NY BAR REVIEW 3 Flashcards
Casualty Insurance
Right to cover full purchase price and seller allowed to keep insurance proceeds because insurance policy is PERSONAL contract between seller and insurer, absent express agreement to contrary.
Buyer can obtain insurance proceeds ONLY IF buyer PAID premiums.
Doctrine of equitable conversion
Risk of Loss
Uniform vendor and purchaser risk act places risk on SELLER unless buyer has LEGAL TITLE or POSSESSION at TIME OF LOSS.
First degree arson
Intentionally causing explosion or fire by incendiary or explosive device intentionally damaging building or motor vehicle with knowledge that nonparticipant is present in building or motor vehicle or circumstances such that person’s presence therein is reasonable possibility.
Nonparticipant need NOT be injured.
Second degree arson
Intentionally damaging building or motor vehicle by intentionally starting fire with knowledge that nonparticipant is present in building or motor vehicle or circumstances are such that person’s presence therein is reasonable possibility. Nonparticipant need NOT be injured.
Third degree arson
Intentionally damaging building or motor vehicle by intentionally starting fire or causing explosion.
Affirmative defense is all persons with possessory or proprietary interests in property consented, defendant’s intent was to cause damage for lawful purpose and defendant had no reasonable ground to fear for safety of another person or fear damage to another building or motor vehicle.
Fourth degree arson
Recklessly damaging building or motor vehicle by intentionally starting fire or causing an explosion.
Affirmative defense is defendant has sole possessory or proprietary interest in property.
First degree burglary
Burglary of DWELLING or motor vehicle with aggravating factors:
Defendant injured nonparticipant or defendant was armed.
If display of firearm is part of charge, defendant has affirmative defense.
Show instrument was NOT a weapon or weapon was NOT loaded.
Second degree buglary
Knowingly entering or remaining unlawfully in building with intent to commit a crime therein and building is a dwelling or defendant injured nonparticipant or defendant was armed.
Third degree burglary
Knowingly entering or remaining unlawfully in building with intent to commit a crime therein.
Burglary
Includes remaining unlawfully as well as entering (unlike common law).
Breaking is breaking and entering.
Intent to commit ANY crime, NOT limited to a felony commission.
Building is NOT required to be a dwelling.
NOT required to be committed at night.
Criminal Tampering
Without reasonable belief in the right to do so, person tampers with another’s property with intent to cause substantial inconvenience or regardless of intent, tampers with property of utility company.
First degree criminal mischiel
Intentional damage of another’s property by means of explosion
Second degree criminal mischief
Intentional damage of another’s property exceeding 1500 dollars
Third degree criminal mischief
Intentional damage exceeding 250 dollars of another’s property OR breaking into motor vehicle with intent to steal property and MUST have three or more previous convictions of criminal mischief in past ten years.
Fourth degree criminal mischief
INTENTIONAL damage of another’s property.
RECKLESS damage exceeding 250 dollars of another’s property.
Participation in destruction of abandoned building OR
Intentional disabling of phone while it’s being used to call for help.
Malicious mischief
Criminal mischief when without reasonable belief in right to do such, RECKLESSLY or INTENTIONALLY damages property of another.
Property of another includes property jointly owned by one plus another.
Limitation on offeror’s power to revoke options
By statute, if offer in writing signed by offeror, and states offer is irrevocable, offer is IRREVOCABLE during time stated or for reasonable time, even if offer NOT supported by consideration.
Part performance
True unilateral contract offer
Offer can be revoked UNTIL performance is COMPLETE.
Silence as acceptance
Unsolicited goods are Unconditional gifts
Method of acceptance
Absent indication to contrary, offeror authorizes acceptance only by means of communication used to communicate offer
Past consideration
Moral consideration
Past consideration is binding if promise in writing , past consideration expressly stated, past consideration can be proved and writing signed by promisor.
Promissory estoppel
Damages
Prevailing on promissory estoppel claim entitles the party to out of pocket expenses or reliance damages rather than expectation damages
Fraudulent misrepresentation
Fraudulent inducement
In addition to avoiding contract, party who fraudulently induced into making contract may bring action for damages.
Fraudulent inducement elements are false misrepresentation of material fact, known by utterer to be false, made with intention of inducing reliance and forbearance from further inquiry, that is justifiably relied upon and results in damages.
Infant
Infant or Minor is different ages for different areas of law.
In contracts under eighteen is an infant.
Minor emancipated by marriage or consent of parents DOES NOT remove incapacity of infancy for contracts.
