NY BAR REVIEW 7 Flashcards
Reasons to excuse performance
Unanticipated circumstances
Rise in price due to poor crop performance is NOT sufficient to excuse performance under doctrine of COMMERCIAL IMPRACTICABILITY
Crop performance
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.
Lien theory of mortgages
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.
Title theory of mortgages
Severance
Minority Rule
Strict Liability in Trespass
Applies only to injured persons rightfully on the property
Admit statement by co-conspirator
Only if statement made during and in furtherance of conspiracy
Trespassing animal liability
Owner strictly liable for the harm done by the trespass as long as REASONABLY FORESEEABLE versus and UNFORESEEABLE intervening force
Domestic animal
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
Repudiation
Entitled to sue at once and NOT wait for performance date
Subdivision with similar covenants in ALL deeds
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
Goods suitable for RESALE
Are built to standard industry specifications
Partial Acceptance
Renders buyer liable only for part accepted, NOT entire contract
Contract for goods for five hundred dollars or more
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.
Defective product
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
New State Citizenship
Physical presence in new place AND intention to remain permanently