Rules 14.9% Flashcards
Authority of Agent: Actual Authority - Express
Express Authority occurs when the principal has explicitly told the agent - either orally or in writing - that he is entitled to act.
Authority of Agent: Actual Authority - Implied
Implied Authority occurs where either:
(a) the agent believes he is entitled to act because the action is incidental or necessary to carry out his express authorized duties;
(b) the agent has acted similarly in prior dealings between the principal and agent;
OR
(c) it is customary for agents in that position to act in that way.
Authority of Agent: Apparent Authority
Apparent Authority arises where:
1) the principal holds out another as having authority
AND
2) the third-party reasonably relies on that authority.
Holding Out as having authority can be done by giving an agent a position or title, or having previously identified the agent as having the authority.
Even unauthorized acts by an agent, or acts in violation of specific instructions, will be binding unless the third party had notice the agent was exceeding authority or the contract/transaction was novel/not ordinary.
Creation of a General Partnership
A General Partnership is created when:
1. two or more persons
2. as co-owners
3. carry on a business for profit
No written agreement or formalities are required.
Piercing the Corporate Veil
A court will pierce the corporate veil and will hold shareholders personally liable in the following situations:
1. The Corporation is acting as the alter ego of the shareholders - little to no separation between the shareholder and the corporation (utilization of corporate form for personal reasons);
2. Where shareholders fail to follow corporate formalities;
3. the corporation was inadequately capitalized at its inception to cover debts and prospective liabilities
OR
4. to prevent fraud
Personal Jurisdiction - Traditional Bases
The traditional bases for asserting personal jurisdiction include:
a. domicile;
b. transient jurisdiction (present in the state when served)
c. consent
d. waiver
Scope of Discoverable Information
A party in a lawsuit may obtain discovery of all non-privileged information that is:
1) relevant to any party’s claim or defense;
AND
2) proportional to the needs of the case
Discoverable and Admissible are DIFFERENT.
What is discoverable is not necessarily admissible.
Mutual Assent: Offer & Acceptance
An offer is:
1. A manifestation of intent to contract by one party,
2. with definite/reasonably certain terms,
3. that is communicated to an identified offeree.
Acceptance is a manifestation of assent to the terms of the offer, indicating a commitment to be bound.
Bilateral vs Unilateral Contracts
For Bilateral Contracts, the start of performance manifests the acceptance.
For Unilateral Contracts, the start of performance makes the offer irrevocable, but the offer is accepted only when performance is complete.
Consideration: Bargained for Exchange
Consideration is a bargained for exchange of a promise for a return promise or performance that benefits promisor or causes detriment to promisee.
Impossibility
Impossibility discharges performance when it is objectively impossible to perform a contract because of:
1. death or physical incapacity of the person necessary to effectuate the contract (unless replacement is possible)
2. unanticipated destruction of the subject matter necessary to fulfill the contract;
OR
3. a new law or regulation stops performance possibility
Minor vs Material Breach
Material Breach excuses performance, a Minor Breach does not.
A material breach occurs when a party DOES NOT render substantial performance.
Minor vs. Material Test:
1. Extent of the benefit deprived
2. Adequacy of compensation
3. Extent the breaching party will suffer forfeiture/hardship
4. Likelihood that the breaching party will cure
5. Absence of good faith or fair dealing
Attempt (Criminal Law)
A person is guilty of attempt if the person:
1. had the specific intent to commit a crime
AND
2. took an overt act sufficiently beyond mere preparation. (“substantial step”)
In most jurisdictions, abandonment is not a defense to attempt.
Request for Information/Stop and Inquire/Stop and Frisk
Police may make a request for information anytime except on “whim or caprice.”
Police may stop and inquire if the police officer
1. has reasonable articulable suspicion
2. that criminal activity is afoot.
Police may Stop and Frisk a person if the police officer:
1. has reasonable articulable suspicion
2. that criminal activity is afoot.
AND
3. that the person has a weapon
6th Amendment Right to Counsel
The right to counsel exists in all criminal prosecutions and attaches once formal adversarial judicial proceedings have been commenced.
Offense-Specific = does not prevent questioning on unrelated offenses
Character Evidence
Generally, evidence of a person’s character is not admissible to show propensity (acting in conformity with a character trait on a specific occassion).
Character evidence is generally admissible for any non-propensity purpose.
Multiple Hearsay
When evidence contains hearsay within hearsay (multiple or double hearsay), each level of hearsay must fall within an exception to be admissible.
Hearsay Exclusion: Vicarious Admission
Vicarious Admissions are those made by
* an authorized spokesperson
* a principal or agent, made within the scope of the agency relationship
OR
* co-conspirators
Attorney-Client Privilege
A/C Privilege protects confidential communications between an attorney and client IF:
1. the communication was confidential
AND
2. the communication was made to facilitate legal services.
Formation of Lawyer-Client Relationship
A lawyer-client relationship is formed when:
1) a person seeks legal services from a lawyer
AND
2) the lawyer either manifests consent to provide services OR fails to manifest lack of consent to do so
Sharing Legal Fees with Non-Lawyers
A lawyer or law firm CANNOT share legal fees with a non-lawyer (including referral fees), except for:
a) death benefits paid to the deceased lawyer’s estate or heirs;
b) payments to a lawyer’s estate/representative for the purchase of the lawyer’s practice;
c) compensation or retirement plan payments to non-lawyer employees;
d) court-awarded legal fees shared with a non-profit org;
e) a CA compliant lawyer referral service
Easements (Generally)
An easement is a non-possessory interest in the use of someone else’s land.
Easement in gross benefits a specific owner’s enjoyment, DOES NOT attach to the land.
Easement Appurtenant benefits any owner’s enjoyment and DOES attach to the land. Passes to subsequent landowners with notice.
Easement by Grant
An express easement that must:
1. be in writing signed by the grantor
2. identify the land and parties
AND
3. indicate the grantor’s intent to convey the easement
Easement by Prescription
An Easement by Prescription is created when the possessor’s use of the land is:
1. open and notorious;
2. continuous;
3. hostile (without permission)
4. for the statutory period
Easement by Implication
(aka Implied Easement), established when:
1. a single tract of land is divided by a common owner;
2. a pre-existing use by the grantor that benefits the land is established prior to the division of the land;
3. the use is continuous and apparent indicating that the use was meant to be permanent
AND
4. such use is reasonably necessary for the owner’s use and enjoyment of the land conveyed
Easement by Necessity
Easement by Necessity is created if:
1. the original piece of land owned by one owner is subdivided
AND
2. the access the easement provides is essential to the use of the property
Reliance Damages
The expenditures made by a party in reliance of a contract, and are an attempt to put the non breaching party in the position it would hav ebeen if the contract never existed.
Reliance damages are available when
1. a plaintiff acted in reliance on the defendant’s agreement to perform under a contract;
AND
2. the plaintiff’s reliance was foreseeable.
If expectation damages are too speculative, the court may award reliance damages instead.
Rescission
Rescission treats the original contract as cancelled.
It is available if there was a problem with the formation of the contract (i.e. a defense to formation, fraud, misrepresentation)
A plaintiff may sue for both damages and rescission at the same time - but an election of remedies may bar recession if damages are sought first)
Preliminary Injunction
A preliminary injunction maintains the STATUS QUO pending the outcome of an action in order to protect irreparable harm to a party.
A court may issue a preliminary injunction ONLY:
1) upon notice to the adverse party;
AND
2) if the moving party gives security in an amount the court deems proper
A party moving for a preliminary injunction MUST SHOW
1) a likelihood of success on the merits;
2) a likely threat of irreparable harm to the movant;
3) balancing of the hardships in favor of the moving party;
AND
4) that it would be in the public interest.
An adequate remedy at law will cause the denial of a motion for a preliminary injunction.
Trespass to Land
A defendant is liable for the intentional tort of Trespass to Land if
1) he intentionally
2) enters the land or causes an object to enter the land of another or remains on the land; or fails to remove an object that he is under a duty to remove
Intent to respass is NOT required; the ONLY intent required is that the defendant intended to enter/remain on the subject land.
Negligence Per Se
Under the doctrine of negligence per se, a statute may be used to substitute the duty of care.
Plaintiff must show:
1) that the statute’s purpose is to prevent the type of harm suffered;
AND
2) that the plaintiff is in the class of persons that the statute seeks to protect.
Strict Liability: Abnormally Dangerous Activity
A defendant is strictly liable for damages caused to a plaintiff when engaging in an abnormally dangerous activity
Abnormally Dangerous Activity is one that:
1) is not of common usage in the community
AND
2) creates a foreseeable and highly significant risk of physical harm, even with the exercise of reasonable care by all parties.
Trustee Duties Owed to Beneficiaries
A trustee is a fiduciary of the beneficiaries and owes them the duty of care and the duty of loyalty.
Duty of care requires to manage the trust as a reasonably prudent person.
Duty of loyalty requires the trustee to:
1) refrain from self-dealing;
2) administer the trust in the best interest of the beneficiaries;
AND
3) give the same care and deference to each beneficiary.
Will - Revocation by Subsequent Will/Codicil
A testator can revoke a will by executing a subsequent valid will or codicil
