misc all Flashcards
CL req terms for k
parties, quantity, price, subject matter
output k
buyer buys all its req from seller
requirements k
seller sells all its units to buyer
types of irrevocable ks
merchants firm offer, option k, detrimental reliance
UCC 2-207 acceptance by promise
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
how to accept an additional term for 2-207. 4 things must be true:
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
quasi contract def and how it occurs in 2 ways
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
preexisting duty rule (CL modification)
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
Course of performance, course of dealing, trade usage priority order and definititons
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
Statute of Frauds MR. SOUR
marriage, surety, one year, UCC goods > 500, real estate
main purpose exception for surety
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
how real estate satisfies SOF
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
Merchant’s confirmatory memo
failure to object to a confirming memo w/in 10 days will satisfy the SOF, but only if both parties are merchants
3 ways 3P beneficiaries rights can best
1) 3PB detrimentally relied on rights
2) 3PB manifests assent to k
3) 3PB filed suit to enforce k
2 ways to waive a condition
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)
methods of tender/delivery
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
risk of loss prob where damage before buyer receives them
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
3 ways to impeach a witness
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
use of criminal convictions to impeach
- 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
nonhearsay statements
-Verbal acts or legally operative facts
- Effect on the listener/hearer
-State of mind
exclusions from HS
1) prior statements of testifying witness (prior inconsis, prior consis, prior identification)
2) admissions of party opponent (adoptive admissions, vicarious statements, co-conspirator statements)
HS exceptions when declarant unavail
1) unavail declarant
2) former testimony
3) dying declaration
4) statement against interest
5) statement of personal or family history
statement of mental, emotional or physical condition
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
limitations on conditional funding
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
dormant commerce clause
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.
state taxation on commerce 4 part test
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
regulation of expressive conduct
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.
Regulation of time, place, and manner of expression in public forum
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:
Regulation of time, place, and manner of expression in nonpublic forum
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
battery torts
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
assault torts
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
false imprisonment
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
IIED towards third parties
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
trespass to land
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
private nuisance
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
public nuisance
unreasonable interference with a right common to the general public, but P suffers harm different in kind from the public
licensee duty by landowner
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
invitee
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
negligent infliction of emotional distress - 3 kinds
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
duty to trespassers by landowner
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
wrongful death
ecoverable damages include loss of support, companionship, society, and affection, but not pain/suffering of P; recovery limited to what decedent could recover
survival action
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
3 exceptions where u do have liability for indep contractors
-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
abnormally dangerous activity
Not commonly engaged in; inherent, foreseeable, and highly significant risk of harm (look to gravity of harm, inappropriateness of place, limited value of activity)
SL elements for product defect
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
manufacturing defect
product does not conform to D’s own specifications
design defect
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
failure to warn defect
(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
defamation eleents
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.
misappropriation (invasion of privacy)
unauthorized use of P’s picture or name for D’s advantage
intrusion upon seclusion (invasion of privacy)
intrusion into P’s private affairs, objectionable to a reasonable person (no publication required)
false light (invasion of privacy)
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
public disclosure of private facts (invasion of privacy)
highly offensive to a reasonable person and are not of legitimate concern to the public; disfavored tort because of First Amendment tension
best evidence rule
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
libel
-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.
slander
-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)
