Missed Rules Flashcards
Contracts: Gratuious promises
Gratuitous promises without consideration are not enforceable.
Crim: Accessory after the fact
An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to help the felon escape trial, arrest, or conviction.
Crim: Self-defense (excuse)
Self-defense is an excuse for battery
Property: Adverse Possession and Recording Acts
Recording acts do not protect BFPs against a title that was acquired through adverse possession becuase there is no document that the possessor could have recorded.
Agency: General Definition of an Agency Relationship
Agency is a fiduciary relationship that exists between an agent and principal where the agent acts on the principal’s behalf and is subject to the principal’s control.
Secured Transactions: Definition of Equipment
Goods other than inventory, farm products or consumer goods are classified as equipment.
Secured Transactions: Definition of Accession
Accessions are goods that are physically united with other goods in such a manner that the identity of the original goods is not lost.
Secured Transactions: SI in Accessions
A security interest in goods that is perfected before the goods become accessions continues after the goods become accessions.
Secured Transactions: SI in Accession vs. SI in the whole
Article 9 makes an exception that a security interest in an accession is subordinate to a security interest in the whole which is perfected by compliance with the requirements of a certificate of title statute.
Corporations: Fiduciary Duties of Directors
Directors owe a corporation the fiduciary duties of loyalty and care.
Corporations: Duty of Care
Duty of Care: The duty of care is met if directors manage the corporation to the best of their ability in good faith, with the care that a reasonably prudent director in a like position would exercise, and in a manner reasonably believed to be in the best interests of the corporation.
Corporations: Business Judgment Rule: Interested Director
The business judgment rule does not shield an interested director from liability.
Corporations: Duty of Loyalty
The duty of loyalty prohibits profiting at the expense of the corporation.
Corporations: Interested Director Transaction
A conflicting interest will not be set aside unless the interested director discloses all material facts and the deal is approved by a disinterested majority of directors or the shareholders, or the transaction was fair and reasonable at the time it was made.
Corporations: Articles of Incorporation, Exculpatory Provision
A corporation’s Articles of Incorporation may include an exculpatory provision shielding its directors from liability to shareholders for money damages by failing to properly exercise their duties as directors. There are limitations on these provisions including when the directors received an improper personal benefit, engaged in intentional misconduct or violations of law, or in some states breached a fiduciary duty of loyalty or acted in bad faith.
Civ Pro: Motion for Relief from Judgment
A court may relieve a party from a final judgment or order based on fraud, misrepresentation, or other misconduct of an adverse party, and such a motion must be made within a reasonable time not to exceed one year.
Contracts: Performance
Performance at common law means each party’s duty to perform is conditioned on the other party’s performance. If a party fails to perform either completely or substantially then the other party is relieved from performance.
Contracts: Substantial Performance
In evaluating whether performance was substantial, the courts consider factors including the amount of the contract performed, hardship to breaching party, circumstances of breach, and whether the breach was willful.
Contracts: Material Breach
Where time is of the essence under the contract, the breach is considered material and is unexcused.
Contracts: Remedy for Breach of Contract
For breach of contract, the injured party may be entitled to expectation damages. Actual or expectation damages seek to put the nonbreaching party in the position he would have been in but-for the breach.
Contracts: Calculation of Damages
Calculation of these damages aims to provide the nonbreaching party with the benefit of his bargain.
Contracts: Consequential Damages
Contract damages must be foreseeable to be recoverable. This takes into consideration damages that are a foreseeable consequence of the breach, i.e., consequential damages.
Contracts: Consequential Damages: Lost Profits
Courts are reluctant to award lost profits to new businesses since such profits are generally too speculative to meet the standard of reasonable certainty.
Crim: Malice Aforethought
Malice aforethought requires a killing with the (1) intent to kill, (2) the intent to inflict great bodily harm, (3) the intent to commit a felony, (4) a depraved heart or (5) with reckless disregard or a high degree of indifference to the value of human life.
Crim: Depraved Heart Murder
In instances where a person recklessly causes the death of another, the individual may be charged with “depraved-heart” murder if the person acted with extreme indifference to human life.
Crim: Involuntary Manslaughter
Involuntary manslaughter is an unintentional killing of another.
Crim: Murder Causation
The conduct must be the actual (but-for) and proximate (foreseeable) cause of the resulting death.
Crim: Duress (MPC)
Under the Model Penal Code (MPC), the affirmative defense of duress is defined as a threat that a reasonable person would be unable to resist.
Property: Fee Simple Determinable vs. Fee Simple Subject to Condition Subsequent
Where a conveyance is ambiguous, the court has held that there is a presumption of a fee simple subject to condition subsequent. This is based on the court’s reluctance to find a forfeiture.
Property: Partially Condemned Leases
Obligated to pay full price, but entitled to share in the condemnation award
Torts: Comparative Contribution
Each defendant found to be at fault for an indivisible injury is liable to the plaintiff for the entire amoung of the damages
Property: Hold-over Tenant
Landlord may (i) treat hold-over tenant as trespasser and evict him, or (ii) bind tenant to a new periodic tenancy
Evidence: Part of Statement Introduced
When part of a statement is introduced into evidence, the adverse party may introduce any other part of the statement, which in fairness ought to be considered
Crim: 6th Amendment Right to Counsel: Grand Jury Proceeding
No right to counsel at grand jury proceeding
Torts: Strict Liability: Source of Injury
The damage to the plaintiff must have come from specific danger of activity
Torts: Exception to Negligence Per Se
Exception to negligence per se if compliance with statute is more dangerous than non-compliance
Torts: Owners of Land: Duty to Those Outside Premises
Owe a duty of care to those outside of the premises within a foreseeable zone of danger
Civ Pro: Post-judgment JMOL: Contents
The post-judgment JMOL is limited to the grounds raised by intial JMOL
Civ Pro: Post-Judgment JMOL: Timing
A renewed JMOL must be made within 28 days of entry of judgment
Civ Pro: Post-Judgment JMOL: Grounds for Granting
A post-judgment JMOL may only be granted if court finds that a reasonable jury would not have legally sufficient basis to find for that party
Civ Pro: Post-Judgment JMOL: Evidence
Court must view evidence in light most favorable to the non-moving party
Civ Pro: Post-Judgment JMOL: Weight of Evidence
When ruling on a renewed JMOL, judge is not allowed to weigh evidence or judge credibility of witnesses
Civ Pro: Motion for a New Trial: Grounds for Granting
A court may grant a new trial based on a serious error during trial. This includes a verdict that goes against the weight of the evidence, an excessive verdict, a legal error in an instruction to the jury, misconduct by the jury, etc.
A court may not grant a new trial on the ground that the verdict is against the weight of the evidence unless there is a serious miscarriage of justice.
Misconduct during the voir dire process warrants a new trial
Property: Covenants for Title
Present covenants: seisen, right to convey, and against encumberances
Future covenants: quiet enjoyment and warranty
Property: Names of Future Interests
Held by the transferor: (1) Possibility of reverter, (2) right of reentry, or (3) a reversion.
Held by third party: (1) a contingent remainder, (2) a vested remainder, or (3) an executory interest.
Property: Public v. Private Necessity
Public Necessity: A defendant can raise the defense of public necessity if they acted to avert an “immient public disaster.” It is a complete defense
Private Necessity: Private necessity can be a defense when the action was to prevent serious harm to a limited number of people. Under private necessity, the actor must pay for any injury they cause (unless the act was to benefit the property owner).
Torts: Comparative vs. Contributory Negligence
Pure Comparative Negligence: The plaintiff’s contributory negligence is not a complete bar to recovery. Rather the trier of fact weighs the plaintiff’s negligence and reduces damages accordingly.
On the MBE, assume that a pure comparative negligence applies unless the question states otherwise
Partial Comparative Negligence: Still bars the plaintiff’s recovery if their negligence was more serious than the defendant’s negligence.
Contributory Negligence: Plaintiff is bared from recovery if any percent negligent
Con Law: Definition of State Actors for the Purpose of the Equal Protection Clause
Private actors are not considered state actors unless the private actor is performing an exclusive and traditional state function or there is significant entanglement between state and private actors.
Con Law: Gender Intermediate Scrutiny
Intermediate scrutiny requires the state to show that the discrimination is substantially related to an important government interest. The state must also show that there is an exceedingly persuasive justification.
Evidence: Relevance Definition
Evidence is relevant if it tends to make a fact more or less probable than it would be without the evidence. All relevant evidence is admissible unless it is excluded as being unduly prejudicial, a waste of time, will confuse or mislead the jury or the issues, etcetera.
Evidence: General Admissibility of Character Evidence
Even when relevant, character evidence is not admissible in a civil trial unless character is substantively at issue in the case.
Evidence: Refreshing Recollection
A witness must testify from the basis of his current recollection. A witness cannot read from a document. A writing or document may be used in certain circumstances to refresh the recollection of the witness. The writing or document used by the witness cannot be admitted as evidence or read to the jury unless it was introduced by the adverse party (i.e., the party who has not used the writing to refresh the witness’s recollection).
Torts: Duty to Aid or Act as Rescuer
There is no general duty to come to the aid of another absent a special relationship or being the cause of the hazardous situation. When one individual aids another, liability will not attach unless the individual fails to exercise reasonable care to secure to the safety of the other, or discontinues aid leaving the other in a worse position.
Wills: Undue Influence
Where there is a finding of undue influence, a court may invalidate the entire will or only the portion of the will that was tainted by the undue influence.
Undue Influence arises when a party exerts such influence that it overcomes the free will of the testator causing the testator to make a donative transfer that would not have otherwise been made. To establish undue influence, the party contesting the will has the burden of establishing that the testator was susceptible to undue influence; the influencing party had the opportunity and disposition to exert such influence over the testator; and the will appears to be the product of undue influence. In evaluating whether the testator was susceptible to undue influence, courts consider the age, personality, physical and mental health, and one’s ability to handle business affairs.
In many jurisdictions, a presumption of undue influence arises when there is a confidential relationship between the testator and the alleged influencer and also suspicious circumstances surround the drafting of the will. If this arises, the burden shifts to the proponent of the will to prove that the will was not a result of her undue influence.
