Miscellaneous

Question 1

Trespass to Chattels (Torts)

Answer 1

Requires:
1) an act of defendant that interferes with plaintiff’s right of possession in the chattel, 2) intent to perform the act bringing about the interference with plaintiff’s right of possession, 3) causation and 4) damage

Reduction in value is indicator
Brach of duty / negligence is not required

Question 2

Intentional infliction of emotional distress

Negligent infliction of emotional distress

Answer 2

Extreme and outrageous conduct

Zone of danger (if fear of personal danger)
Zone of danger + close family member

Question 3

Cancelling an installment contract for defect for goods (UCC)

Answer 3

defect must substantially impair the value of the entire contract to declare total breach

Legitimate fears from buyer do not constitute anticipatory repudiation; buyer may demand reassurances, but that’s it

Question 4

Condition precedent to effectiveness of a contract (contract only goes into effect if you have financing by the 15th)

Answer 4

Are enforceable; are not covered by parole evidence rule because the contract is not being modified, it never existed; and do not violate statute of frauds because it is covering the contract, not what the contract covers even if it were land or goods >500, marital

Question 5

Excuse of condition by hindrance

Answer 5

Where other party stops you from meeting conditional requirement, he can no longer benefit from the condition.

Question 6

Privilege of necessity

Answer 6

A person may interfere with property of another where it is reasonably and apparently necessary to avoid threatened harm or injury from natural or other force where the threatened injury is substantially more serious than the invasion that seeks to avert it

Private necessity - qualified; liable for damage caused

Question 7

Present Sense Impression

Answer 7

Hearsay exception where the statement describes or explain an event or condition and is made while or immediately after the declarant perceives the event or condition.

Question 8

Best Evidence Rule

Answer 8

Original writing must be produced when proving the material terms of that writing

Secondary evidence of the writing, such as oral testimony regarding its contents is permitted ONLY after it has been shown that the original is unavailable for reasons other than misconduct of the proponent

Only when the contents of a writing are sought to be proved, the writing itself should be entered into evidence

Question 9

Strict Liability wild animals

Answer 9

Common Sense - doesn’t matter if the animal is actually dangerous. strictly liable for damage caused by the thing

Question 10

All will terms. Jesus dude.

Question 11

Illusory promise

Answer 11

A promise that is unenforceable due to indefiniteness or lack of mutuality, where only one side is bound to perform. An example of this would be an agreement between a seller and buyer which states that the seller “agrees to sell all of the ice cream he wants to” to the buyer. business law. contracts.

Condition that one party has control over

Question 12

Bounds of prior identification

Question 13

Service of Process

Answer 13

Federal Rules of CP state that Service may be made on an individual in the US by leaving a copy of the summons and complaint at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resided there. (no requirement to mail like states, but couldn’t hurt)

Question 14

comparative contribution

Answer 14

Can only bring in third party defendant if you concede some level of liability, if you are claiming they are totally responsible and you have no responsibility then you can’t

Question 15

Work Product Doctrine

Answer 15

Work product of a party or party representative made in anticipation of litigation

Question 16

Torts Strict Liability

Question 17

Torts Products Liability

Question 18

Nuisance / Defamation / Privacy

Answer 18

Invasion of Privacy

1) intrusion upon a person’s seclusion - highly OBJECTIONABLE TO REASONABLE PERSON and thing intruded is PRIVATE
2) False Light - PUBLIC DISCLOSURE of information placing P in FALSE LIGHT which would be HIGHLY OFFENSIVE TO REASONABLE PERSON
3) Public disclosure of private facts - PUBLIC DISCLOSURE of PRIVATE FACTS which disclosure would be HIGHLY OFFENSIVE TO REASONABLE PERSON and NOT LEGITIMATE CONCERN OF THE PUBLIC
4) Appropriation of name or likeness - used name, likeness or identity for D’s BENEFIT (economic or otherwise) without CONSENT and caused INJURY

Defamation

• published a defamatory statement of or concerning the plaintiff that damaged his reputation. if plaintiff is public figure or matter of public concern is involved then must prove FALSITY and FAULT on the defendant’s part.
• FAULT FOR PUBLIC FIGURE is ACTUAL MALICE - knowledge of falsity or reckless disregard

Slander per se - disease, involved his job

Question 19

Third Party Beneficiaries / Assignments

Answer 19

Vesting occurs when beneficiary

1) manifests assent to the promise in a manner invited or requested by parties
2) brings suit to enforce promise
3) materially changes position in justifiable reliance

Promissory Estoppel applies in interest of justice

If contract allows for revocation/change, then vesting can not occur from mere reliance unless reliance was provoked (telling a church they will get it, but not that it was revocable)

Question 20

Parol Evidence

Answer 20

uncle told nephew he would guarantee loan if he coult use tractor for 10 days. uncle told bank as such. bank relied. uncle gave consideration to bank and bank approved. all with no writing.

This would have violated the statute of frauds had it been for the benefit of someone else. but it wasn’t. he wanted them 10 days making it good to go

If contract originally covered goods for more than 500, but modification brought it below 500, don’t need writing

Only bars prior or contemporaneous oral statements for modification, not subsequent

UCC - modification sought in good faith is enforceable without consideration

Question 21

Consideration

Answer 21

(1) a bargained for exchange between parties AND
- must induce detriment
2) an element of legal value to that which is bargained for
- Legal value can be created by promisee incurring a detriment (done something without obligation or abstained from something with right)

gratitude after consideration is not enough

Technical defense - refers to a past obligation that would be enforceable but for a technical defense (statute of limitations, discharge in bankruptcy), a new promise is enforceable if it is written or has been partially performed

Question 22

Offer Acceptance

Answer 22

Silent quilter who accepts information after understanding it was offered with 15% commission in mind is bound to the commission even if she argues that she had another buyer. Reasonable person standard - reasonable person would assume her asking for the name was an acceptance of the prior offer

Question 23

State of mind defenses

Answer 23

Knowingly - knowing a slight risk of serious harm is possible is not enough. Must know his conduct will necessarily or very likely bring about such a result. Knowing of small risk may nevertheless constitute recklessness

Question 24

Arrest; search and seizure

Question 25

Right to counsel; confessions

Answer 25

Refusing to sign something is not the same as refusing to talk without lawyer; oral statements still admissible. Agreement to talk is waiver of right to counsel still admissible even if implied defendant doesn’t understand the evidentiary effect of talking

Request for counsel must be unambiguous and specific

Unrelated crimes - all questioning ends after invokes right to counsel. Can’t ask about something else

So long as adversary judicial proceedings have not started - cops can lie to the lawyer about not questioning him for a while and can fail to inform defendant that lawyer is attempting to see him

Question 26

trial and post-trial rights

Question 27

Judicial Review

Question 28

Separation of Powers

Question 29

Intergovernmental Immunities

Answer 29

Where a federal law has a lower standard for a different reason, the state law can have a higher standard for a different reason.

Implied preemption - intent to occupy field, state law directly conflicts with federal law, or state provisions prevent achievement of federal objectives. Here, federal law only meant to protect farmers, so a stricter law protecting consumers doesn’t run afoul of field or conflict preemption or federal objectives

Question 30

Individual Rights

Answer 30

Non-citizen - policy to hire only citizens -

Contract Rights - Contracts Clause of the federal constitution prohibits states from retroactively and substantially imparing contract rights unless the government act serves and IMPORTANT AND LEGITIMATE GOVERNMENT INTEREST THAT IS REASONABLE AND NARROWLY TAILORED MEANS OF PROMOTING THAT INTEREST

RATIONAL BASIS - challenger has burden of proof that law is not rationally related to a legitimate gov’t interest. If protesting party is non a suspect or quasi-suspect class, law is presumed valid until shown otherwise (old people suing for license forfeiture statute)

Question 31

Presentation of Testimonial Evidence

Answer 31

Witness’s memory may be refreshed by just about anything

Question 32

Impeachment

Question 33

Relevancy; Privileges; Writings

Question 34

Character Evidence

Answer 34

In a criminal matter - character evidence may not be introduced until he has put his character at issue

In a civil matter - Plaintiff may not attempt to prove that defendant acted in a particular way on one occasion in conformity with his reputation as to that behavior. Unless litigant’s character is directly in issue (defamation case)

Question 35

Discovery

Answer 35

Initial Disclosure - party is obligated to disclose, regardless of whether opposing party submits a discovery request, names of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses (unless solely for impeachment)

Question 36

Trial Matters - Filing motions to clerk/judge

Answer 36

default judgment may be entered by clerk if damages are sum certain (without notice if the party hasn’t appeared in any form)

default judgment MUST be entered by judge if damages need be determined (again, without notice if the dude hasn’t appeared)

notice must be at least 7 days before hearing if appeared

Summary Judgment - no dispute of material fact - not sufficiency of evidence, lack of evidence. can occur before discovery, during or any time until 30 days after

Affidavit is evidence sufficient to allow summary judgment

at least 6, less than 12 jurors constitutional, must be unanimous no matter how many

Question 37

Standing

Answer 37

1) has suffered an injury in fact
2) caused by the government
3) that can be remedied by a court decision in her favor

Tax - only have standing for dispute of taxation not how taxes are spent

Question 38

Equal Protection Clause

Answer 38

Government action involving classification of persons will be subject to strict scrutiny if a SUSPECT CLASSIFICATION is involved

Strict Scrutiny for race - beneficial or detrimental (necessary to achieve a compelling gov’t interest - remedying historic racism by gov’t or public counts for some reason)

Strict scrutiny for national origin / alienage - non-citizen hiring requires strict scrutiny unless state gov’t is involved (cops, primary, non-college teachers) because these positions have a direct effect on the functioning of government. Must then be rationally related (all civil service positions requiring citizenship was too broad in one case for; notary got strict scrutiny because her job was mainly clerical) STATE ENGINEER? job is primarily unrelated to gov’t - strict scrutiny

Private party - can do what they want. EPC only protects against state discrimination (probably still violates civil rights nonsense, but not the constitution)

Make sure private party does not constitute state action by performing an exclusive state function or significant gov’t involvement (granting land is not enough) - must affirmative facilitate, encourage, or authorize acts of discrim.

Question 39

Conversion

Answer 39

Interferences with chattel so serious as to substantially reduce value

Measure of damages in conversion is fair market value of chattel at time and place of conversion (forced sale; converter keeps the broken thing)

Question 40

Compulsory

Permissive

Answer 40

Cross claims - Never compulsory - May, but doesn’t have to even with same transaction or occurrence.

claim preclusion applies to same plaintiff against same defendant (reversing roles means you can bring the claim)

Question 41

Statute of Frauds

Answer 41

Goods for > 500
Promise creating interest in Land
in consideration of Marriage
executor to pay debts out of own funds
PROMISE TO ANSWER FOR THE DEBT OF ANOTHER
-promise must be collateral (for benefit of other) not primary (for benefit of self)
PROMISE THAT CANNOT BE PERFORMED WITHIN 1 YEAR

Requires writing to contain

1) identity of party sought to be charged
2) identification of the contract’s subject matter
3) terms and conditions of the agreement
4) recital of consideration
5) signature of the party to be charged or his agent

Question 42

Unilateral contract

Answer 42

Offer from brother 1 to brother 2 to pay 15k if he quits drinking for 10 months - not within the statute of frauds because not dealing with goods/ less than a year. not revocable after brother 2 starts performing. Enforceable even if brother 1 dies. Promissory estoppel is not relevant because this is a valid contract

Question 43

warranty damages

Answer 43

If buyer accepts non-conforming goods, they are entitled to warranty damages - value that they would have received if goods were conforming (difference in value between conforming goods and non-conforming goods) + incidental and consequential damages

Question 44

Multiple Negligence

Answer 44

Simultaneous - (indivisible harm - joint and several

Negligence 1 harm leads to negligence 2 harm - Negligence 1 is liable for 1 and 2, negligence 2 is liable jointly for 2

Original tortfeasor is liable for harm caused by the negligence of third persons when such negligence was a foreseeable risk created by the original tortfeasor’s conduct.

Reasonable care in coming to aid after causing the harm doesn’t protect you. that’s when you’re coming to the aid of someone you have no duty to.

Question 45

ex post facto

Answer 45

retroactive changing criminal law (not civil)

Question 46

Due Process Clause

Answer 46

laws that summarily take (general applicability)

Substantive due process - fundamental right (strict), if nor (rational)

Question 47

Liquidated damages clause

Answer 47

LOST VOLUME SELLER - Not necessary where dealer has unlimited supply and can sell as many as it can - normally compensatory damages would be covered by difference between amount paid to cover and contract price. here, it’s lost profits minus any down payment if there was a failure to deliver (don’t get both)

Question 48

Murder

Answer 48

unlawful killing with malice aforethought

malice aforethought exists if the defendant has any of the following states of mind -

1) intent to kill
2) intent to inflict GREAT bodily harm
3) awareness of an unjustifiably high risk to human life
4) intent to commit a felony

Question 49

subject to

Which obligation grantee expressly assumes

Answer 49

lender can bring personal action against debtor for deficiency (so long as J doesn’t bar deficiency judgments)

Assumption agreement adds liability to the buyer, but doesn’t absolve seller (buyer is primarily liable because they took it over, original mortgage taker-outer is secondarily liable)

Question 50

Reciprocal Equitable Servitude

Answer 50

An injunction against breaching a covenant may be obtained by enforcing the covenant as an equitable servitude. An equitable servitude can be created by a writing complying with the Statute of Frauds concerning a promise that touches and concerns the land and indicates that the servitude exists, as long as notice is given to the future owners of the burdened land. Here, there was a promise that touched and concerned the land and indicated that a servitude existed (the deed restrictions), but the promise was not contained in the supermarket’s deed. Nevertheless, the court will imply the covenant here.

A court will imply a covenant-known as a reciprocal negative servitude-where evidence shows that the developer had a scheme for development when sales began and the grantee in question had notice of the plan. The covenant protects the parties who purchased in reliance on the scheme. Evidence of the scheme can be obtained from the general pattern of other restrictions, and notice can be from actual notice, record notice, or inquiry notice.

Question 51

Presentation of testimonial evidence

Answer 51

judicial notice - criminal case (jury may consider); civil (must accept) - prosecutor’s burden of producing evidence on the fact is satisfied if judicially noticed

Question 52

Tract index v alphabetical grantor-grantee index

Answer 52

Tract - parcel tied
G-G - owner/transfer tied

Notice exists regardless of record type if it is recorded in chain of title. Valid easement may require notice depending on recording statute

Question 53

Hearsay - Statement of present state of mind?

Answer 53

I’m going to my mom’s house this afternoon for her birthday party? Intent to do something in the future is excepted from hearsay as evidence of an intent to carry it out. circumstantial evidence that he did carry it out

Question 54

Plea bargain details as evidence of impeachment

Answer 54

Go for it. A witness may ALWAYS be impeached by evidence of bias on cross, or if proper foundation is laid, by extrinsic evidence

Rule against admitting plea negotiations applies only to offers and withdrawn guilty pleas, after accepted its admissible against a diff. party

Question 55

Accord

Answer 55

new consideration for old contract - suspends old contract, assuming agreed to a new time or new time makes sense and does not discharge until new consideration is tendered.

Question 56

Withdrawal to conspiracy

Answer 56

affirmative act that notifies all members of conspiracy and is done in reasonable time for others to abandon. Don’t need to try to stop them.

Defense to crimes stemming from conspiracy, not to the conspiracy, which has already occured and for which the conspirators are already liable

Question 57

False Imprisonment

Shopkeeper’s privilege

Answer 57

act or omission by defendant that confined or restrained plaintiff to a bounded area, intent by the defendant to do so and causation (foreseeable harm)

shopkeeper- must be for reasonable time for purpose of investigation of reasonable suspicion of crime

Question 58

Profit Appurtenant v Gross

Answer 58

Right to enter and take resources
For the benefit of a dominant estate - appurtenant (not freely transferrable without transfer of property to which it is tied)

In general not tied to land - gross (freely transferrable by deed or devise)

Question 59

Strict Products Liability

Answer 59

If supplier was a commercial seller of the product, the product was in a dangerous condition when sold and the product caused damage

Car dealer is commercial supplier of tires
Misuse by consumer only defense if unforeseeable

Question 60

Expectation of privacy in a private call -

power of the press - right to publish

Answer 60

Press generally has a right to publish information about a matter of public concern, and this right can be restricted only by a sanction that is NARROWLY TAILORED to further a state interest of the HIGHEST ORDER.

Applies even if the info is obtained unlawfully in the first instance as long as:

1) speech relates to a matter of public concern
2) the publisher did not obtain it unlawfully or know who did
3) original speaker’s expectations of privacy were low (adversaries in a strike negotiation)

Question 61

Rule Against Perpetuities

Answer 61

NO interest in property is valid unless it MUST vet not later than 21 years after a life in being

Applies to executory interests, but not reversionary interests of the Grantor

Charity to charity avoids RAPS, but not a gift to an individual that might divest to a charity.

Question 62

Executory Interest

Answer 62

Cuts short the interest of another

Question 63

Fee Simple Determinable

Answer 63

Given outright, but can be divested back to grantor upon occurrence of an event

Grantor or its estate then has possibility of reverter

Question 64

Fee Simple Subject to a Condition Subsequent

Answer 64

Grantor retains right of entry upon the happening of an event -

Question 65

Authentication of evidence

Answer 65

Reply letter doctrine - can veryify by saying it is responsive to a prior communication

Question 66

Commerce Clause

Answer 66

Congress may regulate

1) the channels of interstate commerce
2) instrumentalities of interstate commerce, as well as persons and things in interstate commerce
3) activities that have a substantial effect on interstate commerce (courts will uphold under this prong if the activity is commercial or economic and it is conceivable that the activity in aggregate will have substantial impact on interstate commerce)

Situations where Congress seeks to regulate noneconomic or noncommercial intrastate activity under the Commerce Clause (e.g., possession of a gun in a school zone) - congress may make a factual finding that the activity regulated has a substantial economic effect on interstate commerce

Question 67

LEMON TEST

Answer 67

ESTABLISHMENT CLAUSE
Congress may regulate if the regulation
1) serves a secular purpose
2) its primary effect neither advances nor inhibits religion and
3) it does not produce EXCESSIVE GOVERNMENT ENTANGLEMENTS with religion