misc all

Question 1

CL req terms for k

Answer 1

parties, quantity, price, subject matter

Question 2

output k

Answer 2

buyer buys all its req from seller

Question 3

requirements k

Answer 3

seller sells all its units to buyer

Question 4

types of irrevocable ks

Answer 4

merchants firm offer, option k, detrimental reliance

Question 5

UCC 2-207 acceptance by promise

Answer 5

even if there are additional different terms in the response, so long as the acceptance is about the same object and is timely, it’s accepted, unless the acceptance is expressly made conditional upon assent to new/different terms

Question 6

how to accept an additional term for 2-207. 4 things must be true:

Answer 6

new term is included if following 4 things are true
1) both parties are merchants
2) term doesn’t materially alter the deal
3) the initial offer didn’t expressly limit acceptance to its terms
4) offeror doesn’t object w/in reasonable time to new terms

Question 7

quasi contract def and how it occurs in 2 ways

Answer 7

def: implied in law to avoid unjust enrichment; get value of benefit conferred.

happens in 2 ways: 1) you would’ve made a k but you couldn’t OR
2) when one party confers a benefit on another party and if it would be fair to pay for the benefit

Question 8

preexisting duty rule (CL modification)

Answer 8

a promise to do something that you’re already legally obligated to do is not consideration, unless
1) change in performance
2) 3rd P promise to pay, or
3) unforeseen difficulties excuse performance

Question 9

Course of performance, course of dealing, trade usage priority order and definititons

Answer 9

If express k is inconsistent w COP, COD, or TU, priority is as follows:
1) express over all 3
2) COP > COD and TU
3) COD > TU

Course of performance: agreement involves repeated occasions for performance by a party and other party accepts w/o objection

Course of dealing: sequence of conduct concerning previous transacs btw parties that can reasonably estab a common basis of understanding for interpreting their conduct

Trade usage: common practice/dealing in industry

Question 10

Statute of Frauds MR. SOUR

Answer 10

marriage, surety, one year, UCC goods > 500, real estate

Question 11

main purpose exception for surety

Answer 11

Main purpose exception = if the main purpose in surety’s agreeing to pay the debt of another is for the surety’s own economic advantage, then we’re NOT in SOF world

Question 12

how real estate satisfies SOF

Answer 12

1) signed writing OR
2) part performance can satisfy if any 2 of 3 elements are met: 1) possession 2) payment 3) improvements to land

Question 13

Merchant’s confirmatory memo

Answer 13

failure to object to a confirming memo w/in 10 days will satisfy the SOF, but only if both parties are merchants

Question 14

3 ways 3P beneficiaries rights can best

Answer 14

1) 3PB detrimentally relied on rights
2) 3PB manifests assent to k
3) 3PB filed suit to enforce k

Question 15

2 ways to waive a condition

Answer 15

1) party receiving the protection of the condition may waive it by words or conduct (like UVA saying u don’t need to take LSAT anymore (LSAT gave protection to keep t14 ranking))
2) other party (not the one receiving the protection) hinders or wrongfully interferes w the occurrence of the condition judged by a GF standard (so the applicants saying fu somehow to LSAT)

Question 16

methods of tender/delivery

Answer 16

1) seller’s place of biz = seller just needs to give goods to buyer
2) shipment contract (FOB/seller’s POB) = if no specific place of delivery, seller must 1) get the goods to a common carrier 2) make arrangements for delivery 3) notify the buyer
3) destination contract (FOB buyer’s POB) = seller must get goods to buyer’s POB and notify them

Question 17

risk of loss prob where damage before buyer receives them

Answer 17

Risk of loss prob where goods damages before buyer receives them =
1) first check if agreement had term about this
2) ask if a party has breached. If so, breaching party takes on the risk, even if breach has nothing to do w delivery
3) if no breach, see type of delivery:
if shipment k → risk of loss w buyer
if destination k → seller risk of loss
4) all other cases, ask if seller is merchant.
If yes → loss w seller until buyer receives goods
If no → loss moves to buyer when seller tenders goods

Question 18

3 ways to impeach a witness

Answer 18

1) Bias
2) Sensory competence
3) witness is dishonest; bad character for truthfulness
4)Prior inconsistent statements - can be used to impeach if inconsistent w the witness’s testimony

Question 19

use of criminal convictions to impeach

Answer 19

• Crimes involving dishonesty/false statement can b used to impeach any witness for any conviction
  -Convictions NOT involving dishonesty/false statement - admissible to impeach witness only if crime is punishable by death or imprisonment > 1 yr
  If witness is criminal d - admissible only if its PV outweighs the prejudicial effect (stricter)
  -Conviction or release > 10 yrs ago - admissible if PV substantially outweighs prejudicial effect and reasonable written notice of intent to use evidence

Question 20

nonhearsay statements

Answer 20

-Verbal acts or legally operative facts
- Effect on the listener/hearer
-State of mind

Question 21

exclusions from HS

Answer 21

1) prior statements of testifying witness (prior inconsis, prior consis, prior identification)
2) admissions of party opponent (adoptive admissions, vicarious statements, co-conspirator statements)

Question 22

HS exceptions when declarant unavail

Answer 22

1) unavail declarant
2) former testimony
3) dying declaration
4) statement against interest
5) statement of personal or family history

Question 23

statement of mental, emotional or physical condition

Answer 23

statement of then-existing state of mind (present intent, motive or plan) or emotional, sensory or physical condition. Statement of intent can be used to prove action in conformity w that intent

Question 24

limitations on conditional funding

Answer 24

Limitations on conditional funding: funding must be 1) for the general welfare 2) unambiguous 3) relate to federal interest in particular national projects or programs 4) not induce states to act unconstitutionally 5) not exceed the point at which pressure turns into compulsion

Question 25

dormant commerce clause

Answer 25

in the absence of federal regulation, state regulation of commerce is valid so long as there is 1) no discrimination against out-of-state commerce 2) the regulation does not unduly burden interstate commerce and 3) the regulation doesn’t apply to wholly extraterritorial activity.

Question 26

state taxation on commerce 4 part test

Answer 26

If Congress has not already acted in the area, a state may tax interstate commerce if it is nondiscriminatory and does not place an undue burden on interstate commerce.

-Nondiscrimination–no direct commercial advantage to local business over interstate competitors (even if neutral on its face)
-Substantial nexus between the state and the taxed activity? Significant contact or substantial activity within state?
-Fair apportionment of tax liability among the states? Tax on interstate commerce equal to (not greater than) the tax on local commerce?
-Fair relationship to services provided by the state? Tax must be fairly related to the services provided by the taxing state

Question 27

regulation of expressive conduct

Answer 27

a regulation of expressive conduct is upheld if:
-The regulation is within the government’s power to enact;
-It furthers an important governmental interest;
-The interest is unrelated to the suppression of ideas; and
-The burden on speech is no greater than necessary.

Question 28

Regulation of time, place, and manner of expression in public forum

Answer 28

1) reg must be content-neutral as to both subject matter and VP
2) regulation must allow alternative channels of communication
3) must narrowly serve a significant state interest:

Question 29

Regulation of time, place, and manner of expression in nonpublic forum

Answer 29

Gov’t may regulate speech in these forums as long as the reg is:
1) VP neutral
2) reasonable - rationally related to a legitimate governmental purpose

Question 30

battery torts

Answer 30

D intends to cause contact with P’s person, his affirmative conduct causes such contact, and contact causes bodily harm or is offensive to P

Question 31

assault torts

Answer 31

D intends to cause P to anticipate an imminent, and harmful or offensive contact with P’s person or the contact itself and D’s affirmative conduct causes P to anticipate such contact with P’s person

Question 32

false imprisonment

Answer 32

1) D intends to confine P or restrain another within a fixed boundaries, 2) the actions (either by D’s conduct causing the confinement or D failing to release P from confinement) directly or indirectly result in confinement, and 3) plaintiff is conscious of the confinement OR harmed by it

Question 33

IIED towards third parties

Answer 33

if d directed EAOC to one party and caused severe emotional distress to another party, doctrine of transferred intent may make him liable for IIED, but only in 3 circum:
1) immediate family member: an immediate fam member of the victim who is present at the time of the conduct and perceives the conduct may recover for IIED regardless of whether the fam member suffers bodily injury as a result of distress
2) bystander = can recover for IIED if present at the time of the conduct, perceives it, and suffers distress that results in bodily injury
3) diff intentional tort = if the d commits a diff intentional tort toward one victim, thereby causing severe emotional distress to another, the same rules apply

Question 34

trespass to land

Answer 34

intentional act causes physical entry onto the land of another

Intent: to enter land or cause physical invasion, not to wrongfully trespass
Necessity as a defense to trespass

Question 35

private nuisance

Answer 35

substantial, unreasonable interference with use or enjoyment of land

Unreasonable = must be annoying to an ordinary, reasonable person. Someone who is not actually bothered may still have COA if it would bother an ordinary, reasonable person

Question 36

public nuisance

Answer 36

unreasonable interference with a right common to the general public, but P suffers harm different in kind from the public

Question 37

licensee duty by landowner

Answer 37

Licensee (traditional approach/majority)—enters land of another with permission or privilege (social guest; emergency personnel)

Warn of concealed dangers that are known or should be obvious

Use reasonable care in conducting activities on the land

No duty to inspect

Question 37

invitee

Answer 37

Invitee (traditional approach/majority)—Invited to enter for purposes for which the land is held open or for biz purposes

Reasonable care to inspect, discover dangerous conditions, and protect invitee from them; non-delegable duty

Duty does not extend beyond scope of the invitation

Question 38

negligent infliction of emotional distress - 3 kinds

Answer 38

zone of danger: p in zone of danger + physical symptoms from ED

bystander recovery: (i) closely related to person injured by D; (ii) present at the scene; and (iii) personally observed or perceived the injury + physical symptoms

special rela: Most common examples are a mortician mishandling a corpse or a common carrier mistakenly reporting the death of a relative—no threat of physical impact or physical symptoms required

Question 38

duty to trespassers by landowner

Answer 38

Trespassers (traditional/majority approach)—refrain from willful, wanton, reckless or intentional misconduct towards trespassers; no “spring-guns”

Discovered—warn or protect against concealed, dangerous, artificial conditions

Undiscovered—generally no duty unless owner should reasonably know that trespassers are entering land, then same duty owed a licensee (majority)

Attractive nuisance—liable for injuries to trespassing children if artificial condition poses unreasonable risk of serious bodily injury, children cannot appreciate the danger, burden of eliminating danger slight compared to risk of harm, and owner fails to exercise reasonable care to protect children

Question 39

wrongful death

Answer 39

ecoverable damages include loss of support, companionship, society, and affection, but not pain/suffering of P; recovery limited to what decedent could recover

Question 40

survival action

Answer 40

survival statute may permit representative of decedent’s estate to pursue any claims decedent would have had at time of death; may include pain/suffering

Question 41

3 exceptions where u do have liability for indep contractors

Answer 41

-Negligent selection of independent contractor (primary negligence, not vicarious)
-***Vicarious liability for abnormally/inherently dangerous activity or non-delegable duty, or
-Vicarious liability for IC acting under apparent agency

Question 42

abnormally dangerous activity

Answer 42

Not commonly engaged in; inherent, foreseeable, and highly significant risk of harm (look to gravity of harm, inappropriateness of place, limited value of activity)

Question 43

SL elements for product defect

Answer 43

1) Product was defective (in manufacture, design, or failure to warn)
2) Defect existed when it left D’s control
3) Defect caused P’s injury when the product was used in a reasonably foreseeable way

Question 44

manufacturing defect

Answer 44

product does not conform to D’s own specifications

Question 45

design defect

Answer 45

Consumer expectation test—dangerous beyond expectation of ordinary consumer

Risk-utility test—risks > benefits and reasonable alternative design (economically feasible) available; failure to use that design rendered product unreasonably unsafe

Question 46

failure to warn defect

Answer 46

(i) Foreseeable risk of harm, (ii) not obvious to ordinary user of product, and (iii) risks could have been reduced or avoided with reasonable instructions or warnings

Question 47

defamation eleents

Answer 47

defamatory lang
of or concerning p
publication
falisty
fault

Falsity (public concern)
-If statement relates to matter of public concern or P is a public figure, P must prove defamatory statement is false
-Private P suing on a statement that does not involve matter of public concern not required to prove falsity; D may prove truth as an affirmative defense

Fault
-Public figure—actual malice (D knows of falsity/reckless disregard of truth)
-Private figure/matter of public concern—D acted with fault; either negligence or actual malice
-Private figure/not matter of public concern—at least neg.

Question 48

misappropriation (invasion of privacy)

Answer 48

unauthorized use of P’s picture or name for D’s advantage

Question 49

intrusion upon seclusion (invasion of privacy)

Answer 49

intrusion into P’s private affairs, objectionable to a reasonable person (no publication required)

Question 50

false light (invasion of privacy)

Answer 50

publication of facts about P or attributing views/actions to P that place him in false light objectionable to a reasonable person under the circumstances

Question 51

public disclosure of private facts (invasion of privacy)

Answer 51

highly offensive to a reasonable person and are not of legitimate concern to the public; disfavored tort because of First Amendment tension

Question 52

best evidence rule

Answer 52

1) when the contents are at issue or 2) witness is relying on contents when testifying

Content at issue means 1) document is used as proof of event or 2) document has actual legal effect, such as a k or will or 3) witness is testifying based on facts only learned from the document

Question 53

libel

Answer 53

-The defendant knowingly made a false statement about the plaintiff OR negligently failed to determine its falsity (ie, failed to use reasonable care).
-That type of statement would tend to harm the plaintiff’s reputation
-The defendant intentionally or negligently communicated that statement to a third party.

Question 54

slander

Answer 54

-The defendant knowingly made a false statement about the plaintiff or should have known that the statement was false.

-That type of statement would tend to harm the plaintiff’s reputation.
The defendant intentionally or negligently communicated that statement to a third party.
(Negligent communication = occurs when it is reasonably foreseeable that a third party might hear the defendant’s statement.)
(Intentional communication = Knowledge or substantial certainty that statement will be communicated to third party)

-That statement caused the plaintiff special harm OR was slanderous per se—eg, accused the plaintiff of conduct adversely affecting the plaintiff’s occupation.
(Slander per se—no special damages required if accused of committing a crime, conduct that reflects poorly on P’s fitness to conduct trade or profession, loathsome disease, sexual misconduct; general damages then permitted as parasitic damages)