Quicksheets

Question 1

Present Possessory Estates

Answer 1

1) Freehold Estates (FSA, DEs, FT)
2) Life Estates
3) Term Estates

Question 2

Freehold Estates

Answer 2

1) Fee Simple Absolute (best estate, all possible right)
2) Defeasible estates (may terminate, includes: FSD, FSSCS, FSSEE)
3) Fee Tails (CL rule to limit to grantee’s children only, now disfavored)

Question 3

Language to create a Fee Simple Absolute

Answer 3

“to A and his heirs” (common law);

“to A” (modern law)

Question 4

Defeasible Estates: def and types (3)

Answer 4

An estate that may terminate upon some happening or event before its maximum duration has run. Includes:
(1) Fee Simple Determinable:
Terminates automatically on happening of a named future event, and estate returns to grantor

(2) Fee Simple Subject to a Condition Subsequent:
terminates on occurrence of a condition, power of termination must be expressly reserved to grantor

(3) Fee Simple Subject to Executory Interest: on happening of event that terminates estate, property passes to someone other than grantor

Question 5

Language to create a Fee Simple Determinable

Answer 5

created by durational language (“to A for so long as liquor is not served on the premises”)

Question 6

Language to create a Fee Simple Subject to a Condition Subsequent

Answer 6

Created by: conditional language as to occurrence of a condition that will terminate estate

Question 7

Ambiguous language in a FSSCS

Answer 7

If power of termination is not expressly reserved to the grantor, courts interpret it as an attempt to create FSSCS (but it fails, and is just a fee simple, i think)

Question 8

language creating Fee Simple Subject to Executory Interest

Answer 8

Created by: either conditional or durational language, that places the remainder with a third party (not grantor)

Question 9

Fee Tail: under CL and modern

Answer 9

A type of defeasible estate, under Common law, which descended to grantee’s children only (“issue of his body” or something)

Modern law: fee tails are disfavored and are treated as a fee simple absolute

Question 10

language creating a Life Estate

Answer 10

limits duration to someone’s life, e.g. “to B for life, so

long as B farms land.” Can be made defeasible, as in the example above.

Question 11

Term Estate

Answer 11

a non freehold estate, limited in duration (basically a landlord-tenant relationship)

Question 12

Future Interests (5)

Answer 12

Non possessory interest

1) Possibility of Reverter
2) Power of Termination
3) Reversionary Interest
4) Remainder
5) Executory Interests

Question 13

Possibility of Reverter

Answer 13

future interest in grantor that follows a determinable estate, created automatically along with a FSD, no special
language needed.
Upon happening of the FSD’s event/condition: land automatically reverts back to grantor.

Question 14

Transferability of FSD

Answer 14

Common law: could not be devised or transferred inter vivos (could pass through intestacy or will)

Modern law: freely transferable, devisable, and descendible

Question 15

“Life estate pur autre vie”

Answer 15

type of Life Estate, where duration of estate is measured by life of someone other than grantee
(i.e., “to B for the life of C”)

Question 16

Right of Reentry

Answer 16

= same thing as Power of Termination, non automatic future interest which must be spelled out

Question 17

Power of Termination

Answer 17

= same as Right of Reentry, a future interest in grantor when grantor attempts to create a FSSCS or a
defeasible life estate. This power is not automatic, and must be spelled out in the conveyance. Upon happening of the event/condition, land does not automatically revert; grantor must do something to retake property.

Question 18

Remainder, types

Answer 18

a future interest created in a third person that is intended to take after natural termination
of preceding estate. Could be Contingent or Vested.

Question 19

Transferability of Power of Termination/RoR

Answer 19

Common law: could descend through intestacy or will but could not be devised or transferred
inter vivos

Modern law: freely descendible and devisable but many jurisdiction still limit inter vivos transfers

Question 20

Language to create a Remainder

Answer 20

mean to begin after natural termination of preceding estate, i.e., “A to B for life, then to C,” creates a remainder for C.

Question 21

Reversionary Interest, language to create

Answer 21

A future interest retained by grantor when he transfers less than a fee to a third person
(i.e., “A to B for 10 years,” creates a reversion back to A after 10 years.)

Question 22

Transferability of Reversionary interest

Answer 22

Common law: could descend through intestacy or will, but could not be devised or transferred
inter vivos

Modern law: freely transferable, devisable, and descendible

Question 23

Contingent remainder

Answer 23

Any remainder that isn’t vested

Question 24

Vested Remainder

Answer 24

a remainder is vested at the point that it is:

(a) Created in an ascertainable person; and
(b) Not subject to any condition precedent other than termination of preceding estate

Question 25

Types of vested remainders

Answer 25

Vested remainder subject to total divestment;

Vested remainder subject to open

Question 26

Vested remainder subject to total divestment

Answer 26

A remainder that is presently vested but may be terminated on happening of a future event

Question 27

language creating a Vested remainder subject to total divestment

Answer 27

“A to B for life, remainder to C, so long as liquor is never served on the premises”

 C has vested remainder but could lose it by serving liquor on premises

Question 28

Vested remainder subject to open

Answer 28

A remainder to a class with at least one ascertainable member who has satisfied any conditions precedent to vesting, but other members may join class later

Question 29

types of class openings in a Vested remainder subject to open (2)

Answer 29

(1) Inter vivos conveyance: class opens at time of conveyance
(2) Testamentary conveyance: class opens at death of testator

Question 30

application of RAP to class closing

Answer 30

The Rule Against Perpetuities (RAP), which can void a future interest, generally does not apply to vested interests except: vested remainder subject to open.
If any member of a class could potentially claim in a way that violates the RAP, it will knock out entire class gift

Question 31

Executory Interest

Answer 31

A future interest in a third person that ends previous estate before it would have naturally terminated.
Any interest created in a 3rd party that follows granting of a fee will always be an executory interest.
An executory interest in subject to the RAP.

Question 32

Types of executory interests (2)

Answer 32

(1) Shifting executory interest: passes from grantee to grantee (most common)
(2) Springing executory interest: transfers property from grantor to grantee or grantee to grantee

Question 33

Waste and future interests

Answer 33

An owner of less than a fee estate cannot commit waste (i.e., harm property at expense of person who will hold it after them).
A remainderman has standing to sue for past or future waste.

Question 34

Types of waste (3)

Answer 34

(a) Voluntary waste = cannot intentionally or negligently damage property
(b) Permissive waste = failure to take take reasonable steps to avoid damage
(c) Ameliorative waste = tenant makes improvements to the land

Question 35

Common law re waste

Answer 35

tenant was not allowed to make substantial alterations unless authorized to do so. Tenant could be liable for cost of restoring the land to its previous condition

Question 36

Modern law re waste

Answer 36

A tenant is now allowed to commit ameliorative waste if:

1. Market value of remainderman’s interest is not impaired; and
2. Permitted by remainderman; or
3. Substantial and permanent change in neighborhood that justifies improvement

Question 37

Rights of different types of remaindermen to sue for future waste:

Answer 37

(a) Vested remainderman: can sue for damages or an injunction to stop waste from occurring
(b) Contingent remainderman: can sue for an injunction to stop waste from occurring (no damages)

Question 38

Application of the Rule Against Perpetuities (RAP)

Answer 38

(1) Identify type of interest RAP applies to: executory interest; contingent remainder; vested reminder subject to open; purchase option; right of first refusal
(2) Is it possible to interpret facts so someone can claim an interest more than 21 years after everyone currently alive is dead?
(a) If yes, the interest is wiped out and interpret the rest accordingly;
(b) if no, the interest will stand

Question 39

Restraints on Alienation

Answer 39

Total restraint

(1) On a fee: generally not valid
(2) On less than a fee: will be upheld if reasonable

Partial restraint (i.e., purchase option and right of first refusal): valid if reasonable, on both a fee and less than a fee.

Question 40

Types of co tenancies

Answer 40

Tenancy in common = each co-tenant owns an undivided interest in the whole of the property. No right of survivorship

Joint tenancy = each co-tenant owns an undivided interest in the whole of the property and has a right of survivorship

Question 41

Creation of a Tenancy in common

Answer 41

Creation requires unity of possession (each tenant has right to possess whole)

Question 42

Creation of joint tenancy

Answer 42

Traditionally, a joint tenancy requires for unities (TTIP):

(a) Time (take at the same time);
(b) Title (take by the same instrument);
(c) Interest (take equal shares of the same type); and
(d) Possession (each tenant has the right to possess the whole)

Today, most jurisdictions require only interest and possession

Question 43

Severance of a joint tenency:

Answer 43

Severance can be done by inter vivos act if one of the parties:

(1) Seek a partition action
(2) Joint tenant sells his interest in the property
(3) Joint tenant mortgages his interest in the property
(a) Majority view (lien theory): mortgage is viewed as a lien on the property, will not sever
(b) Minority view (title theory): mortgage is viewed as a title to property, will sever

Question 44

Tenancy by the entirety, and its severance

Answer 44

A joint tenancy where the parties are married.
Severance occurs when:
(1) they jointly convey the property to another;
(2) one spouse conveys property
to the other; or
(3) divorce

Question 45

Rights and duties of co-tenants

Answer 45

(1) Possession: each has a right to possess the whole
(2) Profit
(3) Payments/Expenses

Question 46

Co tenants’ rights to profit

Answer 46

(1) A profit produced by one of the co-tenant’s efforts: other co-tenants have no right to share in those profits (unless they’ve been ousted from the property)
(2) A profit generated by a third party (i.e., rent): all co-tenants are entitled to a proportionate share of the profit

Question 47

Expenses of co-tenants

Answer 47

(1) Taxes/mortgage payments: each co-tenant must pay proportionate share
(2) Repairs: a co-tenant may be permitted to reimbursement from rents collected
(3) Improvements: generally, a co-tenant is not entitled to reimbursement. Exception: if property is sold, amount attributable to the improvement goes to tenant who made the improvement.

Question 48

Landlord/Tenant relationship creation

Answer 48

creation is through a lease, which can be oral or in writing (writing is necessary for leases longer that one year)

Question 49

Types of Leases (4)

Answer 49

(1) Term of years
(2) Periodic Tenancy
(3) Tenancy at-will
(4) Tenancy at sufferance (holdover tenant)

Question 50

Term of years

Answer 50

(1) A lease that has a definite beginning and end (need not be a year)

Question 51

creation and termination of a Term of Years

Answer 51

Creation: express agreement between LL and tenant for a term specified in the lease

Termination: automatically at the end of the period; no notice is required

Question 52

Periodic Tenancy

Answer 52

A lease with a set beginning date and continues from period to period until proper notice is given

Question 53

Creation/Termination of a Periodic Tenancy

Answer 53

Creation: expressly or by implication with a holdover tenant.

Termination: LL or tenant must give appropriate notice of intent to terminate

Question 54

Requirements for proper notice for a Periodic Tenancy

Answer 54

Appropriate notice must be:

(i) in writing, if the lease/state statute so specifies, otherwise it can be oral; and
(ii) equal to the rental period up to a maximum of six months (i.e., one-year tenancy reqs six-months’ notice)

Timing of notice

(i) Common law: notice had to be given at the start of the rental period
(ii) Modern law: notice is good whenever given but does not take effect until the start of the next rental period

Question 55

Tenancy at-will (creation/termination)

Answer 55

Creation: generally, express agreement of parties

Termination: it terminates:

(a) freely as soon as either party decides (no notice requirement)
(b) if either the LL or tenant dies
(c) if either party attempts to transfer their interest

Question 56

Tenancy at sufferance (holdover tenant)

Answer 56

Creation: a holdover situation (i.e., tenant does not move out at end of the agreed-upon tenancy)

A holdover tenant becomes: a periodic tenant or a tenant at sufferance. Determining factor is the LL:

(i) If LL wants tenant to remain on the land, tenant become a periodic tenant
(ii) If LL does not want the tenant to remain on the land, becomes a tenant at sufferance until the LL can get tenant off the property

Crucial factor: acceptance of rent. If the LL accepts rent, this is evidence that LL wants tenant to stay.

Question 57

Common Disputes between LL and Tenant

Answer 57

(1) Fights over Rent
(2) Condition of the Premises and Who has the Obligation to Maintain (including disputes of possession, improvements )
(3) Assignment and subletting

Question 58

How much rent the LL can sue for (for 4 types of tenancies)

Answer 58

Tenancy for years = tenant is liable for all unpaid rent in the lease

(a) Common law: LL could only sue for rent as it accrued
(b) Modern majority: follows anticipatory repudiation but LL has a duty to mitigate (i.e., make reasonable efforts to rent the property)

Periodic tenancy = tenant liable for rental obligation until notice is given to terminate the lease

Tenancy at-will = tenant liable for amount of rent stated in the agreement that is already
owed

Tenancy at sufferance = tenant liable for the reasonable rental value of the property

Question 59

Tenants defenses in rental disputes (4)

Answer 59

(1) Failure to deliver possession
(2) Tenant has been evicted
(3) Tenant surrenders premises to LL (LL must accept the surrender and retake possession of the premises)
(4) Destruction
(5) Warranty of Habitability

Question 60

tenant’s defense of Failure to deliver possession

Answer 60

(a) Majority rule: LL has obligation to deliver possession

(b) Minority (“American”) rule: LL has no obligation to deliver possession of the premises; tenant must take it

Question 61

Types of eviction

Answer 61

Actual eviction = tenant is physically removed from all or party of the property (tenant is excused from paying rent)

Constructive eviction = the property is in such bad condition that tenant is essentially
being forced out (tenant must actually move out within a reasonable time)

Total constructive eviction: defense to the payment of any rent
Partial constructive eviction: reduction in rent only

Question 62

tenant’s defense of destruction

Answer 62

Common law: generally did not excuse payment of rent

Modern law: destruction is a defense to payment of rent. Exception: tenant intentionally or negligently causes the destruction.

Question 63

LL’s Warranty of Habitability

Answer 63

Requires LL to maintain the premises in a habitable condition
Rule: to claim breach of implied warranty of habitability, the tenant must:
1. provide LL with notice; and
2. allow LL reasonable time to repair it

Majority: applies to residential leases only
Minority rule: applies to residential and commercial leases

Question 64

Condition of the Premises and Who has the Obligation to Maintain: LL’s obligations

Answer 64

(1) Common law: LL has no obligation to maintain or repair leased premises
(2) Modern law: warranty of habitability (see above)

Question 65

Condition of the Premises and Who has the Obligation to Maintain: Tenant’s obligations

Answer 65

Ameliorative waste

(a) Common law: no obligation to make improvements and LL could hold tenant liable
(b) Modern law: tenant can improve if expressly authorized or a change in circumstances warrant the improvements to be made

Question 66

LL/T Fight over possession

Answer 66

Rule: LL can retake the property if the tenant has committed a material breach of the lease.

Common law: LLs were entitled to use reasonable force to retake possession from the tenant.

Modern law: majority of jurisdictions no longer allow use of any force and LL must use legal process.

Question 67

LL/T Dispute over improvements

Answer 67

Common law: anything (except a trade fixture) affixed to the land became part of the land and had to stay (w/trade fixture exception)

Modern law: if the fixture can be removed without effecting the premises, the tenant is entitled to remove the fixture (no distinction between trade fixtures)

Question 68

Trade fixtures

Answer 68

item used in the course of the tenant’s trade or business.

Rule: trade fixture could be removed unless removal would cause substantial damage to the property

Question 69

LL’s transfer of interest

Answer 69

If a LL transfers his interest, whoever is the LL of record on the date rent is due is entitled to that rent

Question 70

types Tenant’s transfer of interest (2)

Answer 70

Assignment = tenant transfers all of the remainder of the rental obligation

Sublease = tenant transfers only a portion of the time left on the rental obligation

Question 71

Liability of parties when a tenant assigns his interest

Answer 71

The assignee comes into privity of estate with LL.
Assignee is liable to LL for rent unless he re-assigns to a new assignee who
takes over privity of estate.
Tenant remains in privity of contract with LL, and is liable to LL for rent, even after assignment, unless there is a contract novation.

Question 72

Liability of parties when a tenant subleases

Answer 72

The sublessee comes into privity of estate and privity of contract with the tenant, owing the tenant rent.
Tenant continues to owe rent to LL.

Question 73

Permissibility of Transfer of interest in leases

Answer 73

Generally, interests in leases are fully transferable.

To prohibit both an assignment and a sublease, the lease must specifically state that both are prohibited.

Question 74

Covenants that Run with the Land

Answer 74

(1) Covenants
(2) Equitable servitudes
(3) Implied reciprocal servitude

Question 75

Covenants (creation)

Answer 75

for a covenant to run with the land, the following elements must be met (PINT):

1) Privity: horizontal and vertical
2) Intent that the covenant runs with the land (SoF appllies)
3) Notice: The current owner of the servient estate must take with notice of the restriction (requirement on servient side only)
4) Touch and concern the use and enjoyment of the land (must reduce/increase u&e of serviant/dominant estate)

Question 76

Equitable servitudes (creation)

Answer 76

three elements of an equitable servitude (TIN):

(1) Touch and concern the land: Burden must run with the servient estate; benefit with the dominant estate
(2) Intent: the writing (Statute of Frauds applies) shows intent that the restriction run to future landowners
(3) Notice: current owner of the servient estate took with notice

Question 77

Implied reciprocal servitude

Answer 77

Elements:

(1) Restriction is party of a common scheme or plan for development of the area; and Factors to show “common scheme”
(2) Current owner of the servient estate takes with notice of the restriction

Question 78

Horizontal privity

Answer 78

= relationship between original covenantor and covenantee.
Requires privity of contract in connection with land (i.e., LL/tenant, grantor/
grantee, mortgagor/mortgagee)

Question 79

Vertical privity

Answer 79

= the relationship between an original party and the successor in interest to the original party (privity of estate).
In order for the burden to run, privity of estate will only exist when the holder of
the servient estate transfers all of his interest in the servient estate to the new
owner.

Question 80

Factors showing a “common scheme” for the purposes of an Implied reciprocal servitude

Answer 80

a large percentage of lots expressly burdened; oral representations to buyers; statements in advertisements to buyers; or recorded plot maps or other declarations, etc

Question 81

Terminating a covenant or equitable servitude

Answer 81

May be terminated by:
written release;
merger of the dominant and servient estates;
abandonment;
estoppel, or changed circumstances so that the reason behind the restriction is no longer valid

Question 82

Servient estate

Answer 82

estate that is burdened by the easement (must always have a servient estate)

Question 83

Dominant estate

Answer 83

estate that is benefited by the easement (do not always have to have a dominant
estate)

Question 84

Easement appurtenant

Answer 84

benefits a parcel of land and has a dominant estate

Question 85

Easement in gross

Answer 85

benefits a person or entity rather than a piece of land (no dominant estate)

Question 86

Ways a Easement may be created:

Answer 86

1) Expressly – a writing must satisfy the Statue of Frauds
2) By Implication (by Prior Use; by Necessity)
3) By Prescription (Adverse Possession): actually, openly, notoriously, and exclusively uses land with hostile intent for the statutory period.

Question 87

Types of Easement by implication

Answer 87

Easement implied by prior use

Easement by necessity

Question 88

Easement implied by prior use, elements

Answer 88

requires:

(a) Common ownership of dominant and servient estates, then severance;
(b) Prior use of quasi-easement;
(c) Use was apparent or could be discovered upon a reasonable inspection; and
(d) Reasonable necessity

Question 89

Easement by necessity, elements

Answer 89

(a) Common ownership of dominant and servient estates, then severance; and
(b) Strict necessity

Question 90

Scope of Easements

Answer 90

If express easement states use, then that is only allowable use. Apart from that, an easement can be used to the extent that it is reasonably necessary to do so.
Holder of easement may do what is reasonably necessary to maintain the easement, even if it interferes with the servient owner’s use of his property.

Question 91

“Surcharging the easement”

Answer 91

Going beyond what is reasonable. Doesn’t terminate the easement, but the servient estate can sue for an injunction or
damages.

Question 92

Termination of Easements

Answer 92

1) Destruction of the servient estate
2) Termination based on actions of the easement holder
3) Termination based on actions of the owner of the servient estate
4) End of necessity: for easement by necessity, ends when the necessity ends

Question 93

Destruction of the servient estate…

Answer 93

…generally will terminate an easement unless the owner of the servient estate intentionally caused the destruction

Question 94

Termination based on actions of the easement holder

Answer 94

1) Merger of title
2) Written release: expressly terminating his rights in the easement (SoF)
3) Abandonment: an affirmative act in furtherance of the intent; and intent to abandon
4) Estoppel: owner of the servient estate foreseeably and detrimentally relies on the holder’s action/abandonment
5) Severance: owner of dominant estate tries to sever the easement from the dominant estate (only arises with easement appurtenant)

Question 95

Termination based on actions of the owner of the servient estate

Answer 95

1) Prescription: owner of the servient estate interferes with the use of the easement for the statutory period
2) Servient estate is sold to a bona fide purchaser (pays value and takes without notice)

Question 96

Merger of title

Answer 96

owner of the dominant estate also acquires the servient estate. terminates easement

Question 97

Profits

Answer 97

The right to go on someone else’s land and take something off of it.
Creation: can be created expressly or by prescription only (analysis is otherwise same as easements).
Termination: same as easements

Question 98

Licenses

Answer 98

A privilege to go on land (a personal right, not an interest in the land).
Licenses are freely revocable at any time, for any reason, unless the license is Coupled with an Interest, or Executed.

Question 99

License Coupled with an interest

Answer 99

The licensee purchases personal property that is located on the licensor’s property and is given permission to come onto the land to claim that property

Question 100

Executed License

Answer 100

The licensee expends money or labor in reliance on the license; license is irrevocable until the person gets value out of the expenditure.

Question 101

Transferability of licenses

Answer 101

Licenses are not transferable unless the licensor so intends

Question 102

Termination of Licenses

Answer 102

Licenses terminate on the death of the licensor or the conveyance of the servient estate

Question 103

Support rights include

Answer 103

lateral support and subjacent support

Question 104

Lateral Support

Answer 104

General rule: someone has an absolute right to lateral support, so if someone fails to provide it, the adjoining landowner will be strictly liable for any damages suffered.

Question 105

Approach to Lateral Support disputes:

Answer 105

If the land has been improved, ask:
would the property have subsided anyway, or was it the weight of the improvement that caused the land to subside?
(1) If the land would have subsided anyway: remains strictly liable
(2) If the weight of the improvement caused the land to subside, the adjoining landowner is liable Only if he was negligent in depriving the property of lateral support

Question 106

Subjacent Support

Answer 106

General rule: the right of support extends to:
(1) Land in its natural state; and
(2) Buildings existing on the date when the subjacent estate was severed from the surface
However, the underground landowner is liable for damages to subsequently erected buildings Only if he is negligent.

Question 107

Riparian View of water rights

Answer 107

Majority view:

Anyone within the watershed (touches the lake or stream) has a right to make reasonable use of the water

Question 108

Prior Appropriation/Use View of water rights

Answer 108

Minority view:

Awards the right to use water to the first person to take water for beneficial purposes.

Question 109

Requirements of land contracts

Answer 109

The Statute of Frauds requires a writing for a transfer of an interest in real property.
The writing must be signed by the party to be charged and must include:
(1) Description of the property;
(2) Description of the parties;
(3) Price; and
(4) Any conditions of price or payment if agreed on

Question 110

Exceptions to the Statute of Frauds for transfers of interests in land

Answer 110

1) Doctrine of part performance

2) Equitable and promissory estoppel

Question 111

Doctrine of part performance

Answer 111

The acts of part performance unequivocally prove the existence of the contracts (even w/o a writing), and requires a showing of some combination or all three of the following:

(a) Payment of all or part of the purchase price;
(b) Taking of possession;
(c) Making substantial improvements

Question 112

Equitable and promissory estoppel to prove an oral contract for the sale of land

Answer 112

Exception to SoF.
Equitable estoppel is based on an act or a representation.
Promissory estoppel is based on a promise

Question 113

Equitable Conversion

Answer 113

Definition: there is a bifurcation of title when a land-sale contract is formed
Equitable title: passes to the buyer
Legal title: remains with the seller until the deal closes

Majority rule: risk of loss is deemed to follow equitable title, so the risk of loss is on the buyer
Minority rule: risk of loss remains with the seller until the legal title or possession of the property passes to the buyer.

Question 114

Covenant of Marketable title

Answer 114

= title reasonably free from defects in both fact and law (not perfect title).
This covenant only manifests itself at the date of closing
Majority rule: a seller may use the proceeds of the sale to remove a cloud on title and make it marketable.

Question 115

Defects to marketable title may include:

Answer 115

(1) Unpaid mortgage or lien;
(2) Covenant or easement that restricts use of land;
(3) Title acquired by adverse possession until the adverse possessor quiets title; or
(4) Existing condition on the land that violates a zoning ordinance

Question 116

Merger (in transfer of interest in land)

Answer 116

Land-sale contract merges into the deed, and since the covenant of marketable title is implied in the contract, buyer cannot assert the contract, and must sue on the deed.

Question 117

Types of deed

Answer 117

1) Quitclaim
2) General Warranty
3) Special Warranty

Question 118

Quitclaim deed

Answer 118

an as-is deed (no warranties/covenants), and seller conveys whatever interest he has and buyer can’t sue

Question 119

Warranty deed:

Answer 119

buyer can sue on the deed through one of the covenants of title contained in the
warranty deed.
Can be general or special

Question 120

General warranty deed

Answer 120

contains all six covenants of title (3 past and 3 future), which covers the period prior to the sale, and Seller warrants there are no defects in the chain of title

Question 121

Special warranty deed

Answer 121

may contain some or all of the covenants, and may limit liability to the period that the grantee owned the land.
Seller warrants that no defects have occurred during his ownership.

Question 122

Present covenants in a general warranty deed

Answer 122

• do not run with the land and can be breached only at the time of closing:
  (1) Seisin (grantor promises he owns the property)
  (2) Right to convey (grantor promises he has the power to convey the property)
  (3) Covenant against encumbrances (grantor promises there are no encumbrances on the property)

Question 123

Future covenants in a general warranty deed

Answer 123

*runs with the land and breach can be at the time of closing or afterwards:
(1) Quiet enjoyment (grantor promises that grantee won’t be disturbed by a third party
asserting a valid claim to the land)
(2) Warranty (grantor promises he will defend the grantee against any third-party claim)
(3) Further assurances (grantor promises he will do everything reasonably necessary to perfect grantee’s title)

Question 124

Fitness and Suitability

Answer 124

Duty to disclose material latent defects known to the seller but not readily observable and not known to the buyer.
Applies to commercial builders and developers of new homes.

Question 125

Implied Warranty of Quality

Answer 125

Applies to sale of new or remodeled homes by builders and developers (does not apply to commercial structures).
Defects must be discovered within a reasonable time after construction or remodeling (covers significant latent defects).

Question 126

Types of Security Devices

Answer 126

1) Mortgages
2) Deed of Trust
3) Purchase-Money Mortgage (PMM)

Question 127

Mortgages

Answer 127

Mortgages must be in writing to satisfy the Statute of Frauds
Creditor’s remedies: choice to sue in personam (on note); or an in rem foreclosing on the land (through mortgage)

Question 128

Instruments that make up a mortgage:

Answer 128

(1) Mortgage (document that represents an interest in land)
(2) Note (represents the personal obligation of debtor to repay the debt.

Creditor can sue on either.

Question 129

Deed of Trust

Answer 129

Debtor (the settlor) borrows money and executes deed to property, and a third person (the trustee) keeps the deed until debtor pays debt

Question 130

Purchase-Money Mortgage (PMM)

Answer 130

= A mortgage that covers part or all of the purchase price (i.e., not a mortgage obtained to remodel a home).
A PMM that is recorded has priority over other types of mortgages

Question 131

Security Relationship Theories

Answer 131

1) Lien theory: mortgagee receives lien on property, mortgagor possesses property and has right to rents and profits from property
2) Title theory: mortgagee has rights to rents and profits from the property, mortgagor retains possession (until default)
3) Intermediate theory: lien theory applies until default (mortgagor has rights to possession, rents, and profits); then
upon default, title theory applied (i.e., mortgagee is entitled to possession, rents, and profits)

Question 132

Duties in a securities relationship

Answer 132

a person in possession has duty to manage property in a reasonably prudent manner (i.e., can’t commit waste)

Question 133

Transfers by Mortgagor

Answer 133

Mortgagor can make three types of sales of land encumbered by a mortgage:

1) Buyer takes “subject to the mortgage” (i.e., buyer has no responsibility to pay on it, either before or after foreclosure, this is the default);
2) Buyer “assumes the mortgage” (i.e., buyer becomes personally liable for it, along with original borrower);
3) Buyer “assumes the mortgage” plus a novation with the lender, so that buyer is only personally liable for paying mortgage.

In each case, the mortgage remains on the land and is available if the mortgagee needs to foreclose on it.

Question 134

Liability when mortgage is assumed:

Answer 134

(1) If debt falls into default: creditor can sue grantor, and grantor can get a court order compelling grantee to pay debt
(2) If grantor makes payments following the transfer: grantor can sue grantee for
reimbursement

Question 135

Due-on-sale clause

Answer 135

Gives mortgagee the option to require entire debt be due and payable upon any transfer (enforceable if in the mortgage)

Question 136

Transfers by Mortgagee

Answer 136

Mortgagee may transfer the note and mortgage, which travel together

Question 137

Discharge of Debt and Mortgage

Answer 137

a) Prepayment of Mortgage: No right to prepay mortgage debt unless the terms of mortgage expressly authorize payment.
b) Deed in lieu of Foreclosure: Mortgagor issues a deed in lieu of foreclosure, which takes subject to all mortgages on the property. Junior lienholders are unaffected

Question 138

Types of foreclosure:

Answer 138

i) Judicial foreclosure (i.e., judicial proceeding with pleadings, service of process, etc.)
ii) Private sale/power of sale (i.e., private party conducts a public sale)
There is no limit to the number of mortgages that one may have (“first in time, first in right” principle applies)

Question 139

Deficiency judgment

Answer 139

when foreclosure sale raises less money than the amount of the
outstanding debt

Question 140

Redemption

Answer 140

Debtor’s remedy is redemption. Redemption will stop the foreclosure if debtor pays off debt or brings loan current (all payments due and fees paid)
An acceleration clause prevents debtor from using redemption (not always upheld)

Question 141

Adverse Possession (AP)

Answer 141

3 major components: physical, mental, time
Physical: Adverse possessor actually, openly, notoriously, and exclusively occupies the land in a manner sufficient to put the true owner on reasonable notice of the AP.
(a) Minority rule: Requires adverse possessor to also pay taxes on the property.

Mental: adverse possessor has to occupy the land with a sufficiently hostile intent

(a) Hostile = claiming the land as your own
(b) Permission to be on the land destroys hostile intent

Time: adverse possessor has to be on the land continuously for the statutory period
(common law: 20 years)
(a) “Continuously” is a question of fact based on the nature of the land and the use to which it is being put

Question 142

Two ways to satisfy the “hostile” requirement for AP

Answer 142

(a) Claim of right (claiming the land as your own); or

b) Color of title (falsely believing you have good title to the property under a deed

Question 143

Split of authority on whether encroachment is hostile intent:

Answer 143

(a) Majority rule: a mistaken encroachment is sufficient hostile intent
(b) Minority rule: hostile intent exists only if the person who was doing the encroaching intended to encroach

Question 144

Tacking for AP

Answer 144

Combines AP periods to meet the statutory requirement; musty be a transfer from one
adverse possessor to another

Question 145

Scope of what the adverse possessor takes

Answer 145

Generally, can only claim the portion of the land actually occupied
Exception: when claiming under color of title, adverse possessor gets all the land described in the flawed deed

Adverse possessor gets whatever the true owner has (i.e., if true owner sold sub-surface rights, adverse possessor gets surface rights only)

Question 146

Disability in AP context

Answer 146

A disability (infancy, incompetence, imprisonment) can suspend the running of the statute of limitations if: the disability exists at the time the AP starts
The AP period begins to run once the disability ends (i.e., true owner gets out of jail or turns 18)

Question 147

Rights of the adverse possessor and true owner

Answer 147

True owners: can eject the adverse possessor and collect damages up to the point the statutory period has run.

Adverse possessor:

(1) When the AP begins, the possessor is considered to be the owner against the entire world except the true owner
(2) Once the statute of limitations runs, the adverse possessor is the true owner as of the date he entered the land

Question 148

Transfer by Deed

Answer 148

Three requirements for a valid conveyance: writing, delivery, acceptance

Question 149

Deed sufficient to satisfy the Statue of Frauds

Answer 149

Four written requirements of a valid deed:

(a) Sufficient identification of the parties;
(b) Words indicating an intent to make a present transfer of the property;
(c) Sufficient description of the property; and
(d) Grantor’s signature (grantee doesn’t need to sign deed)

Question 150

Delivery of the deed

Answer 150

Delivery exists if: grantor has the mental intent to transfer the property to the grantee

Ways to deliver the deed:

(a) Give it to the grantee (rebuttable presumption of delivery)
(b) Retain the deed (rebuttable presumption of no delivery)
(c) Give deed to a third party (i.e., escrow) to give to grantee

(i) Relation-back doctrine: conveyance to grantee relates back to the date grantor
gave the deed to third party
(ii) If grantor expressly retains the right to reclaim deed from the third party, there is
no transfer of title

Question 151

Acceptance of the deed by the buyer

Answer 151

Acceptance is presumed if the transfer is beneficial to grantee.
If grantee refuses to accept, there’s no transfer of property.

Question 152

Transfer by Operation of Law and Will: When seller dies before closing

Answer 152

If seller dies after executing a sales contract but before closing, decedent’s personal representative must complete the sale.
Money received goes to the beneficiary who inherits personal property.

Question 153

Transfer by Operation of Law and Will: Ademption

Answer 153

Ademption by extinction: property is described in a will but isn’t in testator’s estate at time of death
Ademption by satisfaction: property was gifted during testator’s lifetime but the property is still mentioned in the will

If a gift of property was made during testator’s lifetime, but a general devise is in the will (e.g., “one-third of my estate”), then the property already received will not be adeemed by satisfaction unless:

(1) Will provides for deducting the gift;
(2) Testator, in writing, declared that the gift was part of the general devise; or
(3) Devisee, in writing, acknowledged that the gift was part of the general devise

Question 154

Transfer by Operation of Law and Will (4 ways)

Answer 154

1) Transfer by Operation of Law and Will
2) Ademption
3) Exoneration
4) Lapse

Question 155

Exoneration

Answer 155

Majority rule: inherited property is taken subject to all outstanding liens and mortgages (estate does not pay them off)

Question 156

Lapse

Answer 156

Common law: if a beneficiary predeceases a decedent, any gift to the beneficiary fails

Modern law: many states not have anti-lapse statutes (i.e., beneficiary’s heirs “stand in his shoes” and get the bequest)

Question 157

Title Assurance Systems

Answer 157

1) Recording Acts
2) Indexes (how to record a conveyance)
3) Estoppel by deed
4) Shelter rule
5) Title Insurance

Question 158

Recording Acts (3)

Answer 158

1) Race Statute: the person who records first prevails
2) Notice Statute: a purchaser for value who takes without notice of any other claim (a bona fide purchaser) prevails; Pays value = paying more than a nominal amount (i.e., purchase price or reasonable amount)
3) Race-Notice Statute: an unrecorded conveyance is invalid against a subsequent bona fide purchaser who records first

Question 159

Types of notice

Answer 159

actual, constructive, or inquiry

Question 160

Indexes

Answer 160

=how to record a conveyance

Tract index (minority)

(1) A legal description of the tract of land followed by a chronological listing of all conveyances involving that piece of land
(2) You would immediately see any recorded conveyance and will always have constructive notice of a claim to property

Grantor-grantee index (majority)
(1) Two sets of books where the conveyance is recorded: one arranged by name of grantor, the other by name of grantee

Question 161

Estoppel by deed

Answer 161

Applies to a situation where someone transfers title to property that they do not have but then later acquire title to

(1) Majority rule: if grantor transfers title to property before he has title to property and then attempts the transfer property to another person, the first grantee may go to court and estop the grantor from denying title to him
(2) Minority rule: title automatically passes by operation of law to grantee (operation-of-law theory)

Question 162

Shelter rule

Answer 162

Protects a subsequent purchaser who wouldn’t otherwise have good title, “shelters” under good title of predecessor

Question 163

Title Insurance

Answer 163

Title insurance can be purchased at the time of closing so that if there is a defect in the chain of title, an unexpected encumbrance, or other similar problem, the buyer can make a claim under the insurance policy

Question 164

well pleaded complaint rule

Answer 164

for FQ jxn, a question of federal law must arise in P’s affirmative claim

Question 165

Can have state law in addition to federal if the FQ is:

Answer 165

i) Actually in dispute +
ii) Demands federal judges expertise and ought to be resolved uniformly +
iii) Not so commonly present in state law actions to trample their jurisdiction

Question 166

Diversity jurisdiction

Answer 166

Action between citizens of different states (need complete diversity) + amount in controversy is greater than $75k

Question 167

Diversity Jxn for class actions

Answer 167

Class actions where more than 100 persons and $5M, Diversity need only be “minimal” (a single P diverse from a single D)

Question 168

Determining citizenship

Answer 168

i) Human begins = only a citizen of 1 place at a time, state where resides and intends to remain indefinitely
ii) Corporations = could be citizen of 2 places, citizen of state incorporated and state in which it maintains its principal place of business (nerve center)
iii) Unincorporated associations (unions, LLCs, partnerships) = citizenship is the citizenship of every
member, could be all 50 states

Question 169

Aggregation of claims

Answer 169

P brings multiple claims against a single D will be added together to see if amount in controversy reached.
Can be totally unrelated, no same transaction or occurence requirement

Question 170

approach to determining Supplemental jurisdiction

Answer 170

Step 1: Determine relatedness ( same transaction/occurrence)
Step 2: Sneaky plaintiffs (Rule 14, 19, 20, 24, P may be trying to slip it in. SJ not available for these claims, need Div or FQ for these)
Step 3: is there a good reason for the court to decline anyway?

Question 171

Reasons a court might decline to exercise supplemental jurisdiction: (4)

Answer 171

i) Involves novel or complex issue of state law;
ii) Claim “substantially dominates” over FQ or Div;
iii) Anchor claim was dismissed;
iv) Other compelling reasons

Question 172

Home-state defendant rule

Answer 172

D can’t remove if Fed jurisdiction would be grounded only in diversity juris + D is a citizen of state where P filed suit

Question 173

Removal

Answer 173

D can remove from state to fed court if case could have originally be filed in fed court (subject to Home-state defendant rule). If multiple Ds, removal only allowed if ALL Ds agree to remove.

Question 174

Timing for removal

Answer 174

D must remove within 30 days of when grounds become apparent.
Normally, when D served w/ complaint, can be later: if P amends, then 30 days from that point.
Multiple Ds, later service on other Ds gives them, not D1 right to choose (but D1 can join later D’s removal).
If removal based on diversity, D must remove within 1 year of filing unless P attempted to thwart removal.

Question 175

PERSONAL JURISDICTION (PJ) = Power of court over particular person

Answer 175

=Power of court over particular person

Question 176

Approach for personal jurisdiction

Answer 176

Step 1: Look at state law (could a state court in that state assert PJ over that party?)
Step 2: Look at 14th Amend (State law must be constitutional under the Due Process Clause (DP) of the
14th Amend)

Question 177

State law constitutional if authorizes PJ in 1 of 5 circumstances:

Answer 177

a) Residency
b) Consent (by Appearance, Contract, Appointment/agent)
c) Service
d) Minimum contacts
e) Substantial business – High bar, “essentially at home”

Question 178

Minimum contacts – need all 3:

Answer 178

i) D has established a minimum contact with forum state, established if D causes harm in state, does business, or has an interest in real property in state
ii) Claim against D arises from that contact, and
iii) PJ wont offend traditional notions of fair play + substantial justice

Question 179

VENUE =

Answer 179

Region within a particular state where suit can be brought. Dictated by where the bad guy lives and/or where bad thing went down.

Question 180

Determining Venue

Answer 180

If all D’s reside in same state, then in district where any single D resides.

If Ds reside in multiple states, then in location of harm (defined as the district where a substantial part of the events giving rise to the claim occurred)

Question 181

Transferring venues (3 reasons)

Answer 181

a) Convenience (common) – Could have been filed there in first place + transfer is necessary for
convenience of parties and/or witnesses
b) Agreement – If all parties join request to transfer, court does not need to consider PJ or venue (if agree, consenting)
c) Interest of justice – If filed in improper venue, court can dismiss or in the interest of justice, transfer where could have been filed originally

Question 182

Forum non conveniens

Answer 182

If most convenient forum not in the US, court cannot transfer, but can dismiss without prejudice so P can refile in proper country, may not be in US. Same factors considered as in transfer of venue

Question 183

Contents of Complaint (3)

Answer 183

a) Grounds for subject matter jurisdiction
b) Statement of facts that are sufficient to show that P is entitled to relief
c) Demand for judgment and specify the relief sought

Question 184

Amendments (Rule 15)

Answer 184

Party can amend complaint once as a matter of right: within 21 days of serving it or if an answer or motion to dismiss has already been filed, within 21 days after that service. Party can amend an answer within 21 days of serving it

Party can amend with permission: oermission of opposing parties, then can amend; permission of court - will consider reason for delay and prejudice (usually granted)

Question 185

relation back rule

Answer 185

When adding new claims, amended complain is considered filed on date of original claim IF new claim arises from the same transaction or occurrence as existing claim

Question 186

Adding new parties: amended complaint will relate back to original filing date if party to be added:

Answer 186

i) Knew of the suit soon enough to not be prejudiced and not later than time permitted for service, +
ii) Should have expected to be named as a D, +
iii) Was originally left out because of mistake in identity

Question 187

SERVICE OF PROCESS

Answer 187

Must serve both the complaint + summons, if not, service isn’t proper.
Process can be serve either in a manner prescribed by state court in state where federal suit has been filed or where the D will be served; OR in a Manner specified by Fed Rule 4.

Question 188

Timing for service

Answer 188

Must be served within 90 days of filing complaint.

Question 189

Who can serve?

Answer 189

Anyone over 18 and not a party can serve.

Question 190

Options for service under Rule 4

Answer 190

(1) Deliver to D himself (through 3rd party);
(2) Leave at D’s usual abode with a person of suitable age and discretion residing there;
(3) Serve D’s registered agent; or
(4) Mail with letter requesting D waive in-person service (if D declines to waive, he becomes responsible for cost of personal service)

Question 191

Responding to complaint

Answer 191

Answer = D admits or denies P’s allegations and lists defenses he might have. For each allegation, D should specifically admit or deny. Failure to deny is deemed admitted.
Common defenses include statute of limitations, statute of frauds, assumption of risk.

Question 192

Defenses that are not waived/forfeited:

Answer 192

Failure to state a claim upon which relief should be

granted; failure to join necessary party; and lack of SMJ

Question 193

Motion for more definite statement

Answer 193

Court will order pleading to be clarified if so vague that

responding party cannot reasonably prepare a response

Question 194

Motion to strike

Answer 194

Court can (on own or motion) order material stricken if complaint/answer contains
redundant, immaterial or scandalous stuff

Question 195

Motion to dismiss

Answer 195

Seeks dismissal, can be filed by any defending party

Question 196

Timing of responses/answers

Answer 196

Initial response (answer or pre-answer motion): if D was actually served with process, then 21 days to respond; if Service of process waived, then 60 days to respond.

If D responds with 1 of above motions and its denied, then D must file answer within 14 days of denial.

Question 197

Preliminary injunction (PI)

Answer 197

Need notice to adverse party and:

a) Likelihood of success on the merits +
b) Irreparable harm (ongoing / imminent harm, can’t be undone later) +
c) Balance of hardships (is harm to P if no injunction greater than harm to D if granted?) +
d) Public interest +
e) Payment of security

Question 198

Temporary restraining order (TRO)

Answer 198

a) Similar to a PI – Same 5 part test, but:
b) TRO can be ex parte – must show tried to notify opposing party, was unable to, and needs a TRO to
avoid immediate irreparable harm
c) TROs expire 14 days after issuance; can be extended for 14 days upon good cause shown

Question 199

Multiple claims brought by 1 P and 1 D (Rule 18)

Answer 199

P can bring all claims in 1 lawsuit, regardless of relatedness of claims.
Not required to bring every claim but permitted to;
If related to claim in suit, must bring, or likely precluded

Question 200

Permissive counterclaim

Answer 200

Claim does not arise out of the same transaction or occurrence underlying P’s claims against D. D may file a permissive counterclaim but not required to do so.

Question 201

Compulsory counterclaim

Answer 201

Claim does arise out of same transaction or occurrence underlying P’s claim against D. D must file or forfeit.

Question 202

Cross claims (Rule 13(g))

Answer 202

Filed by party against co-party (D1 v. D2)

a) Allowed only if arise from same transaction or occurrence underlying one of P’s claims
b) Once a related cross is filed, this is the anchor claim. Can then file unrelated cross claims.
c) Co-D can counterclaim the cross. Compulsory/permissive rules apply, does not have to be related.

Question 203

Impleader claims (Rule 14)

Answer 203

D brings against person not already a party.

a) Must allege 3rd party is responsible for some / all of liability (contribution or indemnity)
b) D has right to implead if within 14 days of serving an answer, otherwise needs permission from court
c) After impleaded, 3rd person made party may bring own claims against others and implead others. Original P can also file claim against 3rd party (impleaded D) if it relates to one of P’s original claims.

Question 204

Permissive joinder (Rule 20)

Answer 204

Multiple P’s can join 1 suit or multiple D’s can be sued in 1 suit, as long as:

a) Joined parties claim relief (if Ps) or face liability (if Ds) that arises out of the same transactions or occurrence; +
b) There will arise questions of law/fact common to joined parties

Question 205

Mandatory joinder (Rule 19)

Answer 205

could be forced to add a party to the suit

a) Step 1: Is the absent party necessary?
b) Step 2: If missing party is necessary, can she be joined? (is there still PJ/SMJ?)
c) Step 3: If cannot be joined, are they indispensible?

Question 206

Necessary party

Answer 206

= Has an interest that might be impaired if left out; complete relief cannot be issued in the party’s absence; or if current parties would be subject to inconsistent / duplicative liability

Question 207

Determining if a party is indispensible

Answer 207

Court will consider extent of prejudice to missing party; can prejudice be lessened by shaping relief in a certain way; and if case is dismissed, whether P can find relief in another forum

Question 208

Class actions (Rule 23), requirements (4)

Answer 208

i) Numerosity: So many claimants that joinder is impractical
ii) Commonality: Questions of law or fact common to class
iii) Typicality: Claims are typical of class members ensuring the rep will have an incentive to litigate in ways to protect class
iv) Representativeness: Parties will fairly and adequately protect the interests of the class

Question 209

a case is proper for resolution via class action if:

Answer 209

i) Separate actions would create risk of inconsistent judgments or judgments would impair nonparties from protecting interests
ii) Where party opposing has acted in ways generally applicable to the class (not likely to work if seeking $$)
iii) Court finds that common questions of law or fact predominate over individualized questions, and a class action is superior to other methods for fair/efficient result

Question 210

Interpleader claims (Rule 22)

Answer 210

Have the other 2 guys sue each other.
Used when party fears it’ll face multiple/inconsistent liabilities (ex: wife/ex-wife fighting over insurance
proceeds, insurance co-files interpleader because if pays 1, other will sue)

Question 211

Intervention (Rule 24)

Answer 211

Non-party is interested, but has not been joined.

Could be “of right” or “permissive”

Question 212

Intervention of right

Answer 212

Must be permitted to intervene upon timely application when:

i) Claims an interest relating to subject matter of the action, and
ii) Without intervention, risk they might not be able to protect that interest

Question 213

Permissive intervention:

Answer 213

Upon timely application and at court’s discretion, may intervene with a claim or defense that shares with the main action a common question of law or fact

Question 214

Mandatory disclosures (Rule 26a)

Answer 214

What you get without asking, includes:

a) Initial disclosures
b) Expert disclosure
c) Pretrial disclosures

Question 215

Initial disclosures

Answer 215

Within 14 days after a Rule 26 conference, must provide:

i) All other parties the name/contact info of any witness that a party may use to support a claim or defense;
ii) Copies (or descriptions of) of documents, elec stored info (ESI), and tangible objects that may use to support claim or defense;
iii) Computation of damages sought and supporting docs;
iv) Copies of insurance agreement that may require them to pay

Question 216

Expert disclosure

Answer 216

At least 90 days before trial, if planning to rely on expert testimony, must disclosure name/contact info of expert and their final report which must include qualifications, opinion, and info relied on by expert

Question 217

Pretrial disclosures

Answer 217

At least 30 days before trial, must provide:

i) List of witnesses she expects to call;
ii) Witnesses she may call if the need arises;
iii) List of witnesses whose testimony will be given through deposition or transcript;
iv) List of docs or physical evidence she expects to present

Question 218

Scope of discovery (Rule 26b)

Answer 218

What you get if you ask for it, dictated by:

a) Relevance: any nonprivileged matter that is relevant to any claim or defense and proportional to the needs of the case, regardless of admissibility
b) Work product
c) Privilege: not discoverable
d) Undue burden
e) Experts (opinion of testifying experts, compensation, data, assumptions made)

Question 219

Work product

Answer 219

document or tangible object created by party or attorney in anticipation of litigation (post incident description of events)
Exceptions:
(1) Party can always obtain statement it has made
(2) Can get WP if party has substantial need and can’t get it without substantial hardship

Question 220

for discovery purposes, Undue burden exists in the following circumstances:

Answer 220

i) Discovery is unreasonably cumulative or can be obtained from less burdensome source or in less
burdensome way
ii) Party has had ample opportunity to obtain info themselves
iii) Burden or expense of proposed discovery outweighs its benefits, considering nature of evidence, amount in controversy, and parties’ resources

Question 221

Methods for discovery– How to get something you’re allowed to get

Answer 221

a) Interrogatories
b) Requests for admission
c) Requests for production of docs, tangible items, or access to evidence
d) Requests for mental or physical examination
e) Depositions
f) Subpoenas

Question 222

Interrogatories (Rule 33)

Answer 222

Questions submitted in writing to other party

i) Up to 25 Qs
ii) Can seek facts or contentions
iii) 30 days to respond, must be in writing and objections stated with specificity

Question 223

Requests for admission (Rule 36)

Answer 223

Request to admit truth or fact
i) If admitted, it’s in there for the trial
ii) 30 days to respond, may admit, deny, or state they have made a reasonable attempt to ascertain
truth but lack info to admit / deny

Question 224

Requests for production of docs, tangible items, or access to evidence

Answer 224

i) 30 days to respond, may object as outside scope of discovery
ii) If documents, responding party must provide them as they are maintained in usual course of business and label, but with electronically stored information (ESI), can provide copies

Question 225

Requests for mental or physical examination (Rule 35)

Answer 225

Used when party’s mental or physical state is at issue
i) Available only upon court order. When ordered, party must submit. Examiner must prepare report detailing exam and it is available to any requesting party

Question 226

Depositions (Rules 27, 30, 31)

Answer 226

i) May depose up to 10, but can get court order for more
ii) May use at a hearing or trial as long as opposing party had reasonable opportunity to be present and follows these rules:
(1) Deposition of party/party’s designee can be used for any purpose
(2) Deposition of non-party can be used (a) to impeach deponent, or (b) if deponent is unavailable (dead, disappearance) any purpose.

Question 227

Subpoenas duces tecum

Answer 227

Demand for documents

Question 228

Subpoenas ad testificatum

Answer 228

Demand for testimony.

Person served may object as outside scope of discovery or if it requires person to travel >100 miles from home or work.

Question 229

Enforcement – What to do if they ignore/don’t play by the rules of discovery

Answer 229

If they sort of comply:
i) Motion to compel:
ii) Sanctions
If they don’t comply at all: can immediately seek all sanctions above (except order of contempt) – no need for motion to compel.

Question 230

Motion to compel

Answer 230

made after movant has in good faith attempted to confer with resistor:

(1) If granted, movant gets fees/expenses for motion
(2) If denied, non-movant may get fees but only if motion was not substantially justified

Question 231

Sanctions

Answer 231

If after motion to compel, still doesn’t comply:

(1) Court order declaring facts established for requesting party
(2) Court order prohibiting disobedient party from presenting certain claims or defenses
(3) Stay or dismissal of entire action, or
(4) Order of contempt

Question 232

Voluntary Dismissal:

Answer 232

Claimant drops the cases, 3 ways:
i) Unilateral dismissal by filing notice any time before D has filed an answer or motion for summary judgment
ii) Stipulation of dismissal signed by all parties (settlement)
iii) Permission of the court. Generally will grant but if D filed counterclaim, court will not dismiss unless that claim can remain pending for independent adjudication.
OR
Dismissal with or with prejudice on future litigation (if silent, presumed without prejudice in first dismissal, subsequent dismissals are presumed with prejudice)

Question 233

Involuntary dismissals

Answer 233

= If P fails to prosecute her case or refuses to comply with a court order or any of the FRCPs, D can move to dismiss. Always with prejudice

Question 234

Default judgments

Answer 234

P properly serves D, D never responses. 2 Steps:

a) Entry of default: Clerk must enter
b) Entry of a default judgment (clerk enters if a sum certain; or P can request that court do it)

Question 235

Motion to dismiss

Answer 235

motion filed by defending party seeking dismissal of a claim against him.
Must be filed before an answer is filed, within 21 (where process served) or 60 days (where process waived)

Question 236

Grounds for motion to dismiss (7)

Answer 236

i) Lack of SMJ;
ii) Lack of PJ;
iii) Improper venue;
iv) Insufficient process (constitutional claim);
v) Insufficient service of process (statutory claim);
vi) Failure to state claim upon which relief can be granted; Court assumes facts are 100% true, must be plausible, not probable (needs some facts)
vii) Failure to join indispensible party

Question 237

Answers which must be included in first response (either motion to dismiss or answer) or they are forfeited: (4)

Answer 237

(1) Lack of PJ;
(2) Improper venue;
(3) Failure of constitutional process;
(4) Failure of statutory process

Question 238

Answers which must be raised any time before trial ends, or forfeited:

Answer 238

(1) Failure to state a claim upon which relief can be granted;
(2) Failure to join an necessary party

Question 239

Motion for summary judgment, approach

Answer 239

No genuine dispute of material fact, and movant is entitled to judgment as a matter of law.

Step 1 – Assess only the arguments advanced by the movant: have they shown non-movant lacks sufficient facts and/or law to prevail on claim/defense in question?
Step 2 – Examine non-movant’s response, must bring evidence sufficient for reasonable jury to find in her favor on a claim or defense

Credibility is not taken into account.

Question 240

Timing for SJ

Answer 240

Motion for SJ must be made any time before 30 days after the close of discovery

Question 241

Right to Trial by Jury

Answer 241

7th Amendment right to trial by jury in suits at common law, value > $20. Suits at common law, consider both:

a) Nature of the remedy (no injunctions)
b) Nature of the claim (has to be fairly analogized to a 1791 CL claim)

Question 242

Demand for Trial by Jury

Answer 242

Any party can exercise. If 10 parties, just 1 has to want it. No later than 14 days after the last pleading directed to the jury-eligible issue is filed, party exercising right must file with court and serve on other parties written demand for jury trial.

Question 243

Jury composition

Answer 243

6-12 members, chosen thru Voir dire

Question 244

Voir dire

Answer 244

(1) Challenge for cause: Unlimited, unfit to serve but must articulate unfitness
(2) Preemptory challenge: Parties have 3, auto dismissal, no justification needed unless the strikes give rise to gender/race discrimination

Question 245

Jury verdicts

Answer 245

unless parties stipulate otherwise, must be unanimous

Question 246

Motion for judgment as a matter of law (JML) (Rule 50a)

Answer 246

During jury trial only, court my enter (on own or upon motion), JML if:

i) Party against whom judgment is entered has been fully heard on the issue, and
ii) Party lacks sufficient evidence to prevail on issue necessary to claim or defense

Question 247

Renewed motion for judgment as a matter of law (Rule 50b)

Answer 247

If filed losing JML during trial, and then loses at trial, can try again.
In ruling on this new motion, the court may:
i) Allow the verdict to stand;
ii) Enter the opposite verdict; or
iii) Order a new trial (even if a motion for new trial was not made)

Question 248

Timing for RJML

Answer 248

Must be filed within 28 days of judgment (date court declares 1 party the winner)

Question 249

Timing for Motion for new trial

Answer 249

Must file w/in 28 days of entry of judgment

Question 250

Grounds for Motion for new trial

Answer 250

i) Against the great weight of the evidence – Court can take into account comparative volume and credibility of evidence
ii) Excessive damages – Jury returns verdict that is “grossly excessive” or “shocks the conscience” or can also just choose an appropriate amount and let P choose between accepting that amount and doing a new trial. No remedy for inadequacy
iii) Procedural error or misconduct – only if (1) Error or misconduct likely affected result of trial, and (2) Party objected to error when had opportunity to do so (e.g. wrongful exclusion of evidence, ex parte communication with judge, incorrect jury instructions)
iv) Newly discovered evidence: could not with reasonable diligence been found before verdict and will likely change results, new evidence can’t be just for impeachment

Question 251

Motion for relief from judgment (Rule 60b)

Answer 251

asks court to undo the judgment, set aside.
Must be made within reasonable time, probably after learning of the grounds. First 3 grounds (mistake, new evidence, fraud) must not be made later than 1 year from final judgment.

Question 252

Grounds for Motion for relief from judgment (6)

Answer 252

i) Mistake, inadvertence, or excusable neglect;
ii) Newly discovered evidence;
iii) Fraud, misrepresentation or misconduct by party;
iv) Judgment is void: court lacked SMJ or PJ;
v) Judgment has been satisfied;
vi) Any other reason that justifies relief (catch-all) but can’t be used when above applies

Question 253

Appellate jurisdiction

Answer 253

Federal circuit court jurisdiction is limited, can hear only appeals seeking review of:
i) Final judgment
ii) Order pertaining to preliminary injunctive relief (can
appeal immediately)
iii) Order pertaining to certification of a class
iv) Order that has been certified by the district court for appeal; or
v) A collateral order

Question 254

Order that has been certified by the district court for appeal may be immediately appealed if 3 conditions are met:

Answer 254

(a) Order involves a controlling question of law;
(b) Issue of law is one on which there is substantial difference of opinion; and
(c) Immediate appeal will materially advance the ultimate resolution of the action

Question 255

A collateral order

Answer 255

Extremely narrow circumstance for appeal. Allowed when 3 conditions meet:

(a) Order pertains to matter unrelated to merits (hence “collateral”);
(b) Order conclusively decides a particular issue; and
(c) Delaying appeal until a final judgment has issued would effectively deny appellate review of the issue

Question 256

Appellate standard of review

Answer 256

Questions of law: reviewed de novo – no deference to lower court, and addresses legal issue as if it has never been addressed

Questions of fact: will affirm unless clearly erroneous – irrelevant whether the app judges might have decided factual issue or a jury – only inquiry is if “clearly” was wrong. High standard – rarely overturn lower findings of fact

Inherently discretionary questions: when trial courts have discretion, reviewed using deferential abuse of discretion standard

Question 257

Harmless error rule

Answer 257

May affirm on appeal if there was error but it did not prejudice

Question 258

Appellate procedure

Answer 258

Appellant must file notice within 30 days of the judgment (or within 30 days of the order that is the subject of the appeal)

Exception: Where appeal is on class cert, only have 14 days

If post trial motion has been filed (renewed motion for JMOL, new trial, relief from judgment) and it is denied, a new 30-day period beings to run from the date of the denial. If granted, judgment is no longer final and no appeal is permissible unless the order can be certified or characterized as a collateral order

Question 259

Res Judicata

Answer 259

claim preclusion, bars claimants from relitigating a case they already lost.
Elements:
i) Same parties on the same side of the V (each party positioned on the side of the V they was originally at);
ii) Same transaction or occurrence; and
iii) Prior suit must have valid final judgment on the merits

(1) Final judgment = resolves entire case for D or P
(2) Valid = personal jurisdiction over D
(3) On the merits = involved inquiry into merits of P’s claim

(a) Judgment is not on the merits if it’s a dismissal for lack of PJ, SMJ, or venue
(b) Dismissal with prejudice = on the merits

Question 260

Collateral Estoppel

Answer 260

Issue preclusion, bars relitigation of issues even with different parties.
Elements:
i) Must have been litigated and determined in prior suit
ii) Issue must have been Essential to the judgment (Essential = if decided the opposite way would it have changed the result of the case)
iii) Prior suit must have ended in a judgment on the merits
iv) Party against whom preclusion is asserted must have had full and fair opportunity, as well as incentive, to litigate the issue in the first suit

Question 261

ACTUS REUS

Answer 261

= Guilty Act.
Voluntary, conscious act that causes an unlawful result; OR Act + volition = legal act
NOT: Reflections reflexes), sleepwalking (lack volition)

Question 262

MENS REA (five types)

Answer 262

= Guilty Mind; categories defined by statute

a) Purpose – Conscious objective to bring about result
b) Knowledge – almost absolute certainty of result
c) Intent – Acts intentionally with purpose or knowledge
d) Willful – Acts purposefully or knowingly, with moral turpitude (similar to intent)
e) Recklessness – Aware that conduct creates risk that’s unjustifiable, but ignores and engages anyway
f) Criminal negligence – creates an unjustifiable risk without subjective awareness that he is doing so, but a reasonable person would have been aware

Question 263

MR of Purpose

Answer 263

Conscious objective to bring about result

Question 264

MR of Intent

Answer 264

Acts intentionally with purpose or knowledge

Question 265

Criminal negligence

Answer 265

type of MR, creates an unjustifiable risk without subjective awareness that he is doing so, but a reasonable person would have been aware

Question 266

Specific intent

Answer 266

Requires proof D intended to create specifically prohibited harm, includes purpose or knowledge (“with intent to”)

Question 267

General intent

Answer 267

Only requires desire to do the proscribed act; includes reckless and negligent states of mind

Question 268

nullifying intent

Answer 268

Specific: Nullified by honest but unreasonable mistake of fact and voluntary intoxication
General: Nullified by honest and reasonable mistake of fact

Question 269

Malice (3 ways to prove)

Answer 269

Mens rea element for murder at common law, can be Express or Implied, 3 ways to show:

1) Intent to kill (including deadly weapons)
2) Intent to inflict serious bodily harm
3) Depraved Heart Murder

Question 270

Express Malice, how to prove (3)

Answer 270

intent to kill another human being.
To prove intent to kill, D acted with:
i) Purpose to kill;
ii) Knowledge that her conduct would kill; or
iii) Intent to inflict grievous bodily harm although no intent to kill

Question 271

Implied Malice

Answer 271

caused death as a result of extreme reckless, or criminal negligent conduct that manifested a wanton disregard for human life

Question 272

Strict liablity crimes

Answer 272

No mens rea element.

Act + Result = Guilt

Question 273

Transferred intent

Answer 273

D intends to produce criminal result against one V but harms another – intent transfers

Question 274

Concurrence

Answer 274

Mental state must actuate (set in motion) conduct that produces criminal result

Question 275

Actual Cause: 3 tests to satisfy

Answer 275

=cause in fact

a) “But for” – Result would not have occurred but for D’s conduct
b) Substantial factor – multiple causes/parties responsible but D’s act was a substantial factor in causing criminal result
c) Acceleration – D’s conduct speeds up inevitable death, even if brief

Question 276

Proximate Cause

Answer 276

Required only when intervening event occurs between D’s actual cause and criminal result.
Question is whether intervening event supersedes D’s responsibility
a) If intervening event is foreseeable: will not supersede
b) If unforeseeable: normally will supersede, relieve D of liability and break casual connection to criminal result

Question 277

Foreseeability for the purposes of prox cause

Answer 277

Foreseeable = negligence rule (take V as you find him, eggshell skull rule). Applies to things that are dependent or responsive to D’s initial cause.

Unforeseeable = grossly negligent or reckless conduct that accelerates a death set in motion by D. Generally an independent intervening cause or a mere coincidence.

Question 278

Criminal Homicide

Answer 278

= unlawful killing of a human being by another.

Unlawful= no justification, criminal mens rea
Homicide + malice = murder
w/o malice it’s manslaughter

Question 279

Intent to inflict serious bodily harm

Answer 279

Conscious desire or substantial certainty that D’s actions will result in V’s injury.
Serious/grievous bodily harm = significant but not fatal injury

Question 280

Deadly weapons doctrine

Answer 280

Intent to kill inferred from D’s use of instrument designed to kill or used in manner likely to kill or inflict grievous bodily harm

Question 281

Depraved Heart Murder, elements

Answer 281

=unintended kill resulting from extreme risk creation that manifests wanton disregard for human life (e.g. Russian roulette). Unintentional death results from:

(a) Reckless or grossly negligent conduct +
(b) That creates an extreme risk to others +
(c) And demonstrates wanton indifference to human life and conscious disregard of unreasonable risk of death or serious bodily injury

Question 282

Felony murder

Answer 282

(1) Unintentional killing +
(2) Proximately caused +
(3) During commission or attempted commission +
(4) Of serious or inherently dangerous felony (BARRK, from which malice is inferred).
Also, must overcome 3 obstacles to prosecution

Question 283

serious or inherently dangerous felony

Answer 283

BARRK:

(i) Burglary
(ii) Arson
(iii) Rape
(iv) Robbery, and
(v) Kidnapping

Question 284

obstacles for Felony Murder prosecution (3)

Answer 284

1) Right type of felony: listed in statute or independent of killing and inherently dangerous (BARRK)
2) Right connection to felony: death is foreseeable outgrowth (just no coincidences)
(3) Right time: death resulted from injuries inflicted during commission, attempt, or immediate flight from felony

Question 285

timeframe of a felony

Answer 285

starts: when D could be convicted of attempt
terminates: when D reaches temporary safety

Question 286

Redline limitation

Answer 286

no cofelon liability if victim or police kill cofelon

Question 287

Co-felon liability, majority rule

Answer 287

Agency Rule: FM liability limited to killing committed by a hand of co-felon.
Exempts liability for killings at hands of non-felons.
Some apply to exempt a non-felon kills who kills a non-felon (V aims at felon but kills bystander).

Question 288

Co-felon liability, CL

Answer 288

Liability attaches to all felons for any homicide during felony, just requires proxy cause of death (e.g. if during a group robbery s/o trips on way to call cops and dies, all felons are responsible)

Question 289

Exception for Co-felon liability (3)

Answer 289

i) Non-violent felon: min CL rule, exempt if not armed and did not participate/have knowledge of co-felons’ intent
ii) Deserving Victim, min CL rule: Killing a co-felon)
iii) Redline limitation, maj CL: Police or V kills co-felon

Question 290

1st Degree Murder

Answer 290

Proof that D’s decision to kill was done with both premeditation and deliberation elevates 2nd degree to 1st degree murder (also the required malice must be “intent to kill”)

Question 291

premeditation and deliberation

Answer 291

Premeditation: D must think about act of killing, CL says it can be immediate, but Modern requires some v brief amt of time (req jury to find some reflection occurred)

Deliberation: D must make deliberate choice to kill, requires rational thought (voluntary intoxication or diminished capacity may prevent)

Question 292

Voluntary manslaughter

Answer 292

= heat of passion killing, intentional killing mitigated by adequate provocation or other circumstances negating malice (intentional killing without malice = manslaughter)

Question 293

Adequate provocation

Answer 293

(for voluntary manslaughter)
Measured objectively, a provocation that would lead a reasonable person to lose self-control and fly into sudden homicidal rage.
Mere words not enough (generally)
Rage must be hot – can’t have had long time to cool off

Question 294

Involuntary manslaughter

Answer 294

= unintentional killing resulting from unjustified risk creation (recklessness or gross negligence) that is not sufficiently extreme to rise to level of implied malice.

Question 295

circumstances for involuntary manslaughter (4)

Answer 295

1) D did not intend to kill or expect conduct to cause death, but death results from unjustified risk creation. Only implied malice if so extreme it indicates a wanton disregard for human life
2) Recklessness: subjectively aware of risk and ignores it
3) Gross neg: wnaware of risk but reasonable person would have been aware (e.g. mishandling weapons, DUI)
4) Misdemeanor manslaughter (min. rule): unintentional killing that occurs during commission/attempt of
misdemeanor or a non-BARRK felony

Question 296

Battery

Answer 296

i) D unlawfully applies force (can be indirect, put in motion)
ii) D does so intentionally, recklessly, or as a result of crim neg. (general intent crime)
iii) Without legal justification/excuse

Question 297

Aggravated Battery (3)

Answer 297

In most jurisdictions, simple battery (misdemeanor) can be elevated to aggravated battery (felony) when D:

i) Causes serious bodily harm;
ii) Uses deadly weapon; or
iii) Special category of V (child, woman, cop)

Question 298

defenses for battery (3)

Answer 298

i) Valid consent
ii) Self-defense and defense of others as long as proportional force
iii) Prevention of crime so long as proportional force

Question 299

Assault (2 types)

Answer 299

1) Failed attempted battery: D intended to actually batter a V but failed. As long as there’s intent, no defense that V was not aware of assault or that D was not presently able to commit.
2) Fear of battery assault: D never intended to actually batter the V, but instead, to put the V in fear of an immediate battery. D must act with threatening conduct intended to cause reasonable apprehension of imminent harm to V (V must be aware of threat)

Question 300

aggravated felony assault

Answer 300

Can rise to aggravated felony assault when:

i) D commits with dangerous weapon
ii) D acts with intent to rape or murder V
iii) V is specially protected by statute

Question 301

False Imprisonment

Answer 301

Confinement of one person by another when it is intentional, against the law, and V is fully confined.
Elements:
(1) intent to confine a person within fixed boundaries;
(2) act that directly or indirectly results in such a confinement of the other; and
(3) the other is conscious of the confinement or is harmed by it

Question 302

Kidnapping: CL, modern, maj

Answer 302

Common Law: Unlawful, Restraint of a person’s liberty, By force or show of force, So as to send V into another country

Modern: V can just be taken to another location or concealed

Majority: Some movement of V (asportation), restraint not enough

Question 303

rape, CL

Answer 303

i) Carnal knowledge of a woman (vaginal penetration of V by D) not wife,
ii) against her will, (without consent)
iii) by force or threat of force (“NO” was not enough)

Question 304

rape, Modern law

Answer 304

No implied resistance requirement: focuses on objective lack of consent.
i) reasonable person in D’s situation would have known V’s lack of consent, that establishes rape
ii) Penetration satisfies “force” requirement
iii) Mistake of fact can be defense b/c because no requirement to prove extrinsic force, but mistake must
be both honest and reasonable

Question 305

Statutory rape

Answer 305

if V is under statutorily prescribed age of consent (usually 16), intercourse = rape, even if V expressed her consent or D mistakenly believed she was of legal age

Question 306

Theft crimes (8)

Answer 306

Key = intent to permanently deprive (steal)

a) Larceny
b) Embezzlement
c) Robbery
d) Theft by false pretenses
e) Larceny by trick
f) Extortion
g) Receiving stolen property
h) Forgery

Question 307

Laceny

Answer 307

=unlawful taking of property in someone else’s possession with intent to steal.

CL: (i) Trespassory taking (ii) And carrying away (iii) Of tangible personal property (iv) Of another (v) With intent to permanently deprive or steal (specific intent)

No intent if you think property is yours, no matter how unreasonable.

Question 308

doctrine of continuing trespass

Answer 308

If D takes property, but at the time intends it to be temporary, and later decides to permanently deprive
the owner of the property, doctrine of continuing trespass establishes concurrence between unlawful
taking and requisite intent to steal

Question 309

Embezzlement

Answer 309

=unlawful conversion of property already in D’s possession with intent to steal.

Need some action toward property that seriously
interferes with owner’s rights, i.e. selling, consuming, damaging, claiming title to it.

Specific fraudulent intent to steal can be negated by honest belief that D has right to property

Question 310

Robbery

Answer 310

= larceny accomplished by force or threat of force.

i) Trespassory taking of personal property with intent to steal
ii) Taking from V’s person or presence (area w/in their control)
iii) Force or threat of force that places V in actual fear at time of taking required (pickpocket isn’t robbery)

Question 311

Theft by false pretenses

Answer 311

=obtaining title to property owned by someone else through fraud.

a) False representation of material fact by D
b) Which causes V to pass title to his property (need reliance
c) To D
d) Who knows it is false
e) And intends thereby to defraud

Question 312

Larceny by trick

Answer 312

=obtaining possession (not title) through fraud, with intent to steal.
a) D tricks possessor into giving possession through fraudulent misrepresentation (need reliance)
b) Fake check = Larceny by trick, not false pretenses, because title does not pass until check clears, but
most juris. have specific crime for this

Question 313

Extortion

Answer 313

=blackmail = obtaining property of another by threat of future harm to V or his property.
If it’s present harm, it’s probably robbery, not extortion

Question 314

Receiving stolen property

Answer 314

i) Receipt of stolen property,
ii) known to be stolen
iii) with the intent to permanently
deprive owner (common law misdemeanor)

Question 315

Forgery

Answer 315

Fraudulently making false writing with apparent legal significance with intent to make wrongful use of doc.
Alteration must be material (change meaning or effect of doc) to qualify.

Question 316

Burglary

Answer 316

a) Breaking (CL: req some force; modern: slight enlargement of opening; entry by fraud, deception, threat is adequate)
b) and Entering (mod: can use tool)
c) the Dwelling house of another (mod: most structures)
d) At night (mod: not req)
e) With intent to commit felony therein (need simultaneous felonious intent)

Question 317

Arson

Answer 317

Malicious act that creates considerable risk of burning of dwelling of another.
Malice established by intent or result of extreme recklessness
Mod: need not be dwelling of another
Charring counts, but not blackening

Question 318

Inchoate crimes (3)

Answer 318

All require specific intent to commit target offense.

1) Solicitation
2) Attempt
3) Conspiracy

Question 319

Solicitation

Answer 319

crime of trying to get someone to commit your crime. Key = communication.
Enticing, advising, inciting, inducing, urging, or otherwise encouraging another to commit target offense (CL: had to be a felony; Mod: any offense)
Intent is for solicitee to perform criminal acts
Offense is complete at time solicitation is made

Question 320

Merger (crim)

Answer 320

Inchoate crimes (attempt, solicitation) merge if they actually happen, but not conspiracy.
Attempted battery assault does not merge w/assault if battery actually occurs.

Question 321

Attempt

Answer 321

crime of “almost” committing a crime.
Key = evidence that D crossed line from preparation to
perpetration.
Two elements:
i) Specific intent or purpose to bring about criminal result
ii) Significant overt act in furtherance of that intent that proves D went past preparation and began perpetration

MPC: Acts prior are sufficient as long as “substantial step” toward commission that indicates a purpose to complete attempt has been made (CL required last act before commission)

Question 322

tests for determining if attempt occurred (2)

Answer 322

Proximity test (many Jurisdictions): How close in time and physical distance D was to time and place target crime was to be committed

Equivocality test (some use): D’s conduct unequivocally indicates he was going to complete target offense

Question 323

Defenses for Attempt

Answer 323

i) Abandonment
>CL: No defense once attempt complete
>MPC: Voluntary, complete abandonment is defense

ii) Legal impossibility: if it’s actually not a crime

Not s defense:
iii) Factual impossibility: D would have committed offense had facts been as she believed them to be; D is guilty of attempt

Question 324

Conspiracy

Answer 324

crime of planning to commit crime with someone else. Key = evidence D crossed line from thinking about crime to collective preparation to commit crime.

Rule: Agreement to create unlawful criminal combination between 2 or more persons with intent to
agree and specific intent (purpose) to commit unlawful act (mod: Overt act requirement, but can be minimal)

Question 325

Pinkerton rule

Answer 325

Co-conspirator liability.
Each co-conspirator is liable for crimes of all other co-cons where crimes were both:
i) A foreseeable outgrowth of conspiracy; and
ii) Committed in furtherance of conspiratorial goal

Question 326

Unilateral conspiracy

Answer 326

Under MPC, permits conviction of single party when other feigned agreement or is acquitted.
(CL requires 2 conspirators, acquittal of 1 co-con required acquittal of other)

Question 327

Defenses to conspiracy (2)

Answer 327

Withdrawal (CL+MPC): complete and voluntary withdrawal, with notice to all conspirators, severs liability for future crimes, but no defense to conspiracy itself.

Renunciation (MPC only): withdrawal + affirmative act to thwart conspiracy can eliminate liability for conspiracy

Question 328

Accomplice liablity

Answer 328

A way to link accomplice to a crime committed by someone else. Accomplice charged as if he were principal, for crimes purposefully facilitated and all others that are reasonably foreseeable outgrowths (obj).

Rule: criminally liable as an accomplice if D does some act (or omission w/duty to act) that facilitates the principal’s commission of crime (or attempt), including encouragement with purpose of bringing about commission of crime.

Question 329

Defenses for Accomplice liablity

Answer 329

CL: Accomplice can withdraw by giving principal timely notice and nullifying effect of prior facilitation

MPC: To remove accomplice liability, must either:

(1) Render prior assistance to perpetrator completely ineffective,
(2) Provide cops w/timely warning of plan, or
(3) Make proper effort to prevent perp from committing

Question 330

Crim Defenses

Answer 330

i) Insanity (incl. intoxication)
ii) Duress
iii) Self defense
iv) Defense of others
v) Defense of property
vi) Necessity

Question 331

Insanity, crim (4 tests)

Answer 331

Excuse of lack of mental responsibility.
Rule: If D was legally insane at time of his criminal act, no crim liability will be imposed. 4 different tests:
1) M’Naghten test: impaired reasoning
2) Irresistible impulse test – unable to control conduct due to mental disease)
3) MPC test: reasoning (wrongfulness) OR conduct control
4) Durham (or NH) rule: unlawful act was product of mental disease/defect (would not have been committed “but for” the defect)

Question 332

M’Naghten test

Answer 332

Focuses on reasoning ability
D relieved of crim resp. upon proof that at time of commission:
(1) D suffered from severe mental disease or defect, and
(2) As a result, unable to know either the Nature and quality of his act; OR that what he was doing was wrong (i.e. delusional self-defense)

Question 333

MPC test for Insanity

Answer 333

D not responsible for criminal conduct if, at time of such conduct and as a result of mental disease or defect, he lacked substantial capacity to appreciate criminality (wrongfulness) of his conduct or to conform conduct to the requirements of law

Question 334

Intoxication defenses

Answer 334

Involuntary intoxication (alcohol or narcotic): defense when general or specific intent is req, so long as it negates mens rea

Voluntary intoxication: may be a valid defense for a spec intent crime if it negates requisite mental state (i.e. purposeful, knowing). Not a defense to general intent
crimes and won’t negate recklessness, negligence, or strict liability.

Question 335

Duress

Answer 335

excuses crim conduct where D reasonably believes that only way to avoid unlawful threat of great bodily harm or imminent death is to engage in unlawful conduct

Not a defense to murder, unless to excuse underlying felony in Felony Murder

Question 336

Self Defense (justification defense)

Answer 336

Honest and reasonable judgment that it is necessary to use force to defend against an unlawful, imminent threat of bodily harm
Elements:
a) D is V of unlawful threat (not initial aggressor)
b) D is in imminent danger of unlawful bodily harm (call cops otherwise)
c) D uses proportional force (no more than reasonably necessary) to prevent imminent harm

Question 337

Homicidal self-defense (deadly force)

Answer 337

Permitted only in response to imminent threat of death or grievous bodily harm

Unclean hands:
CL: aggressor could regain right to self-defense only by complete withdrawal perceived by the 1st V
Modern: 1st aggressor has right to self-defense if the 1st V responds to the aggression with excessive force

Question 338

Retreat rule

Answer 338

CL: V of unlawful violence had duty to retreat before use of deadly force.
Even when retreat still required, not required in D’s own home, car, or office and not required if retreat not feasible.

Question 339

Defense of others

Answer 339

Justified when necessary to defend 3rd party who is facing unlawful imminent threat of bodily harm.
Deadly force only justified when threat of death or grievous bodily harm.

Majority: reasonableness of D’s belief that 3rd person was being unlawfully attacked. If reasonable but
mistaken, D can still claim defense of others

Minority: D steps into shoes of V attacked—if 3rd party was first aggressor or failed to retreat when required by law, D has no defense

Question 340

Defense of Property

Answer 340

Reasonable, non-deadly force is justified in defending one’s property from theft, destruction or trespass where D has reasonable belief property is in immediate danger + No greater force than necessary is used.

Question 341

Necessity

Answer 341

Justifies commission of what is normally a crime when:

(1) Necessary to avoid immediate threat of greater harm to persons or property +
(2) No reasonable alternative to breaking law to avoid greater harm +
3) D not responsible for causing the harm

CL: Necessity never defense to murder, unless raised as defense to underlying felony for Felony Murder
MPC: Can raise for all charges, even homicide, which might result in acquittal if D kills 1 person to save lots of lives

Question 342

4th Amend

Answer 342

protects from unreasonable searches and seizures and requires warrants to be based on probable cause

Question 343

5th Amend

Answer 343

prohibits coerced confessions and unreliable identifications and provides privilege against self-incrimination

Question 344

6th Amend

Answer 344

provides a person formally accused of a crime right to counsel in all critical stages of adversarial process and provides right to confront testimonial evidence

Question 345

Approach to Crim Pro Qs

Answer 345

a) Was there government action?
b) If so, did it trigger a constitutional right (i.e. was it a search or seizure)?
c) If so, did the government violate the constitutional right (i.e. was search or seizure unreasonable)?
d) If so, is D entitled to remedy of exclusion?

Question 346

Terry Stop

Answer 346

brief investigatory seizure.
Different from arrest in duration + purpose.
Permissible duration is time necessary to confirm a reasonable suspicion crime has occurred, providing Probable Cause (PC).
If suspicion is denied, seizure must stop

Question 347

Seizure of persons

Answer 347

When, due to gov’t action, a reasonable person in D’s position would not feel free to leave or terminate police encounter. Requires Police use of physical force or showing of authority followed by submission (e.g. terry stop)

Question 348

Seizure of Property

Answer 348

police take action that results in a meaningful interference with a possessory interest

Question 349

Police Search

Answer 349

Any gov’t investigatory trespass against a 4th amend interest OR intrusion into a reasonable expectation of privacy (REP)

Question 350

Investigatory trespass

Answer 350

intrusion upon target’s person, home (including curtilage), papers, or effects for purpose of finding or gathering evidence of a crime. Need investigatory motive.

Question 351

Reasonable Expectation of Privacy (REP)

Answer 351

requires that:
i) D manifests subjective expectation of privacy by making effort to shield thing or activity from public +
ii) Expectation is objectionably reasonable because it is an expectation society is willing to recognize
Not REP if objects held out to public (i.e. handwriting, voice, bank records, email headings, open fields, discarded property)

Question 352

Compliance with 4th Amendment

Answer 352

search or seizure must be reasonable.

Requires warrant, reasonable suspicion, or probable cause. (WRSPC)

Question 353

Warrant

Answer 353

creates presumption of reasonableness, D bears burden of rebutting this presumption by proving:

i) Warrant not based on valid probable cause; or
ii) Magistrate not neutral or detached; or
iii) Warrant failed to describe with particularity thing to be seized or place to be searched

Any search or seizure without a warrant presumptively unreasonable, gov’t bears burden of proving it
falls within an established exception

Question 354

Probable cause (PC)

Answer 354

=“fair probability”, facts and circumstances that would make a reasonable person conclude that the individual in question has committed a crime (for an arrest) or that specific items related to criminal activity can be found at a particular location

i) Always required for full-scale intrusion (search to find evidence or an arrest)
ii) Can be based on tip

Question 355

tips from anonymous/confidential informants

Answer 355

totality of circumstances test used for reliability of tips, considers:

(1) Veracity of informant (normally predictive info)
(2) Basis of knowledge (how does informant know)
(3) Corroberation: Police investigation that validates accuracy of informant’s predictions

Question 356

Reasonable suspicion (RS)

Answer 356

a belief based upon articulable information more than a mere hunch used by a reasonable person or cop that suspect has or is about to engage in illegal or criminal activity.
RS will justify only a brief investigatory seizure (Terry
Stop) or cursory protective search (Terry Frisk)

Question 357

Applying 4th amendment to Arrests

Answer 357

Probable cause always required.

Warrant not required to arrest in public, but is required to arrest individual in own home unless exigent circumstances

Question 358

Applying 4th amendment to Terry stops

Answer 358

Reasonable Suspicion that crime is in progress or has just been committed justifies a brief investigatory seizure (terry stop) to confirm or rule out suspicion
Established by:
(1) Police observations, eye-witness reports
(2) Flight from police in high crime areas
(3) Informant tip + corroboration
ii) Scope = time required, acting in due diligence to confirm or deny suspicion

Question 359

Applying 4th amendment to Seizures of property

Answer 359

warrant (based on PC) presumptively, not always required to justify seizure of property
No warrant if in plain view, requires:
(1) Police lawful vantage point to observe item
(2) immediately apparent that item is contraband
(3) Officer has lawful access to point of seizure

Question 360

Applying 4th amendment to searches

Answer 360

Searches pursuant to warrant: warrant gives police authority to search only named places or people (incl plain view rule), and right to detain occupants during search (but not right to search them)

Warrantless searches: unreasonable UNLESS falls into an established exception (8 or them)

Question 361

Exceptions ot warrantless searches (8)

Answer 361

1) Search incident to a lawful arrest (SITLA)
2) Automobile exception
3) Special needs doctrine
4) Consent
) Hot pursuit
) Exigent circumstances
7) Terry search (frisk)
8) Admin Searches

Question 362

Search incident to a lawful arrest (SITLA)

Answer 362

upon a lawful arrest (based on PC) can automatically
search the arrestee + area within his immediate control (wingspan or lunging distance)
(1) Must be contemporaneous
(2) If arrested at home, limited to area within lunging distance and no authority to search entire house, unless RS, other people home, may put police in risk, can conduct cursory protective sweep (Terry Sweep) but ONLY where people could fit
(3) If arrested in / right out of car: can automatically search person. If genuine access to interior of car after arrest, can search interior car and all containers within interior, but if not, can only check car if reasonable belief evidence related to crime of arrest in car

Question 363

Automobile exception

Answer 363

can search car as long as have PC:

(a) Justified by inherent mobility and reduced expectation of privacy
(b) Applies to all containers within vehicle where item could be found for which probable cause exists
(c) Can also impound car and search it later

Question 364

Special needs doctrine

Answer 364

Can use checkpoints to conduct brief seizures / limited searches without individualized suspicion or warrant because of public safety danger that cannot be
addressed by complying with warrant requirements
(1) Primary purpose must be need to search or seize to protect public from immediate danger
(2) Must be: based on fixed formula that deprives individual officers of discretion to select subjects, narrowly tailored in scope, to address the specific threat, and conducted in location and manner that minimizes citizen anxiety
(3) Can seize contraband that comes into plain view even if unrelated to public safety concern
(4) Border exception: Custom official may, with no suspicion or cause, as an incident of national sovereignty, stop vehicles at permanent checkpoints located at or near border, and conduct routine searches of people and property

Question 365

Consent

Answer 365

if individual waives right to privacy by consenting to search, search is reasonable even if police have no suspicion

(a) Must be voluntary (totality of circumstances): invalid if obtained by asserting fake warrant, fraudulently, under duress, or pursuant to unlawful police threat
(b) If consent obtained followed unlawful seizure, it’s tainted, and consent and any evidence invalid
(c) Third party consent

Question 366

Hot pursuit

Answer 366

may enter and search private dwelling while in hot pursuit of the fleeing suspect.
May execute warrantless arrest of suspect on premises and seize any contraband observed in plain view pursuant to hot pursuit

Question 367

Exigent circumstances

Answer 367

warrantless search permissible when waiting to obtain a warrant will result in imminent destruction of evidence, escape of accused, or risk to police or others in the
area:
(1) Justifies warrantless search and seizure of evidence in or on a suspect’s body if PC to believe the nature of evidence renders it easily destroyed or likely to disappear before warrant can be obtained. Needs to be reasonable and not shock conscious.
(2) Justifies warrantless crime scene search to seek other Vs, remaining killers, or violent felon

Question 368

Terry search (frisk)

Answer 368

Cursory, protective search for weapons or some other instrumentality that creates imminent danger to officer or others in close proximity

(1) Justified only by RS that suspect is armed and dangerous = protective search, not search for evidence
(2) Limited to suspect’s outer clothing to confirm or deny suspect is armed
(3) If frisk / pat down results in officer feeling something he knows immediately is a weapon or other contraband, then officer may seize it without a warrant pursuant to “plain touch”(variant of plain view). If knows it’s not a weapon and has to manipulate it to establish PC to seize it, that exceeds scope and is unreasonable
(4) Cars: brief cursory look in car where police have RS that person stopped will have immediate access to weapon after getting back in car
(5) Home: cursory sweep of home on RS that others may be present and endanger officer

Question 369

Admin Searches

Answer 369

conducted for non-criminal purpose and justify lower standard of cause:

(1) Agency compliance inspection, justified by RS
(2) Border searches – customs and immigration officers may conduct routine searches of people and property crossing borders in US with no individual suspicion. Vehicles at border crossing may be stopped without cause for questions, but RS required to fully search car

Question 370

4th Amend Remedies, requirements

Answer 370

Exlusion of evidence, 3 requirements:
(1) Unreasonable search/seizure must trigger exclusion
(2) D seeking exclusion) must have standing
(3) Facts don’t support an exception to exclusionary rule.
If met, Exclusionary Rule prohibits govt from introducing evidence obtained as a direct or derivative result of an unreasonable search and seizure

Question 371

Fruit of the Poisonous Tree Doctrine

Answer 371

Any additional evidence derived from initial illegality,
including oral statements and physical objects, fall within the scope of exclusionary rule and are tainted fruit of poisonous tree, unless an exception applies

Question 372

Exceptions to Fruit of the Poisonous Tree Doctrine (3), and places where not applicable (2)

Answer 372

(i) Independent source
(ii) Inevitable discovery: thru a diff independent source
(iii) Attenuation

Exclusionary rule does not apply:

1) to use of evidence to impeach D’s testimony
2) Good Faith Exception: when police act in good faith on a warrant later ruled invalid, evidence not excluded

Question 373

Attenuation, factors (4)

Answer 373

Exception to Fruit of the Poisonous Tree Doctrine, when evidence so distant from initial illegality that taint of poison is purged and evidence is admissible.
Factors:
1. Different location
2. Passage of time
3. Different officers
4. Valid Miranda waiver

Question 374

Standing for 4th Amend

Answer 374

must show that unreasonable search or seizure intruded on his personal constitutional rights. Cannot assert someone else’s constitutional rights
Establish standing by:
(a) Ownership or possessory interest in place searched or item seized
(b) For cars: owner or person in possession has standing to seek exclusion for unreasonable search of car
(c) Overnight guest at someone else’s house

Question 375

Voluntariness Approach, factors

Answer 375

Statements obtained by actual coercion are involuntary and inadmissible for any purpose.
Triggered by govt conduct that overbears free will of suspect. Factors of coercion—totality of circumstances:
(1) D’s age, health, education, intelligence, gender, cultural background;
(2) Location, duration, and physical conditions of interrogation
(3) Number and demeanor of police officers, suspect’s experience with criminal justice system;
(4) Deception and trickery by police

Question 376

6th Amend Right to counsel approach

Answer 376

offense-specific—triggered by initiation of formal adversarial process (formal charges, indictment, arraignment, or preliminary hearing) during all critical stages (deliberate elicitation of statements, physical lineup, preliminary hearing, and trial) of adversarial process.
Any statement obtained by police from D related to crime he is formally charged with is inadmissible unless:
i) His lawyer was present; OR
ii) He executed a knowing and voluntary waiver

Question 377

5th Amendment Privilege against self-incrimination

Answer 377

no person shall be compelled in a criminal case
to be a witness against self, Absolute privilege to refuse to testify when:
i) D has a real and substantial fear that testimony will result in self-incrimination or contribute to his conviction;
ii) D asserts privilege by refusing to testify

Waiver: mere act of answering police or govt questions
Immunity can eliminate risk of self-incrimination

Question 378

Immunity to eliminate risk of self-incrimination, types (2)

Answer 378

i) Use/Testimonial Immunity: prohibits use of witness’s testimony or any evidence derived from that testimony against witness. Can still prosecute witness so long as evidence has no connection to testimony
ii) Transactional Immunity: prohibits ANY future prosecution of witness for transaction that is the subject of testimony

Question 379

Miranda rule

Answer 379

Statements obtained from custodial interrogation are inadmissible in prosecution’s case-in-chief in absence of Miranda warnings and valid waiver/

Triggered by Custody + Interrogation

1) Custody: formal arrest or situation where a reasonable person in suspect’s position would believe their freedom has been deprived
ii) Interrogation: direct questioning or words or actions a reasonable officer would anticipate were likely to result in eliciting an incriminating response

Question 380

Waiver of Miranda rights

Answer 380

Spontaneous or volunteered statements do not implicate Miranda (even if made while in custody) bc not a product of questions.
If suspect did not make a knowing and voluntary waiver, statements violate Miranda. Waiver must show that suspect understood his rights (orally or written). Waiver cannot be presumed from silence

Question 381

effects of invoking Miranda rights, reinitiating questiong

Answer 381

If suspect makes an unequivocal request for an attorney or states she wishes to remain silent (request can be made at any point during interrogation): all interrogation must stop.
Re-initiating questioning after right invoked:
(1) Invoked right to remain silent: police must allow for significant time to elapse and then obtain new Miranda waiver
(2) Invoked right to counsel: may not resume questioning until counsel is present, OR, D re-initiates contact with police and executes a new waiver, OR 2 weeks after D is returned to his normal environment and police get new waiver

Question 382

Due process stadard for identifications

Answer 382

applies to all types of identifications at all stages of investigatory and prosecutorial process/

Rule: If a D can prove that an identification procedure used by government was so unnecessarily suggestive that it created an irreparable risk of mistaken identification: violates due process, cannot use ID at trial.

Test: reliability, D must prove both:

(1) procedures used were unnecessary suggestive +
(2) suggestiveness produced an unreliable ID (considering various factors)

note: when ID is excluded for DP violation, a subsequent in-court ID by same witness will almost always be excluded as fruit of poisonous tree.

Question 383

Factors for suggestiveness of identifications

Answer 383

(a) Opportunity to view criminal at scene;
(b) Witness’s degree of attention;
(c) Accuracy of witness’s description;
(d) Degree of certainty of witness; and
(e) Time interval between crime and identification (the longer the interval, the less reliable)

Question 384

6th Amend right to counsel violation for identifications

Answer 384

Out-of-court corporeal identification (human, in person) is a critical stage in adversarial process and D cannot be subject to it without counsel present or a knowing and
voluntary waiver of counsel.
a) Only applies to corporeal identifications and only after initiation of formal adversarial process
b) Consequences of violation: results are per se inadmissible at trial, and witness is prohibited from making a subsequent in-court ID unless prosecution can prove by clear and convincing evidence that in-court ID is independent from out of court ID

Question 385

Grand-Jury Indictment

Answer 385

=a written accusation stating charges against D issued by a grand jury after it reviews prosecution’s evidence.
A grand jury is not an adversarial hearing, it is an investigatory tool. Therefore:
i) D has no right to be present and no right to assistance of counsel
ii) Prosecution presents evidence without confrontation process
iii) Prosecution has no obligation to present clearly exculpatory evidence to grand jury
iv) No Miranda warning needed

Question 386

Bail Hearing

Answer 386

D is entitled to individualized hearing to determine whether bail should be granted or denied. No
constitutional right to bail, but if appropriate, it may not be excessive.

Question 387

Plea Bargaining

Answer 387

D may be convicted based only upon his plea. Plea must be voluntary and intelligent (D must be informed of the general nature of offense he is pleading guilty to)

Question 388

Right to a Speedy Trial, remedy, test

Answer 388

guaranteed by the 6th Amend. Clock begins running once D is accused by formal charge or is arrested.
Remedy for violation: only dismissal with prejudice (can never try case)
Test for violation:
i) Length of delay – generally more than 1 year triggers inquiry, but defense-requested delays, including motions, are excluded from calculation
ii) Reason for delay – a “good” reason is one that prosecution has no control over, as opposed to
one prosecution could have avoided by due diligence
iii) Demand for speedy trial – not essential, but if D failed to make demand, normally indicates D did not consider delay prejudicial
iv) delay normally must result in prejudice to D (i.e. degradation of evidence) to be unreasonable

Question 389

Pretrial discovery rights (crim)

Answer 389

Violates due process for prosecution to fail to disclose to D evidence both favorable and material
Remedy: If prosecution fails to disclose favorable evidence, D is entitled to a new trial (or sentencing) if the evidence was also material (i.e. would have created reasonable doubt/a reasonable probability of a different outcome if disclosed)
What must be disclosed:
i) If D makes a discovery request: any evidence that would tend to help defense
ii) If D does not make a discovery request: only evidence that is clearly exculpatory

Prosecution not required to disclose to D before plea bargaining or entering into a plea agreement

Question 390

Right to Counsel at Trial

Answer 390

D may not be imprisoned for any offense unless he was represented by counsel or waived that right
Right attaches to all critical stages of proceedings that affect D’s right to a fair trial (trial, preliminary hearing,
corporeal identifications, police questioning)
i) Triggered by actual result of case, not risk: any trial that results in confinement triggers requirement for D to have counsel
ii) The right to counsel means right to effective counsel.

Question 391

Right to Jury Trial

Answer 391

attaches if D faces a potential sentence of more than 6 months’ confinement (triggered by risk/potential results):

a) right to jury selection from a fair cross section of community (ethnic + gender demographic)
b) Petit Jury (actual jury) no requirement to be a fair cross-section

Question 392

Confrontation Clause (crim)

Answer 392

6th Amend provides D with a right to confront witnesses and evidence presented against him

a) Trigger: testimonial evidence – statements made in a situation where witness would expect it to be used as evidence (i.e speaking to an investigating officer re past events, but not a 911 call)
b) Satisfied by witness testimony provided under oath if D has an opportunity to cross-examine (need not actually cross examine)

Question 393

Double Jeopardy

Answer 393

must establish D had been in jeopardy for same offense by same sovereign. Being previously charged is insufficient. Jeopardy must have attached.:

i) Same offense: two crimes occurring out of same transaction are considered same offense, unless each charge requires proof of a separate criminal impulse (i.e. multiple Vs), or of a separate factual element
ii) Separate Sovereignties: dual prosecution by separate sovereigns is fine (e.g. different states, fed + state)

Question 394

right to effective counsel

Answer 394

Courts presume that legal counsel is effective,
very difficult to prevail on an ineffective assistance of counsel claim. D seeking a new trial based on a claim of Ineffective Assistance of Counsel must prove both:
i) counsel was ineffective (below minimum standard of lawyer conduct), and
ii) Had the lawyer been effective, it would have created a reasonable probability outcome would have been different (reasonable doubt)

Question 395

when does Jeopardy attach (for DJ purposes)

Answer 395

In a non-jury trial: when first witness is sworn and court beings to hear evidence

In a jury trial: when jury is impaneled and sworn

Question 396

def of “goods” for UCC purposes

Answer 396

any movable item. Does not include intangibles (goodwill, IP), money, legal claims, services, or real property

Question 397

What law applies to hybrid cases (involving both sale of goods + service contracts)

Answer 397

determined by predominate purpose of the transaction (Majority rule)
i) Contract language – Was K described as a goods K?
ii) Nature of supplier’s business
iii) Value of goods v. services (relative)
Even if UCC applies, common law still applies unless UCC contradicts it

Question 398

elements of an offer

Answer 398

a) Outward manifestation (oral, written, or via conduct) +

b) Signal that acceptance will conclude the deal (power of acceptance)

Question 399

rule for commericial advertisements

Answer 399

American rule: Ads, catalogs, price lists are invitations for offers, since responses may exceed available supply of goods or services
Exception: Language that identifies who gets limited supply of goods even if there is an excess demand (i.e. first come, first served, or first 10 customers)

Question 400

Reward Offers

Answer 400

Considered offers, b/c they are communications that promise $ in exchange for performance of specific tasks
i) Self-limiting – Task rewarded can be performed only once ($100 for dog)
ii) Open-field – Many parties ($100 for med tests)
Exception: Language limiting how many buyers can get it

Question 401

Auctions (K)

Answer 401

Viewed as inviting offers; responding bids are offers

Exception: “Without reserve” = offer to sell to highest bidder

Question 402

Ways to terminate power of acceptance (4)

Answer 402

1) Lapse
2) Death or incapacity
3) Revocation of offer by Offeror
4) Termination by Offeree’s Rejection

Question 403

Lapse

Answer 403

happens after time stated in offer or after a reasonable time. Reasonable time determined by:

i) Subject matter and market conditions; and
ii) Degree of urgency and means of transmission

Question 404

Indirect revocation

Answer 404

requirements:

(i) Offeror takes action that is inconsistent with the intent to go through with the offer and
(ii) Offeree learns of such action from reliable source

Question 405

Ways to prevent revocation (2)

Answer 405

1) Option contract

2) Firm offer under UCC

Question 406

Termination by Offeree’s Rejection (3 ways)

Answer 406

i) Outright rejection
ii) Rejection via counteroffer: = rejection + new offer (mere inquiry is fine)
iii) Rejection via non-conforming acceptance (CL: mirror image rule)

Question 407

Option contract

Answer 407

Elements

(a) Offer +
(b) Subsidiary promise to keep it open +
(c) Valid mechanism for enforcing subsidiary promise: consideration is most common way

Question 408

Firm offer under UCC

Answer 408

Irrevocable offer by merchant to buy or sell goods without consideration, 3 requirements:

(i) Offer made by a merchant +
(ii) In a writing signed by the merchant +
(iii) Expressly stating it will be held open

Irrevocable for time stated or reasonable time, BUT no longer than 3 months even if stated otherwise. Longer than 3 mos. needs consideration

Question 409

Unilateral Contract

Answer 409

Offer seeking performance in return (ie: reward offers)

Common Law: Offeror free to revoke until offeree completed performance
Modern / Majority rule: Once offeree begins performance, an option K is created and offeror may not revoke. Offeree still free to stop performance at any time or not undertake performance at all (it’s his ”option”)

Acceptance = completed performance as specified in offer

Question 410

Battle of the Forms - UCC 2-207

Answer 410

If acceptance form contains terms which differ or are absent from buyer’s order: unless acceptance is expressly made conditional on assent to the additional/ different terms, nonconforming acceptance = an effective acceptance, valid, enforceable K is formed.
If a consumer is involved: Additional/different are mere proposals for addition to K.
Among merchants: Additional terms become part of K (unless offer expressly limits to its terms, offer objects in reasonable time, or terms would materially alter the K); for Different terms apply knock out rule (majority)

Question 411

Promissory estoppel

Answer 411

promisee that reasonably relies to his detriment on gratuitous promise may be
able to enforce that promise even without consideration. 4 Requirements:
i) A promise
ii) Foreseeable reliance
iii) Actual reliance (induced by the promise)
iv) Injustice without enforcement

Question 412

Statute if Frauds (MYLEGS)

Answer 412

a) Marriage Ks
b) Ks that can’t be performed within one Year of their making
c) Ks for (future) sale of Land (includes leases, but present sale of land is outside SOF, Real estate brokerage agreements considered service, so outside SOF)
d) Ks of an Executor or administration to answer for a duty of a decedent
e) Ks of Guarantee or suretyship Guaranty – Promise to answer debt of 3rd party
i) 2 exceptions where guarantee agreement is not governed by SOF (unless main purpose of guarantor is to protect his own economic interests)
f) Ks for the Sale of goods at $500 or more

Question 413

SoF requires (not UCC)

Answer 413

(1) Identify of the parties to the transaction;
(2) nature and subject matter of the K; and
(3) essential terms of the agreement, such as price and date for performance
4) Land sale Ks: need description of land
5) Signature of adverse party

Question 414

Satisfy land sale or sale of goods Ks without a writing

Answer 414

Part performance will make an oral K for sale of land enforceable if (need at
least 2 of 3):
(1) Payment of all or part of purchase price
(2) Taking possession of land
(3) Making substantial improvements to property

For sale of goods: satisfied by part performance, according to UCC

Question 415

Satisfy 1 year Ks without a writing

Answer 415

(1) If fully performed: enforceable despite SOF
(2) If only partially performed: not enforceable
(3) Quantum meruit: available to the partly performing party, can recover reasonable value for part performance

Question 416

Promissory estoppel

Answer 416

May be available for detrimental reliance on unenforceable oral K:

i) One party to an SOF K promises other party he will create a signed writing so party relies by not taking other steps to satisfy SOF: most courts apply promissory estoppel
ii) Where no specific assurances of creating a signed writing are made, but reliance is instead simply on the underlying oral K itself Majority will apply promissory estoppel (Substantial minority: Promissory estoppel is preempted by SOF, not enforceable)

Question 417

UCC SoF, 5 ways to satisfy

Answer 417

i) Signed writing: signed by adverse party, must state or indicate quantity (unless req K), unlike in CL written offer is insufficient (unless firm offer)
ii) Merchant’s confirmation: oral agreement b/t merchant, 1 sends a written/signed confirmation of agreement, SOF satisfied if recipient fails to object within 10 days
iii) In-court admission: Party admits K formation in pleading, testimony, etc: only enforceable up to quantity admitted
iv) Partial Performance: applies to paid for or accepted goods, indivisible units
v) Specially manufactured goods: if goods aren’t suitable for sale to others, some reliances (began making or made commitments to get) before notice of buyer’s revocation, goods were clearly for buyer

Question 418

Implied warranties (3)

Answer 418

i) Warranty of title: no lien, good title
ii) Warranty of merchantability: fit for ordinary purposes, ONLY applies if seller is a merchant (unless disclaimed or patent defects)
iii) Warranty of fitness for a particular purpose: Goods fit for the particular purpose buyer intends to use them for: ONLY when seller has reason to know AND buyer is relying on seller’s expertise, negated by clear disclaimer or patent defects

Question 419

Contra proferenem

Answer 419

If ambiguous term is included in K  construe against the drafter

Question 420

When Parole Evidence Rule doesn’t apply

Answer 420

a) Subsequent agreements entered into after execution of the written document
b) Collateral agreements—ancillary
c) Attack on validity of written agreement.

Proof allowed:

(1) Failure of oral condition precedent
(2) Want of consideration/false recital;
(3) Mistake or duress;
(4) Fraud;
(5) Reformation: must show: antecedent valid agreement, incorrectly recorded due to mistake or fraud, Proof by clear/convincing ev.

Question 421

Risk of loss in delivery

Answer 421

Common carried: default is FOB seller (buyer bears risk)

Not common carrier:

1) Seller is NOT a merchant: risk on buyer upon deliver
2) Seller is a merchant: risk on buyer once goods are in buyer’s possession

Question 422

Modification under CL and UCC

Answer 422

CL: pre existing duty rule, need new consideration

UCC: Agreement modifying an existing K needs no consideration to be enforceable as long as made in good faith

Question 423

Excusing performance due to faulty assuptions

Answer 423

1) Mistake (generally only if mutual, material)
2) Impossibility: objective, unforseen
3) Impracticability: unforseen, UCC has high bar UCC
4) Frustration of purpose: substantial, basic assumption of K

Question 424

Pure vs Promissory conditions

Answer 424

Promissory: Performance conditioned on occurrence of performance by other party

Pure: condition K performance on events outside control of either party

Question 425

K Defenses (6)

Answer 425

1) Infancy/minors (incapacity): power of avoidance, ratification, necessaries
2) Mental incompetency (incapacity): ratification, necessaries, bad faith
3) Misrepresentation: sciener (or negligent misrep), materiality, reliance
4) Duress: threat, wrongful, no reasonable choice
5) Undure influence: unfair persuasion + vulnerability
6) Unconscionability: procedural or substantive
7) Public policy/illegality: improper subject matter, K is a crime or tort

Question 426

Formula for expectation damages

Answer 426

Loss of value of breaching party’s performance
+ incidental and consequential costs generated by breach
– Payments received
– Any costs saved as result of breach
= Expectation damges

Question 427

Formula for reliance damages

Answer 427

Money spent in prep for performance or in
actual performance
- loss breaching party can prove aggrieved
party would have suffered if K fully performed
(may be avaiable when expectation damages are too uncertain)

Question 428

Specific Peformance

Answer 428

Equitable remedy.

a) Only available when $$ is inadequate (uniqueness req)
b) Equity considerations: clean hands, fair and definite terms, performance can be reasonably assured
c) Not available – Personal service Ks or Ks requiring ongoing cooperation
d) Under the UCC: uniquenss, no reasonable substitutes

Question 429

11th Amendment, exceptions (5)

Answer 429

prohibits private individuals from suing states for MONEY damages in any court,
Except:
a) suits brought a state or the fed govt
b) Lawsuits against subdivisions of a state (i.e., cities, towns, counties);
c) Most lawsuits for injunctions;
d) If state consents;
e) money damages against states for violations of 13th, 14th, and 15th
Amendments

Question 430

to get into fed court

Answer 430

RAMPS
R: Ripeness: claim fully developed
A: Abstention: undecided issues
of state law or (for SC only) Adequate and Independent State Grounds
M: Mootness (except if “capable of repetition, yet evading review”)
P: Political Q (Constitution suggests decision-making authority is given to
another govt actor; decision is political rather than legal)
S: Standing (ICR)

Question 431

Standing in fed court, reqs (3)

Answer 431

Article III requires a person to show:

(1) Injury in fact: actual or imminent
(2) Causation
(3) Redressability: P will benefit from remedy sought

Question 432

An organization has standing to assert claims of its members if:

Answer 432

(a) members would have standing in their own right;
(b) The interest asserted is germane to the organization’s purpose; and
(c) Neither the claim asserted nor the relief requested requires participation by the individual members in the lawsuit

Question 433

Necessary and Proper Clause

Answer 433

implied power to make laws that are “necessary and

proper” to carry out an enumerated power

Question 434

congressional powers (5)

Answer 434

1) Legislative: enumerated, nec and prop, enabling
2) Commerce: interstate, channels, instrumentalities, economic activigties
3) Taxing and Spending: general welfare, noncoercive, unambigous, relatedness
4) War and Defense: war, draft, price, rentral control
5) Civil War Amds: congruent and proportional remedies for widespread state violations

Question 435

Executive powers (7)

Answer 435

1) Enforcement
2) Appointment: high level officials (PAS)
3) Removal: need cause for fixed term or judicial functions
4) Veto: override of house and senate, no line-itme
5) Pardon: for fed crimes only
6) Commander in chief, military power: surprise attacks, tactics
7) International afairs: treaties (need 2/3 of senate) and Exec Agreements

Question 436

Impeachment Power

Answer 436

The House has the sole power to impeach, and the Senate tries the impeachment (need 2/3 vote
to convict)

Impeachable offenses: treason, bribery, and other high crimes and misdemeanors

Question 437

A state is immune from federal taxation if…

Answer 437

…the tax is applied to unique state activities or essential
governmental functions

Question 438

Dormant Commerce Clause

Answer 438

Rule: States cannot discriminate against out-of-state economic actors

If a state law discriminates on its face: reg must be necessary to a compelling state interest
If a state law incidentally burdens interstate commerce: reg must serve an important state interest, and burden cannot be excessive in relation to interest served

Exceptions:

(1) Congressional authorization
(2) States acting as market participant

Question 439

Exceptions to state action requirement for constitutional violations (3)

Answer 439

1) Public-function theory: traditionally govt activities
2) Significant-state-involvement theory: action closely encouraged/supported by the state
3) 13th Amendment: applies to private actions

Question 440

Procedural Due Process

Answer 440

To deprive someone of life, liberty, or property, the government must give notice and an opportunity
to be heard (i.e., a hearing).
Factors to determine adequate notice and hearing (Matthews test):
(a) The importance of the individual interest protected;
(b) The risk of an erroneous deprivation of this interest through the procedures used; and
(c) The government’s interest in streamlined procedures

Question 441

Substantive DP for Economic Regulations

Answer 441

Substantive due process rights are not economic: economic regulations need only meet rational basis review

Question 442

Public-function exception (alienage)

Answer 442

some jobs or activities may be withheld from resident
aliens, including:
1. Police officers
2. Governmental officials
3. Public school teachers

Question 443

tier of scrutiny against illegal aliens

Answer 443

RBR

Question 444

14th Amendment Privilege and Immunities (P&I) Clause

Answer 444

Very limited application, primarily includes the right to:

i) Travel across state lines and establish residence in a new state;
ii) Petition Congress;
iii) Vote for federal offices;
iv) Assemble; and
v) Enter public lands

Corporations are not protected

Question 445

Article IV, section 2 P&I Clause

Answer 445

Prohibits states from discriminating against non-residents (based upon the fact that they do not reside
in the state) with respect to rights and activities that are fundamental to the national union

Test: The state can discriminate if it is substantially related to a substantial state interest

Can charge more for recreational licenses,but not commercial licenses

Question 446

Where legislation is neutral on its face re religion

Answer 446

Lemon test:

(1) The statute must have a secular legislative purpose;
(2) The principle or primary effect or purpose must neither advance nor inhibit religion; and
(3) The statute must not foster an excessive government entanglement with religion

Question 447

Govt money to to pay relig school teachers

Answer 447

States cannot give money to be used directly for religious instruction; or to Religious secondary schools for salaries of teachers of secular subjects (risk of “excessive government entanglement”)
But may give such money to schools at the university level

Question 448

Test for Obscene speech

Answer 448

Miller test: speech is considered obscene if:

(i) The average person, applying local contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest;
(ii) The work depicts or describes, in a patently offensive way, sexual conduct that is specifically defined by state law; and
(iii) The work, taken as a whole, lacks serious literary, artistic, political, or scientific value

Question 449

Defamatory speech

Answer 449

(a) Private person, private concern: no proof of malice or negligence needed
(b) Private person, public concern: negligence about the truth or falsity of the statement (no malice required)
(c) Public official/figure: “actual malice” (knowledge of the falsity or reckless disregard of the truth or falsity)
(d) Private person suing media for false-light invasion of privacy for matter of public interest: actual malice, truth defense if in public record

Question 450

“Unprotected speech” (5)

Answer 450

RBR applies, “Unprotected speech” includes:

(1) Speech that advocates violence or unlawful action: inciting or producing imminent lawless action
(2) Fighting words: likely to incite an ordinary citizen to commit immediate physical retaliation, must be direct, personal insult
(3) Hostile audience speech: Police must make reasonable efforts to protect against a “heckler’s veto”
(4) Obscene speech: miller test (local contemporary community standards, prurient interest, lacks serious literary, artistic, political, or scientific value)
(5) Defamatory speech

Question 451

Regulation of Commercial speech

Answer 451

Commercial speech that is false or deceptive, or that
relates to unlawful activity: govt may regulation
Ccommercial speech is not false or deceptive and does not relate to unlawful activity: reg must
(a) Serve a substantial governmental interest;
(b) Directly advance the substantial gov interest; and
(c) Not be more extensive than is necessary to serve that interest

Question 452

Time, Place, Manner

Answer 452

Public forums: regulation must:

(a) Be content neutral, as to both subject matter and viewpoint
(b) Be narrowly tailored to serve an important government interest; and
(c) Leave open alternative channels of communication

Non-public forums: regulation must be reasonably related to a legitimate government purpose

Question 453

Intentional Infliction of Emotional Distress (IIED)

Answer 453

def: D engages in intentional or reckless act amounting to extreme and outrageous conduct that causes P severe emotional distress
i) Intentional or Recklessness: desire, knowledge of virtually certainty, or conscious disregard of a high degree of probability
ii) Extreme and outrageous conduct: exceeds all bounds tolerated by civilized society
iii) Severe emotional distress: P does not have to prove physical injury, but distress must be severe – greater than reasonable person would expect to endure; must be substantial/long lasting, not trivial/transitory

Question 454

for IIED, offensive language alone…

Answer 454

…is generally. not enough, except when:

1) D is a common carrier/innkeeper,
2) D knows of P’s particular sensitivity, or
3) D is an Authority figure using racial/ethnic slurs against underling

Question 455

Trespass to chattels

Answer 455

def: D interferes with P’s chattel, causing damages
i) Intent: D intentionally performs the physical act that interferes; Liable despite good faith intent not ti trespass, mistake is not a defense
ii) Interference = Uses or borrows w/out authorization
iii) Actual Damages – Unlike trespass to land, need damages, not nec to the chattel but need some damages by loss of use in case of dispossession

Question 456

Remedies for Trespass to chattels

Answer 456

i) Damages – Cost of repair, fair market rental value, punitive if bad actor
ii) Replevin – Get back personal property of which one has been wrongfully dispossessed

Question 457

Conversion

Answer 457

Intentional act by D that causes the destruction of or serious and substantial interference with P’s chattel

i) Intent: mistake is no defense, liable even if acting in good faith and no intent
ii) Dominion and control (BFP)
iii) Destruction or Serious and substantial interference = the exercise by D of dominion and control (longer period of interference than trespass to chattel)

Question 458

Remedies for conversion

Answer 458

i) Forced sale (common) – Market value at time converted + punitive if bad actor
ii) Replevin – Brought by P to get personal property back

Question 459

Defenses and privileges to intentional torts

Answer 459

POPCANS
a) Privilege: shopkeeper (Not liable for false imprisonment if had a reasonable suspicion, can detain for reasonable period in reasonable manner in vicinity)
b) Others (defense of others)
c) Property: never deadly force to protect personal or real property, may use reasonable force to eject a trespasser after asking him to leave, Recapture of chattels use reasonable non-deadly force if
request first or request would be futile and P is in hot pursuit
d) Consent – usually a defense for battery and assault (express, limited scope, implied)
e) Authority: arrest (cop reasonably believes D committed a felony, or if misdemeanor constituting a breach of the peace; private person liable for tort if wrong) Discipline (Parent/teacher may use reasonable force)
f) Necessity: permitted to injure P’s property if reasonably necessary to avoid a substantially greater
harm; public or private, D is privileged even if made an honest mistake, D liable for harm caused
g) Self-defense: D honestly and reasonably believes she used reasonable and proportionate force to prevent P from engaging in an imminent and unprivileged attack

Question 460

ability of resurers to recover in negligence cases

Answer 460

Nonprofessional rescuers are foreseeable P’s as a matter of policy and can recover against negligent
party creating need

Question 461

Public Duty Doctrine

Answer 461

Courts find no duty when cops/fire fail to provide an adequate response, except when:

(a) Special relationship;
(b) Agency has increased the danger

Question 462

Negligence when D is governmental entity

Answer 462

Whether duty is owed depends on function

(1) Proprietary function (acting in private area): Treated as any other D for duty analysis
(2) Discretionary activity (using judgment and allocating resources i.e. setting policy): Courts will not find a duty
(3) Ministerial function: Duty once gov has undertaken to act (Ex: stop sign installed incorrectly leading to accident)

Question 463

Negligent infliction of emotional distress NIED

Answer 463

(courts reluctant)
Def: Bystander actions, OR if D engages in neg conduct and as a result, P suffers emotional distress + some sort of physical manifestation,
Most jurisdictions require zone of danger: risk of physical harm

Exceptions to these req’s:

(i) D negligently commits death of a loved one
(ii) D negligently mishandles a corpse

Question 464

Bystander actions

Answer 464

= Physical harm occurs to a close relative and P suffers emotional distress as a result.
Elements:
(a) Was located near scene of incident
(b) Suffered severe emotional distress
(c) close relationship with victim (immediate family member)

Question 465

Duty to Ps on D’s land

Answer 465

(1) Invitees = Enters onto D’s land at D’s express or implied invite and for a purpose relating to D’s interest or activities: duty to exercise reasonable care to prevent injuries caused by activities conducted on his land
(2) Licensees = Enters D’s land with D’s express or implied permission and who’s not there for a purpose benefiting D or D’s activities nor is land held open to public (i.e. social guest): Must warn of known concealed dangers (just warn, not cure)
(3) Trespassers = Enters without express or implied consent of land possessor: Duty to avoid infliction of willful or wanton harm
(4) known or frequent trespassers (must be obvious like well-worn path): Duty to warn of concealed dangerous artificial conditions
(5) Children: attactive nuisance doctrine

Question 466

Child trespassers (attractive nuisance doctrine)

Answer 466

5 factor test, If conditions apply, even though child, treated as invitee:

(1) Too young to appreciate the danger
(2) D knows or has reason to know of trespass
(3) D knows of the dangerous condition
(4) Artificial condition
(5) Does risk outweigh the utility and burden to fix it?

Question 467

LL only liable to those on premises for (4)

Answer 467

(a) Common areas over which LL retains control
(b) Negligent repairs
(c) At time of lease, LL knows of a concealed dangerous condition
(d) LL knows that T is going to hold property open to public

Question 468

Standard of materiality

Answer 468

New Trend in med mal, Must divulge all material risks, risks that a reasonable patient would want to know in deciding whether to undergo procedure. Failure to divulge material risk is malpractice IF P can show would have refused procedure if risk was divulged

Question 469

Substantial factor test (torts)

Answer 469

Apply when there are multiple causes (instead of “but for” test) = 2 Ds cause harm, but each D alone would have been sufficient to cause entire harm: each D is a cause-in-fact if D was a substantial factor in causing the harm (Ex: Two arsonists’ fires burn down same mansion).
Assume joint and several liability = can sue one or both

Question 470

Proximate cause

Answer 470

Policy reasons to cut off liablity:

1) Unforeseeable extent of harm: D responsible for full extent as long as type is foreseeable, Eggshell skull
2) Unforeseeable type of harm: not liable if injury was not within the risk created by D’s negligent conduct
c) Unforeseeable manner of harm: not liable if there is a superceding cause cutting off the chain of causation (subsequent neg doesnt count)

Question 471

Damages of negligence

Answer 471

Compensatory damages: return P to pre-injury position
(1) Type if damage must be foreseeable (not the extent);
(2) Reasonably certain (not speculative);
(3) Not avoidable
Special damages: Pecuniary (med costs), lost wages, cost of repair (past, present, and future damages)
General damage: More controversial because intangible, Pain and suffering, difficult to measure

Punitive – never recoverable just for neg conduct – must be more culpable, like willful, malicious, or reckless; Due Process Clause limits amt. more than 10% ratio to compensatory unconstitutional

Nominal: not avaiable for neglgience

Question 472

Collateral source rule

Answer 472

The fact that P has insurance doesn’t mean D doesn’t have to pay them. Also applies to gratuitous services

Question 473

Defenses for products liablity

Answer 473

i) Misuse—P’s use of product neither intended nor foreseeable
ii) Alteration—Employer removes safety devices to increase efficiency
iii) Assumption of risk—Comparative fault/general unreasonable conduct by P

Question 474

Private Nuisance, factors (5)

Answer 474

=A thing or activity that substantially or unreasonably interferes with P’s use and enjoyment of land
Usually intentional, because once D is placed on notice that she is interfering, D still
doesn’t stop
Factors balancing substantial/unreasonable interference:
i) Value of D’s activity;
ii) Alternatives?;
iii) Nature of locality;
iv) Extent of P’s injury;
v) Who was there first? (no longer a complete defense)

Remedy: Injunction (equitable relief) – P must persuade a judge that:

i) Suffering or will suffer irreparable harm + Damages are inadequate remedy
ii) Judge will then do balancing test

Question 475

Slander per se

Answer 475

=harm is presumed from publication:
(a) imputes to P behavior or characteristics that are incompatible with the
proper conduct of his business, profession or office
(b) imputes to P commission of crime involving moral turpitude or infamous punishment (prison/death)
(c) Allegations P has some loathsome disease
(d) Falsely imputing lack of chastity to a woman

Question 476

Negligent Misrepresentation

Answer 476

Generally: D has no duty to avoid negligent infliction of pure economic loss.

Exception 1: When there is a special relationship like fiduciary duty or if D knows that they are acting for benefit of 3rd party and they rely and suffer economic loss (Ex: Lawyer prepares a K for client and drafts it negligently so the client loses $1M and client sues for malpractice—lawyer cannot avoid liability because it’s purely an economic loss. There is a fiduciary duty)

Exception 2: If D knows that they are acting for benefit of 3rd party (end and aim to benefit the 3rd party) and the 3rd party relies and suffers economic loss (Ex: context of lawyer/client, non-parties can only recover in content of will drafting, where drafted negligently leading to economic loss for intended beneficiary)