The rules Flashcards
Authority of Agent to Bind Principal
An agent may bind a principal to a contract if the agent is acting within his actual or apparent authority or inherent agency power.
Once a principal is validly bound to a contract by his agent, the principal is liable under the terms if the contract
Apparent authority
Apparent authority exists when:
(1) a third party reasonably believes that the person/entity has authority to act on behalf of the principal and
(2) The belief is traceable to the principal’s manifestations
a principal holds an agent out as having authority when he:
(a) gives the agent a position or title indicating certain authority
(b) has previously held the agent out as having authority and has not published a revocation of said authority or (c) has cloaked the agent with the appearance of such authority
Apparent authority is not applicable if the third party has actual knowledge that the agent did not have authority
Erie doctrine
A federal court sitting in diversity jurisdiction Must apply the law of the forum state in which it sits regarding substantive issues. However federal courts are free to apply their own rules to procedural issues.
Choice of law issues are considered substantive; therefore, a federal court sitting in diversity MUST apply the forum state’s choice of law rules
Choice of law theory: Traditional vested right approach
Under the traditional vested rights approach, the law of the state in which the transaction or event occurred is applied (i.e the place of wrong or injury, where the contract was formed or is to be preformed, or where the real property is located)
Choice of law theories: Most significant relationship
Under the restatement (second) conflict of laws, the laws of the state having the most significant relationship to the transaction and the parties will govern the action. Under this approach, courts consider various factors dependent on the type of action (i.e torts) to determine the state hat has the most significant relationship to the action
Choice of law theories: Interest analysis approach
Under the government interest analysis approach, the court weighs the interest of the states involved. Specifically the court
(i) examines the connections that each state has to the parties and events of the litigation
(ii) analyses the difference between the state laws,
(iii) pinpoints the underlying policies behind those state laws and
(iv) Then applies the facts to the law to determine which state has a greater interest in having its law applied
Business judgment/duty of care (partnerhsip)
A partner owes a fiduciary duty of care to the partnership and the other partners, but this duty is limited. Under the RUPA, a parter is only in breach of the duty of care when he engages in:
(a) grossly negligent or reckless conduct;
(b) intentional misconduct;
(c) a knowing violation of law
if a partner breaches this duty, he may be held personally liable to the partnership for any losses suffered as a result
duty of loyalty (partners)
Partners owe a fiduciary duty of loyalty to the partnership and the other partners, which requires partners to act in the best interests of the partnership.
Under RUPA, a partner must
(1) account for any property, profit or benefit derived by a partner from the partnership property or business
(2) not have an interest adverse (conflict of interest) to the partnership and
(3) not compete with the partnership (unless partnership agreement allows the partner to do so).
Federal question jurisidiction
exists if a well pleaded complaint alleges. claim that arises under
(a) federal law
(b) U.S constitution; OR
(c) United states treaties.
The plaintiff must be enforcing a federal right and the federal question of law must be present on the face of the complaint. Raising a defense under a federal law is not sufficient to trigger federal question jurisdiction
Citizenship
A parties citizenship is determined by their domicile.
A natural person domicile is determined by the party’s
(1) residence
(2) subjective intent to make the state their permanent home ( voter registration, vehicle registration, location of bank accounts and place of employment)
A corporation has dual citizenship and is deemed to be a domiciliary of:
(1) The state of its principal place of business (the corporation’s “nerve center” - where officers direct, control and coordinate the corporation’ activities.
(2) any state where it is incorporated
A partnership/ sole proprietorship, or unincorporated association is deemed to be a domiciliary of the state of every partner or member
Diversity of citizenship jurisdiction
exists when
(1) There is complete diversity of citizenship between all plaintiffs and defendants (no plaintiff can be from the same state as any defendant)
(2) The amount in controversy exceeds 75,000
State sovereign Immunity (11th amendment)
The Eleventh amendment prohibits a party from suing a state or state agency in federal court UNLESS:
(a) The state explicitly consents to waive its eleventh Amendment protections
(b) The suit pertains to federal laws adopted under section 5 of the fourteenth Amendment
(c) The suit seeks only injunctive relief against a state official.
The eleventh amendment does not apply to
(a) local government (counties, cities, towns)
(b) federal suits brought by one state against another state and
(c) suit by federal government against a state
Governmental action (state action)
when alleging a constitutional violation, a plaintiff MUST show that the violation is attributable to government action (also known as state action), which applies to ALL levels of local, state and federal government.
Generally the conduct of private individuals or entities DO NOT constitute state action and is NOT protected by the U.S Constitution
courts will find “state action” for private conduct when the conduct involves either (a) a traditional public function - powers traditionally and exclusively reserved to the government or
(b) when significant government involvement exists to authorise, encourage, or facilitate private conduct that is unconstitutional
dormant commerce clause
A state or local government may regulate intrastate commerce as long as Congress has not enacted laws on the subject matter. if congress has enacted laws in a particular matter, any state or local laws would be pre-empted by federal law
state and local laws generally cannot pass laws that
(a) discriminate against out of state commerce
(b) place an undue burden on interstate commerce
when is a law deemed discriminatory?
A law is deemed discriminatory when it is either
(a) facially discriminatory
(b) the law has a discriminatory impact because it favours in state commerce over out of state commerce
state laws that discriminate against out-of-state commerce are Unconstitutional, unless:
(a) the burden on interstate commerce is narrowly tailored to achieve a legitimate, non protectionist state objective ( (there are no less- discriminatory alternatives available or
(b) the state or local government is a “market participant” rather than a regulator of economic activity.
scope of article 9
Article 9 of the uniform commercial Code (UCC) governs any transaction regardless of its form that creates a security interest, including a security interests in personal property, consignments and a sale of accounts, chattel paper and promissory notes
attachment of security interest
attachment requires that
(1) that the creditor extend value to the debtor;
(2) The debtor must have rights in the collateral;
(3) and there is a valid security agreement memorialising the security interest
perfection of a security interest
perfection is obtained by the creditor filing a financing statement with the secretary of state that identifies the collateral and his security interest in it.
Perfection may also be obtained by taking possession or control of the collateral that is providing the security interest
consumer purchase money security interests (PMSI) are automatically perfected
intestate succession
- if the decedent is survived by ONLY a spouse (no descendants), the surviving spouse will inherit the entire estate
- if the decedent is survived by a spouse AND descendants, the serving spouse will inherit one half or nine third of the decent’s estate with the serving descendants inheriting the rest. Under the UPC, the surviving spouse will inherit the entire estate if All of the descendants are descendants of the surviving spouse.
- in the most states, if the decedent is NOT survived by a spouse, the decent’s surviving descendants will inherit the entire estate equally.
- if the decedent is NOT survived by a spouse OR descendants, the decedent’s surviving parents will inherit the entire estate equally. If there are NO surviving parents, the descendants of the decedent’s parents will inherit the estate
Incorporation by reference
Incorporation by reference deals with the incorporation of extrinsic documents into the will (rather than pages or portions s of original will). In most states, a document or writing may be incorporated into a will by reference if:
(1) The testator intended to incorporate the document into the will;
(2) The document was in existence at the time the will be executed; AND
(3) The document is sufficiently described in the will.
Trustee duty of care
The trustee owes a duty to exercise the degree of care and skill as a person of ordinary prudence would exercise in dealing with his own property. In making this determination, the focus is on the trustee’s conduct, not the results of such conduct
Premarital contracts
- Premarital agreements are contractual agreements that re executed by the spouses prior to the marriage. Generally, such agreements are enforceable UNLESS procured by fraud, duress or coercion.
- Under the Uniform premarital Agreement Act, a pre-martial agreement must be
(1) in writing, and
(2) signed by both parties. The agreement is enforceable without consideration
under the UPAA, a premartial agreement is Not enforceable if the spouse against whom enforcement is sought proves that:
(a) The agreement was made involuntarily
(b) it was unconscionable when executed and before the execution the spouse was
(i) no provided fair disclosure of the property and financial obligations of the other spouse;
(ii) did not waive disclosure in writing and
(iii) did not have knowledge of such information
Child custody: best interests of the child Standard
Courts determine child custody under the Best interests of the child standard. This is a broad standard that gives discretion to the court.
in evaluating the best interests of the child, a court will evaluate the following
(1) the wishes of the parents
(2) the wishes of the child (for older children)
(3) the age, financial well being and mental/physical health of each parent
(4) the existence of new individuals in each parent’s life and who that person is;
(5) the effect custody will have on the child’s ability to foster relationships with extended family.
(6) history of domestic violence by either party
(7) stability of the child’s home and school environments
(8) anything else that the court believes will be equitable to evaluate
(9) A court cannot award or deprive custody based on a parent’s lifestyle, values or religious beliefs, but may take into account whether such behaviour or conduct would endanger the child
division of property
In all states, a divorce may divide property without regard to which spouse has title to the property. Most states follow the equitable division of marital property approach, in which marital assets are to be divided by equitable distribution among the parties to a divorce. Other states apply either a community property or common law approach.
in a divorce, a court will divide all property owned by the two spouses into two categories
(1) separate property of each spouse and
(2) marital property owned jointly between the spouses
each spouse’s separate property will NOT be subject to equitable division. A court will pool all marital property and distribute that property between the two spouses. In distributing marital property, the court will look at factors such as duration of the marriage, age of the spouses, earning capacity, lifestyle, income of the spouses and the property which was deemed separate property.
in addition, the services provided by one spouse who stayed at home or put career on hold will be considered in order to reach an equitable vision.
Separate property
separate property includes
(a) property and assets acquired by each individual spouse before marriage
(b) gifts and bequests to each spouse as an individual during marriage
(c) property which the spouses agree will be separate property, and
(d) passive appreciation of assets in any of the above categories
Martial property
marital property includes all other property acquired during the marriage regardless of whose names on the title of property. In most states, marital property also includes the active appreciation of separate property. Active appreciation includes appreciation caused by the effort of one or both spouses
hearsay
hearsay is
(1) an out of court statement
(2) that is offered to prove the truth of the matter asserted.
hearsay is ONLY admissible if it falls under an exception.
A “statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person attended it as an assertion. However if the act DOES NOT assert or communicate anything (i.e crying), it is not deemed a statement fro hearsay purposes
non hearsay
if an out of court statement is offered to prove something other than the truth of the statement, it is non hearsay and is ADMISSIBLE.
common non-hearsay statements include
(1) verbal acts of independent legal significance
(2) statements offered to show the effect on the listener
(3) A prior inconsistent statement used to impeach
(4) circumstantial evidence of the speaker’s state of mind
common law marriage
a valid common law marriage creates marital rights and obligations identical to a ceremonial marriage.
A common law marriage generally requires that the spouses:
(1) live together for a specified amount of time
(2) be legally able to marry
(3) have a present agreement that the two parties are married and
(4) hold themselves out as being married
once formed a common law marriage can only be dissolved through divorce or annulment
- most states will honour a valid common law marriage established in another state (even if not recognised within the state) however a court may refuse to honour a common law marriage when the spouses and marriage have limited contacts to the state where the common law marriage was allegedly established
relevancy
To be admissible, evidence must be relevant.
Evidence is relevant if
(1) it has a tendency to make a fact more or less probable than it would be without the evidence;
(2) the fact is of consequence in determining the action.
relevant evidence is admissible unless another rule or exclusion provides otherwise
Rule 403 exclusions
Under FRE 403, the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of
(a) unfair prejudice
(b) confusing the issues
(c) misleading the jury
(d) undue delay
(e) wasting time
(f) being needlessly cumulative
evidence is unfairly prejudicial when the evidence is
(1) unnecessary
(2) Might cause the jury to improperly sympathise or dislike a party
Negligence
A prima facie case for negligence requires
(1) a duty owed to the plaintiff by the defendant
(2) a breach of that duty
(3) the breach wad the actual and proximate cause of the plaintiff’s injuries
(4) damages
to make a prima facie case, a party must offer sufficient evidence so that the tier of fact could reasonably find all the above elements have been met
Reasonable person standard
every person owes a duty to act as a reasonable prudent person would act under like circumstances
a reasonable prudent person takes appropriate measures to avoid foreseeable risks.
This duty is owed to all foreseeable plaintiffs.
A person with a physical disability must act as a reasonable person with the disability would act. However a person with below average intelligence or mental disability must act as a reasonable person without the disability would act.
Doctrine of Respondent Superior
Under the doctrine of respondeat superior, an employer is vicariously liable for an employee’s negligent acts if the employee was acting within the scope of employment when:
(a) performing work assigned by the employer or
(b) engaging in a course of conduct subject to the employer’s control
Factors to determine if conduct is within the scope of employment include whether:
(i) it is the kind the employee is employed to perform
(ii) it occurs substantially within the authorized time and space limits;
(iii) it is motivated (in whole or in part) by a purpose to serve the employer. Additionally, conduct is within the scope of employment if it is of the same general nature as that authorized, or incidental to the conduct authorized.
An employee’s act is NOT within the scope of employment when
(1) it occurs within an independent course of conduct; AND
(2) is not intended by the employee to serve any purpose of the employer
Landlord duties: Duty to mitigate
At common law, a landlord had NO duty to mitigate his damages. However most states now impose a duty on the landlord to take reasonable steps to mitigate his losses.
- if a landlord fails to mitigate, some jurisdictions hold that the tenant is not liable for any rent or damages after the date of abandonment
- if the landlord leases the property to another tenant, the landlord would be able to sue for the difference between the original rent payments and the rent under the new lease as well as any incidental damages
Assignment
a lease may be freely assigned Unless a provision in the lease states otherwise. However an assignment can never be for a longer period of the time than the lessor’s remaining lease term.
An assignment occurs when a tenant (the assignor) transfers all of his remaining interest in a lease to a third party (The assignee). The assignee is liable to the landlord for rent and all other covenants that run with the land because of privity of estate arises between the assignee and the landlord.
The assignor also remains liable to the landlord for any rent not paid by the assignee because privity of contract continues to exists with the landlord
Adverse possession
Adverse possession allows someone in possession of land owned by another to acquire title to that land when the possession of the property is
(1) continuous for the statutory period
(2) open and notorious (to put an owner on notice of adverse possession upon inspection of the land)
(3) exclusive
(4) actual (possess the property as the true owner would);
and
(5) Hostile and under a claim or right (without the true owner’s consent)
common law v UCC
Article 2 of the Uniform Commercial Code (UCC0 governs all contracts for the sale of goods (goods are things that are movable at the time of identification to the contract, other than money).
The common law governs all other contracts (i.e service or construction contracts)
For mixed contracts, the predominant purpose of the contract determines which law governs. if the predominant purpose is the sae of goods, the UCC will apply. In some states, when a contract divides payment between services and goods, the UCC is applied to the goods section and the common law is applied to the services section
expectation damages
The general measure of damages for a breach of contract are expectation damages. Expectation damages arise directly from the breach, and are an attempt to put the non-breaching party in the same position it would have been in but for the breach
to recover, the damages must be
(1) caused by the defendant (actual cause)
(2) foreseeable (proximate cause)
(3) certain (damages cannot be speculative and
(4) unavoidable (the plaintiff must take reasonable steps to mitigate his losses)
requirements to form a valid contract
a traditional and enforceable contract is formed when there is
(1) mutual assent ( a vlid offer + valid acceptance)
(2) Consideration; AND
(3) No defenses to formation that would invalidate the otherwise valid contract
Larceny
Larceny is the
(1) Trespassory taking
(2) and carrying away
(3) of the personal property of another,
(4) with the intent to permanently deprive the owner of the property.
The intent to permanently deprive must exist at the time of the taking
larceny by trick occurs when one obtains possession of personal property of another by trick of deception
Embezzlement
(1) the fraudulent or wrongful,
(2) conversion,
(3) of personal property of another,
(4) by a person with lawful possession of the property
Intent to permanently deprive the lawful owner of the property is required
Miranda Analysis
Miranda rights - when a person is in custody, the police MUST inform the person of her miranda rights before subjecting her to a police interrogation.
This includes informing the subjection
(1) she has a right to remain silent
(2) Any statement she makes may be used agains her in court
(3) she has a right to consult an attorney and to have the attorney present during questioning AND
(4) she has a right to have an attorney appointed if she cannot afford one
waiver - a defendant may knowingly and voluntarily waive his miranda rights. the burden is on the government to demonstrate by a preponderance of the evidence that the waiver was made knowingly and voluntarily.
Invocation. The police MUST cease their interrogation if either of the following occurs
(1) the party being questioned affirmatively invokes her right to remain silent; OR
(2) The party being questioned affirmatively invokes her right to counsel
specific intent
- This requires that the crime be committed with a specific intent or objective.
- The existence of specific intent cannot be conclusively imputed from the mere doing of an act, but the manner in which the crime was committed may provide evidence of intent
- solicitation
- conspiracy
- attempt
- first degree murder
- assault
- larceny
- embezzlement
- false pretences
- Robbery
- Burgarly
- forgery
malice
The intent necessary for malice crimes requires a reckless disregard of n obvious or high risk that the particular harmful result will occur.
- common law murder
- Arson
General intent
general intent is a “catch all” category of intent. It requires that the defendant intend to commit an act that is prohibited by law (whether the defendant intended the act’s result is irrelevant)
- Battery
- Rape
- Manslaughter
- Kidnapping; AND
- False imprisonment
strict liability
strict liability only requires that the defendant voluntarily commit the actus reus (regardless if the defedant’s intent)
defences that negate the state of mind are NOT available
- Statutory rape
- selling liquor to minors AND
- Bigamy
purposely
a defendant acts “purposely” when his conscious objective is to engage in the conduct or to cause a certain result
knowingly or willfully
A defendant acts “knowingly or willingly” when the defendant is aware that his conduct is of nature required by the crime or that circumstance required by the crime exist
recklessly
A defendant acts ‘recklessly” when the defendant acts with a conscious disregard of substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct. The risk must constitute a gross deviation from the standard of conduct of a law-abiding person.
Negligently
a defendant acts “negligently’ when the defendant fails to perceive a substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct. The risk must constitute a gross deviation from the standard of conduct of a reasonable person in the same situation
14th Amendment Equal protection
The Equal protection Clause of the 14th Amendment (applicable to the states) and the 5th amendment (applicable to the federal government) prohibits the government from denying citizens equal protections of the law
to determine if a discriminatory classification against a group of people exsists, one of the following must be shown
(a) the law is discriminatory on its face
(b) the law is facially neutral, but it is applied in a discriminatory manner
(c) a discriminatory motive when the law is facially neutral but creates a disparate impact
Strict Scrutiny
The court will apply strict scrutiny when
(a) a classification is based on a suspect class (race, alienage or national origin)
(b) when the law infringes on a fundamental right for a class of people (i.e right to vote, exercise of religion, have access to the courts, and interstate travel).
under strict scrutiny: the government must show that the classification is necessary to serve a compelling government interest
intermediate scrutiny
When a classification is based on a quasi-suspect class (gender, non martital children), the court will apply intermediate scrutiny.
under intermediate scrutiny, the government must show that the classification is substantially related to an important government interest.
The supreme court has held that a state may treat men and women differently and provide separate facilities, BUT the state must demonstrate
(1) an exceedingly persuasive justification for separate treatment
(2) That the facilities are substantially equivalent
Rational basis
for all other classes (age, disability, wealth, undocumented aliens), the court will apply the rational basis test.
Under rational basis, the plaintiff must show that the classification is NOT rationally related to any legitimate government interest.
1st amendment
Freedom of expression (speech, press, assembly, & association).
The right to anonymous speech and the right not to speak is included within the 1st amendment protections
Content based restriction
Restriction based on the speech’s subject matter; i.e. disagreement with the message it contains. Can be either content-based on its face or as applied.
⭐️ Subject to strict scrutiny ⭐️
Content neutral restriction
Applies neutrally to all content regardless of viewpoint or subject matter.
Ex. time, place, or manner restriction
⭐️ Subject to intermediate scrutiny
Public forum
Places historically open to the public for expression (e.g. parks and sidewalks). Can be either traditional or designated.
Distinguish traditional vs. designated public forum
Traditional: traditional public areas (e.g. sidewalks, parks, etc.) that cannot be changed into nonpublic forums
Designated: Designated as public forums during certain hours or in general (e.g. municipal meeting rooms). Can be changed into nonpublic forums
3 requirements needed for a valid time, place, or manner restriction in a public forum
Restriction is:
Content-neutral;
Leaves open ample, alternative channels of communication; and
Narrowly tailored to serve significant government interest (not compelling gov. interest)
non-public forum
Public property that is not open to speech (e.g. schools, jails, airports)
The government may regulate speech is a non-public forum if:
- Viewpoint neutral (**does not need to be content neutral); and
- Reasonably related to a legitimate government purpose
religious speech and public forums
The supreme court has held that in a public forum, religious speech is treated equal to non religious speech, and content neutral access rules do not violate the Establishment clause
Licensing requirements
Licensing requirements are permitted if:
(1) the government has an important reason for licensing
(2) specific, articulated standards are used to grant the licenses to remove the discretion of the licensing body
(3) procedural safeguards are in place, including assuring a prompt final judicial decision when a license is denied
personal jurisdiction
Court’s power to exercise jurisdiction over parties or property in the case, limited by the Constitution or statute. Balances justice and fairness with individual rights.
jurisdiction over a defendant normally falls into two categories
(1) the traditional bases of jurisdiction
(2) A state’s long arm statue
Where is venue proper?
- District where D resides, if all D’s are residents of the state in which the district is located; or
- District where a substantial portion of events/ property giving rise to the claim occurred;
- or, if none of these provide basis for venue then → Any district that has PJ over any D
Specific jurisdiction
Exists when the claim is related to D’s contacts in the forum state. There MUST be a connection with the forum state and the underlying controversey.
Examples include:
- Committing a tortious act in a state
- Signing a contract in a state
general jurisdiction
Only exists when D’s contacts with the forum state are so continuous and systematic as to render the D essentially at home.
⚠️ General jurisdiction is rare. It typically only exists for corporations in their state of incorporation or principal place of business.
Traditional bases of jurisdiction
(a) domicile
(b) transient jurisdiction (presence in the state when served)
(c) consent or
(d) waiver (appearing in the action without objecting to jurisdiction
long arm statue jurisdiction
To exert personal jurisdiction over a defendant who is not a resident of the forum state
(1) the forum state must have a long arm statue
(2) The constitutional requirements of due process must be met
Where a state’s long arm statue allows personal jurisdiction to the same extent as the Constitution , then the long arm analysis is the same as the constitutional analysis, which requires
(1) that the defendant have sufficient minimum contacts with the forum state
(2) so as not to offend traditional notions of fair play and substantial justice
General partnership formation
A general partnership is formed when:
(1) two or more persons;
(2) Associate as co-owners
(3) To carry on a business for profit
- no written agreement or formalities are required
- A person’s intent to form a partnership or be partners is not required.
- part ownership/ common ownership of property alone /joint venture is NOT enough to create a partnership
Contractual liability of the Partnership
Each partner is an agent of the partnership. Therefore, the actions of every partner that are made within the ordinary course of business to carry on the partnership’s business bind the partnership
When does Dissolution of a partnership occur?
Unless there is an agreement to the contrary, dissolution occurs upon
(a) notice of the partner’s express will to withdraw
(b) an event agreed to in the partnership agreement
(c) an event that makes it unlawful for all or substantially all of the business to continue
(d) judicial dissolution on application of a partner
(e) judicial dissolution on application of a transferee
Dissolution of a partnership does NOT immediately terminate the partnership. Rather the partnership enters a “winding up” phase, which continues until the winding up of the partnership is completed.
Choice of law application in Decedents’ Estates
The disposition of the decedent’s personal property is governed by the law of the jurisdiction of the decent’s place of domicile. The disposition of the decedent’s real property is governed by the law of the jurisdiction where the real property is located.
Full faith and credit
Courts must give full faith and credit to the judicial proceedings of every U.S state and territory, Unless there is a valid defense to recognition or enforcement. Such defenses include
(1) Lack of jurisdiction
(2) Fraud - courts judgment was procured by fraud
(3) Not on Merits - Judgment was not entered on the merits
(4) Lack finality - judgment was not final
Express Choice of law in contracts
If a contract does not contain a valid choice of law provision, courts will usually use the vested rights approach or the most significant relationship approach to determine which jurisdiction laws to apply
will execution requirement
A will is valid if the specific formalities provided by state law are met. Generally, these formalities require a valid will to be:
(1) in writing
(2) signed by the testator; AND
(3) signed by at least two witnesses.
revocation of will by physical act
Three physical acts can revoke a will:
(1) Subsequent Written Instrument. A will can be revoked by either
- A subsequent written instrument that is executed for the sole purpose of revoking the prior will; OR
- A subsequent will/codicil containing a revocation clause or provisions that inconsistent with those of the prior will (only revokes to the extent it conflicts with the poor will).
(2) Cancellation: A will is revoked if the testator, or another person in his presence and at his direction burns, tears, obliterates, or destroys the will WITH the intent to revoke the will. Under the common law, words of cancellation are valid ONLY IF they come in physical contact with the words of the will (e.g words of cancellation are written over the original terms of the will).
(3) Partial Revocation. In the most states, when marks of cancellation (e.g, putting a line through terms in will) are found on a will known to last have been in the testator’s possession, a presumption arises that such marks were made by the testator with the intent to revoke. The burden to overcome this presumption is on the party claiming that the devise has not been revoked.
ademption
Under the doctrine of ademption, if the subject matter of a specific devise is NOT in the estate at the time of the testator’s death, the devise to the beneficiary adeems or fails
At common law, the testator’s intentions were irrelevant. However, in most jurisdictions today, a specific devise will adeem ONLY IF the testator intended the devise to fail. If the testator did not intend for a specific devise to fail, the beneficiary is entitled to:
(1) Any property in testator’s estate, which the testator acquired as a replacement for a specific devise; OR
(2) A monetary devise equal to the value of the specific devise
Perfected vs Unperfected interests
A perfected interest has priority over a conflicting unperfected security interest in the same collateral (even if the unperfected interest is a purchase money interest in inventory
Multiple perfected creditors
a) Between multiple creditors, the first to file obtains priority (even if a party files before they perfect for priority purposes).
(b) Some collateral is not subject to the state filing system or cannot otherwise be filed. In these instances, the first to perfect obtains priority.
(c) Generally, knowledge of a prior unperfected interest will not prevent a potential secured party from filing first to obtain priority.
Purchase-Money security Interest (PMSI)
Generally, PMSI have priority over prior perfected security interests if the PMSI is properly executed. A PMSI is either:
(1) A security interest held by the seller of collateral to secure payment of all or part of the price; OR
(2) A security interest of a person that gives value to a debtor so that the debtor may acquire
Buyers in the ordinary course of business
Buyers in the ordinary course of business are protected even though their interest in the property is created after the attachment or perfection of a security interest.
Buyers in the ordinary course of business take the collateral free of the security interest created by the seller.
Modification of spousal support
in most states a spousal support can only be modified where there is a substantial change in circumstances of either party making the prior order unreasonable
- some courts will not permit a modification of spousal support if the change in circumstances was anticipated and voluntary
Modification of child support
in most states child support can only be modified where there is a substantial change in circumstances of either party making the prior order unreasonable
- some courts will not permit a modification of child support if the change in circumstances was anticipated and voluntary
- The state that originally issues the child support order has continuing exclusive jurisdiction to modify the order so long as the state remains the residence of the obligee, child or obligor
Modification of child custody
In order to modify child custody order, the parent must show that:
1) Circumstances have substantially changed; AND
2) The modification would be in the child’s best interest
What are the 9 ways to terminate an easement?
- Abandonment;
- Destruction of servient estate;
- Estoppel;
- Expiration;
- End of necessity
- Merger;
- Prescription;
- Release; or
- Severance;
What are the 3 types of deeds?
General warranty;
Special warranty; and
Quitclaim
Quitclaim deed
Buyer takes the property “as-is,” with no warranties, covenants, or promises
General warranty deed
Contains 6 present and future covenants of title that cover the property’s entire history
Present:
Seisin;
Right to convey; and
Against encumbrances
Future:
Quiet enjoyment;
Warranty; and
Further assurances
special warranty deed
Contains the same covenants of title as a general warranty deed, but only for the period of the seller’s ownership of the land. Does not contain any warranties for what happened before the grantor took ownership
