Oh Shit Topics Flashcards
Requirements for a Restrictive Covenant Burden to Run
1) writing
2) intent to run with the land
3) touch and concern the land
4) vertical and horizontal privity
5) notice
Requirement for benefit of restrictive covenant to run
1) writing
2) intent
3) touch and concern
4) vertical privity
Equitable Servitude Burden
You get an injunction NOT damages
1) writing
2) intent
3) touch and concern
4) notice
Equitable servitude benefit
1) intent
2) touch and conern
Common Scheme Doctrine
1) when sales began, the subdivider had a general scheme or residential development which included the defendant’s lot (plat, general pattern, oral representation to early buyer)
2) Notice (AIR)
Basic Requirements of Agency Formation
Consent of both parties that the agent will act on the principal’s behalf
Control – principal control over agent
When is an agent liable for a contract made on behalf of the principal?
Agent had no actual or apparent authority to enter into the contract for the principal
The principal is undisclosed or partially disclosed
3 Steps of Dissolution of a Partnership
Dissolution
Winding up
Termination
Scope of Employment
1) Expressly authorized by the employer
2) Of the same nature as the employee’s job and motivated by a desire to serve the employer
Domestic Relations Exception to Jurisdiction
Generally federal courts will not take jurisdiction over action involving the issuance of a divorce decree, alimony, or a child custody decree.
The key is issuance. Will enforce a previously entered decree or judgment.
Joinder Requirements
1) some claim is made by each plaintiff and against the defendant relating to or arising out of the same transaction or occurrence
2) a question of fact or law common to all parties
Profit Presumption
A person who receives a share of the profits is presumed to be a partner unless the share is to repay a debt.
Issue Preclusion Definition
Issues that are actually litigated and decided and essential to the final judgment in a previous case cannot be litigated again.
Issue Preclusion Elements
1) Final judgment on the merits
2) issue actually fully litigated
3) issue was essential to the judgment
4) Due Process – used against someone who was a party in case 1 or in privity with someone in privity with someone in case 1
Mutuality Rules
Nonmutual defensive issue preclusion – person using preclusion was not a party to Case 1 and is the defendant in case 2
Nonmutual offensive issue preclusion
– person using preclusion was not a party in case 1 and is the plaintiff in case 2
Use fairness factors
1) full and fair opportunity to litigate in Case 1
2) party to be bound had strong incentive to litigate Case 1 (if small sum, less likely)
3) Party seeking to use issue preclusion could have easily joined Case 1
4) no inconsistent findings on the issue
Claim Preclusion Elements
1) Same plaintiff and same defendant
2) valid final judgment on the merits
3) Must be the same claim (same T/O)
Valid Final Judgment Requirement
Unless the court said the judgment was “without prejudice” any claim is on the merits unless it was based on
1) lack of PJ/SMJ
2) improper venue
3) failure to join an indispensable party
Final Judgment Rule
The losing party has a right to appeal if the court’s order is a final judgment.
A final judgment determines the merits of theentire case.
When does notice of an appeal need to be sent?
Within 30 days from entry of the judgment
Interlocutory Appeals of Injunctions as of Right
Orders granting, modifying, or refusing preliminary or permanent injunction are reviewable as of right despite the order not being final.
Does not include TROs
Interlocutory Appeals Act
A district judge certifies that it involves a controlling issue of law
As to which there is substantial ground for difference of opinion and
The court of appeals agrees to hear it
Collateral Order Doctrine
The appellate court has discretion to hear an appeal on an issue if that issue
1) is distinct from the merits
2) involves an important legal question and
3) essentially unreviewable if parties await final judgment
Certification of Class Actions Reviewablity
A court of appeals has DISCRETION to review an order granting or denying certification of a class action
Required initial disclosures
1) Identities of person with discoverable information that the party may use to support claims or defenses (names, telephone numbers, addresses)
2) Docs and things that the party may use to support claims or defenses
3) calculation of claims
4) insurance
Scope of Discovery
Nonprivileged information that is relevant to any claim or defense and proportional
Profits
A profit in land is a the right to enter and extract something from the land
Creation of Easements and Profits
PING
Prescription
Implication
Necessity
Grant
Transfer of Easements
Appurtenant – automatically transfer to the owner of the dominant estate. Can only bused by the owner of the dominant estate.
Gross – does not automatically transfer to a subsequent owner unless commercial in nature.
Transfer of Profits
Profits appurtenant cannot be used by a non-owner of the dominant estate
Profits in gross can be transferred
Fundamental Rights Standard
Strict scrutiny
Necessary/narrowly tailored to serve a compelling governmental interest
Fundamental Rights Listed
Interstate Travel and not be discriminated against in services when you move to a state
All First Amendment Rights
Voting
Marriage
Procreation
Contraception
Rights of Parents
Keeping an extended family together
reading obscene material
Bear arms
Privileges and Immunities
Forbids discrimination by a state aginst nonresidents exercising important commercial activities like pursuit of a livelihood or fundamental rights
Doesn’t apply to corporations and aliens.
Standard for Evaluating Privileges and Immunities
Necessary to achieve an important government purpose and no less restrictive means available
Dormant Commerce Clause
Violated by
1) facial discrimination against out of state commerce (unless market participant or there’s an important state interest with no reasonable alternatives like protecting fisheries from parasites)
2) Nondiscrimination but burdens commerce – invalid if the burden outweighs the state’s interest
Express preemption
A federal law may expressly say that the states may not adopt laws concerning the subject matter of the federal legislation.
Narrowly construed
Implied Preemption
Conflict v. federal law requirement such it is impossible to follow both, you go with federal
State prevents achievement of federal objective – the federal law preempts
Field preemption
A valid federal law may impliedly occupy the entire field, thus barring any state or local law even if the state or local law is nonconlficitng.
Court looks at the regulatory scheme to determine if Congress intended to preempt the entire field - federal laws are comprehensive or an agency created to oversee the area
Presumption against Preemption
Courts presume no preemption unless clear and manifest purpose of Congress
When is taking a governmental benefit a property interest under the Due Process clause?
There has to be a reasonable expectation of continued receipt
What type of process is required by the Due Process clause
Notice (reasonably calculated to inform the person of deprivation)
Opporutnity to be heard
Neutral decisionmaker
Traditional Public Forum and Designated Public Forum standards for Content Neutral
1) narrowly tailored
2) important governmental interest
3) leave alternative channels of communication
Trad Forum/Designated Pub Forum but non content neutral
Strict scrutiny
LPF and nonpublic forum
Gov forums not traditionally open to public and the govt opens it for specific speech activity – like a classroom or school gym
Govt can regulate for its intended purpose and it must be
1) viewpoint neutral
2) reasonably related to a legitimate govt purpose
If not viewpoint neutral, strict scrutiny
Content Neutral Regs
Both subject matter and viewpoint neutral are subject to intermediate scrutiny
1) advance important interests unrelated to suppression of speech
2) must not burden substantially more speech than necessary or narrowly tailored to further those interest
Defamation – Public Figure
1) false statement
2) published to a third party
3) with actual malice
4) about a public official or public figure
5) damage to the plaintiff’s reputation
Actual Malice Standard
Knowledge it was false or
reckless disregard as to its truth or falsity
Private figure on a public concern
Actual malice standard
Private Figure Defamation
1) false statement
2) identifies the plaintiff
3) published to a third party
4) negligent
5) damage to reputation
Slander Per Se
Defamatory oral statement and no proof of special damages ((pecuniary loss)) needed if
1) attacking business or profession
2) alleging commission of serious crime – usually moral turpitude
3) serious sexual misconduct
4) state that the plaintiff has a loathsome disease
Libel
Defmation in a permanent form – print, TV, podcast
Damages are presumed under the law of libel
Types of Invasion of Right to Privacy (Tort)
Appropriation of name or picture for commerical advantage
Intrusion of affairs or seclusion
Publication of facts in a false light
Public disclosure of private facts
Intrusion on Seclusion
Recover for prying or intruding in a highly offensive to a reasonable person
Can’t recover if it is done in public places
Publication of Facts in False Light
Attribute to plaintiff a fact or view they don’t hold and it must be highly offensive to a resaonble person
1A limit if it is a matter of public interest –> prove actual malice
Public disclosure of Private Facts
Disseminating private facts not on the public record that must be highly offensive to a reasonable person of ordinary sensibilities
If public interest –> actual malice
Intentional Misrepresentation (Fraud)
Misrepresentation of material past or present fact
Knew or believed if was false when they said it or had no basis for it
Intent to induce reliance
Causation (actual reliance)
Justified reliance
Damages – actual pecuniary loss
Duty to Disclose Facts (Tort)
No general duty to disclose facts unless
1) fiduciary relationship
2) selling real property and know plaintiff is unaware of and cannot reasonably detect the material information
3) spoken and utterance deceive the plaintiff
Interference with Business Relations
1) valid k between plaintiff and third party
2) d’s knowledge of relationship or expectancy
3) intentional interference
4) Damages
Privileges to Tortious Interference
1) interfered with the p’s prospective business rather than existing K
3) used commercially acceptable means of persuasion
3) competitor of p seeking same customers
4) financial interest or responsibility for third party or responding to request for advice
Negligent Infliction of Emotional Distress
1) Near Miss case
- zone of danger
- physical symptoms
2) bystander case
- closely related to injured party
- actually present and view injury occur
3) special relationship
- doctor, mortuary official
False Imprisonment
1) confining or restraining the plaintiff (phsyical barriers, force, threats of direct/indirect force, failure to release when duty to do it, invalid use of legal authority)
2) plaintiff is confined to a bounded area
3) Plaintiff must know of the confinement and be harmed by it
Duty to Trespassers
No duty to trespassers
Duty to Known Trespassers
Warn or make safe
1) artificial
2) highly dangerous – risk of death or serious bodily harm
3) concealed
4) known to possessor in advance
Commercial Speech Regulation
Not protected if it is
1) false
2) misleading or
3) about illegal products or services
Any other regulations upheld if
1) substantial govt purpose
2) directly advances that interest
3) narrowly tailored to serve that interest (reasonable fit, not least restrictive here)
Personal Student Speech on Campus
Cannot be censored on campus unless evidence of substantial disruption except promoting drug use on campus
Speech in Public Employment
Unprotected – private concern or make pursuant to official duties, even if on public concern
Protected – public concern but not made pursuant to employee’s duteis
Void for Vagueness
Must give reasonable notice of what is prohibited – more strict for 1A
Overbreadth Regulations Invalid
Void if it punishes substantially more speech than necessary
Facially invalid
Prior Restraints
Court orders or administrative systems that prevent speech before it occurs rather than punishing afterwards (licensing, injunctions)
Content based –> strict
content neutral –> intermediate
Look for a special societal harm
Access to Public Trials
Right must be outweighed by overriding state interest stated in a trial judge’s findings like protecting children who are victims of sex offenses
Duty to Licensees
Come on to property for own purposes (social guests)
Warn or make safe hazardous conditions
1) concealed
2) known to land possessor in advance
Duty to Invitees
Duty to invitees regarding hazardous conditions that are
1) concealed
2) known to land possessor in advance or could have been discovered by reasonable inspection
Attractive Nuisance
1) Dangerous condition on land that owner is or should be aware of
2) owner knows or should know that children might trespass on land
3) condition likely to cause injury (child can’t appreciate risk)
4) expense of remedying it is slight compared to magnitude of risk
The child doesn’t have to be attracted to nuisance to be attractive nuisance
Nonhearsay Statements under the Federal Rules
1) A testifying witness subject to cross-examination prior statements
- prior statement of identification
- prior inconsistent statement made under oath
- prior consistent statement as a rebuttal to charges they are lying or exaggerating
2) Opposing party statements or statements attributable to opposing party
- silence if a party heard and understood, capably of denying, and a reasonable person would deny
- vicarious by agents, employees, authorized persons NOT Co-parties
- co conspirators ok, partners ok
Declarant Unavailable Hearsay Exceptions
Former testimony under oath and the other party had opportunity and similar motive to develop the testimony – NOT GRAND JURY
Dying declaration - homicide or civil case and they believed death was imminent and it was about cause or circumstances of what declarant believed to be their impending death (first hand not opinion or speculation)
Statements against interest (pecuniary, penal, property) - for criminal it must be corroborated
Personal or family history
Offered against party procuring unavailability
What makes someone unavailable declarant?
Dead or disabled
Privileged
refuse to testify despite court order
don’t remember
absent and court can’t get them to attend
Hearsay Exceptions Regardless of Availability
Excited utterance – startling event and under the influence of excitement
Present state of mind - concurrent with perception
State of body - spontaneous declaration of physical symptoms
Medical diagnosis - medical history, past or present symptoms, general cause – can’t accuse a person
Business records –
- regular course of business and regularly keep such records
- at time of event
- personal knowledge or within their duty to make the record
* watch out for double hearsay)
- testify to authenticity or certify
- nonoccurrence can be proved
Official records
- activities of office or agency
- observed pursuant to duty imposed, but not police observations
- in civil or v. govt in crim, but not against crim defendants , records of factual findings
Opinion/reputation
Recorded recollection – first hand, at time event made, testify its valid
Learned treatises – on direct or cross of expert – must be established as reliable and excerpt it relied on by expert
Confrontation Clause Limit on Hearsay
Despite being otherwise admissible, statements will be not be admitted if
1) statement is being offered against the accused in a criminal case
2) declarant is unavailable
3) statement was testimonial
4) no opportunity to cross-examine prior to the trial
What makes a statement testimonial?
Depends primary purpose
Primary purpose for later prosecution
Applies to affidavits or written reports of forensic analysis
To aid in an emergency is NOT testimonial
Impeachment Methods
1) prior inconsistent statements on cross-examination with chance to explain (substantial evidence if it was under oath and they can explain)
- extrinsic evidence can be used if they have opportunity to explain and adverse party examines
2) sensory deficiency
3) convictions - 10 years since release if felony and court has discretion, related to truthfulness no discretion
4) prior bad acts that relate to truthfulness (not arrests)
5) opinion/reputation testimony
6) bias
7) contradictory facts made while testifying on direct– collateral not permitted to bring in extrinsic evidence of
Impeachment of Hearsay Declarant
Don’t need to have opportunity to explain or deny a prior inconsistent statement
Civil Use of Character Evidence
Generally inadmissible to prove propensity.
Can introduce if it is essential element (fraud, defamation, child custody, negligent hiring) – all types of character evidence can be used
Criminal Use of Character
- Defendant has to open the door
- can offer opinion/reputation of good character for a relevant characteristic
- once open, prosecution can cross and ask witness about specific acts, offer opinon/repuation of defendant bad character for that trait
Prosectuion may initiate character if D raised self defense and can use all 3 types of character evidence
Character evidence v. victim
Defendant can offer it, prosecution can then rehabilitate by offering
1) evidence of victim’s good character for that trait (opinion/reputation)
2) defendant’s bad character for that trait
Rape shield
Defendant can only introduce evidence of sex crime victim’s sexual history to
1) show consent
2) challenge causation
Prior misconduct for non-character purpose
Generally inadmissible unless independently relevant
- motive
- identity
- mistake (lack of)
- intent
- common scheme or plan
need to have enough evidence to convince a reasonable jury
Prior sexual misconduct permissible in sex assault or child molestation
Authentication Methods for Tangible
Admission
Testimony
Handwriting
Ancient doc (20+ years old, right condition and place)
Reply letter doctrine - response to comm sent to author
Photo and video – witness says fair and accurate (doesn’t need to be photographer)
unattended camera – in working order
medical equipment – working order, used right, by person who qualified to operate, custodial chain to show no tampering
Oral Statement authentication
Voice id by someone familiar
Telephone conversation - knew things, answered phone when number called, recognized voice, called business number and talked about business
Self-Authentication
Public docs
private records held by public office
newspapers and periodical
official publications
notarized
trade inscriptions
commercial papers
business records, if certieid and give adequate notice
Best Evidence Rule
Must produce the original document, writing, recording or photograph if you are proving the content unless
1) satisfactory excuse for original’s absence
2) witness has personal knowledge
When does Best evidence rule apply?
1) writing is legally operative or dispositive
2) witness’s knowledge came from having read the writing
DOES NOT APPLY IF THE WITNESS HAS PERSONAL KNOWLEDGE
Federal Baseline for Competency
1) personal knoweldge of matter
2) under oath
Opinion Lay Testimony
Has to be based on witness’s perception
helpful to clear understanding of testimony
not based on specialized knowledge
Can be on
general appearance, state of emotion, sense recognition, voice/handwriting, speed of moving object, value of services, rationality of someone’s actions, intoxication
Requirements of Expert Opinion Testimony Admissibility
Qualified
Proper factual basis (personal observation, observing trial, evidence relied on by other experts)
Reasonable probability
Reliable
Judge’s Factors for Expert Witness Reliablity
TRAP
Testing of principal or methodoloy
Rate of error
Acceptance by experts in field
Peer review and publication
Medical Aid Relevance Statement
Statement offering to pay bills or culpability not admissible but fact statements made in relation to it are admissible
Settlement Negotiations Relevance Exception
Can’t be used to
1) prove or disprove validity of amount
2) impeachment via prior inconsistent statement or contradiction
But must be a dispute as to validity or amount of claim and an intention to make a claim
Nontruth Purposes
Circumstantial evidence of state of mind
Effect on the listener
403 Rule
Court has discretion to exclude otherwise relevant evidence if the probative value is substantially outweighed by the risk of
prejudice
misleading the jury
confusing the jury
wasting time
cumulative
What happens when there’s injunctive and damages claims?
Jury finds facts for the damages and then the judge makes conclusion based on the facts the jury found
Do juries have to be excused during a preliminary fact determination?
Its at the discretion of the judge
must exclude if
1) involves admissibility of confession
2) defendant in a criminal case is testifying at the hearing and asks
3) justice so requires
Effect of a Judicial Notice of Fact
Judicial notices are proper for things that are generally known or can accurately and readily be determined
Conclusiveness
civil – conslusive and jury instructed to accept it as conslusive
criminal – jury is instructed that it may find it conclusive. The burden being met
Federal Common law privileges
Attorney-client
Spousal immunity
marital comms
psychotherapist/social work privilege
clergy-penitent
governmental privilege
Attorney-Client
Applies to confidential communications between lawyer-client made during consultation unless privilege is waived or an exception applies
Confidnetial communications are not prior docs, physical evidence or underlying info
Client holds in perpetuity
Exception to attorney client
aid in planning or committing a crime
legal services at issue
dispute between client and attorney
two parties claiming through same deceased client
Work Product
Privileged if made in the preparation of representation, may be breached in discovery if there substantial need and not undue hardship
Won’t be reached if it is personal thoughts, reflections
Physician-Patient Privilege
Only at state level
Had to be a professional relationship between the doctor and patient for purpose medical treatment
acquired for diagnosis
information necessary for diagnosis
belongs to patient and they can waive it
Exceptions to Dr-Patient
patient puts phsyical condition at issue
aiding wrongdoing
breach of duty and dispute between dr and patient
patient agreed in a k to waive
federal case applying federal law of privilege
Spousal immunity
Must be married at time of trial for spouse to raise it
Total immunity from testifying
Confidential Marital Comms
Held by both spouses
Applies to communications made between spouses at the time they were married
Must be made in reliance on intimacy of marital relationship
threats and abuse not privileged and if made in presence of 3rd party not privileged (young kids don’t count)
When do neither spouse related privilege apply?
1) in furtherance of crime
2) legal actions between spouses
3) disputes about crime v. testifying spouse or either’s children
Dead Man Act
Provides that a party or person interested in the event, or her predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased when such testimony is offered against the representative or successor in interest of the deceased.
Extrinsic Evidence of Bad Acts for Impeachment
A party may not impeach a witness with extrinsic evidence of bad acts
This includes documents and testimony of others
Merged causes v. Unascertainable causes
Merged: several causes bring about injury, any one alone would have been sufficient. D’s conduct is the cause in fact if substantial factor in causing the injury
Unascertainable causes – more than one negligent party but only 1 was the actual cause. Ds have burden to show that their negligence wasn’t the cause
Common foreseeable intervening causes
Medical malpractice
rescuer’s negligence
protection or reaction forces
disease or accident caused by the original injury
Pure Comparative fault
Allows a plaintiff to recover no matter how much their negligence contributed to it
This is the default on the bar unless told otherwise
Partial Comparative Fault
You recover if your blame was less than 50%
Joint and Several Liability
A plaintiff can recover fully for damages from either defendant
Contributory negligence
Old common law approach – totally barred recovery
Strict Liability for Abnormally Dangerous Activities
- must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors
- not a matter of common usage in the community
Still need causation!
Strict Liabilty for Products
Merchant
Defective (manufacturing, design, or failure to warn)
Not substantially altered
A foreseeable use
Any foreseeable plaintiff can recover, so they don’t have to be the one who bought it
Implied warranties of merchantability and fitness of a good
1) Merchantability – goods are average acceptable quality and generally fit for the ordinary purpose for which the goods are used . Goods likely to injure even if used correctly violate the warranty
2) Partiuclar purpose – seller has reason or does know that there’s a particular purpose of the goods required and the buyer is relying on the seller’s skill and judgment in selecting on that ground
Private Nuisance
A substantial, unreasonable interference with another private individual’s use or enjoyment of property that the other individual actually possesses or has a right of immediate possession
An abnormally sensitive person can’t recover, its a reasonable standard
Public nuisance
Act unreasonably interferes with the health, safety, or property rights of the community – has to be suffered by public at large
Satisfaction and Release
Satisfaction is a full payment
Release – tortfeasor is released, but others are not unless expressly provided for in the release agreement
Contribution
Defendants who paid more than their fair share in a joint and several liability context can sue to have it apportioned
comparative contribution - in proportion to relative fault
Doesn’t apply to intentional torts
Ancient Documents Rule
For federal rules, applies to all writings, not just dispositive ones like deeds or wills
Admissibility of Real evidene
authenticated by either 1) testimony of witness that they recognize it and 2) evidence that it is in a substantially unbroken chain of custody
if condition material, it must be in substantially the same condition at trial
Adverse Parties Options when a Party Refreshes Recollection
have writing produced at trial
cross-examine the witness about the doc
introduce portions into evidence
if they fail to produce, strike the testimony. If justice requires, declare a mistrial
Past Recollection Recorded
1) insufficient recollection after refreshing
2) had personal knowledge
3) made by witness or adopted by it
4) was fresh at time made
5) witness vouches for accuracy
Admitting Past Recorded Recollections
Only the opposing party can have it submitted to evidence as an exhibit
It can be read into the record though
Impeachment for Prior Inconsistent statements – Extrinsic Evidence
Can impeach for prior inconsistent statements when on the stand and given chance to explain and adverse party is given a chance to examine the witness about the statement UNLESS IT IS AN ADVERSE PARTY’S PRIOR STATEMENT
Bias - Extrinsic Evidence Foundation
Must be asked about facts on cross, then court has discretion to permit evidence even if witness admits the bias
Identification Statements made by Nontestifying declarant
Inadmissible unless fall under a different exception.
Testifying declarant identifications are nonhearsay
Statement against interst
must be unavailable
declarant must have had personal knowledge
must be against pecuniary, penal, or property interest at time made
doesn’t need to be a party
criminal defendant statements against penal need to be corroborated
Common law standard for performance
Substantial performance
Installment contracts
Right to reject when a contract is more limited than a single delivery contract situation.
Similar to substantial performance
can only be rejected if the nonconformity impairs the value of the installment and cannot be cured.
OR
where nonconformity substantially impairs the value of the entire contract.
Accommodation Goods with Notice
Seller ships goods that are non conforming but there’s notice that they are accommodation which operate as a counter offer
If buyer accepts all –> contract
rejects all –> no contract and no damages
Accommodation goods without notice
The shipment is an acceptance of the contract and a breach.
Buyer may accept all, reject all, or accept any number and reject rest.
Buyer may sue for damages
Failure to Send goods ordered by buyer
Breach of contract under the perfect tender rule
Default options for a buyer under the Perfect Tender Rule
Buyer may accept all, reject all, or accept any number of widgets and reject the rest.
Buyer is entitled to damages.
Exceptions to the Perfect Tender Rule
Seller right to cure – can cure by notice and new tender with conforming goods within the time for the original tender
IF buyer rejected when reasonably expected they’d be accepted, upon a reasonable notification to the buyer, has a further reasonable time to make a conforming tender
Installment contracts – must substantially impair value of k or the nonconformity impairs value of installment
No Right to Reject under Perfect Tender
Cannot reject if you’ve accepted by either
1) indicate to the seller the goods conform
2) fail to reject in reasonable time
3) do any act inconsistent with the seller’s ownership
Buyer’s Responsibility for Goods After Rejection
Buyer must not treat them as they own them. Obligated to hold them with reasonable care at seller’s disposition for enough time for the seller to remove them.
If no instructions, can reship them to seller, store them for the seller’s account, resell them for the seller’s account after giving reasonable notice to seller
Buyer’s Right to Revoke Acceptance
May revoke acceptance if goods have a defect that substantially impairs the value to the buyer and
1) accepted goods with reasonable belief that the defect would be cured
2) accepted goods because of the difficulty of discovering defects and the seller’s assurance that the good conformed
Must be in reasonable time of when the defect discovered and before any substantial change to the goods occurs that is not caused by a defect present at the time the seller relinquished possession
Shareholder Right to Review Documents
1) During regular business hours
2) 5 days notice
3) Proper Purpose
4) purpose is stated
5) records directly connected with the purpose
When may a court pierce the corporate veil?
1) corporation is acting as the alter ego of the shareholders
2) failed to follow corporate formalities
3) inadequately capitalized
4) prevent fraud
Applies to members of LLCs too
When can a shareholder compel a distribution?
Ordinarily there is no right to compel a distribution because the Board of Directors as discretion
Can compel if
1) bad faith or dishonest purpose AND
2) funds were available
Requirements for a Valid Proxy
Must be signed on
1) appointment form OR
2) an electronic transmission
No oral proxy appointments
Revocation of Proxy
You can freely revoke a proxy even if the proxy states it is irrevocable. The only exception is if there’s a legal interest or legal right accompanied with the proxy.
Removal of Directors
Shareholders may remove at will directors under the RMBCA and most state laws unless the Articles of Incorporation say otherwise
Common law – for cause
Business Judgment Rule
Directors discharge their duty of care by
1) good faith
2) reasonably believes in best interest of the corporation
3) care that a person in a like position would have reasonably believed appropriate under similar circumstances
Business Judgment Rule Does Not Protect
1) directors that are financially interested in a transaction
2) bad faith
3) fraud or illegality
Duty of Loyalty Forbids Directors From
1) being on both sides of a transaction
2) taking corporate opportunities
3) competing with the corporation
4) trading on inside information
When does ratification of an agent’s conduct occur?
Principal has knowledge of all material facts and afterwords manifests assent through words or conduct
When does an agent have no contractual liability to a third party?
1) had actual or apparent authority
and
2) fully discloses the principal he is acting on behalf of
When are an employee’s intentional torts to be considered within the scope of employment?
1) authorized by employer
2) driven by desire to serve employer
3) natural occurring friction from the type of employment
When can an employer be liable despite no respondeat superior?
1) intended conduct or consequences
2) negligent hiring, training, retaining, supervising, or controlling
3) non-delegable duty to an injured party they had a special relationship with
4) agent had apparent authority, agent’s action taken with apparent authority are the tort, and a third party reasonably relied on it
When will a principal be liable for torts committed by an Independent Contractor?
1) inherently hazardous activity
2) duty is non delegable
3) doctrine of estoppel – held out as agent to third party and reasonably relied on it to their harm
When are share of profits not presumed to indicate partnership?
1) debt
2) salary
3) rent
4) annuity or retirement
5) loan or interest charges
6)for the sale of the goodwill ofbusiness
When does a partner have express actual authority to bind the partnership?
Upon receiving the authority from the partners
1) differences among partners for Acts within ordinary course of business just need majority partner vote
2) extraordinary or out of ordinary course require unanimous
If a partnership agreement is silent on partner express authority, what express authority is there?
Express actual authority for usual and customary matters unless the partners know that other partners might disagree or for some other reason consultation with fellow parters is appropriate
Liability for incoming partners
Not liable for obligaitons before their admission, but at risk for loss of contributions made to satisfy partnership oligations
Partner breach of duty of care
1) grossly negligent
2) intentional misconduct
3) knowing violation of law
What must a partner do to satisfy the duty of loyalty?
1) account for any property, profit, or benefit derived by the partner from the partnership property
2) no adverse interests
3) no competition with the partnership
When is a partner not liable for what would otherwise be a breach of loyalty?
1) partners fully discloses the info and
2) either
- partnership agreement is amended
- all partners consent to transaction
Partners dissociation
1) notice of express will to withdraw
2) occurrence of an agreed upon even in agreement
3) expulsion per the agreement or by judicial means
4) expulsion by unanimous vote, if it’s 1) unlawful to carry on business with that partner or 2) transfer in interest
5) bankruptcy
6) incapacity or death
7) appointment of a personal representative/receiver OR
8) termination of an entity partner
When is dissociation deemed wrongful?
1) breach of partnership agreement OR
2) if partnership is for a definite term or undertaking and the parter withdraws, is expelled by a court, or is a debtor in bankruptcy
General Partnership dissolution occurs
1) notice of desire to withdraw
2) even agreed on in agreement
3) event makes it unlawful to continue
4) judicial dissolution on application of a partner or transferee
Dissolution of Partnership for definite term
1) within 90 days of partner dissociation by death or wrongful dissociation
2) upon express will of all partners to wind up business
3) expiring term or completion of purpose
If a partner dissociates, are other partners obligated to end the partnership?
No, if they ALL vote to waive wind up and termination and instead continue the business
Who may vote at a shareholder meeting?
Only shareholders that are registerd shareholder on the record date (can’t be more than 70 days prior) are entitled to vote
May a director rely on the reasonable advice of advisors?
Yes, if the reliance was reasonable and the advisor or committee was qualified
When is a conflicting business transaction NOT a breach of duty of loyalty?
1) approved by majority of disinterested directors after full disclosure of relevant material facts
2) approved by majority of disinterested shareholders
3) transaction as a whole was fair to the corporation at the time it was entered into
When does a director have a conflict of interest?
Director or family member either
1) is a party
2) has a beneficial interest in the transaction or is so closely linked their judgment may be affected
OR
3) involved with another entity and is conducting business with the corporation and that transaction would normally be brought before the board because of its importance
What is a corporate opportunity and when may a director/officer pursue it?
The opportunity is on the corp. has an interest/expectancy in or is the line of business
and the director/officer first presents it to the board and they board decides not to pursue
Financial ability not a defense
What does a shareholder need to prove when bringing a direct action against a director or officer?
Acutal injury not solely as a result of an injury suffered by the corporation
Requirements for a Shareholder Derivative Suit on behalf of the corp.
1) be a shareholder at the time of the incident
2) be a shareholder throughout litigation
3) fairly and adequately represent the interest of the corp
4) makes written demand upon the corp to take suitable action
5) must wait 90 days after demand unless it is rejected or there’s risk of irreparable harm
Damages to corp, not shareholder
What is required for a member to bring a derivative claim on behalf of an LLC?
Be a member at the time and throughout
Fairly and adequately represent the interests of the LLC
Demand to the LLC to take action
Action may be in a reasonable time after the demand
The demand requirements may be waived if the demand is deemed futile
Amending Articles of incorporation
1) Board of Directors votes
2) notice to each shareholder stating purpose is to vote and adoption by majority of shareholders
Requirements for a Merger
1) Approval by board of directors of both corps AND
2) shareholder approval of both corps by a majority vote
Board of Directors Votes
Majority for ordinary acts (unless Articles of Incorp say otherwise)
Sale of All or Substantially All of Corporate Assets
Fundamental cahnge that is not in the usual and regular course of business
Must
1) adoption by the Board
2) notice to each shareholder - with purpose of meeting
3) adoption by majority of shareholders (unless more required by Articles of state law)
Board Approval
1) majority of directors present (granted quorum present) OR
2) written unanimous consent
Dissenting Shareholder Right of Appraisal
Only applies to fundamental changes – marging or consolidating, transferring substantially all assets, stock being acquired in a share action, converting to another business
Perfecting Right of Appraisal
Notice of shareholders’ meeting must state the shareholders will be entitled to exercise dissenting rights
Before vote, shareholder must file a written notice of objection and right to payment
At vote, must abstain or vote against the change
If action approved, corp must notify within 10 days of approval all who filed intent to demand payment – includes time and place to submit shares
Within the time set by corp, shareholder must make written demand to bought out and deposit stock with corp
Corp must pay the dissenters the amount the corp estimates as the fair value of the shares plus interest
Short Form Merger of Subsidiary
No shareholder or subsidary directs approval required if the corp owns at least 90% of the outstanding shares of each class of a subsidiary corp
When can a shareholder dissolve a corp using the courts?
1) deadlock of directors causing irreparable injury
2) directors engaged in illegal, oppressive, or fraudulent activities
3) shareholders deadlocked and fail to elect directors for 2 annual meetings
4) corp assets wasted or misapplied
Procedure for Dissolution of Corp to be adopted
1) adoption by Board
2) notice to each shareholder
3) adoption by the shareholders by majority vote
Member Dissociation from LLC
1) notice of express will to withdraw
2) agreed upon event
3) expulsion under agreement
4) expulsion by unanimous vote of members
5) judicial order
6) bankruptcy, incapacity or death
7) appointment of personal rep or receiver
8) termination of entity partner
RULLCA Dissolution of LLC
1) event in agreement
2) consent of all members
3) 90 days with no members
4) judicial dissolutionJ
Judicial Dissolution of LLC
1) managers/controlling members acting in an illegal or fraudulent manner or manner oppressive and directly harmful to other members
2) conduct of all or mostly all LLC activities is unlawful
3) not reasonably practical to carry on LLC under the Operating agreement
Who can an LLC creditor claim attach to if proper dissolution and winding up not followed?
Dissolved LLC
Members personally if assets of the LLC have been distributed after dissolution (but only for amount they received)
Advancement of Intestate Share
An advancement is a lifetime gift to an heir with an intent that the gift be applied against the share the heir gets from the donor’s estate.
Life time gifts are not presumed to be intended as an advancement unless shown otherwise.
UPC for an advancement
1) advancement declared to be in contemporaneous writing by the donor
2) acknowledge by an heir as an advacement
Simultaneous Death
Cannot take as an heir if you don’t survive the intestate
USDA Rule – If you can’t tell who survived the other, reach each decedent as if they survived the other. Applies if no sufficient evidence of survival. If survived by a few minutes, doesn’t apply
UPC Rule – 120 hour rule
Requirements for a Disclaimer
1) writing
2) signed
3) notarized
4) filed within 9 months of death
for taxes 9 months before beneficiary’s 21st birthday
Decedent Death caused by heir or beneficiary
Treat the heir as if they predeceased via a slayer statute or a constructive trust and takes away from the slayer’s heirs too.
Must prove it was unlawful or intentional by a preponderance of the evidence
Will Requirements
1) capacity
- legal (18 yrs old and sound mind)
- testimentary (understand the act, property, who naturally takes, able to make an orderly scheme)
2) present intent, may use parol evidence to show (intended to disperse assets, at death, with this instrument)
Baseline Will Execution Requirements
1) writing
2) signed - any mark with intent is good
3) two attesting witnesses
4) testator signs in each witness’ presence and witness sign in the testator’s presence
- competency is based on maturity and sufficient mental capacity
- common law can’t be interested, now states allow will to be valid but purge gifts to witnesses unless you show they would have taken as an heir if the will wasn’t probated
- UPC: gifts to interested witnesses not purged
Presence Requirement
Must be in general awareness or cognizance of other parties, could have seen the party signing if they looked
A phone call is not presence for purpose of will execution unless state says otherwise
Are creditors, fiduciaries, and attorneys interested?
No, they are not and are not disqualified from collecting debts or serving the estate because they or their employees witnessed the will
Attestation Clause
Recites the elements of will execution and is prima facie evidence of the elements
Holographic will
IN the testator’s hand writing and signed by the testator without witnesses
Nicknames, initials, or other marks qualify as signature
Handwritten changes after will is completed are usually given effect by states
Interlineations
Executed and attested will – not given effect and may cause revocation. To validate must reexecute.
If the state allows holographic wills, if requirements are met, these can be a holographic codicil
Order of Abatement
First: intestate property
residual estate
general legacies (money without a source)
demonstrative legacies (specific money)
specific bequests and devises (specific property and personal property)
Stock Splits and Dividends
UPC and most states – a bequest of stock includes shares produced by a split and also stock dividends
Don’t take new securities that have been purchased or acquired by the reinvestment of dividends
Ademption
Failure of a gift because the property is no longer in the testator’s estate at the time of their death. Default is no substitute gift or proceeds and no inquiry into testator’s intent or reason if it is gone
Only applies to specific devises and bequests and they follow the identity approach.
Common statutory exceptions to ademption
Look at testator intent
1) replacement property given if the testator replaced it
2) balance of purchase price
3) proceeds of condemnation award or insurance
4) proceeds form sale by conservator or guardian
Ademption by Satisfaction
If you show a writing or specific instruction in the will, a testimentary gift can be satisfied in whole by a inter vivos transfer to the beneficiary after the will is executed.
Distribution of Lapsed Gifts
1) express terms of the will
2) rule of law
3) residuary clause
4) intestacy
Anti-lapse statutes
save gifts if the predeceasing beneficiary was in a specified degree of relationship to the testator and left descendants who survived testator
Basic rules of will construction
1) give effect to whole will
2) avoid intestacy
3) ordinary terms - ordinary meaning
4) specialized terms - specialized meaning
5) contradictory provisions – go with last one
6) construe will as a whole
Incorporation by Reference
A will can incorporate an extraneous document into a will be reference if
1) manifests intent to incorporate
2) exists at time of will execution
3) adequately describes the document
Are conditional wills allowed?
Yes, and courts don’t interpret general wills as conditional and won’t let parol evidence in that contradicts express general will
Codicil
DOcument that is created under same will requirements and is treated as part of the will, can revive an invalid will, and supersedes contrary provisions
Types of Combo wills
Joint – two people making 1
reciprocal or mutual – separate wills that contain similar provisions
contract – a will is executed or not revoked as consideration for a k
Breaches of Contract Wills
If a party dies in compliance and the other then changes their will or revokes it, breach and a constructive trust is make for beneficiary of the contractual will.
If party dies in compliance, other party dies with a new will, the new will is probated and trust imposed of contractual beneficiary
If both parties are alive and one revokes (and even dies), no breach or damage because you can change your will.
Power of Appointment
Gives authority to a person to designate within the limits of the will, who takes property and how they take it.
General power – can do what they want including give it to themselves
special power – only can control specific things and in specific ways
Can creditors reach appointive assets?
Nope, unless the authority is exercised. Then the donee’s creditors can reach it as if donee was owner
Revocation types
By law
by physical act
by written instrument
Revocation by law
divorce removes spouse and all their roles
pretermitted children – if they were excluded by mistake they get a share
marriage has no effect on earlier will but creates an intestate share as an ommited spouse in some states unless the will makes a provision for a new spouse, omission intentional, made in contemplation of marriage
Revocation by physical act
if intent, burning, tearing, cancelling or obliterating a material portion revokes it
Extrinsic evidence permissible to see if partial revocation or total was intended
Revocation by document
new wills can revoke old ones
contradicitons in new will v. old revoke the old’s provisions that are inconsistent
Revocation Presumption
If found in a normal place and expected condition – presume valid
presume revoked if gone and was in testator’s possession or destroyed in a way. presumption overcome if prove valid execution, cause of nonproductive, and contents of the will.
Proteciton of Family Statues
elective spouse shares – can take a share in lieu of taking under the will
pretermitted child statutes– if a child is accidentally committed, get a force shared, even if adopted after will execution or if they thought the child was dead but isn’t
- no protection if intentional
- a child born before republication by a codicil isn’t pretermitted and protected
homestead protections
family allowance - amount given during probate in addition to amount passed by will
exempt personal property
Grounds for will contest
1) defective execution
2) revocation
3) lack of testimentary capacity
4) lack of testimentary intent
5) under influence or duress
6) fraud
7) mistake
Undue Influence
INfluence existed and was exerted that overpowered their free will and was the but for cause.
Begging, nagging, cajoling, or even threatening are not undue influence. the free will has to be destroyed
evidence of that
- unnatural disposition
- opportunity or access
- confidential or fiduciary relationship between parties
- ability of testator to resist
- beneficiary’s involvement with drafting
Two types of fraud
1) execution – signed something they didn’t know was a will
2) inducement – gave false info to induce a will execution
UPC and Reforming Mistaken Wills
Can reform an unambiguous will to conform with intent if proven by clear and convincing evidence the intent and terms were based on a mistake of fact or law
Spendthrift Trust
Trust that prevents a beneficiary from voluntarily or involuntarily transferring their interest int trust and the beneficiary’s creditors cannot reach it UNLESS
1) alimony or child support
2) federal tax lien
3) conveyed a benefit
Duties of a Trustee
Administer the trust prudentially, in good faith, and impartially
Loyalty – no self dealing
Report – respond to requests and give accounting
Keep personal property separate
Reasonable care to invest property (Prudent Investor Rule)
Prudent Investor Rule
Exercise reasonable care, skill, and caution in managing the trust portfolio as part of an overall investment strategy and must diversify the investment of the trust unless they can reasonably determine the purpose of the trust is better served without it
Trustee Delegation of Duties
May delegate investment and mangement but only if a prudent trustee of similar skills could properly delegate.
Must prudently act in
selecting an agent
establishing the scope and terms of the delegation
periodically review the agent’s actions
Support Trust
The trust is managed by the trustee for the ongoing support of the beneficiaries at a level l
General Residuary Clause and power of appointment
Only if
1) testator’s will manifests an intention to include the property subject to the power oR
2) power is a general power and the creating instrument does not contain a gift if the power is not exercised
When are remainder beneficiaries entitled to trust property?
When the trust terminates
No Further Inquiry Rule
A transaction entered by a Trustee for their own benefit is automatically presumed to be a conflict of interest and is voidable without further inquiry
5 Exceptions to Trustee’s Duty of Loyalty involving self deaing
authorized by trust instrument
ratified by beneficiaries
approved by court
didn’t object in time
occurred before became trustee
When can a trust be terminated?
1) revoked or pursuant to its terms
2) material purpose achieved
3) becomes unlawful
4) settlor and all beneficiaries consent
5) all beneficiaries consent and court rules it isn’t necessary
6) termination furthers purpose of trust
7) cy pres
8) court or trustee
Cy Pres Doctrine
Equitable doctrine that applies to charitable bequests and charitable trusts.
Courts will apply it to modify a charitable trust to be consistent with and “as near as possible” with the settlor’s or testator’s intent, if the purpose of the trust or bequest is frustrated.
Only applies to a general charitable trust
When will a court NOT permit the invasion of trust principal, even if a beneficiary will eventually receive the trust payment?
When the invasion would:
1) be contrary to settlor intent
2)adversely affect other beneficiaries
Trustees cannot use trust property to pay income beneficiaries when trust income is insufficient unless there is an express or implied power of invasion
What happens if a beneficiary’s interest is not subject to a spendthrift provision?
The court may authorize a creditor to reach the beneficiary’s interest by attachment of present or future distributions to the beneficiary.
Can a creditor compel a discretionary trustee to make a distribution?
No, regardless of a spendthrift provision, a creditor cannot compel a distribution that is subject to the trustee’s discretion
Effect of an ascertainable standard in a support trust
The beneficiary may compel a trustee to make payments in accordance with that standard
Vested Rights Approach
Depends on the right
1_ contract – transaction or occurrence
2) tort – place of wrong or injury
Most Significant Relationship
Laws of the state that has the most significant relationship will govern
Interests Analysis Approach
The court weighs the interest of the states involved
To determine which state has a greater interest in having its law applied a court will examine
- connection to parties and events
- difference between state laws
- underlying policies behind the state laws
- law applied to facts
Choice of Law when a Federal Court is Sitting in Diversity
Apply the choice of law of the forum state in which it sits
Contracts Most significant relationship factors
place of contracting
place of negotiation
place of performance
location of subject matter of the contract AND
domicile, residence, nationality, place of incorporation, and place of business of the parties
What choice of law applies when real property is incidental to a contract?
the principles for contracts
Under the Parental Kidnapping Prevention Act, states must give full faith and credit to child custody decress of other states when what?
1) issuing cort had jurisdiction under the laws of the states AND
2) The assertion of jurisdiction by that court was consistent with the jurisdictional requirements of PKPA
Procedural due process factors
Court balances
1) private interest being affected
2) risk of error AND
3) importance of state interests and burden that arise from additional safeguards
Assignment of Requirements contracts
It’s ok to assign the duty of a requirements contract if it doesn’t impair the quality of performance
Rejection of an option contract
An option contract remains open even when rejected or counteroffered. Offeree is still free to accept the original offer within the original option time unless the offeror detrimentally relied on the offeree’s rejection
Merchant’s Firm Offer
If a merchant offers to buy or sell goods in a signed writing and the writing gives an assurance that it will be open for an amount of time, it is irrevocable for that time up to 3 months
if supported by consideration it can go beyond the 3 months
When does accommodation rule apply?
When acceptance is done via shipment
When is a written communication received?
When it is delivered to the place of business. It doesn’t matter if the person actually reads the communication.
Additional Terms in an Accpetance of a K for Goods with 1 nonmerchant
The additional terms are treated as proposals to the contract and don’t become part of it unless the offeror expressly agrees
Battle of the Forms – Different Terms between merchants
Split authority
Most courts follow knockout rule – conflicting terms are dropped and replaced by UCC default terms
Battle of Forms Between Merchants
If both parties are merchants, additional terms are included unless
- materially alter the terms of the offer (shifting risks or the remedies available)
- offer expressly limits acceptance to the terms of the offer OR
- the offeror has already objected to the particular terms, or objects within a reasonable time
Merchant’s Confirmatory Memo
A memo from a merchant confirming an oral agreement that contains different or additional terms is also subject to the battle of forms provisions
Exception to the Mailbox Rule
offer stipulates that acceptance isn’t valid til receipt
option contract it must be received
offeree sends a rejection and then sends an acceptance, whichever arrives first
offeree sends acceptance and then a rejection, in which case acceptance is effective unless rejection arrives first and the offeror detrimentally relies on it
Statute of Frauds Applies
MY LEGS
Marriage K
Years (not possible to complete in a year)
Land contract (price, description, signed)
executor
goods over $500
Suretyship
Contracts for the sale of goods for $500 or more MUST be in writing. What are the 4 exceptions?
1) merchant’s confrimatory memorandum
2) goods accepted or paid for
3) custom made goods
4) admissions during judicial proceeding
Exceptions to the Parol Evidnece Rule
1) correct a clerical error or typo
2) establish a defense against formation
3) interpret vague or ambiguous terms
4) supplement a partially integrated writing
5) subsequent agreements
6) conditions precedent to effectiveness
7) reformation
Express Warranty
Any affirmation of fact or promise made by the seller to thebuyer, any description of the goods, and any sample or model creates an express warranty if the statement, description, sample, or model is part of the basis of the bargain.
Something that the buyer could have relied on – more than mere puffery
Implied Warranty of Merchantability for Goods
Implied in every contract for sale by a merchant who deals in goods of the kind sold, there is a warranty that the goods are merchantable.
Must be fit for the ordinary purpose for which such goods are used
Absolute liability – knowledge of defect not required
Can be waived “as is” as long as it is mentioned and conspicuous
Builder’s Expectation Damages midproject
Expected Profit + Costs Expended - Costs avoided - loss avoided
Builder Expectation Damages After Completion
K price
Breach by Builder in a Construction K
Cost of completion plus damages from delay
minus
Quasi contract recovery for benefit conferred by builder
Employment K breach by employee
Cost of replacement
minus
amounts owed to employees for work done
Employment K Expectation Damages: Breach by Employer
Contract price
minus
amount employee made or would have made by taking similar position (employer must prove similar position available)
Article II Damage Measures for Total Breach: Benefit of Bargain
Market Price - Contract Price
Plus
Incidental damages + foreseeable damages - Expenses saved
Article 2: Buyer Cover Damages
Cost of reasonable replacement goods – contract price
Plus
Incidental damages + foreseeable damages - Expenses saved
Seller Measures of Total Breach in Sale of Goods
Benefit of Bargain: K price - Market Price
Resale: K price - Resale price
Lost Profit for volume sller: K price - cost of goods
Action for Price (cannot be sold to others at a reasonable price) K price
PLUS
Incidental damages – Expenses Saved
Standard Monetary Damages for Sale of Land
K price – fair market value of the land
Warranty Damages
Value of goods warranted - value of goods received
But you must give notice in a reasonable time after you discover or should have discovered the defect
Seller Anticipatory Breaches K
Market price at the time buyer learned of breach - K price
When are damages measured for buyers and sellers?
Buyers – when buyer learned of breach
seller – time of delivery
Liquidated damages and requirements
A contract stipulation of the damages to be paid in event of a breach.
Must be reasonable in view of actual and anticipated harm
Require
- difficult to estimate or ascertain damages at time k formed
- reasonable forecast so that it isn’t so much as to be a penalty
Recoverable even if no damages
Common Law Compensatory damages – Expectation
Put the plaintiff in position as if there was no breach – the benefit of the bargain
