Silly mistakes

Question 1

Defamation: matter of public concern vs. about public figure

Answer 1

Matter of public concern = show negligence

About a public figure= knowledge of falsity or reckless disregard for falsity

Question 2

Refreshing recollection before trial

Answer 2

court has discretion as to whether opposition can inspect doc/object

Question 3

Conversion

Answer 3

Conversion = always found where defendant was using chattel without permission and it was accidentally damaged

Remedy for conversion is fair market value of the chattel at time and place of conversion

Question 4

Mailbox rule + estoppel

Answer 4

Acceptance is effective at moment of dispatch
Rejection is effective upon receipt

Under mailbox rule, if an offeree sends the acceptance first and then sends a rejection, and contract is created upon the acceptance.

But if the offeror receives the rejection first and changes her position in reliance on it, the offeree is estopped from enforced the contract.

Question 5

Third party beneficiary creation ( EPI)

Answer 5

A third party beneficiary:
i. expressly designated in the contract
ii. performance is to be made directly to her
iii. intent to benefit

Question 6

Third party beneficiary vesting

Answer 6

An intended third party beneficiary can prevent contracting parties from rescinding or modifying a contract once his rights have vested.

Vesting occurs when the third party beneficiary:
i. manifests assent to the promise in a manner invited or requested by the parties,
ii. brings suit to enforce the promise, or
iii. materially changes his position in justifiable reliance on the promise.

Merely being informed does not cause vesting, justifiable reliance is required.

If a contract allows the drafter to change the beneficiary at any time or up until some point, justifiable reliance on the contract is thwarted

but a promisor to a third party can assert that same defenses as normal, including failure of a condition.

Question 7

Leading questions

Answer 7

Leading questions: substantive relation of the questions to the issues of the lawsuit has no bearing on whether leading questions are permitted.

Use of leading questions on direct to refresh recollection or establish preliminary matters is permitted. If a witness is adverse or hostile, leading questions can be used because cross is treated as direct.

Question 8

Commander in chief

Answer 8

The constitution makes the president the commander in chief of the armed forces, but it gives congress the power to declare was and raise and army and navy.
The president’s power as commander in chief has historically extended beyond the power to repel invasions. It has also included the power to protect citizens abroad.

Question 9

Motion on pleadings vs. MSJ

Answer 9

Once pleadings are complete, any party may move for judgment on the pleadings. A motion for judgment on the pleadings may be filed only after the pleadings are complete, but early enough so as not to delay trial. In reviewing a motion for JOP, the court accepts all facts alleged in all the pleadings as true, and a failure to deny allegations in the complaint constitutes an admission. Failure to state a legal defense to a claim is one listed reason for a motion for judgment on the pleadings.

A motion for summary judgment considers the evidence and facts outside of the pleadings and also considers affidavits and discovery materials.

Question 10

Partial judgment and Orally on record

Answer 10

A judge can enter judgment on partial findings where that issue would dispose of the case. A judge can issue findings of fact and conclusions of law orally on the record.

Question 11

P vs. TPD brought in by D compared to TPD vs. P

Answer 11

A plaintiff may assert a claim against a third-party defendant brought in by a defendant’s third party claims only if the plaintiff’s claim against the third party defendant arises from the same transaction or occurrence as the plaintiff’s original claim.

Compare with TPD’s claim against P.
A third party may assert a claim against the plaintiff if the claim arises out of the same transaction or occurrence as the plaintiff’s original claim. But a third-party defendant’s claim against a plaintiff is not compulsory. Failure to assert the claim would not bar it in an independent action.

Question 12

DIfferent additional terms: common law v. UCC

Answer 12

At common law, any different or additional terms in an acceptance of an offer made the response a rejection and counter officer. But under the UCC, the proposal of additional terms by the offeree in a definite and timely manner does not constitute a rejection and counteroffer. Rather acceptance is effective unless the offer is expressly made conditional on assent to the additional terms.

If both parties are merchants, the additional terms will become part of the contract unless they:
i. materially alter the contract,
ii. the contract expressly limits acceptance to the terms of the offer, or
iii. the offeror has already rejected to the particular terms or he objects within a reasonable time after notice of them is received.

A limitation of liability generally substantially changes the allocation of economic risks and benefits between the parties and therefore materially alters the terms of the contract.

Question 13

When the police place an driver of an automobile under arrest, there are a number of alternatives with respect to the car:

Answer 13

i. they can conduct a search of the passenger compartment incident to arrest if the search is contemporaneous with the arrest and either the arrestee may still access the vehicle or the police reasonably believe the vehicle contains evidence of the crime for which the arrest was made.
ii. if the police have probable cause to search the car (reasonable grounds for believing a legitimate item of seizure is in the car) a search can be made without a warrant. The search based on probably cause can be made at the time of arrest or at a later time.
iii. if the police take the care under their control for an administrative reason, they can inventory the items in the care under certain circumstances.

To conduct an inventory search, the car must first be impounded.

Question 14

Use of land in nuisance

Answer 14

In a nuisance action, the complaining owners use of the land is relevant but not dispositive of a substantial and unreasonable interference with her use.

The fact that one type of land use was entered before another is relevant but not conclusive evidence of the reasonableness of the use in a private nuisance action.

Question 15

Minimum contacts and long term contracts

Answer 15

By entering a comprehensive, long term contract with a party in another state, the other party creates purposeful contacts with the state, granting PJ over any claim rising out of the contract/contacts.

Question 16

Trespassers and wild animals

Answer 16

Trespassers cannot recover for injuries inflicted by the landowner’s wild animals in the absence of negligence, such as where the landowner knows the trespassers are on the land and fails to warn them of the animal.

Question 17

Compulsory counter claims

Answer 17

A claim arising from the same transaction or occurrence is a compulsory counter claims and must be pleaded or it will be barred. When P vs. D.

Question 18

Former testimony vs. prior statement of identification

Answer 18

Former testimony of a now unavailable witness given at another hearing under oath is admissible as long as there is sufficient similarity of parties and issues so that the opportunity to develop testimony or cross examine at the prior hearing was meaningful.
In criminal cases, the accused or his attorney must have been present and have had the opportunity to cross examine at the time the testimony was given.

Prior statements of IDENTIFICATION are admissible NONHEARSAY, declarant need not be unavailable.
Former TESTIMONY is an EXCEPTED form of hearsay and requires declarant unavailability.

Question 19

Damages in regular negligence claim vs. product liability

Answer 19

In a regular negligence claim, a plaintiff is entitled to recover all his damages, both economic and noneconomic. In a products liability claim, a plaintiff must show noneconomic damages.

Question 20

Merger and inchoate offenses

Answer 20

Under the majority rule, conspirators can be convicted of both criminal conspiracy and the substantive offense. BUT solicitation mergers into either attempt or the completed crime.

Conspiracy does NOT merge with completed offense
Solicitation does merge with attempt or completed attempt

Question 21

statute of frauds

Answer 21

To be enforceable, a contract for sale of goods priced at $500 or more must be evidenced by a signed writing indicating a contract has been made, specifying the quantity and singed by the party to be charged.

Question 22

Signature

Answer 22

Any mark made with the intent to authenticate a writing is a signature including partys initials or letterhead

Question 23

Merchant’s confirmatory memo

Answer 23

In a contract between merchants, if one party, within a reasonable time after oral agreement sends the other party a written confirmation of the agreement that is sufficient under SOF, it will bind party to be charged if he has reason to know of contents and does not object to writing within 10 days

Question 24

Past performance and SOF

Answer 24

Past performance is sufficient to take a sale of goods contract out of the SOF when the goods have been specially manufactured or the goods have been paid for or accepted

Question 25

Public schools and free speech

Answer 25

Public schools can reasonably restrict first amendment rights of students to allow them to accomplish their missions of educating students and keeping them safe.

Question 26

Content of speech and standard of review

Answer 26

content based restrictions must bee strict scrutiny

content neutral restrictions ned only pass intermediate scrutiny:
i. govt’ prove
ii. narrowly tailored to
iii. significant/important government interest

Question 27

When security interest attaches

Answer 27

SI attaches when
i. parties agree to create SI
ii. evidenced by a security interest
iii. secured party gives value
iv. debtor obtains rights in the collateral

Question 28

PMSI

Answer 28

arises when creditor sells goods to debtor on credit retaining a security interest in the goods for the purchase price.

Question 29

Categorization

Answer 29

Collateral is categorized based on primary use to which the debtor puts it at the time of attachment

Question 30

Consumer to consumer rule

Answer 30

If a buyer of consumer goods
i. resells to another consumer
ii. for value
iii the second consumer takes free of security interest he has no knowledge of
iv. provided he makes the purchase before the financing statement is filed

Question 31

Buyer in ordinary course of business

Answer 31

a BIOC buyer in the ordinary course of business from a seller engaged in the business of selling them.

A BIOC can take free of nonpossessory security interests created by the seller unless they know the sale violates a security agreement.

Question 32

Payment of property taxes

Answer 32

Payment of property taxes is a covenant that touches and concerns the land. An assignee is in privity of the estate with the lessor and is liable for those covenants in the original lease that run with the land.
It does not matter if the assignees lease agreement does not mention taxes. Acceptance of assignment of a renters agreement renders the assignee liable for both the benefit and burdens of the terms/covenants in lease that run with the land.

Question 33

Per se negligence and contributory negligence

Answer 33

A plaintiffs contributory negligence can be established by a violation of a statute under the same rules that govern whether a statute can establish a defendant’s negligence.
Ordinarily, the violation of an applicable statute is excused when compliance with a statute is not possible.

Question 34

Habit v. Character

Answer 34

Character evidence describes a persons general tendency to act in accordance with a specific trait. Evidence of a person’s character is generally irrelevant and inadmissible in a civil case except in rare circumstances where character is directly at issue.

Under FRE 406, evidence of a person’s habit may be admitted to prove that on a particular occasion the person acted in accordance with a habit. Habit describes one’s regular response to a specific set of circumstances, while character describes one’s disposition in respect to general traits. Habits are more specific and particularized. Evidence of habits can be introduced in circumstances when ordinary character evidence is inadmissible.
Don’t be fooled by the word “invariably.”

Question 35

Indefeasibly vested remainders

Answer 35

Indefeasibly vested remainder: no condition, stated or implied.
A life estate with an absolutely vested remainder leaves no remainder to the grantor.

Question 36

effect of a notice jsdx

Answer 36

Under a notice statute, a subsequent bonafide purchaser prevails over a prior grantee who failed to record.
Mortgages are considered purchasers.

Question 37

parolees expectation of privacy

Answer 37

The fourth amendment is not violated by a statute authorizing warrantless searches of a parolee’s home, even absent probable cause. A parolee has a diminished expectation of privacy and the government has a heightened need for searching parolees.

Question 38

6th amend right to autonomy

Answer 38

The sixth amendment grants a defendant the right to autonomy in the defense of her case. The right to autonomy includes “whether to plead guilty, waive the right a jury trial, testify in one’s own behalf, and forgo an appeal.”

Question 39

Presumption of innocence

Answer 39

The presumption of innocence does not apply in the sentencing phase of trial because the defendant has been found guilty.

Question 40

Reasonable force: inhabited property vs. abandoned property

Answer 40

A person may use reasonable force to prevent the commission of a tort against one’s property. But force that is deadly is not permitted when the invasion is threatening property alone.

One may not use indirect deadly force when such force could not be used directly.

Question 41

Death and irrevocable offers

Answer 41

An offer will not be terminated by the death of the offeror is the offeror’s power to revoke is limited by law, such as in the case of a unilateral contract.

Question 42

contracts clause

Answer 42

The contracts clause prohibits states from retroactively and substantially impairing contract rights unless the governmental act serves and important and legitimate government interest and is a reasonably and narrowly tailored means of promoting that interest.

Question 43

Repudiation and lost profit sellers

Answer 43

When a buyer repudiates or refuses to accept goods, the usual measure of the seller’s damages is the difference between the contract price and the market price or the difference between the contract price and the resale price.

However, neither or those measures of damages gives adequate compensation for the buyer’s breach where the seller can obtain or manufacture as many goods as it can sell (lost volume seller) because the seller would have made two sales instead of one.

Lost profit is measure by the contract price less the cost to the dealer.

Question 44

Expectation damages calc

Answer 44

Compensatory damages + consequential damages - cost avoided by not having to perform = damages

Question 45

Expectation damages vs. reliance damages

Answer 45

cannot have both, expectation, then if too speculative –> reliance

Question 46

Expectation vs. liquidated damages

Answer 46

cannot have both: liquidated then, if unconscionable or unenforceable —-> expectation

Question 47

Murder at common law

Answer 47

Murder is the unlawful killing of a human being with malice aforethought.

Malice aforethought exists if the defendant has:
i. intent to kill,
ii. intent to inflict serious bodily injury,
iii. awareness of an unjustifiably high risk to human life, or
iv. intent to commit a felony.

Question 48

Suretyship

Answer 48

SURETYSHIP: a promise to answer for the debt or default of another where the promise is collateral rather than primary.

Under the statute of frauds, where the main purpose or leading object of a promisor is to secure an advantage or pecuniary benefit for himself, the contract is not within the Statute of Frauds, even if the effect is still to pay the debt of another.

Question 49

MSj

Answer 49

A motion for summary judgment is appropriate at any time until 30 days after close of all discovery.

Affidavits can be presented in support of a summary judgment motion if they are made on personal knowledge by someone competent to testify and the facts would be admissible in evidence.

Question 50

Mortgages

Answer 50

If a sale of foreclosed property does not bring enough to satisfy the mortgage debt, the mortgagee/lender can bring a personal action against the mortgagor/debtor for the deficiency.

When a mortgagor sells the mortgaged property and gives a deed, the grantee takes subject to the mortgage, which remains on the land. If the grantee does not sign an agreement to assume the mortgage, he does not become personally liable on the loan, and the original mortgagor remains personally liable.

If the grantee does sign an assumption agreement, the lender is considered a third party beneficiary of the agreement and may recover from the assuming grantee, who is primarily liable, or from the original mortgagor, who is secondarily liable.

An original mortgagor does not extinguish his own personal liability on a loan via an assumption agreement from the buyer.

Question 51

Third party claims

Answer 51

Third party claims may only be asserted to obtain recovery, and that recovery must be for the defendant/third-party’s liability to the plaintiff.

If a defendant is not seeking to recover from a third party, he cannot assert a third-party claim.

Question 52

Implied preemption

Answer 52

Implied preemption will be found where it was the intent of the federal government to occupy the entire field with its regulation, the state law directly conflicts with the federal law, or the state provisions prevent achievement of federal objectives.

For regulations involving health, safety, or welfare, a court will presume that state police powers are not preempted unless that was the clear and manifest purpose of congress when it enacts a federal law.

Question 53

Effect of rejection on later acceptance

Answer 53

Once an offer is rejected, it cannot be later accepted.

Question 54

Attempt and specific intent

Answer 54

A criminal attempt consists of:
i. specific intent to commit the crime; and
ii. an overt act in furtherance of that intent.

Regardless of the intent required for the completed offence, an attempt always requires a specific intent.

i.e. attempted murder required the specific intent to kill another person, even though the mens rea for murder itself does not require a specific intent.

Question 55

Right of junior mortgagees

Answer 55

Because foreclosure will destroy all junior interests to a mortgage being foreclosed, a junior mortgagee has the right to pay it off, to avoid being wiped out by being foreclosed.

Question 56

Conspiracy specifics

Answer 56

Conspiracy is:
i. an agreement between two or more people,
ii. with intent to enter into an agreement, and
iii. an intent to achieve the objective of the agreement.
And in most states iv. An overt act in furtherance of the conspiracy.

Each conspirator is liable for the crimes of all other conspirator if such crimes were committed in furtherance of the objectives of the conspiracy and were a natural and probable consequence of the conspiracy.

If a conspirator has made a legally effective withdrawal from the conspiracy at the time of commission of such a crime, he will not be liable for that crim.

Withdrawal requires an affirmative act that notifies all members of the conspiracy and is done in time for them to have an opportunity to abandon their plans.
BUT withdrawal is not a defense for the conspiracy charge itself.

Question 57

Establishment clause (Non lemon)

Answer 57

Two criteria SCOTUS uses in assessing whether government action violates the establishment clause:
i. is the government action neutral toward religion?
If not:
ii. is there a long history of the action being accepted or would the founding fathers have found that government action to be acceptable?

Question 58

DPC of 5th vs. DPC of 14th

Answer 58

DUE PROCESS CLAUSE of the 5th AMENDMENT

Provides procedural safeguards against arbitrary deprivation by the government of a persons, life, liberty, and property.

Protects against action by the federal government.

Provides equal protection against federal action that generally applies to a similar extent that the 14th amendment EPC applies to the states.

DUE PROCESS CLAUSE of the 14th AMENDMENT

A state must provide some fair process or procedure before it may deprive a person of life, liberty, or property.

Fair procedure at a minimum requires an opportunity to present objections to the proposed action to a fair, neutral decisionmaker.

Whether a prior evidentiary hearing is required and the extent of procedural requirements is determined by weighing:
i. the importance of the individual interest involved,
ii. the value of specific procedural safeguards to that interest, and
iii. the governmental interest in fiscal and administrative efficiency.

ONLY applicable to the states and NOT to the federal government.

Question 59

Good faith for amount in controversy

Answer 59

The amount in controversy requirement is determined be the amount pleaded in good faith by the plaintiff’s complaint.
Good faith means there must be a legally tenable possibility that recovery will exceed $75,000.

Question 60

Private nuisance and zoning violations

Answer 60

Private nuisance requires a showing of substantial and unreasonable interference with a person’s use or enjoyment of his land.

Violation of a zoning ordinance or regulation may be a factor in determining whether the use was unreasonable, but it is not determinative. A violation would be useful in balancing whether the severity of the injury outweighs the defendant’s conduct.

Question 61

Compliance and negligence per se

Answer 61

A violation of a statute will not be negligence per se where compliance would cause greater risk lf harm than violation, such as in an emergency.

Question 62

Can personal duties be assigned/delegated?

Answer 62

Most contractual duties may be assigned- unless they are personal- and oblige must accept performance from the delegate, the delegating party (delegator) remains liable on her obligation.

Question 63

Effect of delegation

Answer 63

An assignment of contract that includes a delegation of duties does not relieve the assignor of his duty to perform.
Unless there was a novation

Question 64

Cover

Answer 64

When a non-breaching buyer does not receive contracted goods, it can:
- Cancel the contract and recover any incidental damages, or
- Purchase replacement goods and sue for the cost of replacement (“Cover”).

Damages for cover are usually measured by the difference between the contract price and the amount the buyer actually has to pay for replacement goods.

Question 65

Respondent superior and employer notice of negligence

Answer 65

Under Respondeat superior, an employer is not liable for the acts of an employee outside the scope of his employment.

However, the employer may be liable for his own negligent selection if it has some reason to be on notice that the actions that resulted in harm were likely to occur.

Question 66

Professional duty of care

Answer 66

A professional is required to exercise such superior judgment, skill, and knowledge as he actually possesses.

Question 67

Abnormally dangerous activity definition

Answer 67

An activity is an abnormally dangerous activity only if it involves a substantial risk of human harm to persons or property, even when reasonable care is exercised by all actors, and the activity is is not a matter of common usage in the community.

Question 68

writing required for effective assignment?

Answer 68

A writing is not required to have an effective assignment.

Question 69

common law, arson, and involuntary intoxication

Answer 69

Common law arson consists of the malicious burning of the dwelling of another. The state of mind required (malice) is satisfied not only be the intentional burning of the dwelling of another, but also by acting with reckless disregard of an obvious risk that the structure would burn.
Many courts will find malice when a failure to be aware is caused by involuntary intoxication.

At common law, the intent to burn down your own house is not sufficient for the mental state required for arson.

Question 70

Adequate and independent state grounds and advisory opinions

Answer 70

SCOTUS will hear a case from state court only if the state court judgment turned on federal grounds. The court will refuse jurisdiction if it finds adequate and independent state grounds to support the state decision.

If a different interpretation of a federal statue would have no effect on the judgment rendered by the state court, SCOTUS would essentially be rendering an advisory opinion.

Congress cannot pass a law that grants a federal district court the right to give an advisory opinion.

Question 71

Order of appeals

Answer 71

A plaintiff bringing an action in a state trial court is required to exhaust its state appellate remedies before seeking review in federal courts, even where federal issues are involved.

Question 72

Concrete stake

Answer 72

A person who challenges a government action must have standing to raise a constitutional issue. A person has standing only if she can demonstrate a concrete stake in the outcome of a controversy and that the governmental action at issue impairs her own rights.

Question 73

Remittitur

Answer 73

If a judge determines that a jury’s compensatory damages award is so excessive as to “shock the conscience” the judge can order a new trial or offer the alternative of remittitur. When offered remittitur, a plaintiff is given a choice between accepting an award less than that awarded by the jury or submitting to a new trial.

Question 74

Probable cause

Answer 74

Probable cause to search is defined as reasonable grounds for believing that a particular item of seizure is located at a particular place.

Question 75

Right of first refusal

Answer 75

A right of first refusal gives its holder the preemptive right to meet any third party’s offer to purchase real estate. A right of first refusal is a valid restraint on alienation if it is reasonable.

If a right of first refusal is personal to the holder (not extended to her heirs or assigns) it does not violate the rule against perpetuities because it must be exercised within the perpetuities period.

Question 76

Trespass prima facie and substantial certainty

Answer 76

To establish a prima facie case for trespass to land, a plaintiff must prove:
i. an act of physical invasion of plaintiffs real property by the defendant;
ii. intent on the defendant’s part to bring about the physical invasion, and
iii. causation.

Intent can be established if the defendant knew with substantial certainty that her conduct would bring about the invasion.

Question 77

Plain error and failure to timely object

Answer 77

Failure to timely object to a procedural mistake waives the right to raise that issue on appeal.

Some jurisdictions have an exception to the objection requirement that do not require an objection in the case of “plain error” an error only constitutes “plain error” when it is so blatantly incorrect that it calls into question the competence or partiality of the judge. Such findings of error are rare.

Question 78

Effect of granted motion to compel

Answer 78

If a motion to compel is granted, the court must require the opposing party to pay the movant’s reasonable expenses incurred in making the motion.

The court may not order this payment if the movant filed the motion before attempting to seek production without a court order, if the nondisclosure as substantially justified, or if other circumstances exist that made an award of expenses unjust.

Question 79

Damages in building contracts

Answer 79

In construction contracts, the standard measure of damages when a builder breaches will depend on when the breach occurred.
If the builder breaches after partially performing, the owner is entitled to the cost of completion plus reasonable compensation for any delay in performance.

Question 80

when can a state regulate a local aspect of interstate commerce

Answer 80

A state may regulate local aspect of interstate commerce if such regulation is not in conflict with federal regulations and if
i. the subject matter of the regulation does not require nationally uniform regulation;
ii. the regulation does not discriminate against out-of-state competition to benefit local economic interests, and
iii. any incidental burden on interstate commerce of the nondiscriminatory regulation does not outweigh the legitimate local benefits produced by the regulation.

Laws that are designed to protect local businesses against interstate competition will generally be invalidated.

Question 81

Double jeopardy and consent

Answer 81

Where charges can be tried in a single trial, but the defendant consents by having two separative trials, there is no double jeopardy violation.

Question 82

Intervening cause in criminal cases

Answer 82

The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts.

In indirect cause cases, an independent intervening force may be foreseeable where the defendant’s negligence increased the risk that these forces would cause harm to the plaintiff.

Even a criminal act by a third party will not cut off the defendant’s liability if the defendant’s negligence created a foreseeable risk that a third person would commit the crime.

Question 83

Right against self incrimination and government informants

Answer 83

The fifth amendment provides that no person shall be compelled to be a witness against himself. To protect this right, SCOTUS requires detainees to be confirmed of certain rights prior to custodial interrogation by someone the detainee knows is a police officer.

The rationale is that the warnings might help mitigate the inherent coercive nature of custodial police interrogation.
So if the defendant was questioned by an informant who the defendant did not know was working for the police there was no coercive interrogation in violation of the Fifth Amendment.

Question 84

Statements against 6th amendment rights and impeachment

Answer 84

SCOTUS has held that a statement obtained in violation of a defendant’s sixth amendment right to counsel may be used to impeach the defendant’s contrary trial testimony.

Question 85

Traditional public forum vs. designated public forum

Answer 85

A government body may reasonably regulate speech-related conduct in public forums through reasonable time, place, and manner regulations.
Some public property, such as streets, sidewalks, and parks, is so historically associated with the exercise of First Amendment rights that it is categorized as a traditional public forum.
Other public property may become a designated public forum when the government, by policy or practice, opens it for expressive activity.

Question 86

When is work product discoverable

Answer 86

Documents prepared in anticipation of litigation by a party or its representatives are not discoverable unless the opposing party can show substantial need and that it cannot obtain the materials in an alternative way without undue hardship.

Question 87

Recorded recollection- evidence?

Answer 87

can be read in by proponent but not offered as an exhibit UNLESS opposition offers it

Question 88

When is a contract NOT assignable?

Answer 88

when the assignment would
i. materially change duty of obligor
ii. materially increase the burden or risk on obligor
iii. materially impair obligor’s chance of obtaining return performance or materially reduce the value of that return performance to the obligor
iv. precluded by public policy or
v. is validly precluded by K.

Question 89

Requirement for valid assignment

Answer 89

i. assignor manifest intent to transfer rights
ii. assignee manifest assent to assignment

Question 90

Difference between assignment and delegation

Answer 90

Assignment is of RIGHTS (like my house getting painted)
Delegation is of OBLIGATION (the obligation to pay the painter)

under contract law, “assignment” in general terms includes a delegation of the assignor’s unperformed duties under the K.

Question 91

Who is liable to an obligor when there is a valid assignment?

Answer 91

BOTH the assignor and the assignee (as long as the assignee manifested assent)

Question 92

Noncompetes generally

Answer 92

The standard rule is that non compete agreements must be reasonable in scope, geography, and duration.
Contemporary courts tend to say that a restriction in the line of business is normally valid; a duration of one to two years is valid; and a geographical limit of a state is normally valid.

Question 93

requirements for expert witnesses

Answer 93

i. qualified as expert
ii. helpful to a jury expressed as providing technical or specialized information
iii. must use reliable methods (daubert factors: testable, accurate, subject to peer review, overall acceptance in the field).

Question 94

Dissenting shareholders rights

Answer 94

A dissenting shareholder to a merger may demand a buyout if the corporation is small and closely held. To preserve the ability to do this, a shareholder must
1. give notice to BOD of disapproval,
2. vote against or abstain from voting in the meeting to merge,
3. make a request for payment after the vote is finalized.

If this is done properly, the shareholder has a right for the corporation to buy back its shares for fair market value.

Question 95

Internal affairs doctrine

Answer 95

the law of a state where a corporation is incorporated controls the corporations affairs.
This is true no matter where the operations are carried out.
All the corporation has to do is register with the state in which it is operating, but the laws governing gate affairs, such as shareholder profit distributions, are going to be governed by the state of incorporation.

Question 96

What is a producer of goods liable?

Answer 96

If the seller was negligent, if the goods were defective, or if they did not satisfy the implied warranty of merchantability.

A producer is strictly liable whenever the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.

Question 97

Strict product liability actions

Answer 97

Strict liability applies to all commercial sellers; even a retailer who had no control over the design and manufacture of a product may be found strictly liable if that retailer sells a defective product.

Question 98

Market share liability

Answer 98

permits a jury to apportion damages based on the market share of manufacturers of a defective product. Virtually all courts have held that this doctrine is only available if the manufacturers defective products are fungible (interchangeable) in relation to their capacity to cause harm. (doesn’t work if only some products have defects)

Question 99

Alternative liability

Answer 99

permits a jury to find two defendant liable when each was negligent and could have caused the plaintiffs injuries

Question 100

Joint venture

Answer 100

jury can impute one defendant’s tortious conduct to other defendants engaged in a common project or enterprise who have made an explicit or implicit agreement to engage in tortious conduct

Question 101

General vs. Special vs. testamentary power of appointment

Answer 101

General: can appoint property to self, own estate, or creditors

Special: can appoint to a specific class and not to self, estate, or creditors

Testamentary power: exercised only by will

Can combine testamentary + general or special

Question 102

Do anti-lapse statutes apply to just wills? or wills and trusts?

Answer 102

UPC: both

Most states, only to wills

Question 103

What happens if a trust gift fails for lack of ascertainable beneficiary?

Answer 103

Falls into residue of estate and goes to residuaries/remaindermen

Question 104

What is needed to apply Cy Pres?

Answer 104

• ## court must find general charitable intent (presumed in UTC states)

Question 105

Profits and eminent domain?

Answer 105

Profits (non exclusive profits) are property rights entitled to unjust compensation if there is a taking.

Question 106

Remedies for divisible contracts

Answer 106

If a party performs one of the units of a divisible contract, it is entitled to the agreed-on equivalent for that unit even if it fails to perform the other units.

A court may find a contract divisible when:
(1) the performance of each party is divided into two or more parts under the contract;
(2) the number of parts due from each party is the same; and
(3) the performance of each part by one party is agreed on as the equivalent of the corresponding part from the other party.

Question 107

Timing of notice of removal and notice of remand

Answer 107

30 days from when case becomes removable

30 days from notice of removal

If notice of removal is untimely, but notice of remand is also untimely, remanding party waives issue

Question 108

Requirements for a valid deed

Answer 108

To be valid, a deed must be delivered, which means the grantor must have taken action with intent that it operate to pass title immediately.

Grantees: a description of grantees is sufficient if it describes the grantees with sufficient particularity that it can be determined who is to take the property (need not actually be named).

Recording a deed that has been acknowledged before a notary is such an action and is presumed to carry with it the requisite intent.

Rebuttable presumption of no delivery arises from the grantor’s retention of a deed, but this can be rebutted by the recording of the deed.

Question 109

When does an absolute deed become a mortgage?

Answer 109

In determining whether an absolute deed is really a mortgage, the court considers the following factors:
(i) the existence of a debt or promise of payment by the deed’s grantor;
(ii) the grantee’s promise to return the land if the debt is paid;
(iii) the fact that the amount advanced to the grantor/debtor was much lower than the value of the property;
(iv) the degree of the grantor’s financial distress; and
(v) the parties’ prior negotiations.

Question 110

Factors a court will consider in determining whether to exercise supplemental jsdx

Answer 110

1. whether state law claims are novel or complex state law
2. whether the court still has jsdx over the original claim
3. whether the state law claim predominates over the original jurisdiction claim, and
4. other extraordinary reasons.

Question 111

what happens if oral lease for greater than one year?

Answer 111

A tenancy at will is created.

Payment of rent will usually convert a tenancy at will into a periodic tenancy.

The periodic tenancy usually coincides with the period for which the rent is paid.

Question 112

Fundamental change and board of directors

Answer 112

• BOD run a corporations affairs
• but if fundamental change, directors must seek approval from shareholders

Question 113

Notice for special shareholder meetings

Answer 113

10 days

Question 114

What happens of approval at a defectively noticed meeting?

Answer 114

Voidable by a person who received improper notice and did not waive its effect

Question 115

When is a seizure reasonable?

Answer 115

depends on scope of seizure (arrest vs. investigatory detention) and strength of suspicion (arrest requires probable cause; investigatory detentions can be based on reasonable suspicion).

Question 116

Arrest without a warrant

Answer 116

Without a warrant, police can only place a person under arrest for a felony if they have information sufficient to make a reasonable person believe the felony was committed and the person before them committed it.

Question 117

Terry

Answer 117

If police have a reasonable suspicion of criminal activity based on articulable facts, they may stop a person without a warrant to conduct a brief investigation.

Question 118

Custody

Answer 118

Whether a person is in custody depends on whether a person’s freedom of action is denied in a significant way.

The more the situation resembles a formal arrest, the more likely a court will find the person to have been in custody.

Question 119

Involuntary confessions

Answer 119

An involuntary confession will be suppressed as violation of the due process clause.

Whether a confession is involuntary is determined based on the totality of the circumstances.

Question 120

Disposition sale

Answer 120

Must:
- may sell, lease, or license repossessed collateral at either auction or private sale
- every aspect of the sale must be commercially reasonable

Question 121

When can a secured purchase her own repossessed collateral?

Answer 121

A secured party can purchase collateral at a private sale of the collateral is of a type customarily sold in a recognized market

Question 121

Notice of disposition

Answer 121

A secured party must give a debtor reasonable notice of the sale in writing unless the debtor, after default, waives the right to notice of sale

Unless the collateral is perishable or threatens to decline rapidly in value

Question 122

Rights of a debtor when a sale is not commercially reasonable or no notice

Answer 122

Actual damages: the difference between purchase price obtained and the price collateral would have fetched at a proper sale

if consumer goods, 10% of cash price of goods

Rebuttable presumption that price of sale equals the amount of remaining debt. Effectively eliminates deficiency judgments.

Question 123

PMSI in inventory

Answer 123

a supplier of inventory may acquire a PMSI in inventory (which gives super priority over other interests) if they (1) file a financing statement prior to delivery of the goods and (2) send an authenticated notice to adverse creditors.

Question 124

Fixtures and exceptions

Answer 124

A security interest in fixtures, even if perfected, is ordinarily subordinate to a conflicting interest in the real property.

There are exceptions. One exception relates to the priority of a PMSI in fixtures. If a holder of a PMSI makes a fixture filing before equipment becomes a fixtures, or within 20 days after, the PMSI will have priority over the interest in land.

A fixture filing must provide a description of the real property which the collateral is related and must be filed in the office in which a mortgage on the property would be filed.

Question 125

PRoceeds

Answer 125

A secured party with an interest in collateral also has an interest in any identifiable proceeds of the collateral.

This includes a rights acquired upon the sale or lease of the collateral.

Question 126

Security interest in proceeds (20 day rule)

Answer 126

A security interest in proceeds is perfected for at least 20 days if the security interest in the original equipment was perfected.

It will remain perfected if the security interest in the original collateral was perfected by a filing in the same office in which the security interest could be perfected by filing.