Priority MEE Flashcards

You may prefer our related Brainscape-certified flashcards:
1
Q

Federal jx includes… (+ well pleaded complaint R)

A

Federal jx includes both federal question jx (involving a federal law) and diversity of citizenship jx (complete diversity btwn the parties and an AIC over 75K). The PTF’s good faith allegation on the face of the complaint will suffice unless it seems certain the amount cannot be met.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

General Fed Jx R:
Supplemental jx (def + 2 primary limitations + 4 situations where dist ct may use discretion to decline)

A

Generally, every claim in fed ct must have a basis for fed SMJ. Supp jx allows claims to be brought in fed ct that a fed ct would not independently have jx over if the additional claims are part of the same case or controversy (common nucleus of operative fact) as the claim which does have federal jx in the case.
Supp jx may not destroy DIV or be used for 3rd P claims. LOW AMOUNT = OK JUST NEED T/O!!
Fed ct may decline if complex/novel state issue, claim predominates over claim w/ OG Jx, fed ct dismissed all claims it had OG Jx, or other exceptional circumstances

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Transfer Rule…. (2 parts)
+ bonus pro (Ps, time limit, rsn for denial)

A

For the convenience of the parties and witnesses, in the interest of Justice, a dist ct may transfer any civil action to any other dist or division where it could have been brought or any dist or division to which all parties have consented (ex- FS CL)
Bonus- Any party may bring a transfer at any time, although the motion to transfer will be denied if delay causes undue prejudice.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Venue is proper

A

Venue is proper where any Def resides (if all Defs reside in the same state) or where a sub part or omission of the events in the claim occurred.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Parties may be permissively joined when…
Required joinder of parties requires ____________ and __________ OR __________ and _____________

A

Parties may be permissively joined when there is a common question of law or fact arising from the same T/O (or series of occurrences).

Jx kept in tact + ct inability to afford complete relief w/o the 3rd P
OR
Jx kept in tact + 3rd P’s int may be sub impaired / risk of inconsistent judgments

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

A fed ct may Abstain from hearing a case when (+pro w/ state ct)

A

A federal court may abstain from hearing a case if the constitutionality of a STATE STATUTUE is at issue. The federal court will wait until the state court rules on the case and then decide the state constitutionality issue.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

A party may Amend a PL _________ within ______days of ______________or otherwise need _______ or __________

A

A party may amend an answer to a complaint once within 21D of the OG PL, responsive PL or pre-ans M,
or otherwise with the opposing party’s written consent or the court’s leave.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Omnibus motion rule (which defenses apply)

A

Generally, failing to raise Rule 12 defenses related to service of process, personal jx or venue in a P’s first answer or pre-answer motion will result in waiver

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Work Product is..
WP is not discoverable unless…

A

WP is considered he documents prepared by lawyers (and others involved) in anticipation of litigation. Work product is not discoverable unless the requesting P can show a substantial need to avoid undue hardship in obtaining the material from another source.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Summary Judgment must be granted if… (3 parts)
To defeat…

A

Summary judgment must be granted if, from the PL, affidavits and discovery materials, there is no genuine dispute of material facts and the moving party is entitled to judgment as a matter of law. The CT will view the evidence in light most favorable to the nonmovant and without considering the credibility of any witnesses. To defeat a MSJ, the nonmovant must counter the presented evidence with relevant evidence of her own to show a genuine issue of material fact on the matter.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Claim Preclusion…(3)
Issue Preclusion…

A

Claim preclusion precludes the same parties or parties in privity from subsequently re-litigating the same claim (T/O) after a VFJOTM
Issue preclusion will preclude the relitigation of an issue already and actually decided that was essential to a VFJOTM after the party against whom it is asserted against had a fair opportunity to be heard on the matter. Generally, no new PTFs permitted.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

To grant a JAMOL the ct must find _____________ by ________________.
+ timing pro
RJAMOL will depend on if ________________ and __________
timing pro + will be limited to________________

A

To grant a JMOL, the CT must find that a RSB jury would not have a LEGALLY SUFFICIENT BASIS to find for that P on that issue. The CT will view the evidence in light most favorable to the Nonmovant and without considering the credibility of any witnesses. A JAMOL must be made during trial to preserve the right to move for a RJAMOL.
To determine if a ct should grant a RMJAMOL, cts will consider if a P previously moved for JAMOL and on what grounds.
Must file w/in 28D of the judgment and will be limited to the grounds raised in the initial JMOL.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

A new trial may be granted if…

A

There is a SERIOUS ERROR that occurred DURING the trial that caused the jury verdict to lack substantial weight.
ex. admitting evidence that would have a substantial effect on the verdict, errors in a material jury instruction, the verdict is found excessive, or if the verdict is against the clear weight of the evidence- as long as the judge is not replacing the jury’s verdict with the verdict she would have reached and based in a serious error of judgment).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

To be appealable…
(+collateral order doctrine + interlocutory appeals)

A

To be appealable, an order must be a FJOTM. A FJOTM is one that ends the litigation on the merits, resolves all claims and leaves nothing for the court to do but execute the judgment.

Collateral order = exception where claim/issue is separable. Look for IMMEDIATE HARM in deferring

Under the Interlocutory Appeals Act, review remains discretionary and may be available when the trial judge certifies that the interlocutory order involves a controlling question of law, as to which there is substantial grounds for difference of opinion, immediate appeal from the order may materially advance the ultimate termination of litigation, and appeals court then agrees to allow the appeal.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

In determining whether to certify a class action, the court will consider (4 req.’s +defs)
(+ bonus classifications)

A

NUMEROSITY (that joinder is impracticable), any COMMON Q L/F , the named P’s interest must be TYPICAL of the class and ADEQUATELY REP the absent class members and rep of class
Bonus: Additionally, the action must fall into a category of risk of inconsistent results to where separate trials would impair all ptfs, def acted or refused to act on grounds applicable to the whole class to where injunctive relief would be inapplicable, or common questions of law or fact predominate to where a class action is the superior method of adjudication.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Broad R to obtain a sec int (2)

Broad attachment Rule

Procedure to attach (3)

A

To obtain a valid sec int in collateral, a creditor must ATTACH the collateral.
To attach a valid security interest,
1. sec’d party gives value to the debtor
2. the debtor must have rights in the collateral (ownership/possession)
3. and the debtor must authenticate (sign) sec agreement describing the collateral or the sec’d P otherwise retains possession/control —- SUPER GENERIC NOT OKAY

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

General Perfection Rule

A

To obtain rights against a third party claimant to a debtors collateral, a secured party must also perfect its security interest.
Unless automatically perfected (like a PMSI), a creditor can perfect its security interest in goods by
1. Filing, in the proper public office, a financing statement that IDs THE PARTIES, authorized by Debtor, & describes the collateral —- SUPER GENERIC OKAY
2. Or by taking possession/control

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

If a security agreement includes an AAP clause, the sec int attaches when _____________________.

AAP R for Consumer Goods?

A

If a security agreement includes an AAP clause, the sec int attaches when the debtor OBTAINS AN INT in the property.

For consumer goods, an AAP CL is ineffective unless the debtor acquires within 10D after given value

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

A PMSI arises when __________ or ______________.
PMSI in CONSUMER goods perf R: ____
A PMSI in inventory if perfected upon _______ and will have priority over other inventory if ______ and ______

A

A PMSI arises when a creditor sells the goods to the debtor on credit (or advances funds to purchase the goods), RETAINING A SEC INT in the goods
A PMSI in CONSUMER goods is automatically perfected upon attachment.
The PMSI in inventory is perfected upon filing and will hold priority over other inventory if the the PMSI is perfected upon Debtor’s possession AND sec’d P sends a NOTIFICATION of the PMSI TO THE HOLDER of any conflicting sec interests before the debtor receives possession

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

A PMSI in equipment or other goods has priority over conflicting sec interest if

A

the PMSI is perfected before or within 20D of the debtor RECEIVING POSSESSION

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Proceeds are ___________ OR ELSE ___________ or ______________
Proceeds perfection R: ____
identifiable proceeds attachment rule and perfection rule

A

that which is acquired upon disposition of the collateral.
Proceeds are perfected automatically (after attachment) if the sec int in the original collateral is perfected within 20D or else perfection beyond 20D must be pursuant to the financing statement or identifiable cash.
A sec’d int automatically attaches to identifiable proceeds and automatically perf for 20D.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Chattel paper is…
A deposit account is …
+ DNI?
+ method of perfection?

A

the document used to sell property on credit while retaining some interest in the property.

a right to payment obligation maintained with a bank.
DNI investment accounts
*can only be perfected by control

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

The authenticated record is…
The financing statement is…

A

is the sec agreement in a record which contains
1. a description of the collateral
2. and is authenticated by the debtor.

is the statement filed in the proper public office that contains
1. the parties names
2. and a description of the collateral

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

A BOCB is… (5)
Shelter Rule for BOCB

A

A buyer for goods who has given NEW VALUE in the ordinary course to a seller in the business of selling goods of that kind in GOOD FAITH w/o actual knowledge of a conflicting int
Under the Shelter Principle, if a buyer a acquires property free of a security interest, then any subsequent transfer by the buyer to someone else is also free of the security interest.
***The second buyer is not required to qualify as a BOCB.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

General Buyer Collateral Rule?
However, a Consumer Buyer of consumer goods takes ____________ even if ________________ unless _____________.
A consumer buyer is (def)

A

(A buyer of collateral subject to a perfected sec int generally takes the collateral subject to that int. However,)
A consumer buyer of consumer goods takes free of a sec int, even if it is a perfected PMSI, unless prior to the purchase, the sec’d party filed a financing statement COVERING the goods.
A consumer buyer is a person who buyers consumer goods for value, for his own personal, family or household use, from a consumer seller, without knowledge of the sec int.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Marriage is _____________
3 Elements of a ceremonial marriage

A

A marriage is a civil contract involving the legal Union of two people.
1. Consent
2. Capacity (age usually 18 unless parent consent)
3. Compliance w/ legal formalities (usually a license and solemnization by an authorized officer)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Legal formalities for a marriage license (& when it will be rejected)

A

Age- usually 18+ or need parental consent
Waiting period
Premarital testing if nec (results cannot block issuance)

License not issued if a party is married to someone else, parties are too closely related, sham marriage, or parties of incapable of understanding the nature

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

A CL marriage is…. (2 parts)
A CL marriage generally requires.. (4)

A

A valid marriage that creates marital rights and obligations IDENTICAL to a ceremonial marriage without having performed the legal requirements. CL marriage has been abolished in most states.
1. Consent- both parties must agree and be old enough and not related
2. Cohabitate
3. Holding out in public (joint bank account, telling fam & friends they’re married, etc)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

An annulment is …..
void marriage is…
3 types of void marriages

A

An annulment is a judicial declaration that a marriage was invalid due to an impediment at the time of the marriage, and therefore, never occurred. It may be void or voidable.
void marriage- was never valid from the start and cannot be made valid (judicial decree unnec).
1. Bigamy (although under the UMDA, a bigamous marriage can be validated upon the removal of the impediment- when the prior marriage has been terminated as long as good faith)
**also under presumption of validity, the last of several marriage is presumed valid
2. Incest / blood relationship
3. Incapacity (P lacks ability to understand the nature- voidable if P gains capacity under the UMDA)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

What is a limited divorce (& 2 common situations)

A

A limited divorce is when the court resolves support and property issues while the parties live apart and remain legally married (mainly medical or religious situations)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

A divorce is….
Filing for divorce requires…. (Divorce jx). This allows____________
To divide marital assets in a divorce______________
Modification R?

A

A divorce is a judicial decree that terminates the legal marriage.
Filing for divorce requires at least one of the parties to be a resident of that state. P jx of merely one of the parties will allow a state court to issue a divorce decree and then other states may recognize the decree through FF&C CL.
To divide marital assets, a court needs pjx over both parties. Property distribution orders are generally not modifiable, absent fraud.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Ex parte divorce is… (what is it + limitation)

A

When a court with personal jx over only one spouse can issues a divorce decree but can not determine property division, maintenance or custody issues

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

3 requirements for enforceability of premarital agreements

A
  1. Full & fair disclosure (of assets/obligations or else unconscionable)
  2. Fair & rsb terms (considering wealth, age, and health of parties- no public assistance or child custody/support)
  3. Voluntary signed in writing by both (no fraud, duress, time pressure, consider business experience & opportunity for legal counsel)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Modification of a premarital agreement may be prohibited if…
*ct caveat?
Under the UPAA, ________________ unless______________.
Always consider _________

A

The parties include a no-modification clause in the agreement, but the ct may always modify child support, provisions, despite a no-modification clause.
Under the UPAA (Uniform Premarital Agreement Act), modification or elimination of spousal support is permitted unless it would leave a spouse to depend on welfare.
Always consider public policy.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

Community property vs equitable distribution

A

Community property- all marital property (acquired during marriage no gift/inheritance) split 50/50
ED- equitable split not nec equal (ct will consider length of marriage, health/income/age of spouses, education, child rearing, future needs, standard of living). NO MODIFICATION UNLESS FRAUD

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

General spouse support duty R:
spousal support is… (def)
To modify a spousal support order, one must show_________

A

Generally, a spouse has a duty to support their spouse.
Spousal support is the obligation of one party to provide financial support to the other, even upon divorce, if that person cannot provide for his or her own needs (cannot be discharged in bankruptcy)
*to modify, show a sub change in circumstance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

The Uniform Interstate Family Support Act acts as a __________ (hint: pro)

A

LAS for PJx over a nonresidents to establish or enforce child support

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

General child support R:
7 factors to consider in determining child support

A

Both parents have an absolute duty to support their children until the child reaches the age of majority or is otherwise emancipated.
Ages, special needs, party obligations, assets, medical expenses, standard of living and BIOTC

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

Child custody is….
Uniform Child Custody Jx & Enf Act (UCCJEA) 2 part analysis
How is “home state” defined?
What is considered evi for sig connection?
*continuing jx R
In awarding child custody, the court will consider ___________, which encompasses (5 things)
Modifying a support order requires _____________such as (2)

A

Child custody is a parent’s right to make legal and/or physical decisions affecting a child’s life.

  1. Grants SMJ if child’s HOME STATE (residence w/ parent since birth or at least 6 consecutive months or was child’s home state for at least 6 months and 1 parents continues to live there)
  2. Allows ct to enter/modify order IF NO HOME STATE as long as SIG CONNECTION AND EVI in the state regarding CHILD CARE)
    **Ct that makes initial ruling has exclusive cont jx until neither parents nor child resides in state or child no longer has sig connection & no more evi available

In awarding child custody, the court will consider the BIOTC (encompasses parent’s wishes, the child’s wishes, ability for the parent to provide for child’s needs, adjustment to home/community)

Modifying a support order requires a showing of a substantial change in circumstances, such as the needs of the child or the ability for the parent to pay

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

A ct may have Temporary emergency jx over a child for custody orders if _________

A

child is in immediate danger (if prior order exists, rsb time for parties to return to original state)
*order will cont until future determination or emergency order will cont

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

The Parental Kidnapping Prevention Act (PKPA) requires that ______________ as long as _______________ and ______________

A

state courts MUST give FF&C to child custody decrees of other state courts when: (1) issuing court had jx
AND (2) the assertion of jx consistent with the jx requirements of the PKPA.
UCCJA or UCCIEA (most states)= sub same requirements as the
РКРА

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

Visitation Rule (including the presumption)
Denial of visitation only allowed if…

A

Generally, there is a rebuttable presumption that the noncustodial parents should be granted RSB VISITATION w/ a minor. Visitation cannot be denied for non-payment of child support.
Denial of visitation is only allowed if it would seriously endanger the child’

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

6 situations that will terminate parental rights + standard

A

clear and convincing proof of
abuse (even of a sibling), abandonment, neglect, incapacity or proof that the child has been placed outside the home of a relative for 15 of the past 22 months
*note- biological parents may voluntarily give up their parental rights

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

Adoption is _____________
Generally, adoption may only occur…
However, (consent caveat) ___________

A

Adoption is the legal severance of the biological parent’s legal rights and responsibilities for the child (visitation rights usually lost) for their child.
Generally, both bio parents need consent, apart from cases of mental illness or abandonment. And if child is non-marital, consent of bio father only req.’d if he has assumed responsibility

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

UPAA governs ____________
Challenger must prove __________ OR _________________.
COL caveat?

A

Uniform Premarital and Marital Agreements Act governs the enforcement of premarital agreements. Specifically, the party against whom enf is sought must prove involuntariness OR unconscionability.
The act also allows parties to a prenup to choose which state’s marriage laws apply.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

A debtor may give security rights in future property by…

A

Including an after acquired property clause

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

General Authority R (from P to A) Actual Authority may be express or implied….
Parties must have?

A

An agent has the power to bind the principal to a contract when the agent acts with actual or apparent authority Actual authority may be express or implied. Express authority is when the P clearly gives authority to A through oral or written words.
implied authority exists when the PRINCIPAL’s conduct leads the A to RSBLY believe that she has authority, such as through nec acts to complete a transaction on the P’s behalf
***must have consent (capacity)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
48
Q

General Rule for Apparent Auth?
Apparent authority exists when ______________ due to _____________
Will establish ___________ liability.

A

Even when an A lacks actual or authority, the P can be held liable for the A’s acts if the A acted with Apparent Auth.
Apparent Auth exists when the third party dealing with the agent RSBly believes that the agent has authority to act on the P’s behalf due to an act or neg from the P (holding out A as an agent)
**will amount to vicarious liability

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
49
Q

a P may be vicariously liable (3 parts) if

A

the A or emp was acting within the scope of their employ, made a minor deviation from employ, or committed an intentional torts for P’s benefit

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
50
Q

an A will be liable for contracts entered into with a third party if (3 parts)

A
  1. the A had no actual or apparent authority to enter into the K
  2. if the P is undisclosed to the 3rd P (where the 3rd P does not know the A is acting on another’s behalf)
  3. or if the P is partially disclosed (3rd P knows A is working on behalf of a P but doesn’t know ID)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
51
Q

A General Prtnrship is (3 parts + test + liability)

A

The association of two or more persons to carry on a for-profit business as co-owners. All partners will be J/S L.
Specific intent to form a Prtnrshp unnec (only the agreement to form a for-profit business together). No paperwork is needed and will be the default if parties have improperly tried to form another business association.
TEST- sharing of profits (presumption). Also, exercise of control & day-to-day operations considered.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
52
Q

Generally, an agent is prohibited from delegating authority to a 3rdP without…….

A

P’s express authorization

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
53
Q

Revocation of Agency Authority is effective… unless___________

A

As soon as either party gives notice to the other party (unless A has an interest in the subject matter of the power)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
54
Q

6 ways to terminate the agency relationship besides revocation

A

Agreement states expiration, change in circumstances, passage of time, loss of capacity, A’s breach of fiduciary duty, revocation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
55
Q

An agent has a duty to their Prinicipal of… (3 + basic definitions)
A principal has a duty to it’s agent to… (3)

A
  1. Duty of care (follow instructions, rsbly perform, notify P, diligence, etc)
  2. Duty of loyalty (avoid self-int)
  3. Accounting (provide P with notice of issues and info of funds)
  4. Rsb compensation (unless A has agreed on gratuitous)
  5. Reimbursement (for expenses and losses rsbly incurred in carrying out duties)
  6. Cooperation (P must cooperate with A to help A carry out functions)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
56
Q

3 ways to end a prtnrship

A
  1. Death of any partner
  2. End of a definite term / completion
  3. Partner dissociates
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
57
Q

When a partner dissociates from a partnership (which occurs when ___________) _________ occurs which triggers _________ (define).

A

When a partner dissociates (may occur at any time upon desire to withdraw, agreed upon event, expulsion or bankruptcy) dissolution occurs which triggers the winding up of the assets (procedure by which the prtnrship assets are liquidated and creditors are paid).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
58
Q

An LLP is…
Any partnership can become an LLP upon _____________ and _____________.
Who has Liability before vs after LLP statement is filed?

A

An LLP is a partnership that limits a partner’s personal liability obligations and actions of the business.
Any partnership can become an LLP upon approval of partners by vote and filing a statement of qualification with the state containing partner names, addresses, election and effective date.
Before statement is filed, partners are jointly and severally liable.
After the statement is filed, LLP partner is liable.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
59
Q

Ratification will allow __________even if ______________ as long as ____________and then ______________.

A

P to be liable for the acts of the A, even if the A lacked authority as long as P KNEW the material facts w/ capacity to authorize a transaction and then affirmed/manifested the BENEFIT of the transaction.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
60
Q

An LP is…
Define general partner vs limited partner (+ liability)
An LP is formed by

A

An LP is a partnership that contains both general partners and limited partners for purposes of liability. General partners manage and control day-to-day operations (owe same fiduciaries as a general partnership & are J/S L) while limited partners have limited authority and are usually passive investors (no fiduciary duties and liable only to the extent of their investment)
Formation - Filing a certificate of limited partnership that contains names, addresses and signatures of general partners with the state

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
61
Q

Consumer goods are _______
Inventory refers to _________
Equipment refers to _________

A

Goods bought primarily for household, family or personal purposes.
Goods other than farm products that are for sale or lease or (includes goods at a store, raw material, work in process or materials used/consumed in business like fuel or wood)
Goods other than consumer goods, inventory, or farm products that is generally used the business, such as machinery, vehicles or computers

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
62
Q

Farm Products are

A

Goods such as crops, livestock, and supplies used or produced in farming operation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
63
Q

Default occurs when…
Sec’d P has a right to ______ or________ as long as _____________
Courts will consider….3

A

The debtor does not make the required payments to the sec’d party. The sec’d party has a statutory right to repossess the collateral pursuant to the judicial process or self help as long as the sec’d party does not breach the peace.
To determine whether repossession was peaceful courts examine: (i) where the repossession took place; (ii) who was present; and (iii) whether any protests were made. In general, breaking into locked property is a breach of the peace.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
64
Q

A promoter is personally liable for _______________ even if _______________
Unless ____ (3)

A

A promoter is personally liable for KNOWINGLY ACTING on behalf of a corp even if the Corp has not come into existence unless
1. NOVATION releasing the promoter from liability
2. A 3RD P RELIES ON the corp for performance
3. or the promoter had NO ACTUAL KNOWLDEGE that the corp’s charter has not yet been issued

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
65
Q

Corp liability for preincorp transactions

A

Corp is not liable for pre-in Corp transactions, even those for the benefit of the Corp

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
66
Q

A security interest in a nonconsumer deposit account is perfected by…

A

control

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
67
Q

Art 9 governs…

A

Sec interests of personal property and fixtures, and provides the rules for their priority

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
68
Q

Minor errors in the debtor’s name = ok unless________
Primary example? Unless______

A

Minors errors = ok (will not render the fin statement ineffective) unless seriously misleading
Sufficient name of debtor = seriously misleading unless statement discoverable in search of the records of the filing office under correct name

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
69
Q

Art III requires… and permits…

The judiciary has the power to review..

A

Art III requires the establishment of a SC and permits Congress to create other fed courts w/ limitations

The judiciary has the pwr to review:
1. Another branch act and declare uncon
2. The constitutionality of a decision by a state’s highest ct
3. And state actions under the supremacy CL

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
70
Q

11th A prohibits
+ 4 exceptions

A

a state or state agency for being sued in fed ct unless
consent, inj/dec relief, when damages are paid by the officer and Congressional enforcement of 13, 14, & 15

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
71
Q

4 Standing Requirements (w/ definitions)

A
  1. Injury in fact- concrete & particularized (future must be actual/imminent)
  2. Causation- injury caused by D’s violation of a con or other fed right
  3. Redressability- the requested relief is likely to prevent injury
  4. Prudential- PARTY = proper party in invoke judicial resolution
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
72
Q

An organization may sue on its own behalf or on behalf of its members if… (3)

A
  1. Members would have standing in their own right
  2. the interests at stake are germane to the ORG’S PURPOSE
  3. Member participation = unnec
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
73
Q

The Commerce Clause of the Constitution grants Congress the BROAD pwr to _____________ including (3)

A

Regulate commerce btwn the states, including the Channels and instrumentalities of interstate commerce (including persons and things moving in) as well as any activity that substantially affects interstate commerce.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
74
Q

Congress May regulate INTRAstate non-economic activity as long as…

A

there is a RATL BASIS for concluding that there is a cumulative national impact that has a SUBSTANTIAL EFFECT ON interstate commerce

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
75
Q

5 limitations on conditional funding

A
  1. Condition must be for general welfare
  2. Conditions must be CLEAR
  3. Relate to fed interest in particular nat’l project/program
  4. No uncon requests
  5. And no commandeering- cant exceed the point to which pressure turns into compulsion
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
76
Q

The entire DCC Rule

A

As enumerated in the constitution, Congress has the power to regulate commerce among the states and foreign nations. The dormant commerce clause, also known as the negative implication of the commerce clause, allows states to regulate in commerce areas where the Congress has not already enacted a law unless:
1. The state law is discriminatory against other states- to where it protects the local economy at the expense of out-of-state competitors (& even if the law is discriminatory, it will still be permitted if the state is acting as a market participant, had clear permission from Congress, is acting on a traditional state function such as waste disposal, or its nec to achieve an important non-economic state interest where there are no rsb alt)
2. The state law avoids regulating wholly out-of-state activity:
3. And there is no undue burden on interstate commerce

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
77
Q

State action is… requires….
(+DNI)

A

Necessary to trigger con protections (includes traditional govt functions or sig state involvement like joint venture). Needs state affirmative act to facilitate, encourage or authorize activity.
DNI mere licensing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
78
Q

A lease will be considered a security agreement for the purposes of ART 9 when…
Consignments will be considered a security agreement when…

A

The economic reality of the transaction involves personal property (especially where there is a payment obligation and the lease has some sort of “economic life”)

Delivery to a merchant that deals in goods of that kind— no auctioneers — he uses his own name (individual or biz), & not known by creditors to be engaged in selling others’ goods
***no consumer goods and the value must be at least 1K

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
79
Q

A disposition if collateral is deemed commercially rsb BY LAW if (3 different ways)
+ Order of proceeds disposition after a sale/auction (sec’d trans)

A
  1. Usual manner of a recognized market
  2. At the current price in any recognized market @ time of dis
  3. Or in conformity w/ rsb comm practices among dealers w/ similar property
    Disposition expenses then Satisfaction of the obligation owed to the disposing sec’d P then subordinate interests
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
80
Q

Effect of a sec’d party’s disposition in collateral

A

After default when the sec’d party disposes of the collateral, the sec’d party’s interest is discharged as well as any subordinate sec interests

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
81
Q

Slayer statute bars…

A

An individual who feloniously and intentionally kills the decedent (D)
**includes vol man but not invol man

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
82
Q

Lapse R (IOW when will the gift fail?)
vs anti-lapse conditions

A

Generally, if a B does not survive T, the gift will lapse/fail. However, an anti-lapse statute will save the gift if B had living descendants related by blood

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
83
Q

To distribute assets in a divorce… (2 req.’s)

A

There must have been a valid marriage and pjx over both parties

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
84
Q

Define these types of gifts
Specific
General
Demonstrative
Residue

A
  1. Specific - property distinguished with rsb accuracy from T’s other property
  2. General- property that is described in a general manner, not as specific as a specific gift, but can still be ID’d from T’s estate. General gifts must “speak” and be clear at the time of death
  3. Demonstrative- comes from a particular source
  4. Residuary- property that remains in the estate after all other gifts are made
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
85
Q

Articles of Incorporation are… they must include (4)
Bylaws are….
Bonus: under the RMBCA, bylaws may not contain…

A

The governing documents of a Corp
1. Corp name
2. # of shares Corp is authorized
3. Address of registered office
4. Name & address of each incorporator

Rules and regulations adopted by the BOD that govern the internal operations and management of a Corp.

Bonus: Under the RMBCA, bylaws may not contain provisions that are inconsistent with the Articles or a law of that jx

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
86
Q

Shareholder has a right to inspect records if… (2)

A

Proper purposes related to SH interest and 5D notice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
87
Q

A direct action is…
A derivative action is…
+ standing req (2)
+procedure (2)

A

A suit for injury/breach of a duty OWED TO A SH (must be actual injury to HIM & not simply injury suffered by Corp) ***rare
A suit by SH on behalf of the corp for breach of fiduciary
Standing-
1. P must have been a SH @ time of the wrong AND time action was filed AND cont as a SH during lit AND Must fairly & accurately rep corp interests
Pro- serve written demand on board unless futile (don’t forget about business judgment rule)
STRATEGY:
1. Whether a breach has occurred
2. ID SH remedy

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
88
Q

Business Judgment Rule + effect on liability.

A

Rebuttable presumption that directors/other corporate officers acted within the BIOTCorp if acted in GOOD FAITH and same care that an ORDINARY PRUDENT OFFICER in a like position would exercise under similar circumstances.
Result = insulated from breaching the duty of care

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
89
Q

A quorum exists when…

A

A majority of directors in office are present (at time of vote)
*will be valid unless articles say otherwise

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
90
Q

In a prtnrship, how will a transferee become a partner?

A

All partners consent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
91
Q

How is the agency relationship structured in a prtnrship?

A

A partner is an agent of the prtnrship and May contractually bind the prtnrship when the partner acts with actual or apparent authority (for business purposes)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
92
Q

How does a partnership convert into an LLP? (2)

A

Approval by all partners and file a statement of qualification with the state

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
93
Q

an ultra vires act is _________
3 possible consequences?

A

Act beyond the scope of the specific corp’s purpose (usually found in articles)
Consequences include a SH suit, a Corp suit (directly on an officer) or state action to dissolve

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
94
Q

to cleanse a director’s self-dealing/COI, he may use the safe harbor R, which requires…..(2)

A
  1. remaining FAIR TO THE CORP given the circumstances
  2. Received approval after disclosing material facts by either a majority of the disinterested SH or BOD
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
95
Q

A def may be found liable for strict liability if (3 general elements)

A
  1. FSB high risk of sig physical harm
  2. Even w/ RSB care
  3. Activity not commonly engaged in
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
96
Q

A codicil is.. (def + effect related to date)
A Holographic will is… (def + 3 req.s)

A

An amendment, modification or alteration to a previously existing will. When a codicil is validly executed, the OG Will is treated as republished and deemed to have been executed on the date the codicil was executed.
A holographic will is an unwitnessed handwritten will. These are not recognized in all states. If recognized, they will revoke a prior valid will.
Req.= T’s handwriting, SIGNED, and show intent to make a will (not say, simply a LTR that expresses intent to amend a will).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
97
Q

COL to determine will validity CL vs UPC

A

CL- T’s domicile @ time of death

UPC- where will was executed OR T is domiciled at time of death

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
98
Q

An Agent is________ in order to________
+ 3 req.’s

A

A person or entity that acts on behalf of another (or a principal) to create a fiduciary relationship.

Bonus 3 requirements: need assent (formal or informal agreement), benefit of the P, and control of P to A

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
99
Q

Vicarious liability may STILL be found in Emp-IC relationships for these 3 situations

A
  1. Inherently dangerous/hazardous activity
  2. Nondelegable duty (care)
  3. Implied apparent auth w/ rsb reliance
    **P be liable if neg training/hiring
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
100
Q

Generally, property is partnership property if…..
Property acquired solely in the name of a partner is presumed to be separate property (even if used for prtnrshp purposes) if… (2)

A

If acquires in the name of the partnership
1. He avoids using prtnrshp assets to acquire the property
2. And no written title instrument references the prtnrshp

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
101
Q

a parter breaches the duty of care in these 3 situations

A

a) grossly negligence/ or reckless conduct;
(b) intentional misconduct; OR
(c) a knowing violation
of law.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
102
Q

An LLC is _______________
It is formed when________________ and __________________.

A

An LLC is a business entity that relieves its owners of personal liability for debts and obligations of the company.
It is formed by by filing a signed certificate w/ sec of state and the company has at least 1 member.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
103
Q

Member-managed vs manager- managed LLC
+ presumption
+requirement for member managed

A

Manager-managed is when the LLC is run by an elected group of managers, who manage the company similar to a BOD.
Presumption = member managed
*The Operating Agreement must state that the LLC is manager-managed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
104
Q

________________ will liable for a pre-incorporation K where the K was subsequently adopted by the Corp? Unless (2)

A

BOTH the Corp AND the promoter (unless novation or K specifically absolves promoter)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
105
Q

Implied adoption of a pre-incorporation K occurs when

A

The Corp has reason to know or knows the material terms of the K and accepts a benefit from the K

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
106
Q

3 requirements for a De Facto Corp
+standing requirement

A
  1. GOOD FAITH ATTEMPT to incorporate
  2. Otherwise eligible to incorporate
  3. TOOK ACTION indicating that it considered itself a Corp
    ***only a person who was unaware that Corp was not properly formed may assert
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
107
Q

Piercing the veil occurs when….
4 situations where a court will Pierce the Corporate Veil (+LLC caveat).
Once the corp veil is pierced, _____________________ unless_____________.

A

A ct is able reach into the personal liability of SHs apart from its limited liability
1. ALTER-EGO / noseparation btwn Corp and SHs
2. SH failed to follow corporate formalities
3. INADEQUATE CAPITALIZATION of the Corp at its inception to cover debts/liabilities
4. Preventing FRAUD/ILLEGALITY
***all applies to LLCs except #3
Once the corp veil is pierced, all persons composing the corp (SH) maybe personally liable unless not involved in active management

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
108
Q

Authorized shares are___________. Found where?

A

The maximum # of shares a corp MAY ISSUE, as set in the articles.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
109
Q

In order to increase the # of shares to be issued, a corp must…. (3)

A
  1. Amend the articles
  2. Changes must be adopted by the BOD
  3. Changes must be approved by a majority of SHs
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
110
Q

Outstanding shares are (def)
Under the RMBCA each outstanding share is entitled to ___________ unless _____________

A

The total # of shares issued by the Corp and held by the SHs.
Under the RMBCA (revised model bus Corp act), each outstanding share is entitled to ONE VOTE unless provided in Articles

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
111
Q

Which shareholders are entitled to vote?

A

SH registered on the record date

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
112
Q

RMBCA, Record date cannot be fixed more than ___ days before SH meeting.

If not fixed at all, default = ?

A

70

Default = day before the first notice is delivered to SH

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
113
Q

A valid proxy SH must be ___________ or ______________.

A

Signed on an APPOINTMENT FORM or an ELECTRONIC TRANSMISSION.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
114
Q

A proxy SH must be accepted if

A

On its face there is no rsb grounds to deny its genuineness and authenticity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
115
Q

A proxy Is only valid for ________ months, unless proxy form provides otherwise.

A

11

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
116
Q

Revocability of proxy agreements +even if_____________
+unless ________ AND ____________

A

Proxy agreements are freely revocable by the SH, even if proxy states that its irrevocable.
**unless proxy expressly states and it is coupled with an interest/right

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
117
Q

A special meeting is __________
Proper notice to Shareholders for a SPECIAL MEETING = more than ____ but less than ___ and must include________

A

A special meeting is reserved for business involving fundamental changes that require SH approval. Notice must be more than 10D but less than 60D to all SH eligible to vote AND include full description of the purpose of the meeting.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
118
Q

2 ways to waive notice of a special meeting

A

Delivering a signed writing to the Corp OR attending the meeting without objecting at the beginning of the meeting

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
119
Q

5 requirements for SH to have the right to inspect and copy corp’s accounting records

A
  1. Inspection made during regular business hours
  2. 5D written notice
  3. Written notice describes w/ rsb particularity
  4. Good faith / proper purpose
  5. Records are directly connected with that purpose
    ***note that certain records may be inspected without purpose (articles, bylaws, annual reports, meeting minutes, BOD resolutions, communication to SH)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
120
Q

Under the RMBCA, unless the articles state otherwise, the BOD may hold regular meetings with _____ days notice and special meetings with ______ days notice.
Special notice requirements =?

A

0 and 2

Date , time & place only

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
121
Q

A secretary of a Corp normally has the authority to ___________________

A

Maintain and authenticate records of the Corp

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
122
Q

Restrictions on the transfer of shares of the Corp must be _____________.
An absolute restraint will be _________.

A

Rsb
Invalid

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
123
Q

2 requirements of the fiduciary duty of loyalty

A
  1. Director must act in the best interests of the corp
  2. And without personal COI
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
124
Q

3 situations of a corporate COI

A
  1. Director/officer or a family member is a PARTY to the transaction
  2. ^^ beneficial interest / close link that would affect judgment
  3. Or is involved w/ another entity conducting business w/ the corp
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
125
Q

Generally SHs do not owe fiduciary duties to fellow SHs (T/F)
Unless the SH is a ____________
Also- what even is a close-corp? (2 requirements

A

Controlling SH
Close Corp= not public ally traded & small # of SH

126
Q

4 requirements for a SH to bring a derivative action
+ timing of suit caveat +unless (2)

A
  1. Is a SH @ time of act (or via law)
  2. Must be a SH thru to judgment
  3. Must fairly & adequately rep corp interests
  4. And must make a WRITTEN DEMAND upon Corp to take action
    **suit cannot be commenced until 90D after Demand unless Corp rejects or irreparable harm
127
Q

If a majority of the BOD’s qualified directors have determined in good faith, after conducting a reasonable inquiry that the derivative proceeding is not in the best interest of the Corp., the Court _________ __________

A

MUST dismiss

128
Q

To prevail on a 10b-5 Securities claim, P must show (4 requirements)
+ standing

A
  1. D used interstate commerce to engage in a fraudulent scheme
  2. RELIED on to purchase/sell security
  3. Acted w/ scienter (K/SHK)
  4. Caused damage
    P must be SEC or connected to trans
129
Q

A short form merger occurs when…
+ voting rule

A

A parent corp merges w/ it’s own subsidiary. If the parent owns at least 90% of the sub’s voting shares, only the BOD has to approve merger

130
Q

A def May Remove an action from _______ to ___________ if … (3 req.)

A

A def May remove an action from state ct to the fed ct for the dist ct which the state ct action is pending if 1. if the case could have originally been brought in fed ct (SMJ + COMPLETE DIV)
2. All Def’s consent
3. Def seeks removal w/in 30D (up to 1 year) of receipt/service of initial PL or summons (whichever shorter)

131
Q

Procedure for a Def to Remove requires (4 parts)

A

A NOR in fed ct district where the state action is pending. The Notice must state the basis for removal and include COPIES of docs filed in state ct. serve Notice on all parties & file. Removal = automatic.

132
Q

PJx refers to…
COL R?
To exert PJx over a Def…

A

The CT’s ability to exercise judicial power over the person or property involved in the case or controversy before it. A fed ct will analyze PJx as if it were a state ct in that jx.
There must be either general jx or specific jx for the def.
General = @ home
Specific = refers to D’s contacts w/ in forum state (purposeful availment to be hauled into ct) + Con requirements of DP ( does not offend the traditional notions of fair play and Justice- fair & rsb)

133
Q

A party may be sanctioned for failing to preserve ESI if…. (3)

A
  1. The ESI should have been preserved in the anticipation of lit
  2. P failed to take rsb steps to preserve
  3. And it cannot be restored or replaced thru add’tl disc
134
Q

JMOL- deadline?
Standard? (2)
+2 situations when a judge can reverse a denial

A

Any time before case submitted to jury
- non-movant has been fully heard on issue and ct finds that no rsb jury would have found a legal basis
-only if factual finding not supported by sub evi or legal finding not supported by facts

135
Q

COL: vested rights vs MSR vs Gov’t Interest (+true conflict caveat)

A

Vested rights- apply law of the state in which the trans or event occurred

MSR- (R) weigh factors to determine MSR to trans & parties

Gov’t Int- weighs states int/connections that were involved (considers legal differences, policies, circumstance, etc). True conflict? Apply forum

136
Q

In a will, a decedent may designate a particular state’s law to be applied for matters of ___________________, but the _____________ and ___________ of a will is always determined by situs

A

Construction
Validity and effect

137
Q

Under the Uniform Interstate Family Support Act (UIDSA), state courts MUST _____________ as long as ____________

A

Must give FF&C to enforce child support awards when issuing ct had jx

138
Q

A taking is deemed for PUBLIC USE if…. ____________________. Just compensation is measured by ___________________.

A

RSB belief that it will benefit the public.
The FMV of the property at the time of the taking (DNI relocation $)

139
Q

A Regulatory Taking is…
3 Penn Central factors

A

owhen governmental regulations limit the use of private property to such a degree that the landowner is effectively deprived of all economically reasonable use or value of their property.
1. Impact on private interest
2. Extent of interference with distinct investment backed expectations
3. And character of govt action

140
Q

Under the PRIV & IMM CL of Art IV, states may not ___________________ concerning ___________ or _____________
+ however states may pass discrim law against non-residents if _______ and ____________.
Protection does not extent to __________ or ___________

A

Intentionally discriminate against non-residents concerning civil liberties or important economic activities (relating to livelihood)
*must have a substantial reason for treatment and law must be related to that reason
Note: DNI 👽 or corps

141
Q

Law that discriminate against a non-resident in violation of the PRIV & IMM CL will be upheld if (2)
Note: DNI 👽 or corps

A

There is a sub reason for the differential treatment and the discriminatory law has a substantial relationship to that reason

142
Q

UCC Rule:
Art 2 of the UCC governs Ks for the sale of goods. Goods are defined as ___________, including _________ and ___________.

A

All things that are movable at the time of ID to the K, including crops and animals

143
Q

An offer is…
A person makes an offer when…

A

An objective MANIFESTATION of intent to enter into an agreement with DEFINITE TERMS that creates a power of acceptance in the offeree.
A person makes an offer when they COMMUNICATE to an identifiable offeree a statement of willingness to enter into a bargain

144
Q

2 elements of an Implied-in-Fact K

A
  1. Conduct is intentional
  2. And each P K/SHK the other P would interpret the conduct as an agreement to enter a K
145
Q

Consideration is

A

A bargained for exchange of a benefit to the promisor or a detriment to the promisee

146
Q

Misrepresentation generally arises if ___________________
However, nondisclosure will subject a Def to liability if_____________
A misrepresentation is material if it would ___________________

A

Misrep arises when a Def ACTIVELY misreps a material fact.
No disclosure will subject liability if Def had a DUTY TO DISCLOSE.
Material = Likely induce a rsb person to agree

147
Q

4 requirements to RLY satisfy SOF

A
  1. Signed by (or on behalf of) P to be charged
  2. Rsbly ID subject matter of K
  3. Indicate a K has been made
  4. And state essential terms
148
Q

Rights will vest so that an 3rd P intended B may enforce K rights when… (3 situations)

A
  1. Manifesting assent
  2. Detrimental reliance
  3. Bringing suit
149
Q

CL expectation damages rule
+bonus recovery elements (4)

A

The general measure of damages for a BOC are expectation damages. ED ARISE DIRECTLY from the breach and are an attempt to put the non-breaching P in the SAME POSITION but for the breach.
To recover, must be ACTUALLY caused, FSB and in an amount CERTAIN as well as UNAVOIDABLE (rsb steps to mitigate)

150
Q

Instead of expectation damages, a court may award Restitution, which is available to prevent _____________ and measured by_____________________.

A

Prevent unjust enrichment

Measured by the value of the benefit conferred

151
Q

A superseding intervening cause is… (2 parts)

A

A 3rd P’s unfsb act that breaks the chain of causation, generally cutting off a Def’s liability

152
Q

3 elements of Voluntary Manslaughter

A
  1. Def was provoked (sudden and intense passion that caused a loss of self control)
  2. In a situation where a RSB person would have been provoked
  3. No time to cool off
153
Q

Larceny is the… (3)

A

Trespassing taking and carrying away of the personal property of another with the intent to permanently deprive the owner at the time of the taking

154
Q

A person is guilty of solicitation if…
A person is guilty of attempt if…
A person is guilty of conspiracy if…

A

Upon requesting encouraging or enticing another person to commit a crime With the specific intent that the crime be committed.
Took an overt act, beyond mere preparation, w/ the specific intent to commit the crime.
An intended agreement btwn 2 or more ppl to pursue an unlawful objective with an overt act in furtherance

155
Q

M’Naghten vs MPC vs II vs Durham
+ standard? Maj & min

A

MN- Def had a mental disease that resulted in him being unable to appreciate the wrongfulness or understand the nature and quality of his acts
MPC- Def had a mental disease that resulted in his inability to appreciate the criminality of his conduct or conform actions to the law
II- mental illness made him unable to control actions or conform to the law
Durham- but-for
Standard = most states preponderance (min = BARD)

156
Q

The use of deadly force is justified when… (2)

A

belief of threat to one’s life was RSB and the deadly force was nec to defend against the danger

157
Q

3 elements of a valid search warrant

A
  1. PC (reliable info that evidences a crime or items to be seized at a particular location)
  2. Description of particular place to be searched
  3. By a neutral and detached magistrate
158
Q

4 situations of exigency circumstances exception to warrant requirement

A

Evidence would disappear
Evidence would be destroyed
Hot pursuit + plain view
Emergency aid

159
Q

The automobile exception allows _____________ as long as there is ______ and _______________

A

Police to search the entire vehicle- even containers as long as there is PC and RSB probability that crime could be in those containers

160
Q

Exclusionary R + 4 exceptions

A

Under the ER, evidence obtained in violation of a Def’s 4th, 5th or 6th A, including all derivative evidence, is inadmissible under the FOTPT Doctrine.
Exc- independent source, inevitable discovery, attenuation (passage of time or intervening event), or reliance in good faith on defective warrant

161
Q

To be admissible, evidence must be relevant. Evi is relevant if (2)

A

It has a TENDENCY to make a fact more or less probable than it would be w/o the evi
And the fact is OF CONSEQUENCE in determining the action

162
Q

Evi is prejudicial when… (2)

A

It is UNNECESSARY and might cause the jury to improperly sympathize or dislike a P

163
Q

Under the Best Evi R, …
(Main R plus 5 exceptions)

A

The original writing, recording or photo is required in order to prove its content UNLESS
reliable duplicate - like photocopy
All originals = lost or destroyed good F
Original can’t be obtained thru judicial process , not produced after proper notice on P in control, OR not closely related to a controlling issue

164
Q

Evi of prior bad acts may be admissible for other relevant non-propensity purposes (motive, ID, mistake, accident, intent, common plan, opportunity, prep). To offer, must show (2)

A

By a preponderance of the evi that prior act was committed and that it’s probative value substantially outweighs the dangers of unfair prejudice

165
Q

Judicial notice is when… (3 parts)
+ jury instructions regarding acceptance (civil vs criminal)

A

The court takes note of an indisputable fact that is COMMONLY KNOWN in the community or readily capable of verification and cannot rsbly be questioned.
In a CIVIL case, judge instructs jury to accept as CONCLUSIVE. CRIMINAL- jury MAY OR MAY NOT ACCEPT fact as conclusive

166
Q

A present sense impression is..

A

An exception to the hearsay R that describes an event made by the Declarant while observing the event or immediately after. This includes a few mins after the event.

167
Q

An excited utterance is

A

An exception to the hearsay R that is a statement relating to a startling event made while the Declarant was under the stress of excitement that the event caused. Slight delay btwn event & statement = ok

168
Q

Business records are admissible as a hearsay exception if… (6)

A

It is a record of events, conditions or opinions
Kept in the reg course of business
Made at or near the time of the matter describes
Made by a person with knowledge of the matter in the regular practice of the business to keep such a record and the opponent cannot show the record was made under circumstances indicating a lack of trustworthiness

169
Q

Dying declarations may be admissible as a hearsay exception in these cases _____________ OR ______________.
Requirements : (3)

A

Civil or criminal homicide .
To be admissible, Declarant must be unavailable, statement made under sense of impending death and statement was about the circumstances or cause of impending death

170
Q

A Declarant is deemed unavailable as a witness if…. (5 different ways)

A

Exempted due to privilege,
refuses to testify despite ct order,
Testifies that he does not remember
Cannot be present due to death/ill
Is beyond reach of subpoena DESPITE RSB MEANS

171
Q

Statements against interest may be used as a hearsay exception only when ________________.
Criminal case caveat =

A

Declarant = unavailable
Crim case needs corroborating circumstance that indicates trustworthiness

172
Q

Aty WPD protects ________________ UNLESS (2)

A

All materials prepared by an aty or his agents in anticipation of lit UNELSS P can show SUBSTANTIAL NEED and substantial equivalent cannot be obtained w/o undue hardship

173
Q

Premarital Agreements are ______________. Parties may agree to ________________, including ______________ unless_______________ or ______________.
COL R : use ____________and ________
Requirements include (3)

A

Premarital agreement are Ks that generally provide for distribution of assets upon divorce or death. Parties may draft out any matter including personal rights and obligations unless violation of PUBLIC POLICY or CRIMINAL LAW.
*no binding agreements on 3rdP or child support provisions
(COL: Generally, use the state where parties executed K and regarding ENFORCEABILITY use the most significant relationship.)
Req.’s = IW, voluntary, & Full & fair disclosure , fair & rsb terms
Vol= ask if any Fraud, duress or coercion
*insistence on signing alone? Still vol

174
Q

Conditional Relevance exists when…

A

Neither piece of evidence is relevant on its own, but taken together would be relevant to an allegation or defense

175
Q

A court will permit a custodial parent to relocate if the relocation is.. (2)

A

In good faith and in the BIOTC

176
Q

An Unmarried biological father’s right to a relationship with his child is protected under the _____________ CL , ONLY IF… (2)

A

DP
Only if he has assumed parental responsibilities and established a substantial parent-child relationship

177
Q

4 unities req.’d for a JOINT TENANCY

A

Time, title, interest (equal), possession (rights)

178
Q

5 req.’s for a Constructive Eviction

A
  1. LL breached a duty to T
  2. LL’s breach caused sub loss of use & enjoyment
  3. T provided notice to LL
  4. LL failed to remedy w/ in RSB time
  5. & T vacated
179
Q

An assignment occurs when a T… Def?
The assignee is liable to ______ for ________ b/c__________.
The assignor is liable to __________ for ___________b/c _____________.

A

An assignment occurs when a tenant (the assignor) transfers
ALL of his remaining interest in a lease to a third-party (the assignee). The assignee is liable to the landlord for rent and all other covenants that run with the land because privity of estate arises between the assignee and the LL. The assignor also remains liable to LL for any rent not paid by the assignee because privity of contract continues to exist with the landlord.

180
Q

A surrender is…. (LL/T)
If LL accepts…
If LL does not accept…

A

An offer from the T to END A LEASE EARLY
If LL accepts, the T’s duty to pay rent ends
If LL does not accept, the T is deemed to have abandoned the lease & is liable for damages

181
Q

A real covenant is a….
It differs from an equitable servitude in that…

A

A non-possessory interest in land that obligates the holder to either do something or refrain from doing something on the land.
=/= ES in that the remedy is damages as opposed to injunctive relief

182
Q

To enforce the BENEFIT of a covenant, there must be….(4)

A

Writing
Intent to run
Vertical privity (successor holds entire interest)
AND T&C the land (makes more useful/valuable to benefited P)

183
Q

To enforce the BURDEN of a covenant… (6)

A

Writing (SOF compliant)
Intent covenant runs w/ land
Vertical privity (entire int)
Horizontal privity (2 Ps shared the int apart from covenant)
T&C the land
NOTICE

184
Q

An easement in gross….

An easement appurtenant… (2 + pass to subsequent owner caveat)

A

An easement in gross benefits a SPECIFIC owner’s enjoyment and DOES NOT run the land

An easement appurtenant benefits the land itself and IS ENFORCEABLE as long as NOTICE

185
Q

3 req.’s to form an easement

A
  1. Signed IW by Grantor (SOF comply)
  2. ID land + Ps
  3. INTENT for the grantor to convey the easement
186
Q

5 req.’s to establish an easement by Implication

A
  1. Single tract of land divided by common owner
  2. Pre-existing use established prior to division
  3. Continuous & open to establish permanency
  4. Use affects value of the land
  5. Such use is rsbly nec for Owner’s use & enjoyment
187
Q

The home builder’s implied warranty protects ___________ against _____________ and warrants ____________

A

A purchaser of a newly constructed home against latent/hidden defects and warrants that the building is safe/ fit for human habitation
**successors have standing!

188
Q

A BFP is…. (2)

A

A person who pays valuable consideration for real property and takes without notice of a prior conveyance

189
Q

A purchase money mortgage is used…
+ has priority over ______ unless..

A

By the buyer to purchase real property from the lender who secures a mortgage on the property.
Holder has priority over all claims/mortgages (both before & after) unless defeated by a recording statute

190
Q

A future advance mortgage is…
What amount?
What usual type of loan?

A

a loan in which the lender may provide future payments under the original loan.
Lender secured a mortgage for the ENTIRE AMOUNT.
**usually construction loans

191
Q

A trust deed is (same def as mortgage) EXCEPT it involves…

A

Is a security int in real property intended to be collateral for repayment of a loan except it involves a third P trustee who holds title until the loan is paid off

192
Q

An account is _________ for (8)

A

right to payment of a monetary obligation for
(1) property that has been or is to be sold, leased, or otherwise disposed of; (2) services rendered;
(3) a policy of insurance issued;
(4) a secondary obligation incurred;
(5) energy provided;
(6) the use or hire of a vessel under a charter or other contract,
(7) a debt arising out of the use of a credit card; OR
(8) winnings in a lottery or other game of chance sponsored by a State.

193
Q

3 different ways to perfect a deposit account

A

Sec’d P = bank where deposit account is maintained
the debtor, secured party, and bank have agreed in an authenticated record that the bank will comply with the secured party’s instructions for deposits without further consent by the debtor, OR
the secured party becomes the bank’s customer with respect to the deposit
account.

194
Q

A Possessory Lien is…
Has priority over over sec int unless
Prime ex?

A

A possessory lien is an interest (other than a sec int that:
1. secures payment/performance of an obligation for services or materials furnished by a person in the OCOB;
2. is created by statute or rule of law in favor of the person; AND
3. whose effectiveness depends on the person’s possession of the goods.

possessory lien on goods has priority over a security interest in the goods UNLESS EXPRESS STATUTE

Ex. mechanic’s lien

195
Q

Judgment lien creditors VS perfected Sec’d P ?

A

lien creditor will prevail if interest arose BEFORE the conflicting sec int was perfected

196
Q

Accessions are…
Interest R related to perf?

A

goods that are physically united with other goods, but continue to retain their separate identity.
Remains separate even if perfected at the time of the goods being United

197
Q

After default, secured party that disposes of collateral MUST_____
+ liability R

A

send an authenticated notification of the disposition to the debtor and any secondary obligor. The secured party is liable for damages for failing to provide notice, even if the debtor had actual knowledge of the disposition.

198
Q

The disposition of collateral at a FCL transfers _________ and discharges _________ and ____________
*bonus takes free R

A
  1. Transfers all of the debtor’s rights in the collateral to a transferee for value
  2. Discharges the sec int
  3. And discharges subordinate int
    *a transferee that acts in GOOD FAITH takes free of the rights of the debtor EVEN IF sec’d P fails to comply w/ disposition Rs
199
Q

Every aspect of a disposition of collateral, including method, manner, time & place must be____________
*courts will consider ___________

A

COMMERCIALLY RSB
Cts will consider all facts & circumstances (advertising, normal practices / trade, length of time, $$)

200
Q

A sec’d P may re-purchase the collateral… (3 different ways)

A
  1. Upon agreement
  2. Public sale
  3. Private sale ONLY IF collateral is of a kind that is customarily sold on a recognized market/subject of widely distributed standard price quotes
201
Q

A sec’d P’s liability for failure to comply with the applicable rules is generally limited to ___________ damages.
+ court involvement as last result?

A

Actual damages (and possibly $500 in statutory damages for specific provisions)
Ct may restrain collection, enforcement or sale if sec’d P is not proceeding w/ Rules

202
Q

Redemption Rule:
A debtor has the right to ___________ if he ____________ and _________ .
Debtor May redeem at any time before… (3)

A

Reclaim property held by the sec’d P if he fulfills all obligations sec’d by the collateral and pay rsb expenses/aty fees
*collection of the collateral,
Disposition (or K for disposition),
Or sec’d P has accepted collateral in satisfaction of obligation

203
Q

RSB person standard Rule (3 parts)
“Every person owes__________”
“A RSB person takes __________ measures to avoid __________”
“This duty is owed to ___________”

A

Every person owes a duty to act as a RSB prudent person would act under like circumstances. A RSB prudent person takes APPROPRIATE MEASURES to avoid FSB RISKS.
This duty of care is owed to all FSB plaintiffs.

204
Q

_______________ are held to the standard of an average member of that professional in the community, whereas ________________ are held to national standards

A

Professionals
Medical doctors

205
Q

LL liability modern rule
Vs traditional

A

rsb care TO ALL to take appropriate measures to avoid FSB risk
Traditional - determines by type of person.
Unknown/undiscovered trespasser- no duty
Known/anticipated trespasser- rsb care to warn OR make safe known dangerous art conditions
Licenseersb care to warn or make safe known dangerous conditions
Invitee- same ^^plus RSB INSPECTION for hidden dangers & make safe

206
Q

Under the doctrine of neg per se…
If neg per se applies, the duty and breach elements are established when _______. Ptf need only prove _________.
For Def to be liable, ptf must show (2)
Two exceptions = _____ and ______.

A

a statute may be used to substitute the duty of care.
If neg per se applies, the duty and breach elements are established when the defendant breaches the statute.
Ptf need only prove CAUSATION & DAMAGES
PTF must show:
(1) statute’s purpose is to prevent the TYPE OF HARM ptf has suffered
AND (2) ptf is in the CLASS OF PERSONS statute seeks to protect.
Exceptions: compliance = more dangerous than the violation of it AND compliance = impossible.

207
Q

Res Ipsa is a doctrine that may be used when ______________.
To be applicable, a ptf must show (3)

A

the breach element of negligence is very difficult to prove.
To be applicable, ptf must show in the absence of causation:
(1) that her injury is of a sort that typically does not occur in the absence of negligence
(2) the thing/object which caused her injury was in the defendant’s exclusive control; AND
(3) the negligence is within the scope of duty defendant owed to plaintiff.
*Most jxs also require that the ptf NOT cause/contribute

208
Q

An intervening cause is…

A

An act that occurs after the Def’s breach that contributes to the harm

209
Q

An employee acts within the scope of employment when _____________ or _____________.

A

performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control / general nature of what’s authorized

210
Q

3 ways an employee’s intentional torts will be within the scope of employment

A

Specifically authorized
Employee was driven by a desire to serve the employer
Or was the result of naturally occurring friction from type of employment

211
Q

Even if respondent superior would be inapplicable, an employer may still be found liable in situations like (4)

A
  1. Employee intended the conduct
  2. Employee was neg/reckless in hiring, training, supervising
  3. Non-delegable duty +SR
  4. Or employee had apparent authority + 3rdP rsbly relied on
212
Q

3 situations where a principal will be held vicariously liable for torts of an independent contractor

A
  1. Inherently hazardous activity
  2. Duty owed by principal = nondeleg
  3. Or estoppel where P holds IC out as agent to 3rdP & 3rdP rsbly relied on and then suffered harm as a result of IC’s lack of care/skill
213
Q

The doctrine of alternative liability allows __________________ if _________________ but ______________

A

A jury to find all Defs liable if multiple Defs are neg but it is unclear which one caused the Ptf’s injuries

214
Q

The doctrine of market joint venture allows _________________ if ______________ and ________________

A

The neg of one Def to be imputed to the others if multiple Def’s were engaged in a COMMON PRACTICE AND have agreed to engage in tort conduct

215
Q

4 elements of Defamation

A
  1. Defamatory statement- false statement that harms another’s rep
  2. Of and concerning Ptf
  3. Publication to a 3rdP
  4. And damages
    ** don’t forget that if the Def has a qualified privilege (bearing a relationship to a public/private int— like employer’s vouching for former employees) then Ptf must show malice where Def knew it was false or had a reckless disregard — rsb belief of truth will defeat the defamation claim
216
Q

A trust is…
A valid trust req.’s… (7)

A

A bifurcated legal instrument that separates legal title of property and equitable title to use for the benefit of another. ORAL TRUSTS ARE OK
1. Definitive B (even if future)
2. Settlor w/ capacity
3. Intent to create a trust
4. Trustee
5. Valid purpose
6. Trust property (present res)
7. Compliance w/ state formalities

217
Q

Percatory language in a trust or will are…

A

Words that merely express a settlor’s desire regarding the disposition of his or her property that do not create a legal obligation to act in accordance

218
Q

Trust revocability: majority view vs UTC

A

Majority- irrevocable by default
UTC- revocable unless stated otherwise

219
Q

Two situations that will cause a trust to be illusory

A

Settlor retains a right of withdrawal or names himself as sole trustee

220
Q

A discretionary trust occurs when…
Requires?

A

A trustee has absolute discretion and pwr to determine when and how much trust property is distributed to the Bs of the trust.
Requires Trustee’s good faith

221
Q

A support trust is….

A

A trust that contains a provision directing T to pay B as much income and principal as necessary for B’s support

222
Q

Cy pres only applies to….
It is an equitable doctrine that courts will use to modify….
Primary indication?

A

General charitable intent trusts or bequests.
Cts will modify the trust or will to be consistent with the settlor or Testator’s intent if the purpose becomes frustrated.
Primary indication = absence of a reverter (substitution B) CL

223
Q

A spendthrift provision is…
It is only valid if….
5 exceptions =?

A

A provision that prevents the transfer of a B’s interest which generally has the effect of prohibiting creditors from collecting on the trust assets.
Only valid if it restrains both voluntary and involuntary transfers.
Exceptions (when a creditor CAN reach B’s income) = creditor for necessities, child support/maintenance, when settlor is a B and is attempting to protect his own assets from a creditor, state/fed govt claims, revocable trust, or judgment creditor that provided services for protection of B’s trust interest

224
Q

Trust modification majority view vs minority.
Procedure for amendments?

A

Majority- must have expressly reserved the pwr to modify or revoke
Minority- settlor is free to modify or revoke w/o express language.
**amendments must be signed and in writing

225
Q

The trust equitable deviation doctrine may be applied if…

A

A ct finds that Continuing a trust on its existing terms would be impractical or wasteful (often due to circumstances not anticipated by Settlor)

226
Q

Conditions in a will/trust that prohibit marriage or require divorce are void as against public policy. However two exceptions =

A
  1. Restraint on remarriage (tied to surviving spouse interest)
  2. Intended purpose is to take care of daily necessities until they obtain other support
227
Q

A transaction entered by the trustee for the trustee’s OWN BENEFIT= ___________________ and therefore _________ whereas transactions involving trust property entered into w/ persons close to trustee = _______________.

A

Automatically presumed COI and therefore void .
Rebuttable presumption if Trustee shows no conflict

228
Q

A general pwr of appointment is…
Will only be valid if… (2)

A

When a testator/settlor gives another person the pwr to decide where and to whom the gifted property will go without any restrictions/conditions.
**will only be valid if instrument is valid under state law & clear intent for the pwr to be authorized

229
Q

A will is signed within the testator’s presence if…
Majority vs UPC

A

Maj- if it’s signed w/ in the testator’s LINE OF SIGHT
UPC- if it’s signed w/ in range of testator’s senses

230
Q

(Wills) Acts of independent significance are _____________ and are used by cts to ______________.

A

Are acts with significance outside of the Will making process and are used by cts to fill in any gaps in the will.

231
Q

A will is revoked by a PHYSICAL ACT if________________ and ______________.
Simple words of cancellation CL vs UPC

A

The testator INTENDED to revoke the will and the will is then burned, torn or otherwise destroyed or cancelled.
Simple words of cancellation must be come into physical contact w/ words of will (ex. Written over) CL but no physical contact necessary for UPC

232
Q

The doctrine of dependent relevant revocation cancels…

A

A previous revocation that was made under a mistaken believe of law or fact.
**always consider intent

233
Q

Revocation of Will occurs when…
Revival occurs when… +
CL vs UPC

A

The T burns, tears or otherwise cancels the will with intent
CL- earlier will will be auto revived if subsequent will revoked
UPC- use intent

234
Q

Gift satisfaction CL vs UPC

A

CL satisfaction = advancement
UPC satisfaction = no advancement unless the Will indicates or otherwise indicated in writing that gift/value will be deducted

235
Q

An anti-lapse statute provides that __________________ if _______________ AND ____________________

A

Where a B under a will predeceases the Testator, the gift will vest in the ISSUE of the predeceased B if the predeceased B is a specified BLOOD RELATIVE and the B leaves issue who survive T

236
Q

Ademption by extinction will occur if ______________ or _____________.
If T did not intend the gift to fail, B may be entitled to either _______________ or ________________.

A

A specific gift cannot be identified at the time of T’s death OR T no longer owns it at the time of death.
***property T acquired as a replacement OR a monetary devise equal to the value of the specific gift

237
Q

Abatement occurs when…..

A

Some gifts will not take into effect so that creditors claims may be satisfied (creditors have priority over Bs)

238
Q

3 req.’s for an effective disclaimer of a gift
+ bonus CL vs UPC timing req.

A
  1. In writing by disclaimer
  2. Describe the interest/pwr disclaimed
  3. Delivered/filed
    **CL w/ in rsb time (~9m) UPC any valid time
239
Q

To have testamentary capacity to execute a will, T must _________(4)

A

Be over 18
Understand the nature of the act
Understand nature of property
Understand the natural objects of his bounty (friends/family)

240
Q

A prima facie showing of undue influence occurs when… (4)

A
  1. T had a weakness that made him susceptible to influence
  2. Wrongdoer had ACCESS to influence T
  3. Wrongdoer ACTIVELY PARTICIPATED IN WILL
  4. Unexpected result
241
Q

3 ways a person has standing to challenge a will

A

Is a B, SHOULD be a B, or would financially benefit if decedent died w/o a will

242
Q

4 situations where a no-contest CL in a will will not apply

A
  1. Alleging fraud/revocation + good faith
  2. Contest is on behalf of minor/incompetent
  3. Alleging lack of jx
  4. Interpreting will terms
243
Q

Standard of proof to show a mistake in a will

A

Clear and convincing

244
Q

Judicial review is…

A

The SC’s power to declare action from a branch of govt or a state’s highest court unconstitutional

245
Q

Interstate commerce includes (3)

A

Channels, instrumentalities and any activity (even non-economic) that substantially AFFECTS interstate commerce
*if economic in nature, sub effect presumed

246
Q

Under the Taxing Pwr, Congress has the pwr to…. (3 parts)

A

Lay and collect taxes, duties, imposts and excises. They must be GEOGRAPHICALLY UNIFORM throughout the states and all taxes must be RSBly related to revenue.

247
Q

The First Amendment generally prohibits ____________ unless _________ can show__________________

A

The first amendment generally prohibits the government from restricting the content of speech unless the govt can prove that the restriction is necessary to achieve a compelling govt int

248
Q

Under the Spending Pwr, Congress has the pwr to_____________.
+5 limitations

A

Spend for the common defense and general welfare of the US.
Must be for general welfare, unambiguous, related to a fed int a particular natl project/program, no unconstitutional activity, and conditions cannot be so coercive that pressure turns to compulsion

249
Q

PDP pertains to….
In analyzing a PDP claim (2 steps)
Deprivation of liberty occurs when…
Deprivation of property occurs when..
A liberty deprivation involves _______
A property deprivation involves _____

A

PDP pertains to the process an individuals is guaranteed after a deprivation of life, liberty or property (14thA apply to states & 5thA apply to fed).
1. Whether a DP violation has occurs
2. What, if any, process is due
*liberty- govt deprives individual of freedom provided by Con
*property- govt deprives individual of an unfulfilled entitlement

250
Q

Elements of impracticability (3)
+UCC caveat?

A

UNFSB event
where non occurrence of the event was a basic assumption of which the K was made
and the P seeking discharge not at fault
*UCC seller MUST NOTIFY BUYER

251
Q

Acceptance is…

A

The unequivocal manifestation of assent to the terms of an offer made in a manner invited by the offeror, or else any manner rsb

252
Q

An option contract is…. (2 parts)
*CL caveat?
*mailbox rule caveat?

A

An option contract is a contract that keeps an offer open for a period of time. Such a promise limits the offeror’s pwr to revoke the offer until after the period has ended, while also preserving the offeree’s pwr to accept.
CL- separate consideration needed
The mailbox R does not apply to options

253
Q

A firm offer is… in which…. (3 req.’s)
A merchant for firm offer UCC purposes is _________ or __________
Consideration caveat?

A

A firm offer is a type of irrevocable offer under the UCC, in which an offer to buy or sell goods will be irrevocable if the offeror is a merchant, there is an assurance that the offer is to remain open, and the assurance is signed IW by the merchant offeror (separate writing if prepared by offeree)
A merchant for UCC firm offer purposes is described as one who regularly deals in goods of that type OR a businessperson when the transaction concerns a commercial nature.
*no consideration req.

254
Q

The doctrine of promissory estoppel will allow __________ if ______________ as long as ________________.

A

Will allow an offer to be irrevocable if the offeree RSB and detrimentally relied on the offeror’s promise prior to acceptance as long as it was RSB FSB that such detrimental reliance would occur.

255
Q

The PER bars….

A

Extrinsic evidence of prior or contemporaneous agreements when a K is a final and complete agreement btw the parties.
**remember that evi May still be introduced to determine ambiguity if the parties attached different meanings. Ex. “Daily use”

256
Q

Anticipatory repudiation occurs when _____________ OR creates _____________.
Timing req.?

A

There is an unequivocal and clear statement that a party refuses to perform or creates rsb grounds for insecurity about his ability or willingness to perform his obligations under a K.
*only before time of perf is due.

OR- When a party has clearly and equivocally has stated (before the K is due) that he will not perform, he has repudiated. the other party may then treat as a breach and sue immediately or wait until perf = due

257
Q

A party who has repudiated May retract as long as the non-repudiating party… (3) unless… (3)

A

As long as the nonrepudiating party has not accepted the repudiation, acted in reliance or sued UNLESS other party has cancelled, materially changed their position in reliance, or otherwise indicated he considers it to be final.

258
Q

A def may be guilty of robbery upon….

A

Committing a larceny from a victim’s person or presence through force or intimidation

259
Q

When an A acts on behalf of a P and… P’s ID is disclosed = what kind of K liability?
Partially disclosed?
P remains undisclosed?

A

Both 3rd P & P = K parties
P = party unless A & 3rd P agree otherwise
A = Party to K

260
Q

Two considerations to determine partnership formation are….

A

Sharing of profits (primary) and exercise of control over the business (secondary)

*NOT common property/partial ownership

261
Q

Aggregation R (and it’s relationship to supp jx)

A

Aggregation: A single P can “aggregate” all of her claims against a single D for purposes of satisfying the $75,000 standard.
If one P meets the standard, Supplementary Jurisdiction may well let other parties with claims for less than $75,000 have their claims heard, too. But if no P has claim(s) of more than $75,000 against any D, as a general rule plaintiffs may not aggregate their claims to meet the amount.

262
Q

A party may, w/ in ______ days, remand a case back to _________ by __________
+primary scenario?

A

Upon a defective removal, a party may within 30D of the NORemoval, remand a case back to state ct by filing a MOTION TO REMAND.
- usually in DIV where Def = citizen of forum state

263
Q

Standard for govt restriction on speech that is content neutral (name + definition)

A

Int scrutiny - narrowly tailored to achieve an important govt interest that leaves open alt channels of communication

264
Q

Negligence Rule

A

To prevail in a negligence action, the Ptf must show, the def owed a duty of care, the def breached that duty, that the breach directly and proximately caused the harm, and actual damages suffered. Negligence requires an objective standard, which compares the Def’s behavior to that of a rsb person.

265
Q

For a law to pass strict scrutiny… (3 parts)

For a law to pass intermediate scrutiny…

A

The govt must show that it is necessary to achieve a compelling govt interest. Additionally, the govt must show there are no less restrictive means of achieving its goal

Govt must show that the regulation is substantially related to an important govt int.
1. Govt must have an exceedingly persuasive justification
2. Genuine int (not simply for lit)
3. Govt may not rely on overbroad generalizations

266
Q

Hearsay Rule (2 parts)

A

Hearsay is an out of court statement by a Declarant offered to prove the truth of the matter asserted. Hearsay evidence is inadmissible unless it fails within an exception or exemption to the rule.

267
Q

A corporation is… (def) and generally has ____________(5)
A Corp is formed when…
The articles must include (4)
A de jure corp is __________

A

A legal business entity that is separate from its owners and generally has centralized management, limited liability, transferability, continuity and personhood.
A Corp is formed when the articles of incorporation are filed with the state.
Articles must include Corp name, authorized shares, name & address of each incorporator, registered office & agent.
A de jure corp is a corp formed in accordance with all state legal formalities

268
Q

Indemnification occurs when

A

The P can fully recover against the A for damages paid to the Ptf when the paying Def was not at fault in causing Ptf’s injuries.

269
Q

Consignments are _______________
3 req.s to protect interest

A

Transactions where an owner of goods delivers goods to a merchant (consignee) for the purpose of sale.
1. Goods are over 1K
2. Consignor did not use the goods as consumer goods
3. And the consignee merchant deals in goods of that kind (isn’t deliverer, auctioneer)

270
Q

For perfection against real property, fixtures require _______________ to have priority over an interest in real property

A

Filing a fixture filing where the mortgage would be recorded.
**otherwise, recording of the real property interest will prevail

271
Q

A buyer will prevail against an unperfected sec’d P if (3)
A buyer will prevail against a sec’d int if (2)

Shelter R?

A

The buyer has given value, received delivery, and HAD NO KNOWLEDGE OF A CONFLICTING SEC INT

Buyer is a BICOB (buyers in the ordinary course from a seller in the business of selling goods of that kind) AND HAD NO KNOWLEDGE of the CONFLICTING Sec Int

Shelter R allows a buyer who purchases CONSUMER GOODS subject to a PMSI from a previous buyer will take free if no knowledge, for value and before a financing statement was filed COVERING the goods

272
Q

Intestate succession def + arises in scenarios such as (3)
Added rule for “when Dec’s estate does not pass to her surviving spouse…..”

A

Intestate succession is the state procedure that distributes a decedent’s assets that are not disposed of by will.
Arises when Dec dies w/o a will
When Dec’s Will does not dispose of all her property
And if Dec’s Will is denied by probate
When Dec’s estate does not pass to her surviving spouse, it will pass to her heirs through the state’s intestate laws (which vary).

273
Q

Inheritance rights rule for
Stepchildren/foster children
No marital children
Posthumous children

A

None
All states permit inheritance from the mother but require established paternity to inherit from father is req
Posthumous- will inherit as if they were born as long as in gestation

274
Q

Simultaneous death rule (intestacy)
What are the two approaches? (+def)

A

One cannot take as an heir or B unless she survives the Dec
2 approaches= Uniform Simultaneous Death Act: will treat as if hear/B died before Dec unless sufficient evi Dec died first
120 hour R: heir/B is only treated as having survived Dec upon clear evidence that she survives by 120 hours (5 days)

275
Q

A will is….
To be valid, a will requires (3)
An attestation CL is…
Witness Beneficiary R?

A

A will is an instrument that directs the disposition of a Testator’s property upon death. It does not have legal effect until T’s death.
1. signed IW by T
2. T IN CAPACITY (of age and sound mind w/ present intent to execute a will)
3. In presence of at least 2 DISINTERESTED Ws (who have seen T sign the will and must sign in T’s presence w/ in rsb time)
An attestation CL is a CL included btwn T & W’s signatures that set forth the above requirements and that were satisfied
WBR- most states, will is still valid but gift is void (unless there were still 2 other disinterested witnesses)

276
Q

Integration may allow _____________ if ___________ and ______________ (wills)
Incorporation by reference May allow ____________

A

A separate document May become part of the will if the doc was physically present at the time of Will execution and the testator intended the doc to be part of the will.
Document extrinsic to the will to supplement terms of the Will if there was intent to incorporate, sufficiently described in the will, and was in existence at time of Will execution

277
Q

3 requirements to show undue influence (wills)
*presumption caveat?

A
  1. Influence was exerted on T
  2. T’s mind and free will overpowered
  3. T’s Will would not have been executed absent the influence
    ***presumption of undue influence if special relationship
278
Q

An LLC May dissolve upon the occurrence of various events, including (4)

A

Consent of all members
Passage of 90D w/o members
Ct order
Specific event in the operating agreement

279
Q

Under the Erie Doctrine…. including ___________
Once the applicable state law is determined….
When no controlling state case law is available….
ALWAYS AVOID _________

A

Under the Erie doctrine, a fed ct sitting in DIV must apply it’s own procedural law and apply the states substantive law, including that state’s COL rules.
Once the applicable state law is determined, the fed ct must apply that law as the state would. When no controlling state case law is available to the fed ct for guidance, the ct must predict how the state’s highest court would rule on the issue.
ALWAYS AVOID FORUM SHOPPING

280
Q

A trustee is in…
What is the No Further Inquiry R?

A

A trustee is in a fid relationship with the B’s of the trust. Thus they have several duties, such as the duty of care (invest as a rsb prudent investor portfolio as a whole) and duty of loyalty (no self dealing) cts follow the NO FURTHER INQUIRY RULE regarding trustees self dealing meaning they will not inquire into fairness and will only determine amount of damages.
Ordinary expenses allocated to income and extrodinady to principal.

281
Q

Under the UTC, (regarding revocability)
• An intervivos trust is….
• A revocable trust is…
• An irrevocable trust may only be revoked if…

A

Under the UTC, an intervivos trust is presumed revocable, unless the instrument states otherwise. If a trust is revocable, a settlor may terminate the trust at any time. If a trust is irrevocable, the trust may only be terminated if all Bs are in existence and agree (and if a settlor has died, the trust purpose must have been completed).

282
Q

A pour over Will…

What makes them valid?

A

A pour over Will funds a trust with a testator’s property upon T’s death. They are valid if the trust is ID’d in the will and the terms are incorporated in a writing that is executed before or concurrently with the execution with the will.

283
Q

A discretionary trust is…

A

A discretionary trust is a trust where the trustee has discretion when to make distributions to the Bs. Bs and/or creditors cannot demand any disbursements (unless child support or maintenance)

284
Q

A support trust is…

A

A support trust is when the trustee must pay what is necessary for the B’s support

285
Q

A charitable trust is…

A

Charitable trust is for a number of individuals for a specific purpose

286
Q

An assignment is….
A delegation is….
In general, duties are delegable unless ______________

A

A transfer of one’s rights under a K
A transfer of one’s duties under a K
Duties are delegable unless the obligee has a substantial interest in having the delegator perform

287
Q

Withdrawal from a partnership will be considered wrongful if ______________ or ________________ or ___________.
After such wrongful dissolution, remaining partners MAY express a will to wind up within ______ days

A

If the partner withdraws prior to the fulfillment of the specific purpose (unless within 90D of another wrongful withdraw) OR has BREACHED an express provision of the partnership agreement OR partner goes bankrupt.
90D

288
Q

Under the RMBCA, the Articles may be amended at anytime if…. (3)
UNLESS ______________ and ______________

A
  1. Adoption by the BOD
  2. Notice to SHs for Special meeting (including purpose)
  3. And adoption by SH majority vote
    UNLESS only minor amendment OR Corp has not issued shares yet
289
Q

Prelim- inj vs TRO

A

Prelim inj maintain the status quo pending the outcome of an action to prevent IRREPARABLE HARM to a P. Need Notice to AP, a showing of likelihood to succeed on the merits, irreparable harm, bond post, inj is in BIOTPublic.
TRO is an emergency remedy before prelim issued. Need SPECIFIC FACTS that show immediate & irreparable injury AND cert IW of efforts to give notice to AP (or otherwise why notice is futile) 14D exp

290
Q

Mootness refers to…
Ripeness refers to…

A

Instances where the dispute has ended or resolved before review (or capable of being repeated yet escaping review)
Ripeness refers to a case that is ready to be litigated in terms of there existing actual harm or immediate threat of harm

291
Q

6 presidential powers

A

Faithfully execute the law, appoint ambassadors (and other high level officers), appoint inferior officers when such power is granted by Congress, remove cabinet level appointees, pardon fed crimes (no crimes that lead to impeachment) and act as Commander in Chief to control troops
**also shares treaty pwr w/ Congress

292
Q

Congress has the power to delegate legislative power as long as ____________ and ______________

A

Delegable under the Constitution (no impeachment/declare war) AND Congress provides rsb intelligible standards to guide delegation

293
Q

Substantive DP refers to…

A

The process that is due upon the gov’t’s interference with a citizen’s fundamental rights

294
Q

The Free Exercise CL protects…
Test =?
Religious beliefs will be protected as long as

A

The govt from interfering with the exercise of religion.
Test = SS
Genuine and sincere

295
Q

The Best Evidence Rule requires…

A

The production of the original document when attempting to prove the contents of the document

296
Q

General Preemption R: (A state has a right…) unless ____________ or __________

A

A state has a right, under its police pwr, to enact legislation for the health, safety and welfare of its citizens unless such legislation is reserved for the fed govt or preempted by fed legislation

297
Q

A PMSI arises when___________ or ________________

A

A secured party gave value to the debtor and the debtor used the value to incur an obligation that enabled the debtor to acquire goods; or
A secured party sold goods to the debtor, and the debtor incurred an obligation to pay the secured party all or part of the purchase price

298
Q

Strict Products Liability elements (3)

A
  1. Product = defective (in manufacture, design, or failure to warn—inadequate instructions/warnings)
  2. Defect existed at time product left D’s control; and
  3. Defect caused harm to any FSB user (P) when product used in intended way
    ** product defective when it’s unreasonably dangerous
    **misuse may STILL be FSB
299
Q

A non-party has the right to intervene in an action when, (3)

A

A nonparty has the right to intervene in an action when, upon timely motion, (1) the nonparty has an interest in the subject matter of the action; (2) the disposition of the action may impair the nonparty’s interests; and (3) the nonparty’s interest is not adequately represented by existing parties.

300
Q

Required Joinder Rule (4 parts)

A

A person is deemed a Necessary P if subject to service of process & SMJ is kept in tact and
1. The person has an indisposable interest relating to the subject of the action
2. failure to join would cause additional litigation for the existing parties
3. AND the court cannot accord complete relief among existing parties

301
Q

CL murder definition

A

The unlawful killing, that is neither justifiable nor excusable, with malice aforethought

302
Q

Def hires hitman and hitman successful- crimes can be convicted of?
Crimes can be convicted if unsuccessful?

A

Solicitation, conspiracy and murder (co-conspirator liability all crimes in furtherance)
conspiracy and attempt

303
Q

The RAP states that

A

A B’s interest must vest, if at all, within 21 years of a life in being
*includes trusts ALA not charitable

304
Q

Impleader R

A

Under impleader, a defendant may serve a third-party claim only on a nonparty
“who is or may be liable to it for all or part of the claim against it.” This means that the basis of the claim must be derivative liability (e.g., indemnification or contribution).

305
Q

Conversion
(Def + Damage amount)
Intent standard?

A

A def will be liable for conversion upon a serious intentional interference that deprives the Ptf of use of her chattel

Damages = FMV @ time of conversion

Def must only intend to act to interfere - intent to cause damage unnec (mistake is no defense). But accidental damage is not conversion if Def had permission

306
Q

A person may use deadly force to defend herself upon… (2)

A
  1. a reasonable belief that she is threatened with imminent death or serious bodily harm
  2. She uses no greater force than reasonably necessary to avoid danger
307
Q

A partnership is…

A

An association of two or more persons to carry out a for profit business as co-owners

308
Q

A non-marital child may inherit from his or her father ALA __________________ (through means such as…)

A

Paternity can be established (through means such as a judicial decree, being named on the birth cert., other form of acknowledgement, blood test or medical testimony, resemblance in some states)
**time limits on filing for paternity to be awarded support = uncon. (unless substantially related to govt int such as preventing fraud)

309
Q

Service of Process Rule
Individual? (3)
Vs Business?

A

Individual - Service process may occur according to the law of the state of service, or according to the state in which the federal court sits, or by personal service USUAL PLACE OF ABODE with someone of suitable age/discretion or to an agent auth by law

Business - similarly, according to the law of the state of service or the state where the fed ct sits, OR by delivering the summons and complaint to an officer or agent authorized by law

310
Q

Promissory estoppel rule (def + 3 elements)

A

Promissory estoppel is a legal doctrine within that prevents a P from withdrawing a promise when a 2nd P has reasonably relied on that promise to their detriment.
Need: 1. clear and unambiguous promise by the def
2. rsb and fsb reliance by the ptf on that promise
3. And injury suffered by ptf due to their reliance