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MEE Outlines (Jacob using John/Erin) > Oh Shit Topics > Flashcards

Oh Shit Topics Flashcards

1
Q

Requirements for a Restrictive Covenant Burden to Run

A

1) writing
2) intent to run with the land
3) touch and concern the land
4) vertical and horizontal privity
5) notice

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2
Q

Requirement for benefit of restrictive covenant to run

A

1) writing
2) intent
3) touch and concern
4) vertical privity

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3
Q

Equitable Servitude Burden

A

You get an injunction NOT damages

1) writing
2) intent
3) touch and concern
4) notice

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4
Q

Equitable servitude benefit

A

1) intent
2) touch and conern

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5
Q

Common Scheme Doctrine

A

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)

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6
Q

Basic Requirements of Agency Formation

A

Consent of both parties that the agent will act on the principal’s behalf

Control – principal control over agent

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7
Q

When is an agent liable for a contract made on behalf of the principal?

A

Agent had no actual or apparent authority to enter into the contract for the principal

The principal is undisclosed or partially disclosed

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8
Q

3 Steps of Dissolution of a Partnership

A

Dissolution
Winding up
Termination

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9
Q

Scope of Employment

A

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

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10
Q

Domestic Relations Exception to Jurisdiction

A

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.

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11
Q

Joinder Requirements

A

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

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12
Q

Profit Presumption

A

A person who receives a share of the profits is presumed to be a partner unless the share is to repay a debt.

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13
Q

Issue Preclusion Definition

A

Issues that are actually litigated and decided and essential to the final judgment in a previous case cannot be litigated again.

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14
Q

Issue Preclusion Elements

A

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

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15
Q

Mutuality Rules

A

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

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16
Q

Claim Preclusion Elements

A

1) Same plaintiff and same defendant
2) valid final judgment on the merits
3) Must be the same claim (same T/O)

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17
Q

Valid Final Judgment Requirement

A

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

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18
Q

Final Judgment Rule

A

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.

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19
Q

When does notice of an appeal need to be sent?

A

Within 30 days from entry of the judgment

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20
Q

Interlocutory Appeals of Injunctions as of Right

A

Orders granting, modifying, or refusing preliminary or permanent injunction are reviewable as of right despite the order not being final.

Does not include TROs

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21
Q

Interlocutory Appeals Act

A

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

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22
Q

Collateral Order Doctrine

A

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

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23
Q

Certification of Class Actions Reviewablity

A

A court of appeals has DISCRETION to review an order granting or denying certification of a class action

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24
Q

Required initial disclosures

A

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

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25
Q

Scope of Discovery

A

Nonprivileged information that is relevant to any claim or defense and proportional

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26
Q

Profits

A

A profit in land is a the right to enter and extract something from the land

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27
Q

Creation of Easements and Profits

A

PING

Prescription

Implication

Necessity

Grant

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28
Q

Transfer of Easements

A

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.

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29
Q

Transfer of Profits

A

Profits appurtenant cannot be used by a non-owner of the dominant estate

Profits in gross can be transferred

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30
Q

Fundamental Rights Standard

A

Strict scrutiny

Necessary/narrowly tailored to serve a compelling governmental interest

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31
Q

Fundamental Rights Listed

A

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

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32
Q

Privileges and Immunities

A

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.

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33
Q

Standard for Evaluating Privileges and Immunities

A

Necessary to achieve an important government purpose and no less restrictive means available

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34
Q

Dormant Commerce Clause

A

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

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35
Q

Express preemption

A

A federal law may expressly say that the states may not adopt laws concerning the subject matter of the federal legislation.

Narrowly construed

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36
Q

Implied Preemption

A

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

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37
Q

Field preemption

A

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

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38
Q

Presumption against Preemption

A

Courts presume no preemption unless clear and manifest purpose of Congress

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39
Q

When is taking a governmental benefit a property interest under the Due Process clause?

A

There has to be a reasonable expectation of continued receipt

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40
Q

What type of process is required by the Due Process clause

A

Notice (reasonably calculated to inform the person of deprivation)

Opporutnity to be heard

Neutral decisionmaker

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41
Q

Traditional Public Forum and Designated Public Forum standards for Content Neutral

A

1) narrowly tailored
2) important governmental interest
3) leave alternative channels of communication

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42
Q

Trad Forum/Designated Pub Forum but non content neutral

A

Strict scrutiny

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43
Q

LPF and nonpublic forum

A

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

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44
Q

Content Neutral Regs

A

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

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45
Q

Defamation – Public Figure

A

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

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46
Q

Actual Malice Standard

A

Knowledge it was false or
reckless disregard as to its truth or falsity

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47
Q

Private figure on a public concern

A

Actual malice standard

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48
Q

Private Figure Defamation

A

1) false statement
2) identifies the plaintiff
3) published to a third party
4) negligent
5) damage to reputation

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49
Q

Slander Per Se

A

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

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50
Q

Libel

A

Defmation in a permanent form – print, TV, podcast

Damages are presumed under the law of libel

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51
Q

Types of Invasion of Right to Privacy (Tort)

A

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

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52
Q

Intrusion on Seclusion

A

Recover for prying or intruding in a highly offensive to a reasonable person

Can’t recover if it is done in public places

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53
Q

Publication of Facts in False Light

A

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

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54
Q

Public disclosure of Private Facts

A

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

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55
Q

Intentional Misrepresentation (Fraud)

A

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

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56
Q

Duty to Disclose Facts (Tort)

A

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

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57
Q

Interference with Business Relations

A

1) valid k between plaintiff and third party

2) d’s knowledge of relationship or expectancy

3) intentional interference

4) Damages

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58
Q

Privileges to Tortious Interference

A

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

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59
Q

Negligent Infliction of Emotional Distress

A

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

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60
Q

False Imprisonment

A

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

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61
Q

Duty to Trespassers

A

No duty to trespassers

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62
Q

Duty to Known Trespassers

A

Warn or make safe

1) artificial
2) highly dangerous – risk of death or serious bodily harm
3) concealed
4) known to possessor in advance

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63
Q

Commercial Speech Regulation

A

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)

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64
Q

Personal Student Speech on Campus

A

Cannot be censored on campus unless evidence of substantial disruption except promoting drug use on campus

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65
Q

Speech in Public Employment

A

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

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66
Q

Void for Vagueness

A

Must give reasonable notice of what is prohibited – more strict for 1A

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67
Q

Overbreadth Regulations Invalid

A

Void if it punishes substantially more speech than necessary

Facially invalid

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68
Q

Prior Restraints

A

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

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69
Q

Access to Public Trials

A

Right must be outweighed by overriding state interest stated in a trial judge’s findings like protecting children who are victims of sex offenses

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70
Q

Duty to Licensees

A

Come on to property for own purposes (social guests)

Warn or make safe hazardous conditions

1) concealed
2) known to land possessor in advance

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71
Q

Duty to Invitees

A

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

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72
Q

Attractive Nuisance

A

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

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73
Q

Nonhearsay Statements under the Federal Rules

A

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
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74
Q

Declarant Unavailable Hearsay Exceptions

A

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

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75
Q

What makes someone unavailable declarant?

A

Dead or disabled
Privileged
refuse to testify despite court order
don’t remember
absent and court can’t get them to attend

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76
Q

Hearsay Exceptions Regardless of Availability

A

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

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77
Q

Confrontation Clause Limit on Hearsay

A

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

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78
Q

What makes a statement testimonial?

A

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

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79
Q

Impeachment Methods

A

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

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80
Q

Impeachment of Hearsay Declarant

A

Don’t need to have opportunity to explain or deny a prior inconsistent statement

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81
Q

Civil Use of Character Evidence

A

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

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82
Q

Criminal Use of Character

A
  • 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

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83
Q

Character evidence v. victim

A

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

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84
Q

Rape shield

A

Defendant can only introduce evidence of sex crime victim’s sexual history to

1) show consent

2) challenge causation

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85
Q

Prior misconduct for non-character purpose

A

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

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86
Q

Authentication Methods for Tangible

A

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

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87
Q

Oral Statement authentication

A

Voice id by someone familiar

Telephone conversation - knew things, answered phone when number called, recognized voice, called business number and talked about business

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88
Q

Self-Authentication

A

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

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89
Q

Best Evidence Rule

A

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

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90
Q

When does Best evidence rule apply?

A

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

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91
Q

Federal Baseline for Competency

A

1) personal knoweldge of matter
2) under oath

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92
Q

Opinion Lay Testimony

A

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

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93
Q

Requirements of Expert Opinion Testimony Admissibility

A

Qualified
Proper factual basis (personal observation, observing trial, evidence relied on by other experts)
Reasonable probability
Reliable

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94
Q

Judge’s Factors for Expert Witness Reliablity

A

TRAP

Testing of principal or methodoloy
Rate of error
Acceptance by experts in field
Peer review and publication

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95
Q

Medical Aid Relevance Statement

A

Statement offering to pay bills or culpability not admissible but fact statements made in relation to it are admissible

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96
Q

Settlement Negotiations Relevance Exception

A

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

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97
Q

Nontruth Purposes

A

Circumstantial evidence of state of mind

Effect on the listener

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98
Q

403 Rule

A

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

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99
Q

What happens when there’s injunctive and damages claims?

A

Jury finds facts for the damages and then the judge makes conclusion based on the facts the jury found

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100
Q

Do juries have to be excused during a preliminary fact determination?

A

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

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101
Q

Effect of a Judicial Notice of Fact

A

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

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102
Q

Federal Common law privileges

A

Attorney-client
Spousal immunity
marital comms
psychotherapist/social work privilege
clergy-penitent
governmental privilege

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103
Q

Attorney-Client

A

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

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104
Q

Exception to attorney client

A

aid in planning or committing a crime

legal services at issue

dispute between client and attorney

two parties claiming through same deceased client

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105
Q

Work Product

A

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

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106
Q

Physician-Patient Privilege

A

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

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107
Q

Exceptions to Dr-Patient

A

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

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108
Q

Spousal immunity

A

Must be married at time of trial for spouse to raise it

Total immunity from testifying

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109
Q

Confidential Marital Comms

A

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)

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110
Q

When do neither spouse related privilege apply?

A

1) in furtherance of crime

2) legal actions between spouses

3) disputes about crime v. testifying spouse or either’s children

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111
Q

Dead Man Act

A

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.

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112
Q

Extrinsic Evidence of Bad Acts for Impeachment

A

A party may not impeach a witness with extrinsic evidence of bad acts

This includes documents and testimony of others

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113
Q

Merged causes v. Unascertainable causes

A

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

114
Q

Common foreseeable intervening causes

A

Medical malpractice

rescuer’s negligence

protection or reaction forces

disease or accident caused by the original injury

115
Q

Pure Comparative fault

A

Allows a plaintiff to recover no matter how much their negligence contributed to it

This is the default on the bar unless told otherwise

116
Q

Partial Comparative Fault

A

You recover if your blame was less than 50%

117
Q

Joint and Several Liability

A

A plaintiff can recover fully for damages from either defendant

118
Q

Contributory negligence

A

Old common law approach – totally barred recovery

119
Q

Strict Liability for Abnormally Dangerous Activities

A
  • 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!

120
Q

Strict Liabilty for Products

A

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

121
Q

Implied warranties of merchantability and fitness of a good

A

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

122
Q

Private Nuisance

A

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

123
Q

Public nuisance

A

Act unreasonably interferes with the health, safety, or property rights of the community – has to be suffered by public at large

124
Q

Satisfaction and Release

A

Satisfaction is a full payment

Release – tortfeasor is released, but others are not unless expressly provided for in the release agreement

125
Q

Contribution

A

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

126
Q

Ancient Documents Rule

A

For federal rules, applies to all writings, not just dispositive ones like deeds or wills

127
Q

Admissibility of Real evidene

A

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

128
Q

Adverse Parties Options when a Party Refreshes Recollection

A

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

129
Q

Past Recollection Recorded

A

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

130
Q

Admitting Past Recorded Recollections

A

Only the opposing party can have it submitted to evidence as an exhibit

It can be read into the record though

131
Q

Impeachment for Prior Inconsistent statements – Extrinsic Evidence

A

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

132
Q

Bias - Extrinsic Evidence Foundation

A

Must be asked about facts on cross, then court has discretion to permit evidence even if witness admits the bias

133
Q

Identification Statements made by Nontestifying declarant

A

Inadmissible unless fall under a different exception.

Testifying declarant identifications are nonhearsay

134
Q

Statement against interst

A

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

135
Q

Common law standard for performance

A

Substantial performance

136
Q

Installment contracts

A

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.

137
Q

Accommodation Goods with Notice

A

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

138
Q

Accommodation goods without notice

A

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

139
Q

Failure to Send goods ordered by buyer

A

Breach of contract under the perfect tender rule

140
Q

Default options for a buyer under the Perfect Tender Rule

A

Buyer may accept all, reject all, or accept any number of widgets and reject the rest.

Buyer is entitled to damages.

141
Q

Exceptions to the Perfect Tender Rule

A

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

142
Q

No Right to Reject under Perfect Tender

A

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

143
Q

Buyer’s Responsibility for Goods After Rejection

A

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

144
Q

Buyer’s Right to Revoke Acceptance

A

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

145
Q

Shareholder Right to Review Documents

A

1) During regular business hours
2) 5 days notice
3) Proper Purpose
4) purpose is stated
5) records directly connected with the purpose

146
Q

When may a court pierce the corporate veil?

A

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

147
Q

When can a shareholder compel a distribution?

A

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

148
Q

Requirements for a Valid Proxy

A

Must be signed on
1) appointment form OR
2) an electronic transmission

No oral proxy appointments

149
Q

Revocation of Proxy

A

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.

150
Q

Removal of Directors

A

Shareholders may remove at will directors under the RMBCA and most state laws unless the Articles of Incorporation say otherwise

Common law – for cause

151
Q

Business Judgment Rule

A

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

152
Q

Business Judgment Rule Does Not Protect

A

1) directors that are financially interested in a transaction

2) bad faith

3) fraud or illegality

153
Q

Duty of Loyalty Forbids Directors From

A

1) being on both sides of a transaction

2) taking corporate opportunities

3) competing with the corporation

4) trading on inside information

154
Q

When does ratification of an agent’s conduct occur?

A

Principal has knowledge of all material facts and afterwords manifests assent through words or conduct

155
Q

When does an agent have no contractual liability to a third party?

A

1) had actual or apparent authority
and
2) fully discloses the principal he is acting on behalf of

156
Q

When are an employee’s intentional torts to be considered within the scope of employment?

A

1) authorized by employer
2) driven by desire to serve employer
3) natural occurring friction from the type of employment

157
Q

When can an employer be liable despite no respondeat superior?

A

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

158
Q

When will a principal be liable for torts committed by an Independent Contractor?

A

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

159
Q

When are share of profits not presumed to indicate partnership?

A

1) debt
2) salary
3) rent
4) annuity or retirement
5) loan or interest charges
6)for the sale of the goodwill ofbusiness

160
Q

When does a partner have express actual authority to bind the partnership?

A

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

161
Q

If a partnership agreement is silent on partner express authority, what express authority is there?

A

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

162
Q

Liability for incoming partners

A

Not liable for obligaitons before their admission, but at risk for loss of contributions made to satisfy partnership oligations

163
Q

Partner breach of duty of care

A

1) grossly negligent
2) intentional misconduct
3) knowing violation of law

164
Q

What must a partner do to satisfy the duty of loyalty?

A

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

165
Q

When is a partner not liable for what would otherwise be a breach of loyalty?

A

1) partners fully discloses the info and
2) either
- partnership agreement is amended
- all partners consent to transaction

166
Q

Partners dissociation

A

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

167
Q

When is dissociation deemed wrongful?

A

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

168
Q

General Partnership dissolution occurs

A

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

169
Q

Dissolution of Partnership for definite term

A

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

170
Q

If a partner dissociates, are other partners obligated to end the partnership?

A

No, if they ALL vote to waive wind up and termination and instead continue the business

171
Q

Who may vote at a shareholder meeting?

A

Only shareholders that are registerd shareholder on the record date (can’t be more than 70 days prior) are entitled to vote

172
Q

May a director rely on the reasonable advice of advisors?

A

Yes, if the reliance was reasonable and the advisor or committee was qualified

173
Q

When is a conflicting business transaction NOT a breach of duty of loyalty?

A

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

174
Q

When does a director have a conflict of interest?

A

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

175
Q

What is a corporate opportunity and when may a director/officer pursue it?

A

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

176
Q

What does a shareholder need to prove when bringing a direct action against a director or officer?

A

Acutal injury not solely as a result of an injury suffered by the corporation

177
Q

Requirements for a Shareholder Derivative Suit on behalf of the corp.

A

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

178
Q

What is required for a member to bring a derivative claim on behalf of an LLC?

A

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

179
Q

Amending Articles of incorporation

A

1) Board of Directors votes
2) notice to each shareholder stating purpose is to vote and adoption by majority of shareholders

180
Q

Requirements for a Merger

A

1) Approval by board of directors of both corps AND
2) shareholder approval of both corps by a majority vote

181
Q

Board of Directors Votes

A

Majority for ordinary acts (unless Articles of Incorp say otherwise)

182
Q

Sale of All or Substantially All of Corporate Assets

A

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)

183
Q

Board Approval

A

1) majority of directors present (granted quorum present) OR
2) written unanimous consent

184
Q

Dissenting Shareholder Right of Appraisal

A

Only applies to fundamental changes – marging or consolidating, transferring substantially all assets, stock being acquired in a share action, converting to another business

185
Q

Perfecting Right of Appraisal

A

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

186
Q

Short Form Merger of Subsidiary

A

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

187
Q

When can a shareholder dissolve a corp using the courts?

A

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

188
Q

Procedure for Dissolution of Corp to be adopted

A

1) adoption by Board
2) notice to each shareholder
3) adoption by the shareholders by majority vote

189
Q

Member Dissociation from LLC

A

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

190
Q

RULLCA Dissolution of LLC

A

1) event in agreement
2) consent of all members
3) 90 days with no members
4) judicial dissolutionJ

191
Q

Judicial Dissolution of LLC

A

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

192
Q

Who can an LLC creditor claim attach to if proper dissolution and winding up not followed?

A

Dissolved LLC
Members personally if assets of the LLC have been distributed after dissolution (but only for amount they received)

193
Q

Advancement of Intestate Share

A

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.

194
Q

UPC for an advancement

A

1) advancement declared to be in contemporaneous writing by the donor

2) acknowledge by an heir as an advacement

195
Q

Simultaneous Death

A

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

196
Q

Requirements for a Disclaimer

A

1) writing
2) signed
3) notarized
4) filed within 9 months of death

for taxes 9 months before beneficiary’s 21st birthday

197
Q

Decedent Death caused by heir or beneficiary

A

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

198
Q

Will Requirements

A

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)

199
Q

Baseline Will Execution Requirements

A

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
200
Q

Presence Requirement

A

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

201
Q

Are creditors, fiduciaries, and attorneys interested?

A

No, they are not and are not disqualified from collecting debts or serving the estate because they or their employees witnessed the will

202
Q

Attestation Clause

A

Recites the elements of will execution and is prima facie evidence of the elements

203
Q

Holographic will

A

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

204
Q

Interlineations

A

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

205
Q

Order of Abatement

A

First: intestate property
residual estate
general legacies (money without a source)
demonstrative legacies (specific money)
specific bequests and devises (specific property and personal property)

206
Q

Stock Splits and Dividends

A

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

207
Q

Ademption

A

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.

208
Q

Common statutory exceptions to ademption

A

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

209
Q

Ademption by Satisfaction

A

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.

210
Q

Distribution of Lapsed Gifts

A

1) express terms of the will
2) rule of law
3) residuary clause
4) intestacy

211
Q

Anti-lapse statutes

A

save gifts if the predeceasing beneficiary was in a specified degree of relationship to the testator and left descendants who survived testator

212
Q

Basic rules of will construction

A

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

213
Q

Incorporation by Reference

A

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

214
Q

Are conditional wills allowed?

A

Yes, and courts don’t interpret general wills as conditional and won’t let parol evidence in that contradicts express general will

215
Q

Codicil

A

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

216
Q

Types of Combo wills

A

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

217
Q

Breaches of Contract Wills

A

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.

218
Q

Power of Appointment

A

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

219
Q

Can creditors reach appointive assets?

A

Nope, unless the authority is exercised. Then the donee’s creditors can reach it as if donee was owner

220
Q

Revocation types

A

By law
by physical act
by written instrument

221
Q

Revocation by law

A

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

222
Q

Revocation by physical act

A

if intent, burning, tearing, cancelling or obliterating a material portion revokes it

Extrinsic evidence permissible to see if partial revocation or total was intended

223
Q

Revocation by document

A

new wills can revoke old ones

contradicitons in new will v. old revoke the old’s provisions that are inconsistent

224
Q

Revocation Presumption

A

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.

225
Q

Proteciton of Family Statues

A

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

226
Q

Grounds for will contest

A

1) defective execution
2) revocation
3) lack of testimentary capacity
4) lack of testimentary intent
5) under influence or duress
6) fraud
7) mistake

227
Q

Undue Influence

A

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
228
Q

Two types of fraud

A

1) execution – signed something they didn’t know was a will

2) inducement – gave false info to induce a will execution

229
Q

UPC and Reforming Mistaken Wills

A

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

230
Q

Spendthrift Trust

A

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

231
Q

Duties of a Trustee

A

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)

232
Q

Prudent Investor Rule

A

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

233
Q

Trustee Delegation of Duties

A

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

234
Q

Support Trust

A

The trust is managed by the trustee for the ongoing support of the beneficiaries at a level l

235
Q

General Residuary Clause and power of appointment

A

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

236
Q

When are remainder beneficiaries entitled to trust property?

A

When the trust terminates

237
Q

No Further Inquiry Rule

A

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

238
Q

5 Exceptions to Trustee’s Duty of Loyalty involving self deaing

A

authorized by trust instrument
ratified by beneficiaries
approved by court
didn’t object in time
occurred before became trustee

239
Q

When can a trust be terminated?

A

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

240
Q

Cy Pres Doctrine

A

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

241
Q

When will a court NOT permit the invasion of trust principal, even if a beneficiary will eventually receive the trust payment?

A

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

242
Q

What happens if a beneficiary’s interest is not subject to a spendthrift provision?

A

The court may authorize a creditor to reach the beneficiary’s interest by attachment of present or future distributions to the beneficiary.

243
Q

Can a creditor compel a discretionary trustee to make a distribution?

A

No, regardless of a spendthrift provision, a creditor cannot compel a distribution that is subject to the trustee’s discretion

244
Q

Effect of an ascertainable standard in a support trust

A

The beneficiary may compel a trustee to make payments in accordance with that standard

245
Q

Vested Rights Approach

A

Depends on the right

1_ contract – transaction or occurrence

2) tort – place of wrong or injury

246
Q

Most Significant Relationship

A

Laws of the state that has the most significant relationship will govern

247
Q

Interests Analysis Approach

A

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
248
Q

Choice of Law when a Federal Court is Sitting in Diversity

A

Apply the choice of law of the forum state in which it sits

249
Q

Contracts Most significant relationship factors

A

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

250
Q

What choice of law applies when real property is incidental to a contract?

A

the principles for contracts

251
Q

Under the Parental Kidnapping Prevention Act, states must give full faith and credit to child custody decress of other states when what?

A

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

252
Q

Procedural due process factors

A

Court balances

1) private interest being affected
2) risk of error AND
3) importance of state interests and burden that arise from additional safeguards

253
Q

Assignment of Requirements contracts

A

It’s ok to assign the duty of a requirements contract if it doesn’t impair the quality of performance

254
Q

Rejection of an option contract

A

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

255
Q

Merchant’s Firm Offer

A

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

256
Q

When does accommodation rule apply?

A

When acceptance is done via shipment

257
Q

When is a written communication received?

A

When it is delivered to the place of business. It doesn’t matter if the person actually reads the communication.

258
Q

Additional Terms in an Accpetance of a K for Goods with 1 nonmerchant

A

The additional terms are treated as proposals to the contract and don’t become part of it unless the offeror expressly agrees

259
Q

Battle of the Forms – Different Terms between merchants

A

Split authority

Most courts follow knockout rule – conflicting terms are dropped and replaced by UCC default terms

259
Q

Battle of Forms Between Merchants

A

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
260
Q

Merchant’s Confirmatory Memo

A

A memo from a merchant confirming an oral agreement that contains different or additional terms is also subject to the battle of forms provisions

261
Q

Exception to the Mailbox Rule

A

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

262
Q

Statute of Frauds Applies

A

MY LEGS

Marriage K
Years (not possible to complete in a year)

Land contract (price, description, signed)
executor
goods over $500
Suretyship

263
Q

Contracts for the sale of goods for $500 or more MUST be in writing. What are the 4 exceptions?

A

1) merchant’s confrimatory memorandum
2) goods accepted or paid for
3) custom made goods
4) admissions during judicial proceeding

264
Q

Exceptions to the Parol Evidnece Rule

A

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

265
Q

Express Warranty

A

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

266
Q

Implied Warranty of Merchantability for Goods

A

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

267
Q

Builder’s Expectation Damages midproject

A

Expected Profit + Costs Expended - Costs avoided - loss avoided

268
Q

Builder Expectation Damages After Completion

A

K price

269
Q

Breach by Builder in a Construction K

A

Cost of completion plus damages from delay

minus

Quasi contract recovery for benefit conferred by builder

270
Q

Employment K breach by employee

A

Cost of replacement

minus

amounts owed to employees for work done

271
Q

Employment K Expectation Damages: Breach by Employer

A

Contract price

minus

amount employee made or would have made by taking similar position (employer must prove similar position available)

272
Q

Article II Damage Measures for Total Breach: Benefit of Bargain

A

Market Price - Contract Price

Plus

Incidental damages + foreseeable damages - Expenses saved

273
Q

Article 2: Buyer Cover Damages

A

Cost of reasonable replacement goods – contract price

Plus

Incidental damages + foreseeable damages - Expenses saved

274
Q

Seller Measures of Total Breach in Sale of Goods

A

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

275
Q

Standard Monetary Damages for Sale of Land

A

K price – fair market value of the land

276
Q

Warranty Damages

A

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

277
Q

Seller Anticipatory Breaches K

A

Market price at the time buyer learned of breach - K price

278
Q

When are damages measured for buyers and sellers?

A

Buyers – when buyer learned of breach

seller – time of delivery

279
Q

Liquidated damages and requirements

A

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

280
Q

Common Law Compensatory damages – Expectation

A

Put the plaintiff in position as if there was no breach – the benefit of the bargain

MEE Outlines (Jacob using John/Erin) (11 decks)

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