NY BAR REVIEW 2 Flashcards
Standard measure of damages contracts for sale of land
If vendor cant deliver good title because of defect of which was unaware, damages are the down payment plus reasonable expenses.
Consideration
Non compete agreement signed by at will employee or independent contractor AFTER employment has begun DO NOT require new consideration. Continued employment is consideration. New consideration is required if employee has contract because employer would have preexisting duty to continue employment.
Specific performance covenant NOT to compete
Non-compete clause in employment contract NOT favored and enforced only to extent reasonable and necessary to protect valid business interests.
Discharge by Release
Permitted- any claim to be released by written instrument without consideration.
Partial discharge by modification of contract
No consideration needed if modification is in writing and signed by the party to be charged or their agent
Statute of Frauds
AGREEMENTS
Within the statute:
1. promise to pay discharged debt
2. assignment of insurance policy or promise to name beneficiary
3. contracts to pay commission or finder’s fee.
unless attorney auctioneer, licensed real estate broker is involved.
Main purpose rule
Promisor required to come under independent duty of payment irrespective of liability of principal
Intent in land
EQUAL DIGNITIES RULE
Principal agent relationship
Agent must be authorized in writing or principal must ratify
Effect of performance on contracts
Statute of frauds NOT applicable where there has been part performance of lease agreement
Right to terminate within year
If party seeks enforcement and is only one who held right to terminate, contract is within statute of frauds
Lifetime contracts
Within statute of frauds because by its terms such contract is NOT performable within a year
Substantive and procedural unconscionability
Determination of unconscionability requires a showing that contract was procedurally and substantially unconscionable when made
Mental Incapacity
Unadjudicated incompetent, contract NOT voidable unless incompetent can restore other party to previous position.
Adjudicated incompetent, contract VOID
Parents’ obligation to furnish necessaries
Infant liable on contract for necessaries if has NO other way to obtain.
If infant resides with parent or guardian who supports, infant wont be bound by contract that would be considered for necessaries.
Large lot zoning
May be construed as attempt to exclude certain people from community.
To overturn it, plaintiff must show 1 of 3:
ordinance enacted with exclusionary purpose.
ordinance ignores regional needs and has unjustified exclusionary effect.
local board didn’t provide properly balanced and well ordered plan for community and didn’t give consideration to regional needs and requirements.
Standing to challenge in zoning
Members of property owners’ association, even if NOT owning affected land, affected by adverse decision have standing to sue.
Associations CANNOT assert damages claim on behalf of individual members arising out of alleged zoning abuses.
Unconstitutional takings and exactions
Actual appropriation or taking by title or govt occupation or management is required before will apply principles of constitutional limitation or taking.
Complaining landowner must establish BEYOND REASONABLE DOUBT that under ordinance, he cannot obtain reasonable return under any use other than public or quasi public use permitted by ordinance.
Deficiency judgment
If sale proceeds are less than judgment in foreclosure action and mortgagor has been personally served in foreclosure action, mortgagee can ask court for deficiency judgment.
If no demand made for deficiency within 90 days of sale proceeds, regardless of amount, are deemed to be in full satisfaction of mortgage debt.
Mortgage transfer without note
Assignment of mortgage without note is VOID.
Assignment, mortgage ALWAYS FOLLOWS THE DEBT.
Race notice statute
Race notice jurisdiction
Statutory special warranty deed
Bargain and sale deed
Statutory redemption
Equitable right of redemption only PRIOR to sale.
NO statutory right of redemption AFTER sale, regardless of who buys at sale.
Foreclosure
Foreclosure by action in equity and sale, where property is sold and proceeds are distributed among interested parties.
Strict foreclosure, action in equity to compel parties entitled to right of redemption to exercise it by paying mortgage debt within reasonable time, or be forever barred on right of redemption.
Lien theory
follow the lien theory
