Missed MBE Flashcards
Venue: PJ?
only if no other district where case could be brought
last resort
TRO: when to grant?
when nec to prevent irreparable injury AND injury would occur before prelim injunction
TRO Notice req?
no if….
MP specific facts before adverse heard
Writing says all efforts made
MP gives sec + pay if wrong
Mult Ds served at diff times. Can 1 D remove?
Yes if w/o 30 days others consent or join (remove)
Rule 26(g) v. 11?
26(g) - improper cert of discovery, response, obj
11 - improper pleadings
Privileges and immunities clause
prohibit discrimination by a state against non residents
Supremacy clause
federal is the floor, state can be stricter
Statute must be reasonably related to legit gov interest
Exception to contributory neg?
Last clear chance: person w/ last chance to avoid and fails is neg
Defense to others: stranger being harmed??
Can use reas force
If mistake of degree of danger to 3p — defense of others may still apply
Belief in need to use force must be reasonable
Assumption of the risk
P denied recovery if he assumes the risk of danger caused by D
P knows risk (or average person would clearly appreciate) + voluntarily goes ahead and faces risk
Mutual mistake
both parties mistaken at K formation
voidable by adverse if: basic assumption, material effect (not value), adverse if not assume risk
Unilateral mistake
K still formed UNLESS non mistaken pty should havve known + mistaken party did not bear risk + material or clerical error
then voidable by adverse
Misunderstanding
Neither/Both aware: no K unless BOTH ptys intend same meaning
One party aware: binding based on ignorant pty meaning
Illegality
illegal subject matter: VOID
illegal purpose: VOIDABLE
Misrepresentation
reas relied on misrep + material
Material: induce reas person to agree + maker know likely to induce
Undue influence
voidable by vic: susceptable to pressure + excessive pressure
confidential/caregiver relationship
When can specific performance bet granted?
Valid K, inadequate remedy at law, enforcement feasible, no defenses
inadequate remedy at law MOST important
ex: cannot predict how long mom will live
Expectation damages
put u in position had K been performed
forseeable + reasonbly certain
K price - what you already recieved + addt. costs
When can a Seller make selection for Buyer after Buyer doesn’t make a selection?
Buyer’s failure to perform MUST materially affect seller’s ability to perform
Selecting 1 day later NOT material breach. Seller must perform.
Revocation must be ______
Revocation must be communicated (notice required)
not enough to sell to another
What must be shown to recover lost profits?
losses were substantially certain and not speculative
Seller accepts buyer offer by shipping non-conforming goods?
Buyer accepts…counteroffer
Buyer rejects… no K formed + cannot sue for breach
Seller accepts buyer offer by letter THEN ships non-conforming goods?
Breach… Buyer can accept, reject, get damages
Police think Federal Constitution allowed them to record Defendant. State has law that says record cannot be used. Go by GF or state law?
State law
State can offer greater protections that federal law
