NY BAR REVIEW 7 Flashcards

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1
Q

Reasons to excuse performance

A

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

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2
Q

Crop performance

A

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.

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3
Q

Lien theory of mortgages

A

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.

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4
Q

Title theory of mortgages

A

Severance

Minority Rule

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5
Q

Strict Liability in Trespass

A

Applies only to injured persons rightfully on the property

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6
Q

Admit statement by co-conspirator

A

Only if statement made during and in furtherance of conspiracy

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7
Q

Trespassing animal liability

A

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

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8
Q

Domestic animal

A

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

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9
Q

Repudiation

A

Entitled to sue at once and NOT wait for performance date

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10
Q

Subdivision with similar covenants in ALL deeds

A

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

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11
Q

Goods suitable for RESALE

A

Are built to standard industry specifications

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12
Q

Partial Acceptance

A

Renders buyer liable only for part accepted, NOT entire contract

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13
Q

Contract for goods for five hundred dollars or more

A

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.

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14
Q

Defective product

A

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

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15
Q

New State Citizenship

A

Physical presence in new place AND intention to remain permanently

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16
Q

Diversity of Citizenship

A

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

17
Q

Nuisance

A

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.

18
Q

Sound waves

A

may be a basis for nuisance action

19
Q

Private nuisance

A

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.

20
Q

Public Nuisance

A

Interference with rights of community at large

21
Q

Appropriation of Plaintiff picture or name

A

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

22
Q

Common Law right of privacy

A

NONE in ny

23
Q

Invasions of privacy

DEFENSE

A

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

24
Q

Negligent misrepresentation

A

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.

25
Q

Prenatal injuries

A

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.