affairs and liquidate its business. Only after the entity’s debts and obligations to creditors have been paid may the members receive a portion of the liquidated value of the LLC.

Question 75

What notice is required for a special meeting?

Answer 75

Unless the articles of incorporation or bylaws provide otherwise, notice must be provided at least two days prior to the meeting and should state the date, time, and place of the meeting. The notice need not describe the purpose of the special meeting.

Question 76

Is telephonic attendence at a board meeting sufficient for a quorum?

Answer 76

Yes, but only if everyone can hear everyone else

Question 77

What are goods?

Answer 77

Movable tangible property

Question 78

What are rights to payment?

Answer 78

Instruments, chattel paper, accounts, payment intangibles

Question 79

What is attachment?

Answer 79

An arrangement linking a debt to collateral, upon attachment interest becomes enforceable.Requires value given, the debtor to have rights, and either a security agreement or possession/control

Question 80

What is required in a security agreement?

Answer 80

Identify collateral, shows inten tof debtor to be bound, and is in a tangible medium

Question 81

Accessions are?

Answer 81

Goods that are united with another good but are identifiable. The security interest continuous in the accession.

Question 82

Commingled goods are?

Answer 82

A good that is united but the identity of the good is lost. The security interest transfers to the larger good.

Question 83

Proceeds are?

Answer 83

Whatever is exchanged for the collateral. The security interest in the collateral attaches to the proceeds automatically.

Question 84

Perfection can occur by?

Answer 84

Filing, possession/control, automatic perfection, or alternate perfection systems (like for car registration)

Question 85

Filing a financing statement can perfect all interests except those in?

Answer 85

Deposit accounts, cars, money, and letters of credit

Question 86

Where must a financing statement be filed to perfect an interest?

Answer 86

For everything except interests in real property, filing is in the central filing office where the DEBTOR is located. This is the state of incorporation for a corporation or the principal residence of individuals. For real property interests, it is filed in the county where toe property is located.

Question 87

Financing statements require what information to perfect an interest?

Answer 87

The names of the parties, the description of the collateral and if it is for real property, name of the record owner and describe the property.

Question 88

What information is non essential to perfect but will cause the financing statement to be refused at the office?

Answer 88

Addresses of the parties and an indication of whether the debtor is an individual or a corporation.

Question 89

A mistake in a financing statement will only affect perfection if it is?

Answer 89

Seriously misleading.

Question 90

Financing statements lapse after ___ years but may be continued within ___ months before lapsing.

Answer 90

Five, Six.

Question 91

A security interest in money can only be perfected by?

Answer 91

Possession

Question 92

Interests in deposit accounts and letter of credit rights can only be perfected by?

Answer 92

Control

Question 93

A PMSI in ____ will automatically perfect.

Answer 93

Consumer goods.

Question 94

Priority between Perfected int v. perfected int? (Non-PMSI)

Answer 94

First in time to file OR perfect

Question 95

Priority between perfected v unperfected? (Non-PMSI)

Answer 95

Perfected wins

Question 96

Priority between two unperfected? (Non-PMSI)

Answer 96

first to attach or become effective

Question 97

Perfected v Lien creditor?

Answer 97

Perfected wins

Question 98

Unperfected v lien creditor?

Answer 98

Lien creditor wins unless the secured party has already filed a financing statement, the debtor has authenticated the security agreement, and the secured party hasnt given value yet.

Question 99

Sec int v statutory lien

Answer 99

Statutory lien wins if the lien 1) is effective based on possession of the goods, and the lien is for payment or performance of an obligation furnished in the ordinary course of business.

Question 100

Sec party v sec party over future advances?

Answer 100

First to file or perfect

Question 101

A buyer takes subject to a perfected security interest unless?

Answer 101

The secured party authorizes the sale is free and clear, the buyer is in the ordinary course of business, or it is a consumer to consumer buyer.

Question 102

What is a buyer in the ordinary course of business?

Answer 102

A buyer who buys goods from a merchant, in the ordinary course of that business, in good faith and without notice of the security interest.

Question 103

What is a consumer to consumer buyer?

Answer 103

Buyer buys consumer goods, for their own consumer use, froma consumer seller, without knowledge of the security interest. (This does not apply if there is a financing statement covering the goods).

Question 104

A buyer takes subject to an unperfected interest unless?

Answer 104

The buyer gives value, receives the collateral, and doesnt know of the interest.

Question 105

PMSI v lien creditors

Answer 105

Same as usual, if perfected PMSI if unperfected lien creditors, but a 20 day grace period to perfect where the interest is considered perfected.

Question 106

PMSI v sec interests

Answer 106

PMSI in goods other than inventory take priority over all other interests no matter whne perfected if perfected within 20 days (otherwise its first in time to file or perfect).

Question 107

PMSI in inventory has priority over all other interests in that inventory when?

Answer 107

If the PMSI is perfected before delivery and the holder sends an authenticated notification to the other secured parties.

Question 108

PMSI v PMSI

Answer 108

Seller beats lender, otherwise apply the first to file or perfect rule.

Question 109

Are leases never governed by UCC art 9?

Answer 109

No, only true leases. Look to whether the “lease” is actually a secured transaction.

Question 110

How are proceeds distributed after disposition?

Answer 110

1) reasonable expenses for collection/enforcement, 2)pay the debt to the foreclosing party, 3)pay subordinate interest if there is a formal demand, 4) return the surplus to the debtor. Senior security interests survive in the collateral!.

Question 111

PMSI in inventory or livestock prevails over all other security interests in the same collateral, even if they were previously perfected, if: (2 things)

Answer 111

(i) the PMSI is perfected by the time the debtor receives possession of the collateral; and (ii) the purchase-money secured party sends an authenticated notification of the PMSI to the holder of any conflicting security interest before the debtor receives possession of the collateral.

Question 112

A secured party that has a security interest in collateral also has a security interest in

Answer 112

any identifiable proceeds of the collateral, including whatever is acquired upon the lease of collateral. A lease of specific goods plus a related monetary obligation constitute chattel paper.

Question 113

A secured party can perfect a security interest by (4 things)

Answer 113

(i) filing a financing statement; (ii) possessing the collateral; (iii) controlling the collateral; or (iv) perfecting automatically. Clockwork did none of these, so its security interest in the clocks is not perfected.

Question 114

A buyer of collateral subject to a perfected security interest generally takes the collateral subject to that interest, unless …

Answer 114

the secured party has authorized its sale free of the security interest.

Question 115

Under UCC 9, to be enforceable against a debtor (3 things)

Answer 115

(1) the secured party must give value, (2) the debtor must have rights in the collateral, and (3) the debtor must have signed a security agreement that describes the collateral or else the secured party retains possession or control of the collateral.

Question 116

A purchase-money security interest (PMSI) in consumer goods is perfected when?

Answer 116

automatically upon attachment

Question 117

Under UCC 9, upon a debtor’s default, a secured party may leave equipment collateral in place and render it unusable, as long as doing so is not a breach of the peace. T/F?

Answer 117

T

Question 118

Goods are considered equipment as long as they are not

Answer 118

inventory, farm products, or consumer goods.

Question 119

To change domicile a person must?

Answer 119

Abandon previous domicile, establish a physical presence in new domicile, and show an intent for an indefinite time to stay

Question 120

A corporation is domiciled where?

Answer 120

In its state of incorporation

Question 121

What are the 3 approaches to choice of law?

Answer 121

Vested rights, governmental interest analysis, and most significant relationship

Question 122

What is the vested rights approach?

Answer 122

The law of the place where the legal right vested is applied, that is where the last act takes place necessary to give rise to the cause of action.

Question 123

What is the government interest analysis?

Answer 123

A law applies if it would promote the policies and purposes of the law. First determine if there is a false (only one state interested) or a true (both states are interested) conflict. If false, apply the law of the interested state, if true, then apply the law of the forum state.

Question 124

When is a state interested in applying conduct-regulating laws?

Answer 124

When the wrongful conduct is within their territory or when a state domiciliary is injured anywhere.

Question 125

When is a state interested in applying loss-shifting laws?

Answer 125

When doing so would benefit a state domiciliary.

Question 126

What is the most significant relationship test?

Answer 126

Apply the law of that state that has the most significant relationship, consider if application furthers the policies of the states, systemic interests such as predictability and simplicity, and whether justified expectations of the parties will be protected. If unclear which has a more significant interest, apply the law of the forum state.

Question 127

What is depecage?

Answer 127

When differest states laws apply to different issues in the case. Not allowed under vested rights, is allowed for the other approaches.

Question 128

What is renvoi?

Answer 128

When the court applies the entire law of another state including choice of law rules. This only applies to property rights in land.

Question 129

What law applies to tangible moveable property?

Answer 129

The choice of law int he contract OR the place where the property was located at the time of the transactions.

Question 130

What law applies to intangible property?

Answer 130

The law of the state where it was created.

Question 131

What law applies to immovable property at death?

Answer 131

The law of the situs.

Question 132

What law applies to moveable property at death?

Answer 132

The decedent’s domicile unless there is a choice of law provision in the will.

Question 133

Validity of a marriage is based on?

Answer 133

The law where the marriage was celebrated

Question 134

Movable marital property is governed by?

Answer 134

The law of the state where the couple was domiciled at the time the property was acquired.

Question 135

If community property is moved to a non-community property state what is it considered?

Answer 135

Still community property.

Question 136

Will a court enforce penal laws of another state?

Answer 136

No.

Question 137

When can a court refuse to enforce a foreign law?

Answer 137

If it violates a fundamental and strongly held public policy.

Question 138

Procedural issues are?

Answer 138

Always governed by forum law.

Question 139

Parol evidence rule is considered?

Answer 139

Substantive

Question 140

Privilege is considered?

Answer 140

Procedural.

Question 141

Damages are considered?

Answer 141

Substantive but caps are procedural.

Question 142

Statutes of limitation are considered?

Answer 142

Procedural unless inextricably bound up with a substantive right.

Question 143

Fed courts in diversity apply?

Answer 143

The substantive law of the state in which it sits and FRCP. Note, SoL are substantive for Erie purposes. A state law is substantive if it is outcome determinative. A federal court in diversity Must apply the choice of law rules of the state in which it sits (unless transferred from a proper venue).

Question 144

What is the last in time rule?

Answer 144

The later of two valid final judgments is entitled to full faith and credit.

Question 145

If a court has personal jx over one spouse, are its determinations over incidents of divorce entitled to full faith and credit?

Answer 145

No, only incidents of divorce determinations from bilateral divorces are entitled to full faith and credit

Question 146

In determining the enforceability of a premarital agreement, most states apply the law of

Answer 146

The state with the most significant relationship to the matter at hand.

Question 147

Under the UPAA, a premarital agreement is enforceable if (3 things and a bonus)

Answer 147

(i) there has been full disclosure, (ii) the agreement is fair and reasonable, and (iii) the agreement is voluntary. The agreement must be in writing and signed by the party to be charged.

Question 148

In intestacy, what is the spouses share if the decedent is survived by: spouse and shared descendants?

Answer 148

Spouse takes entire estate

Question 149

In intestacy, what is the spouses share if the decedent is survived by: Spouse + parents but no descendants

Answer 149

Spouse takes 300k and 75% of the remaining estate

Question 150

In intestacy, what is the spouses share if the decedent is survived by: Spouse + shared descendants + spouse’s nonshared kids

Answer 150

Spouse takes 225k and 50% of the remaining estate

Question 151

In intestacy, what is the spouses share if the decedent is survived by: Spouse + non-shared kids

Answer 151

Spouse takes 150k and 50%

Question 152

In intestacy, what is the spouses share if the decedent is survived by: Just spouse

Answer 152

Spouse takes everything.

Question 153

Per Stirpes is when

Answer 153

Surviving child stands in place of deceased parent

Question 154

Per capita with representation is when?

Answer 154

the estate is divided at the first level with surviving members and the shares of those who are deceased in that generation drop down to the surviving issue at the next generation. If deceased member with no issue, they get no share.

Question 155

Per capita at each generation is?

Answer 155

Estate divided at first level with surviving member then remaining is pooled and redivided to issue at next level.

Question 156

Can you disinherit a child?

Answer 156

Yes in a properly executed will.

Question 157

What is required to execute a will?

Answer 157

Capacity (over 18), singed writing, witnesses, and testamentory intent.

Question 158

What types of presence is acceptable for witneses?

Answer 158

Most require line of sight presence, others allow conscious presence.

Question 159

What is the purge theory?

Answer 159

A witness with an interest in the will will have his interest purged in excess of what the witness would take by intestate succession. UPC no longer follows the purge theory.

Question 160

What happens if there is a failure to satisfy formalities of will execution?

Answer 160

at common law the will is invalid, modern view allows substantial compliance, i.e. if there is clear and convincing evidence that the document was intended to be a will it will be admitted to probate.

Question 161

What is a holographic will?

Answer 161

An informal, unwitnessed will. Must be signed to be valid. At common law any non testator marking invalidate, at UPC the material provisions must be written by the testator. There must be intent!

Question 162

How can a will be revoked?

Answer 162

Any time until death by subsequent instruments that are inconsistent or expressly revoke the prior will, physical acts with intent to revoke, or operation of law (divorce revokes provisions in favor of former spouse).

Question 163

How does revoking a codicil affect a will?

Answer 163

It revokes only the codicil and revives the original will.

Question 164

What is dependent relative revocation?

Answer 164

If a will is revoked on the basis of mistake in law or fact, the DRR will revive the revoked will.

Question 165

How are wills constructed?

Answer 165

Plain meaning unless the will states otherwise.

Question 166

A will can incorporate a document if?

Answer 166

The document exists at the time of execution, the testator intends the document to be incorporated, and the document is described sufficiently to identify it.

Question 167

What is an anti-lapse statute?

Answer 167

It prevents a gift from lapsing if there is a family relationship and the intended recipient is survived by issue.

Question 168

What is the order for abatement?

Answer 168

Residual gift, General bequests to others, general bequests to family, specific bequests to others, specific bequests to family, specific bequests to spouses.

Question 169

Ademption has what two rules?

Answer 169

Traditionally, the devise is extinct, under the UPC however, the testators intent is considered and the beneficiary may take replacement property.

Question 170

What is a surviving spouses elective share?

Answer 170

A choice to take 50% of the decedents augmented estate.

Question 171

What are the views on lifetime gifts to children?

Answer 171

Common law viewed them as satisfying a child’s intestate share, the UPC views them as satisfying intestate share only if that was declared in a writing.

Question 172

If a child is unintentionally disinherited, what do they take?

Answer 172

If no other children, their intestate share, if other children,their share of that inheritance.

Question 173

Undue influence requires:

Answer 173

Showing the beneficiary received a substantial benefit under the will, had a confidential relationship, and that the testator had a weakened intellect at time of execution.

Question 174

A no contest clause is?

Answer 174

Unenforceable under the UPC.

Question 175

A will may incorporate by reference another writing not executed with testamentary formalities, provided the other writing meets three requirements:

Answer 175

(i) it existed at the time the will was executed; (ii) the testator intended the writing to be incorporated; and (iii) the writing is described in the will with sufficient certainty so as to permit its identification.

Question 176

An omitted child statute does not apply if:

Answer 176

(i) it appears that the omission of the child was intentional; (ii) the testator had other children at the time the will was executed and left substantially all of his estate to the other parent of the pretermitted child; or (iii) the testator provided for the child outside of the will and intended this to be in lieu of a provision in the will.

Question 177

The doctrine of dependent relative revocation allows a court to …

Answer 177

disregard a testator’s revocation that was based on a mistake of law or fact and would not have been made but for that mistake.

Question 178

A will may be revoked wholly or partially in three ways:

Answer 178

by subsequent writings, by physical destruction of the will, or by operation of law.

Question 179

Questions regarding the transfer of personal property from someone who dies intestate or who has a will are governed by the law of

Answer 179

the deceased’s domicile at the time of death.

Question 180

Questions regarding the transfer of real property from someone who dies intestate or who has a will are governed by the law of

Answer 180

the situs.

Question 181

An agency relationship is created by

Answer 181

Assent, benefit and control.

Question 182

An agent requires ____ capacity.

Answer 182

Minimal.

Question 183

Do you need a writing or consideration to form an agency relationship?

Answer 183

No.

Question 184

A principal is liable to third parties for contracts of the agent if there is (types of authority)

Answer 184

Authority: actual (express or implied) or apparent Or Ratification.

Question 185

A principal is liable for an agent’s torts if?

Answer 185

Within the scope of agency and employer/employee relationship

Question 186

An agent can be liable as a party to a contract if:

Answer 186

The identity of the principal is not disclosed.

Question 187

Agents have what duties?

Answer 187

Duty of care and lyoalty.

Question 188

Principals have what duties?

Answer 188

Duty not to interfere and duty to indemnify A for losses in scope of agency.

Question 189

Conduct within the scope of employment is…

Answer 189

Acts that the employee is employed to perform - OR - that were intended to profit or benefit the employer. Careful instructions directed to the employee do not insulate the employer from liability—even when the employee acts counter to the instructions—if the employee is acting within the scope of employment.

Question 190

How does a principal ratify an agent’s action?

Answer 190

(i) the principal must ratify the entire contract; (ii) the principal and the third party must have legal capacity to enter into the contract; (iii) the ratification must occur before the third party withdraws from the contract; and (iv) the principal must know the material facts of the transaction.

Question 191

What is a partnership?

Answer 191

When two or more persons or entities intend to carry on a for-profit business as co-owners. Do NOT need intent to form a partnership.

Question 192

Do you need a written agreement to form a partnership?

Answer 192

No.

Question 193

What is the profit sharing test?

Answer 193

If there is profit sharing, there is a presumption that there is a partnership.

Question 194

What is a partner by estoppel

Answer 194

A person will be treated as a partner if: there is a representation that the person is a partner, the person makes or consents to the representation, a third party reasonably relies on the representation, and the third party sufferes damages as a result.

Question 195

Partners are ___ of the partnership

Answer 195

Agents

Question 196

Partners owe duties of ____ and ___

Answer 196

Loyalty; Care.

Question 197

A partner ___ transfer his or her rights in the partnership

Answer 197

Can. This does not cause dissolution or dissociation.

Question 198

Property acquired by partners or partnership is presumed to belong to the ____

Answer 198

Partnership.

Question 199

A new partner must get the consent of __ the existing partners.

Answer 199

All.

Question 200

A ____ of partners must approve ordinary business decisions while ___ partners must approve matters outside the ordinary course.

Answer 200

Majority; all.

Question 201

A partner ___ derive a personal benefit from the use or possession of partnership property.

Answer 201

Cannot.

Question 202

A partner is ___ to the partnership for damages caused by wrongful dissociation.

Answer 202

Liable. A dissociation is wrongful only if in breach of provision of the partnership agreement or before the completion of the undertaking.

Question 203

A partnership must indemnify a dissociated partner against all partnership liability incurred when?

Answer 203

Before or after the dissociation.

Question 204

A partnership is ____ for a partners torts in the course of the partnership business

Answer 204

Liable

Question 205

Partners are ____________ for all partnership obligations?

Answer 205

Jointly and severally liable. A judgment is first satisfied from the partnerhsips assets then the partners assets.

Question 206

A dissociation from a partnership at will causes?

Answer 206

The partnership to dissolve.

Question 207

Before winding up is complete, a partnership ____ resume carrying on its business as if dissolution had never occured.

Answer 207

May.

Question 208

At formation, an LP must have

Answer 208

at least one general partner and one limited partner.

Question 209

The filing of a statement of qualification which transforms a partnership into an LLP does? does not?? create a new partnership.

Answer 209

Does not - the new llp assumes all prior obligations/assets etc

Question 210

Talk about transferees

Answer 210

partner may transfer the right to share in the profits and losses of the partnership and to receive distributions. The transfer of that partnership interest creates in the transferee a right to receive distributions to which the transferor would otherwise be entitled.A transfer of a partner’s partnership interest does not make the transferee a partner unless the other partner or partners consent to making the transferee a partner.

Question 211

To form a limited partnership, what must be done?

Answer 211

a certificate of limited partnership must be filed with the state and must include the name and address of each general partner. In addition, all of the general partners must sign the certificate. The limited partnership comes into existence upon the filing of the certificate of limited partnership. If a certificate is not filed, the limited partnership is not formed.

Question 212

A person admitted as a partner into an existing partnership is?? is not?? personally liable for any prior partnership obligations.

Answer 212

is not (but contribution may be reached)

Question 213

Under Rule 16(a), the court may direct counsel and unrepresented parties to appear for pretrial conferences for such purposes as expediting disposition of the action, effective case management, and facilitating settlement. If counsel or a party fails to appear, fails to participate in good faith, or fails to obey a pretrial conference order, then the court may generally impose

Answer 213

the same sanctions as those permitted for failure of a party to comply with a discovery order, including contempt of court or dismissal of an action. Dismissal of an action is a severe sanction, and generally it is appropriate only when a party’s conduct is serious, repeated, extreme, and otherwise inexcusable.

Question 214

When a jury is instructed to deliver both a general verdict and to answer special interrogatories, and the answers are consistent with each other but not with the general verdict, the court may… (3 options)

Answer 214

(i) approve a judgment that is consistent with the answers, notwithstanding the general verdict, (ii) direct the jury to reconsider its answers and verdict, or (iii) order a new trial.

Question 215

Where is venue proper ?

Answer 215

Venue is proper in a judicial district in which any defendant resides or in a judicial district in which a substantial part of the events or omissions on which the claim is based occurred.

Question 216

In order for a federal district court to transfer an action to another federal district court for the convenience of the parties and witnesses and in the interest of justice, the transferor court must determine that …

Answer 216

the action could have been initiated in the transferee court or that all parties consent to the transfer.

Question 217

When a defendant files a pre-answer motion under Rule 12, such as a motion to dismiss for lack of personal jurisdiction, the defendant has ___ days after receiving notice of the court’s decision on this motion to file its answer.

Answer 217

14

Question 218

If a defendant timely returns a waiver of service before being served with process, then the defendant does not have to serve an answer to the complaint until …

Answer 218

60 days after the request was sent, or 90 days after it was sent to a defendant outside a judicial district of the United States.

Question 219

When may the defendant in a civil action filed in state court have the right to remove it to the district court for the district in which the state court action was filed?

Answer 219

as long as the civil action is within the original jurisdiction of a U.S. district court

Question 220

When a federal district court has jurisdiction over a claim, the court can assert supplemental jurisdiction over additional claims over which the court would not independently have subject matter jurisdiction if they arise out of…

Answer 220

a “common nucleus of operative fact.”

Question 221

If the defendant agrees to waive service, what will be deemed the date of service of process?

Answer 221

the date on which the plaintiff files the waiver form with the court

Question 222

In an action filed under the Federal Tort Claims Act, venue is proper where?

Answer 222

either in the judicial district where the plaintiff resides or in the judicial district where the act or omission occurred.

Question 223

What juror misconduct during voir dire is necessary for a new trial on appeal?

Answer 223

To obtain a new trial, a party must demonstrate that a juror failed to answer honestly a material question on voir dire, and show that a proper response would have provided a valid basis for a challenge for cause.

Question 224

In order to file a federal statutory interpleader action, the stakeholder must be willing to either …

Answer 224

deposit the property at issue with the court or to post a bond in an appropriate amount.

Question 225

What happens when there is a forum selection clause in a contract?

Answer 225

when transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect. If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching. Furthermore, the Supreme Court held that a forum selection clause should be given “controlling weight in all but the most exceptional cases.”

Question 226

When does issue preclusion apply?

Answer 226

Unlike claim preclusion, issue preclusion does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the original action. Other elements necessary for issue preclusion to apply are that (i) the issue sought to be precluded must be the same as that involved in the prior action; (ii) the issue must have been actually litigated in the prior action; (iii) the issue must have been determined by a valid and binding final judgment; and (iv) the determination of the issue must have been essential to the prior judgment.

Question 227

Under the federal rules, service may be made by (2 ways)

Answer 227

following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located (the forum state) or in the state where service is made.

Question 228

A TRO can be issued without notice to the adverse party if the moving party can show…

Answer 228

(1) that immediate and irreparable injury will result prior to hearing the adverse party’s arguments and (2) the efforts made at giving notice and the reason why notice should not be required. Additionally, the party seeking a TRO must post a bond to cover the costs in the event the TRO is issued wrongfully.

Question 229

When are documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative subject to discovery?

Answer 229

if the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

Question 230

Under Rule 24, a nonparty has the right to intervene in an action when, upon timely motion…

Answer 230

(1) the nonparty has an interest in the subject matter of the action; (2) the disposition of the action may impair the nonparty’s interests; and (3) the nonparty’s interest is not adequately represented by existing parties. The burden is on the party seeking to intervene.

Question 231

a jury trial demand must be served within …

Answer 231

14 days after service of the last pleading directed to the issue that is sought to be tried by a jury.

Question 232

Persons may join in one action as plaintiffs if (2 things)

Answer 232

(i) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (ii) any question of law or fact common to all plaintiffs will arise in the action.

Question 233

A plaintiff may assert related claims against an impleaded party when …

Answer 233

the claim falls under the court’s jurisdiction

Question 234

For a class action that is certified under Rule 23(b)(1) or (2) what notice is necessary/appropriate?

Answer 234

is at the discretion of the court. The court may order that appropriate notice be given, which often takes the form of publication notice.

Question 235

When venue is transferred, what law applies?

Answer 235

Generally, if the venue of an action is transferred when the original venue is proper (as discussed above), the court to which the action is transferred must apply the law of the state of the transferor court, including that state’s rules regarding conflict of law. However, when venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including the choice-of-law rules, of the state in which it is located. The transferee court should not apply the law of the transferor court because the parties have contractually waived their right to the application of that law by agreeing to be subject to the laws of the transferee venue.

Question 236

When does claim preclusion apply?

Answer 236

For claim preclusion to apply, the claimant and the defendant must be the same (and in the same roles) in both the original action and the subsequently filed action. Because application of claim preclusion is limited to the parties (or their privies), a similar action by a different party would not be precluded.

Question 237

A motion for a judgment on the pleadings may not be pursued until…

Answer 237

after the defendant has answered the complaint.

Question 238

If no responsive pleading is required, a party may amend a pleading once as of right within __ days.

Answer 238

21

Question 239

If a plaintiff could easily have joined in the earlier action, should a trial judge allow the use of offensive collateral estoppel?

Answer 239

No

Question 240

Under Rule 36, a party may serve upon any other party a written request for the admission of any relevant, non-privileged matters discoverable under Rule 26. A matter will be admitted unless, within ____ days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or her attorney

Answer 240

30

Question 241

Service generally may be made within the state in which the federal district court sits by (3 things)

Answer 241

(i) personally serving the summons and complaint on the defendant, (ii) leaving the summons and complaint at the defendant’s usual place of abode with a person of suitable age and discretion who resides there, or (iii) delivering the summons and complaint to an agent appointed by the defendant or otherwise authorized by law to receive service.

Question 242

A federal action based on interpleader pursuant to Rule 22 requires …

Answer 242

that the general rules for subject matter jurisdiction be satisfied. For diversity jurisdiction, the citizenship of the party bringing the action must be completely diverse from that of the claimants and the statutory amount in controversy must be met. The claimants need not be diverse among themselves.

Question 243

Under the collateral-order doctrine, a court of appeals has discretion to hear and rule on a district court order if it (3 things)

Answer 243

(i) conclusively determines the disputed question, (ii) resolves an important issue that is completely separate from the merits of the action, and (iii) is effectively unreviewable on appeal from a final judgment.

Question 244

Due process is met if the notice is …

Answer 244

Due process is met if the notice is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of an action and afford them an opportunity to present their objections. If the identity and address of an interested party are known or obtainable through reasonable efforts, then notice through in-person delivery, registered mail, return receipt requested, or some other means likely to notify the particular individual is required. Notice by publication under such circumstances would not be sufficient.

Question 245

A party is considered necessary if the party’s absence …

Answer 245

would leave the existing parties subject to a substantial risk of multiple or inconsistent obligations.

Question 246

How should a court assess sanctions for failure to preserve electronically stored information?

Answer 246

In determining sanctions, the court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence.The court may: (i) upon finding prejudice to another party, order measures no greater than necessary to cure the prejudice, or (ii) upon finding that the party acted with the intent to deprive another party of the information, may presume the lost information was unfavorable to the party, instruct the jury that it may or must presume the information was unfavorable, or dismiss the action or enter a default judgment.

Question 247

When a federal court has jurisdiction over a claim arising under federal law, the court may exercise supplemental jurisdiction over a state-law claim __________ even though the federal court would not otherwise have subject-matter jurisdiction over the state-law claim

Answer 247

that arises out of a “common nucleus of operative fact,”

Question 248

A preliminary injunction can be issued if the opponent is given notice and the court holds a hearing on the issue. A party seeking a preliminary injunction must establish that:

Answer 248

A preliminary injunction can be issued if the opponent is given notice and the court holds a hearing on the issue. A party seeking a preliminary injunction must establish that: (1) the party is likely to succeed on the merits; (2) the party is likely to suffer irreparable harm in the absence of relief; (3) the balance of equities is in his favor; and (4) the injunction is in the best interest of the public. Additionally, the party seeking the preliminary injunction must provide a bond to cover the costs in the event the preliminary injunction is issued wrongfully.

Question 249

The Rules provide that an answer may state as a cross-claim any claim against a co-defendant, as long as…

Answer 249

the cross-claim arises out of the same event that is the subject of the original claim.

Question 250

The elements of a claim or defense, statutes of limitations, and burdens of proof are all considered ____ for Erie purposes

Answer 250

substantive

Question 251

In general, for PJ, due process requirements are satisfied if the nonresident defendant …

Answer 251

has sufficient minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice.

Question 252

For in personam jurisdiction, a defendant’s contacts with a forum state must be …

Answer 252

purposeful and substantial, such that the defendant should reasonably anticipate being taken to court there.

Question 253

A district court has discretion to decline to exercise supplemental jurisdiction (in 3 cases…)

Answer 253

(i) over claims that raise new or complex state law issues or that substantially predominate over claims within original federal jurisdiction; (ii) when the claims within the court’s original jurisdiction are dismissed; or (iii) if there are other compelling reasons for declining jurisdiction in exceptional circumstances.

Question 254

Generally, the Defendant’s answer must state any avoidance or affirmative defense that the defendant has, or that is deemed waived. However, the Rules also provide that pleadings can and should be amended (when?)

Answer 254

by leave of the court when justice requires it. Courts will generally permit the amendment unless it would result in undue prejudice to the opposing party.

Question 255

For venue purposes, business entities are deemed to reside in any judicial district

Answer 255

in which they are subject to personal jurisdiction with respect to the civil action in question.

Question 256

In a traditional public forum, the government may only regulate speech if the restrictions:

Answer 256

(i) are content-neutral as to both subject matter and viewpoint, (ii) are narrowly tailored to serve a significant governmental interest, and (iii) leave open ample alternative channels for communication. Additional restrictions, such as an absolute prohibition of a particular type of expression, will be upheld only if narrowly drawn to accomplish a compelling governmental interest.

Question 257

The Fourteenth Amendment, Section Five Enabling Clause permits Congress to pass legislation to …

Answer 257

enforce the equal protection and due process rights guaranteed by the amendment, but not to expand those rights or create new ones. In enforcing such rights, there must be a “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end.

Question 258

Even though the ordinance does not constitute an occupation of the property by either the government or a third party, it is still subject to a three-factor balancing test to determine whether the ordinance amounts to a regulatory taking. The following factors are considered:

Answer 258

(i) the economic impact of the regulation on the property owner, (ii) the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding use of the property, and (iii) the character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property.

Question 259

When is private conduct state action

Answer 259

State action may be considered to exist when private parties carry out traditional governmental functions or if there is significant state involvement in the activities. Merely providing a service that the government could offer is not sufficient to make the provider a state actor.

Question 260

A restriction on commercial speech is subject to a form of intermediate judicial scrutiny, requiring the government to show …

Answer 260

that the restriction directly advances an important or substantial government interest and that the restriction is not substantially more extensive than necessary to protect that interest

Question 261

A law passes the rational basis standard of review if it is …

Answer 261

rationally related to a legitimate governmental interest, a test of minimal scrutiny. It is not required that there is actually a link between the means selected and a legitimate objective. However, the legislature must reasonably believe there is a link. Laws are presumed valid under this standard.

Question 262

A local government may exact promises from a developer, such as setting aside a portion of the land being developed for a park in exchange for issuing the necessary construction permits. Such exactions do not violate the Takings Clause if there is (2 things)

Answer 262

(i) an essential nexus between legitimate state interests and the conditions imposed on the property owner (i.e., the conditions substantially advance a legitimate state interest), and (ii) a rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development. In determining whether there is rough proportionality between the burden and the impact, the government must make an individualized determination that the conditions are related both in nature and extent to the impact.

Question 263

In the Brandenburg case, the Supreme Court interpreted the First Amendment to preclude a conviction for inciting violence unless the speech in question is (2 things)

Answer 263

directed at inciting or producing imminent lawless action and the speech is likely to incite or produce such action

Question 264

What is substantial performance?

Answer 264

The doctrine of substantial performance provides that a party who substantially performs can recover on the contract even though full performance has not been tendered. Substantial performance is negated if the incomplete performance amounted to a material breach of contract. If the failure of a constructive condition of exchange is minor, however, it will not negate substantial performance.

Question 265

In contracts of $500 or more between merchants, the SOF may be satisfied when

Answer 265

one party provides the other with written confirmation of the oral agreement. The recipient of the agreement is bound if she does not object within 10 days of receipt. A signature includes any symbol adopted with the intention to accept a writing. It may be contained on any part of a writing, and it may even include, under proper circumstances, a billhead or letterhead when the writing was intended as a memorandum of an agreement.

Question 266

Courts may refuse to use the diminution in value measure of damages when…

Answer 266

the breach appears to be willful, and only completion of the contract will enable the nonbreaching party to use the land for its intended purposes.

Question 267

A buyer acquires an insurable interest in goods … when?

Answer 267

upon the identification of the goods. Where the contract is for future goods (i.e., goods that are not both existing and identified), the buyer does not acquire an insurable interest until the seller designates goods as those to which the contract refers, unless the parties have explicitly agreed otherwise.

Question 268

In a UCC confirming memo… If the writing omits or incorrectly states a term, it is is not still sufficient to satisfy the SOF unless it…

Answer 268

fails to state a quantity term. The contract is not enforceable beyond the quantity term contained in the writing. Although all other terms of the contract (e.g., price) may be proven by parol evidence, the quantity term cannot.

Question 269

Until a repudiating party’s next performance is due, he may retract the repudiation unless …

Answer 269

the aggrieved party has since accepted the repudiation, acted in reliance on the repudiation, or brought an action for breach.

Question 270

Can a contract be assigned despite a non-assignment clause?

Answer 270

Yes. Most contracts can be assigned. Even if the contract by its terms prohibits assignment, a party retains the power to assign, although an assignment operates as a breach of the contract.

Question 271

Anticipatory repudiation occurs when …

Answer 271

there has been an unequivocal refusal of the buyer or seller to perform, or when a party creating reasonable grounds for insecurity fails to provide adequate assurances within 30 days of demand for such assurances.

Question 272

Larceny by trick occurs when …

Answer 272

a defendant obtains possession of but not title to property owned by another through fraud or deceit, with the intent to permanently deprive the victim of that property, resulting in the conversion of the property.

Question 273

What are the elements of larceny by false pretenses?

Answer 273

False pretenses (also called “obtaining property by false pretenses” or “larceny by false pretenses”) requires: (i) obtaining title to the property; (ii) of another person; (iii) through the reliance of that person; (iv) on a known false representation of a material past or present fact; and (v) the representation is made with the intent to defraud.

Question 274

Malice aforethought includes which mental states?

Answer 274

intent to kill,intent to inflict serious bodily injury,reckless indifference to a known and unjustifiably high risk to human life (depraved heart), orintent to commit certain felonies.

Question 275

An attempt crime requires what two elements?

Answer 275

a specific intent to commit a criminal actcoupled with a substantial step taken toward the commission of the intended crime.

Question 276

M’Naghten test for NGRI

Answer 276

Defendant either did not know the nature of the act or did not know that the act was wrong

Question 277

At common law, false pretenses requires …

Answer 277

obtaining title to the property of another person through the reliance of that person on a known false representation of a material fact, and the representation is made with the intent to defraud.

Question 278

Embezzlement is …

Answer 278

the (i) fraudulent (ii) conversion (iii) of the property (iv) of another (v) by a person who is in lawful possession of the property.

Question 279

What is the majority (and MPC) rule for accomplice liability?

Answer 279

Under the majority and MPC rule, a person is an accomplice in the commission of an offense if he acts with the purpose of promoting or facilitating the commission of the offense. Thus, the accomplice must intend that her acts will assist or encourage the criminal aim.

Question 280

Under the Model Penal Code, if the requisite mens rea is not stated in a criminal statute, it is established if the defendant acted at least:

Answer 280

Recklessly

Question 281

Any fact, other than a prior conviction, that can be used to increase a sentence beyond the statutorily prescribed maximum must be …

Answer 281

charged in an indictment, submitted to a jury, and established beyond a reasonable doubt.

Question 282

Miranda context; To be testimonial, the communication must … (accomplish what?)

Answer 282

relate to a factual assertion or disclose information.

Question 283

The double jeopardy clause generally bars successive prosecutions for: greater included offenses, lesser included offenses, or both?

Answer 283

Both

Question 284

When does double jeopardy attach under the blockberger rule? (i.e. when are two (+) crimes too similar to be charged subsequent to one another)?

Answer 284

whether charges constitute the same offense depends on whether each charge requires proof of an element that the other does not.

Question 285

The Confrontation Clause requires that, to admit a testimonial hearsay statement against a criminal defendant… (2 elements)

Answer 285

the declarant must be unavailable and the defendant must have had a prior opportunity to cross-examine the declarant.

Question 286

Lay opinions are admissible with respect to commonsense impressions. To be admissible, the opinion must be (2 things)

Answer 286

(i) rationally based on the perception of the witness and (ii) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.

Question 287

The defendant in a criminal case who testifies on his own behalf may?? may not?? be impeached by a juvenile adjudication to show that the defendant is untruthful

Answer 287

may not

Question 288

However, the duty to avoid infliction of emotional distress exists without any threat of physical impact in cases in which there is a ________ between the plaintiff and the defendant

Answer 288

special relationship

Question 289

The misappropriation of the right to publicity requires (4 elements)…

Answer 289

that the plaintiff prove the defendant’s unauthorized appropriation of the plaintiff’s name, likeness, or identity, without the plaintiff’s consent, for the defendant’s commercial advantage, and resulting in injury to the plaintiff.

Question 290

Under pure several liability, each tortfeasor is liable …

Answer 290

only for his proportionate share of the plaintiff’s damages

Question 291

The standard of care imposed upon a child is that of

Answer 291

a reasonable child of similar age, intelligence, education, and experience.

Question 292

False imprisonment requires that a person

Answer 292

acts with intent to confine or restrain another person to a bounded area and those actions directly or indirectly result in such confinement. The plaintiff must be aware of the confinement or must suffer actual harm. The

Question 293

A tenant owes a licensee …

Answer 293

the duty to warn of concealed dangers and is required to exercise reasonable care in conducting activities on her land.

Question 294

Activities are considered abnormally dangerous if (3 things)…

Answer 294

they create a foreseeable and highly significant risk of physical harmeven in the exercise of reasonable care,and the activity is not commonly engaged in.

Question 295

Can one sever a JTRS with a will?

Answer 295

No

Question 296

A seller-financed purchase money mortgage v third-party purchase money mortgage?

Answer 296

A seller-financed purchase money mortgage > third-party purchase money mortgage

Question 297

In a periodic tenancy, notice of termination must be given when?

Answer 297

before the beginning of the intended last period of the periodic tenancy. Thus, a periodic month-to-month tenancy can be terminated by either party with a one-month notice of termination. Notice that is given late is generally treated as effective to terminate the tenancy as of the end of the following period.

Question 298

In a lease, is there a duty on the landlord to make repairs?

Answer 298

Under the common law, there was no implied duty on the part of the landlord to repair leased premises. However, the majority of jurisdictions today enforce an implied duty upon the landlord to repair under a residential lease, even when the lease attempts to place the burden on the tenant, except for damages caused by the tenant. In contrast, courts are reluctant to imply a landlord’s duty to repair in commercial leases because the implied warranty of habitability generally will not apply in commercial leases.

Question 299

Under the doctrine of equitable conversion, when one of the contracting parties dies prior to the performance date of the contract…

Answer 299

Under the doctrine of equitable conversion, when one of the contracting parties dies prior to the performance date of the contract, the seller’s interest may be treated as personal property and the buyer’s interest may be treated as a real property interest for purposes of distributing in the property pursuant to either’ will. When the seller has devised his real property interests, the proceeds from the sale of the property under contract are treated as personal property that passes to the devisee of the seller’s personal property.

Question 300

when does lease termination occur?

Answer 300

Termination of a lease occurs automatically upon the expiration of the term. Termination may also occur before the expiration of the term when the tenant surrenders the leasehold, and the landlord accepts the return of the leasehold.

Question 301

In order to end a lease before the end of its term by constructive eviction…

Answer 301

the landlord must have breached a duty, which caused the loss of the substantial use and enjoyment of the premises, the tenant must give the landlord notice of the problem and reasonable opportunity to cure, and the tenant must vacate the property within a reasonable period of time.

Question 302

Modification of a senior mortgage subordinates the mortgage to a junior mortgage …

Answer 302

only to the extent that the modification of the senior mortgage makes it more burdensome.

Question 303

Under the “equal dignities” rule …

Answer 303

when the act performed by an agent on behalf of the principal is required by law to be in writing, the agent’s authority must also be established in writing.

Question 304

Can a life estate holder make major changes to increase the property value (ameliorative waste) without the remainder holder’s consent?

Answer 304

Probably not. At common law, a life tenant was prohibited from engaging in acts that changed the property’s value (even those that enhanced the value) unless all future interest holders were known and consented. However, the current majority rule allows life tenants to physically alter structures on the property when a substantial and permanent change in neighborhood surroundings makes it necessary in order to continue reasonable use of the property, so long as the property value is not diminished.

Question 305

Most jurisdictions place the risk of a loss that occurs after the contract for real estate has been entered into (prior to closing) on the ____

Answer 305

buyer

Question 306

Must a life tenant insure the property for the benefit of the remainderman?

Answer 306

No

Question 307

Is there a duty to mitigate damages in a breach of lease?

Answer 307

The majority of jurisdictions now require a landlord to mitigate damages by attempting to re-rent the premises in the event that the tenant abandons the property and breaches of the lease. Accordingly, the landlord has a responsibility to make a good-faith attempt to re-rent the property.

Question 308

Who is eligible to benefit from an anti-lapse statute?

Answer 308

Only statutorily defined persons (usually close relatives)

Question 309

In a criminal trial, to admit an out-of-court testimonial statement against a defendant, the Confrontation Clause of the Sixth Amendment requires that …

Answer 309

the declarant be unavailable and that the defendant had a prior opportunity to cross-examine the declarant. A statement that is not testimonial does not violate the Confrontation Clause.

Question 310

In determining whether a statement is testimonial, courts look to …

Answer 310

the primary purpose of the statement.

Question 311

Attempt requires (2 things)

Answer 311

the specific intent to commit a crime and a substantial step in furtherance of the commission of that crime.

Question 312

The UCC does permit substantial performance with regard to an installment contract. In addition, when there is a nonconforming tender or a tender of nonconforming goods under one segment of an installment contract, the buyer may cancel the contract only if

Answer 312

the nonconformity substantially impairs the value of the entire contract to the buyer.

Question 313

Imperfect self-defense occurs when …

Answer 313

the person claiming self-defense unjustifiably kills her attacker, such as when she honestly but unreasonably believes self-defense is required. The rule reduces the charge from murder to voluntary manslaughter.

Question 314

The Uniform Trust Code and the Restatement (Third) both presume …

Answer 314

a general charitable purpose and authorize applying cy pres even if the settlor’s intent is not known

Question 315

May a court alter the rights of beneficiaries due to changed circumstances?

Answer 315

No, but it may interpret certain changes as frustrating to the trust purposes in order to make such modifications.

Question 316

A court may modify a trust under the doctrine of equitable deviation if …

Answer 316

events that were unanticipated by the trustee have occurred, and the changes would further the purposes of the trust. To the extent possible, the modification must be made in accordance with the settlor’s probable intention, and the court need not seek beneficiary consent to make the modification.