NY BAR REVIEW 7

Question 1

Reasons to excuse performance

Answer 1

Unanticipated circumstances
Rise in price due to poor crop performance is NOT sufficient to excuse performance under doctrine of COMMERCIAL IMPRACTICABILITY

Question 2

Crop performance

Answer 2

It is risky and variable. Poor crop can result in price increase by virtue of operation of the law of supply and demand. One must be assumed to have anticipated such possibilities and taken such risks.

Question 3

Lien theory of mortgages

Answer 3

NO SEVERANCE. majority rule.
No severance when mortgage executed by second partner so joint tenancy remains intact until first partner’s death.
One partner dies, property passes free and clear to surviving joint tenant.
If one signs mortgage but the other doesn’t, joint tenancy is NOT severed.
Mortgage held only against property one partner had.

Question 4

Title theory of mortgages

Answer 4

Severance

Minority Rule

Question 5

Strict Liability in Trespass

Answer 5

Applies only to injured persons rightfully on the property

Question 6

Admit statement by co-conspirator

Answer 6

Only if statement made during and in furtherance of conspiracy

Question 7

Trespassing animal liability

Answer 7

Owner strictly liable for the harm done by the trespass as long as REASONABLY FORESEEABLE versus and UNFORESEEABLE intervening force

Question 8

Domestic animal

Answer 8

Bull
farm animal
NO strict liability, as long as owner has NO knowledge that animal has dangerous propensities, propensities MORE dangerous than NORMAL for that species

Question 9

Repudiation

Answer 9

Entitled to sue at once and NOT wait for performance date

Question 10

Subdivision with similar covenants in ALL deeds

Answer 10

Mutual right of endorsement each lot owner can enforce against every other lot owner if:
1. Common scheme for development existed at time that sales of parcels in subdivision began.
AND
2. There was notice of existence of covenant to the party sued.

Can enforce as reciprocal negative servitude

Question 11

Goods suitable for RESALE

Answer 11

Are built to standard industry specifications

Question 12

Partial Acceptance

Answer 12

Renders buyer liable only for part accepted, NOT entire contract

Question 13

Contract for goods for five hundred dollars or more

Answer 13

Must be evidenced by writing to be enforceable.
EXCEPTIONS
Specially manufactured goods UNSUITABLE FOR RESALE in seller’s regular course of business, enforceable to extent of acceptance.

Question 14

Defective product

Answer 14

Manufacturer is liable for a defective product EVEN if plaintiff misuses, AS LONG AS misuse is foreseeable .
If misuse is NOT foreseeable, manufacturer wins
Misuse by consumer NOT foreseeable –> find for the manufacturer

Question 15

New State Citizenship

Answer 15

Physical presence in new place AND intention to remain permanently

Question 16

Diversity of Citizenship

Answer 16

above seventy five thousand dollars in controversy
AND complete diversity is required
Each plaintiff MUST be a citizen of a different state from every defendant
This is determined upon filing suit
NOT at cause of action or service of process

Question 17

Nuisance

Answer 17

It is NOT necessary for majority of population to be affected for there to be a nuisance, but more than one Must be affected.
Nuisance requires an UNREASONABLE interference with property.

Question 18

Sound waves

Answer 18

may be a basis for nuisance action

Question 19

Private nuisance

Answer 19

Substantial and unreasonable interference with use and enjoyment of real property.
If you do not own or rent property, you may NOT pursue claim based on interference with that real property’s use and enjoyment.

Question 20

Public Nuisance

Answer 20

Interference with rights of community at large

Question 21

Appropriation of Plaintiff picture or name

Answer 21

Protected by statute.
Action survives death and may be commenced or continued by estate representative.
Statute does NOT protect corporations or partnerships.

Question 22

Common Law right of privacy

Answer 22

NONE in ny

Question 23

Invasions of privacy

DEFENSE

Answer 23

prior written consent
Photographer work exhibit, unless continued after written notice of objection
Goods or literary, musical, artistic production that manufacturer, dealer, author, composer, artist, has sold or disposed of with his name, pic, portrait used in connection therewith

Question 24

Negligent misrepresentation

Answer 24

For defendant to be held liable for negligence to non contractual parties who rely on misrepresentation , show awareness that statement or representation was to be used for a particular purpose.
Reliance by known party in furtherance of purpose AND some conduct by defendant demonstrating defendant’s understanding of the party’s reliance.

Question 25

Prenatal injuries

Answer 25

Child must be born alive. If child injury caused by tort committed against mother before child conceived, NO action If, as a result of prenatal injuries, child is stillborn, NO action for wrongful death.