Rules Flashcards
MEE rules
2 kinds of Actual Authority
Can be express–where agent expressly given authority to act for principal–or implied–where principal’s conduct leads agent to believe it has authority
Definition & Elements of Apparent Authority
Apparent authority is where a 3p reasonably believes the agent has authority
- The person dealing with the agent must do so with a reasonable belief in the agent’s authority AND
- The belief must be generated by some act/neglect on the part of the principal
When does vicarious liability impute an agent’s liability to the principal?
- Agent/ee acting in scope of employment
- Agent/ee made only a minor deviation from employment
- Agent committed an intentional tort that was solely for the principal’s benefit/authorized by principal/intentional tort arose naturally due to nature of employment
Contract liability of principal & agent for contracts entered into by agent
Agent is bound to the K if: 1. agent acts without actual or apparent authority; 2. Principal is undisclosed (ie 3p doesn’t know that an agent is acting on behalf of another); or 3. Principal is partially disclosed (3p knows that agent is acting on behalf of another but doesn’t know P’s identity)
Partnership formation
A partnership is the association of 2 or more people to carry on as co-owners a business for profit whether or not the persons intended to form the partnership. (Very easy to form general partnership)
Fiduciary duties of partners
Loyalty, Care, Account
Rights of Creditors in a general partnership
Partners are liable for debts of general partnership, but creditors must attempt to collect from partnership itself before it goes after personal assets of partners
Venue Rule
Venue proper where: 1. any defendant lives, if all defendants live in the same state; 2. in the district where a substantial part of the events/omissions giving rise to the claim occurred; or 3. where a substantial part of property that is subject to the action is situated
3 kinds of SMJ
- Diversity jurisdiction: complete diversity (based on domicile when action is filed) & amount over 75k
- Federal Question jurisdiction: Suit arises out of the constitution, US treaties, or fed law. Federal question must appear on the face of the complaint.
- Supplemental: If one claim already meets requirements of Diversity or FQJ, all other claims that are so related that they form the same case/controversy (e.g. common nucleus of operative fact) may also be brought in. (N.B. No SuppJx in diversity where additional claim would destroy complete diversity. Amt in controversy not relevant in SuppJx.)
Personal Jurisdiction - Analysis
Look to see if state long arm statute is satisfied (statutory analysis). If so, proceed to constitutional analysis by looking at defendant’s contacts w/forum state. Defendant must have at least minimum contacts such that the exercise of jx would be fair. Contact can’t be accidental–def must purposefully avail self of the privilege of conducting activities in forum state. Def must know/reas anticipate that contact w/forum state could cause def to be haled into court there.
PJ Source
14th Ad. DPC
PJ Types
specific (case stems from def’s contacts in forum) & general (defendant subject to jx where def is domiciled or where def’s contacts w/forum state are continuous & systematic such that def feels at home
2 kinds of transfers & choice of law used
- Transfer to a more appropriate forum–case properly brought in original venue but transfer made for the convenience of parties/witnesses or in the interest of justice. Apply law of transferor court (where case originally brought).
- Transfer to a proper venue: case filed in wrong venue to begin with. Apply law of transferee court (where case was transferred).
Removal Procedure
File notice in fed court & division where action is pending with copies to state court and opp parties. Must file within 30 days of receiving complaint. Notice must contain removal grounds. All defendants must join in removal. If removal on the basis of diversity, can’t remove after 1 year in state court unless bad faith by plaintiff
What is Permissive Joinder?
Can join parties when
- a claim is made by each plaintiff and against each defendant relating to/arising out of the same series of occurrences AND
- there is a question or law/fact common to all parties
What is the Klaxon rule?
Fed court in diversity must apply choice of law approach used by state in which it sites. E.g. NY pl vs MA def in NY fed court will apply NY choice of law rule. No incentive for parties to forum shop.
What choice of law to use in prenup enforcement?
If no choice of law clause in prenup, apply law of state in which prenup was executed OR the state with the most significant relationship with the parties
Elements of common law marriage
- cohabitation; 2. they hold each other out as spouses; 3. couple intends to be married (i.e. both agree that they are married)
Choice of law in postmortem distribution of decedents’ estates - personal property
personal property: law of state where decent was domiciled
Choice of law in postmortem distribution of decedents’ estates - personal property
Law of state where property is located
Commerce power
Cg has power to regulate channels and instrumentalities of interstate commerce, persons and things in interstate commerce, or anything that has a substantial effect on interstate commerce (very broad)
Dormant Commerce Clause
If Cg is silent, state may regulate commerce BUT if it facially discriminates against IC–> apply strict scrutiny (will probably fail). If not discriminatory on its fact, balance burden & benefit (will probably pass)
Rational basis test
Pl bears burden of proving that the law is NOT rationally related to a legitimate government interest
(P usually loses)
Intermediate Scrutiny
Govt bears burden of proving that the classification is substantially related to an important government interest
(gender, illegitimacy)
Strict Scrutiny
Law is narrowly tailored to achieve a compelling government interest (govt usually loses–apply to EPC race/ethnic/alienage classifications, fundamental rights DPC analysis, state laws that are facially discriminatory against interstate commerce, etc)
Test for regulation of government speech
Rational basis. N.B. govt speech includes statutes/permanent monuments, etc
Law that regulates content of private speech is
presumptively unconstitutional. Subject to strict scrutiny (necessary to achieve a compelling interest)
Content-neutral time/place/manner restriction on speech much be
narrowly tailored to serve an important government interest + alternative channels exist
waiver of Miranda rights must be
knowing, intelligent, voluntary
Marital vs separate property
Marital prop acquired during marriage, subj to division
Separate prop = Before marriage; Inheritance, or Gift (BIG), not subj to division
Can child support be retroactively modified?
NO (absent fraud)
6 warranty deed covenants
Right to Convey Seisen No Encumbrances Further Assurances Quiet Enjoyment Warranty
What is the covenant of right to convey
Grantor covenants that he has authority to make the grant
Covenant of Seisin?
Grantor has title and possession of the conveyed estate
Covenant against encumbrances?
No physical encroachments or mortgages exist
Covenant for Quiet Enjoyment
Grantee’s possession will not be disturbed by a third party’s lawful claim of title
Covenant of Warranty
Grantor will defend against reasonable claims of title by a third party & will compensate grantee for any loss sustained by said claim
Covenant of Further Assurances
Grantor will perform acts reasonably necessary to perfect title
What kind of recording act is this:
A conveyance of interest in land is not validly recognized against any subsequent purchaser for value without notice unless it is recorded
Notice act
What kind of recording act is this:
No conveyance of an interest in land is valid against any subsequent purchaser for value and without notice unless it is recorded first
Race-notice act
Effect of a transferee taking land “subject to” mortgage
Transferee is not personally liable
Effect of transferee “assuming” mortgage
Both transferor & transferee are liable
equitable conversion
After contract to convey land is signed, Buyer’s interest in real property (land) and Seller’s interest is personal property (money from sale)
4 kinds of goods
consumer goods, inventory, farm products, equipment
equipment definition
anything that isn’t consumer goods, inventory, or farm products
What is attachment?
How a lien attaches to the collateral–what makes the agreement binding between secured party & debtor. Required for secured party to have an enforceable security interest
Requirements for attachment
- value given by secured party to debtor;
- debtor has rights in the collateral;
- there is a binding security agreement
What is perfection?
Process for determining who has priority when multiple creditors have an interest in one piece of collateral
Ways to perfect
- filing a financing statement that describes the collateral;
- taking possession (pledge)
- automatic perfection (PMSI in consumer good)
- control
What duty of care is owed to a trespasser?
If undiscovered, none (but owner can’t act willfully/maliciously). If discovered, owner must warn/make safe any unreasonably dangerous concealed artificial conditions that the landowner knows of
What duty of care is owed to a licensee? What is a licensee?
Licensee=social guest
Landowner has duty to reveal hidden dangers that landowner knows of or reasonably should know of (no duty to inspect)
What duty of care is owed to an invitee? What is an invitee?
Invitee=person invited to land open to public or person invited into a business
Landowner must warn/make safe all dangers that landowner knows of or reasonably should know of AND has the duty to inspect
Elements of negligence per se
Threshold: a statute establishes a duty of care
- defendant violated statute (w/o excuse)
- plaintiff in the class of people the statute was created to protect
- plaintiff received the injury that statute was trying to prevent
N.B. NPS establishes duty and breech. MUST still prove causation & damages
Requirements for a will to be valid
- in writing
- signed by testator
- witnessed by 2 witnesses
- testator 18+
- testator has intent that document serves as will
what is a holographic will and when will it be enforced
UNATTESTED handwritten will. Will be enforced in about half of states if signed & material portions are in testator’s handwriting
when will an invalid will be upheld?
Where there is clear and convincing evidence that decedent intended document to be a will
Ways to revoke a will
- by operation of law (subsequent marriage; divorce/annulment; birth/adoption of children
- subsequent instrument (express revocation in subsequent will OR inconsistent provisions)
- physical destruction with intent to revoke
What is the dependent relative revocation doctrine?
if a testator revokes a will or bequest based on a mistaken assumption of law or fact, the revocation is ineffective if it appears that the testator would not have revoked the bequest had he had accurate information.
Effect of Slayer Statutes
If an individual feloniously and intentionally kills the decedent OR is convicted of abuse/neglect/exploitation of the decedent, the individual forfeits all benefits wrt decedent’s estate. (N.B. look at intent–voluntary mansl will trigger forfeit but involuntary mansl will not)
When is a trust of personal property valid?
- trustee (n.b. trust will NOT fail w/o a specifically appointed trustee; court can appoint)
- beneficiary (must be definite and ascertainable; cannot be sole trustee and also sole beneficiary)
- trust property (must be identifiable)
What is the name for the person who creates the trust?
Settlor
What is the name for the person who benefits from the trust?
Beneficiary
What is the name for the person who manages the trust?
Trustee
What is the term for a trust created by a will?
Testamentary trust
What is the power of appointment?
Gives a beneficiary the power to designate who will receive specific property
Rule of convenience
Unless otherwise stated, a class closes when one member is entitled to a distribution
What is ademption?
Failure of a gift bc property no longer in testator’s estate at time of death
What is a codicil?
A supplement to a will that modifies, adds, explains, or revokes a will
Methods of determining heirship
Under the parentelic method (UPC and most states), the issue of an intestate’s parents take to the exclusion of any issue of the intestate’s grandparents (so nieces/nephews take over uncles/aunts).
Under the civil law consanguinity method in a minority of jurisdictions, look at the degree of consanguinity.
Business judgment rule
presumption that in making a business decision, the directors acted on an informed basis, in good faith, and in the honest belief that the action taken was in the best interest of the company —–> IF informed, GF, honest belief then Director’s decision may not be challenged
What is marketable title?
a reas. prudent buyer would accept it in the exercise of ordinary prudence
Things that usually render title unmarketable:
-inability to establish record chain of title
-restrictive convenant
-easement
who is the beneficiary of a non-assignment clause in a lease?
the landlord/owner
How can a party preserve a procedural error at trial for appeal?
Timely objection at trial
Is physical injury necessary for a successful claim of IIED?
NO!
Are loyalty oaths constitutional?
Yes, as long as it is not overbroad (prohibiting constitutionally-protected activity) or vague. Oath requiring taker to oppose the overthrow of the government by force/violence/unconstitutional methods has been found constitutional
ways to terminate an easement
Estoppel: subservient estate owner changes position in reliance on words or conduct of easement owner
Necessity: easement by necessity expires when necessity ends
Destruction & condemnation: condemnation of subservient estate extinguishes all easements. Destruction ends easement if involuntary
Condition: Original easement grant may specify conditions under which easement terminates
Release: WRITTEN deed of release from owner of easement to owner of subservient estate
Abandonment: easement holder uses physical action to demonstrate intent to permanently abandon easement (e.g. building a structure that blocks easement)
Merger: If same person acquires ownership of both easement and servient estate
Prescription: like AP: adverse, continuous interruption of the use for statutory period
END CRAMP
Can congress regulate states by imposing conditions on grants of money to state/local governments?
Yes! BUT the conditions must:
- be clearly stated
- relate to the purpose of the spending program; and
- not be unduly coercive
Parties to a secured transaction
- Creditor/secured party
- debtor (person who made the arrangement)
- obligor (person who owes the money/svcs due on loan–usually but not always same person as debtor)
Automatic perfection applies to
- PMSIs (consumer goods)
- Cars
- Identifiable proceeds (ie anything you get in return for selling a piece of property that has a security interest) - 20 days only
- Bank Deposit Boxes
financing statement requirements
- identify the collateral (broadly, e.g. “all assets” is fine)
- perfectly identify the debtor (no trade names, no nick names)
- identify creditor (doesn’t have to be perfect)
original use test
Debtor’s original intended use of collateral governs the collateral’s classification
Between 2 competing perfected security interests, who has priority?
Whoever perfected first
Rules for repossession
Just don’t breach the peace. No trespass, nothing that could cause violence
How to differentiate an agent from an independent contractor
Level of control principal actually exercises over the person–less control=more likely to be IC; more control=more likely to be agent
What duties does an agent owe a principal?
- duty of loyalty (agent can’t do anything that denies a business opportunity to principal)
- due care (reasonable pers)
- obey instructions
Who are heirs?
People who take from automatic intestate succession (if you die & only living relatives are one kid and wife, your heirs are your kid and your wife)
Who are issue?
all downward lineal blood or adopted kids–includes kids you adopt. If you marry someone who already has kids, your stepkids are NOT your issue
False Imprisonment elements
- Act/omission by def that constrains pl to a bounded area
- defendant’s intent to confine or restrain
- causation
Negligence elements
- duty of care owed to the pl by the def
- breach of that duty
- actual and proximate causation
- damages
NIED elements
- defendant creates a foreseeable risk of physical injury to the plaintiff (i.e. negligence)
- pl within the zone of danger from physical injury
- plaintiff suffers physical symptoms
Battery elements (tort)
- Harmful/offensive contact
a. harmful=causes actual injury/pain/disfigurement
b. offensive=would be considered offense to a reasonable person - To pl’s person
- Intent
- Causation
Assault (tort)
- Act by def creating a reasonable apprehension in pl
- of immediate harmful or offensive contact to pl’s person
- intent
- causation
IIED
- Act by def amounting to extreme and outrageous conduct
- intent or recklessness
- causation
- damages (severe emotional distress-physical damage not required)
Defamation elements
- Defamatory language
- of or concerning the plaintiff
- publication thereof by defendant to a 3p
- damage to pl’s reputation
If defamation involves a matter of public concern, pl must also prove:
- falsity of the defamatory language
- fault on the part of the defendant (actual malice if a pl is a public official or figure/negl if pl is a private person)
Appropriation of Picture/Name
- unauthorized use of pl’s picture or name
2. for def’s commercial advantage
Intrusion on Pl’s Affairs/Seclusion
- act of prying or intruding
- that is highly offensive to a reasonable person
- the thing into which there is an intrusion must be private (photos taken in public places not actionable)
False Light
One attributes to plaintiff views he does not hold or actions he does not take. False light must be highly offensive to a reasonable person under the circumstances. Actual malice required if matter is of public interest.
Public Disclosure of Private Facts
Public disclosure of private information about plaintiff; disclosure highly offensive to a reasonable person of ordinary sensibilities
Misrepresentation (fraud) elements
- Misrepresentation of a material past or present fact
- Scienter (when def made statement, she knew/believed it was false or that there was no basis for statement)
- intent to induce plaintiff to act/refrain from acting in reliance upon misrepresentation
- causation (actual reliance)
- Justifiable reliance
- Damages (actual pecuniary loss)
Products Liability SL elements
- commercial supplier
- production/sale of a defective product unreasonably dangerous to users
- actual and prox cause
- damages
Trespass to Chattels elements
- act by def interferes w/pl’s right of possession in a chattel
- intent
- causation
- DAMAGES (actual damages. N.B. extent of damages distinguishes trespass to chattels from conversion; if interference is severe conversion more appropriate)
Does a cop need any special justification to order passengers out of a car during a lawful traffic stop?
NO
3 kinds of class actions
- separate actions would create a risk of inconsistent results or impair the interests of unnamed parties
- injunctive relief appropriate for whole class
- common questions of law/fact predominate & CA is superior to alternate methods of adjudication
Can a properly executed codicil cure an invalidly executed will?
No
How can a will incorporate a document by reference?
- Doc must be in existence at time the will was executed
- language of will must sufficiently describe the writing to permit its identification
- will must manifest an intention to incorporate the document
Common law vs UPC rules about specific bequests of stock
CL: specific bequest of stock includes additional shares produced by a stock split but not those produced by a dividend
UPC: specific bequest of stock includes dividends
Exception to ademption doctrine?
If a guardian/conservator is appointed after the will is executed & the guardian sells bequeathed property, the beneficiary of the will is entitled to sale proceeds
Majority anti-lapse statute
If a will beneficiary dies during the life of the testator and the beneficiary has descendants, the beneficiary’s share will pass to the beneficiary’s descendants. N.B. this USUALLY WILL NOT save a gift to a spouse who predeceases testator
Default order of abatement
- intestate property
- residuary estate
- general legacies
- specific devises & bequests
(can be modified by contract)
Undue Influence
- influence was exerted
- the effect of that influence was to overpower the mind and the free will of testator
- the resulting testamentary disposition would not have been executed but for the influence
(Must completely destroy free will of T; begging/cajoling/threatening not sufficient. Direct evidence required.)
Examples of superseding cause
- acts of god
2. (usually) criminal acts & intentional torts of 3ps
When will an act be considered to be within the scope of employment?
- it was expressly authorized
2. of the same general nature as the employee’s job & motivated by a desire to serve the employer
Prox cause
Defendant is liable only for harmful results that are the normal incidents of and within the increased risks caused by the defendant
Requirements for claim preclusion
- valid final judg on merits
- same parties on same sides (OR privity w/same parties)
- new action involves the same cause of action (=arise out of the same transaction or occurrence)
Requirements for issue preclusion
- issues in both actions are the same
- valid final judgment on merits
- party ag. whom preclusion is asserted must have had a fair opportunity to be heard on the issue
- not unfair to apply collateral estoppel
Requirements for Summary Judgment
From the pleadings, affidavits, and discovery materials, it appears that there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law
Requirements and standard for Renewed JMOL
Procedure:
- motion for JMOL made during trial
- grounds must be limited to initial JMOL
- 28 days of judgment
Standard (JMOL & Renewed JMOL): reasonable jury would not have a legally sufficient basis to find for the party on the issue
When is work product prepared in anticipation of litigation discoverable?
Showing of substantial need for AWP & that trying to get the information elsewhere would be undue hardship
Timeline for removal
30 days after formal receipt of complaint
What is the final judgment rule?
Only a final order–one that disposes of all claims and all parties on the merits–is appealable.
If multiple claims/parties, judge may choose to enter a final judgment as to one claim/party if judge makes express determination that there is no just reason for delay & directs the entry of judgment WRT the party
What is the collateral order rule?
allows for immediate appellate review of interlocutory orders that
(a) conclusively determine a disputed question;
(b) resolve an important issue completely separate from the merits of the case; and
(c) effectively would be unreviewable if the party challenging the order was forced to wait until the end of the case to appeal.
Timeline for waiver of 12(b) claims
12(b)(1) - SMJ - Can’t waive. Can raise SMJ issue even on appeal.
12(b)(2) - PJ - Motion/Answer
12(b)(3) - Venue - Motion/Answer
12(b)(4) - Insufficient process (eg summons doesn’t name court) - Motion/Answer
12(b)(5) - Insufficient service - Motion/Answer
12(b)(6) - failure to state a claim - Must raise before end of trial
12(b)(7) - failure to join a necessary party - must raise before end of trial
Rules for Compulsory Joinder
- Complete relief can’t be accorded among the other parties to the lawsuit in the indispensable party’s absence
OR - Absentee has such an interest in the subject matter that failure to join will impair or impede his ability to protect that interest OR will leave the other parties at a substantial risk of multiple or inconsistent obligations
What is actual malice?
A statement made w/knowledge of its falsity OR reckless disregard for the truth
Standards for K modification
CL: Modification needs consideration
UCC: Modifications sought in good faith are binding WITHOUT consideration
Can a corporation’s articles of incorporation include an exculpatory provision that shields directors from personal liability to shareholders/corporation
Yes, subject to exceptions:
1. Director received a benefit to which he was not entitled
2. D intentionally inflicted harm on corp or SHs
3. D approved unlawful distributions
4. D intentionally committed a crime
(=negligence insufficient)
Rules about shareholders’ meetings
- Must hold annual SH meetings
- SHs must have notice (10-60 days)
- Only SHs of record on record date may vote (Record date set by board no more than 70 days before meeting)
When articles of incorporation and bylaws conflict, which controls?
Articles
What shares are permitted to be counted in SH votes?
ONLY outstanding shares (=held by SHs). Shares held by corporation (issued & repurchased) are not outstanding
Effect of merger clause?
UCC: valid & will bar introduction of extrinsic evidence
CL: valid but only as evidence of the parties’ intent that the contract is the complete agreement of parties
Effect of no oral modification clause?
UCC: Effective (if bw a merchant & nonmerchant, NM must separately sign)
CL: Not effective
What is a Bill of Attainder?
A legislative act that singles someone out for punishment without trial
When does the Confrontation Clause bar hearsay testimony that meets a hearsay exception?
- statement offered against a criminal defendant
- declarant unavailable (& not at fault of defendant)
- statement testimonial (primary purpose is to assist in criminal investigation)
- Defendant was unable to cross-examine declarant at a prior proceeding
Requirements for an equitable servitude to bind subsequent buyers
Notice
Intent to bind
Touch & concern
Statutory vs Rule interpleader
Statutory: minimal diversity, $500 amt in controversy, nationwide service okay, venue proper where any claimant lives
Rule: complete diversity bw stakeholder & claimants; $75k or FQjx; normal rules for service & venue
When can a clerk enter a default judgment?
Plaintiff’s claim is for a certain sum or for a sum made certain by calculation. If sum disputed or less than certain, judge must be involved
(N.B. atty’s fees usually require judge)
