Newer Flashcards
What is the one situation when you can recover in negligence for pure economic loss
Negligent misrepresentation
When is a treatise, periodical or pamphlet admissible for the truth of the matter
Only if it is connected to expert witness testimony
When is a law that impairs state contracts ok
if it 1) serves a significant and legitimate public purpose and 2) if the impairment is reasonable
Can you introduce evidence of a witness’s reputation for truthfulness when their testimony contradicts someone else’s?
No- not until the witness is impeached
One harmless error is not grounds for reversal but….
Cumulative effect of multiple harmless errors may warrant reversal
if the law in question is a civil penalty, would negligence per se apply
NO
The firm offer rule to hold an offer open for the sale of goods only applies to who
Merchants
Is a promise to hold and offer open when both parties are NOT MERCHANTS enforceable (UCC)
No
What is the equity of redemption
A mortgagor’s right to redeem a mortgage by paying the past due amount prior to foreclosure. Any agreements that impair the right to redeem are invalid for clogging the equity of redemption
Does the Priviledges and Immunity clause apply to corporations?
NO- only the Dormant Commerce clause applies to both individuals AND corporations
what can Prior CONSISTENT statements be used for
1) to refute allegations of improper motive OR
2) to rehab credibility
in a contributory negligence jx, would P’s own negligence bar recovery IN STRICT LIABILITY
no
Does jeopardy attach at prelim hearings?
NO- so that if you get dismissal at prelim for lack of probable cause, you can still have grand jury indictment for same person, same issues.
IF you are filing a statement to perfect a security interest, where must it be filed
IN the state where the buyer resides
What is the EQUITABLE DEVIATION DOCTRINE
provision of a trust can be change IF THE change will further the purpose of the trust and IF it is because of circumstances not anticipated by settlor
if something is a legal impossibility, is it a crime?
NO
is an impeachment conviction open to review - thru a writ of certiori
NO
A burlary suspect who fails to complete the burglary is also guilty of….
Attempted larceny
Ways Personal Jurisdiction can be established
1) specific jurisdiction: minimum contacts/fair play and substantial justice- due process and state long arm statute
2) general jurisdiction- d has continuous/systematic contacts w forum state so that D is essentially at home there- domicile
A contract for “permanent employment” can be terminated when and by who
Terminated any time by either party for any reason. Essentially working “at will”
Can jurors determine the genuineness of handwriting based on comparisons to authenticated samples
Yes
Do identical cross offers form a contract
NO
if a party’s assent to a contract is induced by fraudulent or material misrepresentation, what happens to the contract
Voidable
Maximum number of deposition a party can take without getting leave from ct
10
is there a limit on the number of Request for production of documents you can serve on parties
NO
Negligent intervening acts are generally ____
foreseeable- i.e don’t break the chain of causation
Can a property crime like larceny be for intangible property?
NO.. (I.e you can’t have larceny for trade secrets)
Do sentencing factors require proof beyond a reasonable doubt
No, not unless the factor would increase the criminal penalty BEYOND THE STATUTORY MAXIMUM
What type of damages can you usually NOT get in contracts
punitive damages (unless there is underlying tort)
Disclaimers of warranties must be _____
conspicuous
a seller saying a product is perfect for exactly the job you want to do is which warranty
Implied warrant of fitness for particular purpose
If a buyer rightfully rejects goods or revokes their acceptance, what can he get
Damages
statements for medical diagnosis or treatment are allow in evidence if they say what
How a person was injured but NOT who injured the person
time limit to move for summary judgement
Anytime up to 30 days after the close of discovery
can cases on partisan gerrymandering/ redistricting to favor a political party - be heard by the supreme court
No- they would be a non justiciable political question
if after the case is over, the law pertaining to the case has changed, what motion can you make
Motion to Amend a final judgement- for new evidence or law changes- with 28 days
max number of depositions
10m
max number of interrogatories
15
max number of requests for production
unlimited
an implied warranty or written disclaimer must be ____
very conspicuous- in larger print
If buyer ASSUMES a mortgage, who is liable in default
Both Buyer and original owner
if buyer takes SUBJECT to the mortgage, who is liable in default
Just original owner
when does physician’s failure to disclose risks of a treatment = liability for negligence
1) if the failure to disclose caused patient to consent to treatment he wouldn’t have otherwise
AND
2) if the undisclosed risk materialized and caused the patient HARM
If a prisoner is suing on his own behalf (not class action suit) for treatment in prison but in the midst, he gets released…
case is moot
Can a court use POST-contract evidence of contract term’s meaning?
Yes
attempted ANYTHING is what type of crime? SO what type of mistake is ok
specific intent crime so UNREASONABLE mistake is valid
2 methods of intestate succession when dying without a will
1) per capita with representation
2) per capita at each generation
Does an expert witness need personal knowledge
No
is a 911 call or statement to police about ongoing emergency, a testimonial statement for the purpose of confrontation clause
NO
The issuing state for child support has excuse jx to modify support as long as ____
At least one parent or kid lives there
In LLC, does allocation of losses follow allocation of profits?
NO- so if profits are divided 80/20, remember that LLC protects against losses so members are NOT liable for losses individually
if corporation acts in oppressive manner to minority shareholders, what can court do
Order dissolution
to prevail in a suit to compel payment of dividend, a shareholder must show what
That the director(s) acted in bad faith in their refusal to pay- i.e that they were motivated by personal interests.
Can be show by:
-hostility of controlling s/h to minority
-exclusion of minority from employment
-high salaries/bonuses to controlling group
-desire by controlling s/h to buy minority stock as cheap as possible
does right to counsel attach at bail or bond hearing
NO
is a handwritten will always holographic
No- if it is signed and witnessed, then not considered holographic
what is abatement
When assets of the estate are insufficient to pay off all bequests in will. bequests will be reduced in specific order
1) residuary
2) general (fixed $ Amt)
3) specific (identifiable property)
what level of scrutiny for laws regarding campaign EXPENDITURES
strict scrutiny
what level of scrutiny for laws regarding campaign contributions
Intermediate scrutiny
modified comparative jx- plaintiff’s recovery is barred if it exceeds what
50%.
Note- if equal to 50%, she can still recover
to take away a property or liberty right like taking kids from parents permanently, what is burden of proof
at least clear and convincing evidence (must be higher than preponderance)
a trust is valid if it has
a trustee, beneficiary and trust property
signing a contract for sale does what to a joint tenancy
BREAKS IT
indemnification means what
Allows an employer who was liable solely b/c of idiot employee who committed tort in scope of employment, to seek 100% of damage act from that employee
what is the default place for delivery of goods
Seller’s place of business
a private citizen is privileged to arrest or confine someone when
1) a felony has been committed
AND
2) the citizen REASONABLY believes the person committed the felony
Can the court directly impose sanctions on an atty
Yes, and they don’t require the 21 day safe harbor first
a time, place and manner speech law that is CONTENT NEUTRAL must be
-narrowly tailored to serve significant govt interest
-leave open alternative channels of communicaiton
the firefighters rule only bars recovery for negligence that what
that required the rescuer at the scene, it doesn’t cover someone else negligently crashing into them
is there a right to jury trial at the state level for civil cases
NO. 7th am is NOT incorporated against the states
what level of scrutiny for state laws that discriminate against out of state commerce either on their face or in their effect
Strict scrutiny
if state law is not discriminatory against out of state commerce, how can it still be invalidated
If burden on I/c is clearly excessive in relation to state benefits
if the purpose or formation of a contract is against the law, is there any remedy for breach of that contract
NO
under MPC, can theft be of intangible goods
Yes
what is custody for purpose of miranda
- either FORMAL ARREST OR
-physical restraint by police or told by officers he is not free to leave
–> i.e. person would not feel free to leave
If a person is asked to come to police station to answer questions (but they are free to leave), are they in custody for purposes of miranda
NO
what is implied in FACT contract
from conduct
i.e. guy mistakenly paves neighbor’s driveway and the neighbor doesn’t object
What is an implied IN LAW contract
A quasi contract/unjust enrichment. ex. physician treats unconscious person at accident scene then sends bill
claims heard under supplemental jurisdiction do not need to meet amount in controversy but they need what
To be from same transaction or occurrance
Under UCC, a breaching buyer is entitled to what if they made advance payments
they can get back advance payments but offset by seller’s damages (lost profits if high volume seller)
under promissory estoppel, an offer becomes irrevocable if the offer reasonably and detrimentally relies on the offer before ______
acceptance
in forming a contract, if either party intended to make a gift, is there consideration
NO.
So “I promise to give x” is not consideration
who has the burden to prove the chain of custody for evidence is substantially unbroken
the government
do parents have a FUNDAMENTAL right to direct their child’s education/choose what school the kid should attend
Yes so strict scrutiny
what is a novation
A subsequent contract that substitutes a new party for one of the original parties
what are exceptions to the mailbox rule- such that acceptance is valid for these when received
option contract or firm offer
can a co-tenant lease his property interest to 3rd p without other co-tenants consent
Yes, but the third party would possess and use the entire property along with the other co-tenants, and they share the rent
