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ube mine > ube_bar_exam_flashcards_copy_20190711104533 > Flashcards

ube_bar_exam_flashcards_copy_20190711104533

1
Q

Proximate Cause

A

Legal Cause, deals with limitations of liability for unforeseeable/unusual consequences

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2
Q

Negligence

A

Breach of duty which causes damages

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3
Q

Professionals

A

Required to possess the knowledge or skill of a good standing member of the profession

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4
Q

Negligent Infliction of Emotional Distress (NIED)

A

(1) P in zone of danger and (2) must suffer physical symptoms of distress

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5
Q

Vicarious Liability - Parent for child

A

not liable for forts of child unless acting as agent of parent

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6
Q

Standard of Care - common carriers and innkeepers

A

high degree of care, liable for slight negligence, P must be guest

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7
Q

Products Liability - Express warranty

A

an affirmation or promise concerning goods that is not met

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8
Q

Bystander Negligent Infliction of Emotional Distress

A

(1) P and injured are closely related (2) P was present at scene of injury and (3) P personally witnessed event

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9
Q

Vicarious Liability - Bailor for Bailee

A

generally not liable

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10
Q

Duties of Bailor

A

must inform bailee of dangerous defects, if for hire then must notify of defects which bailor is aware

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11
Q

Wrongful Prosecution

A

initiating a criminal proceeding against P w/o PC for an improper purpose which causes damages

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12
Q

Products Liability - Intent Theory

A

liability imposed of D intended the consequences or know they were substantially certain to occur

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13
Q

Negligent Misrepresentation

A

misrepresentation in a business capacity which breaches a professional duty that the P relied on that caused damages

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14
Q

Standard of Care - automobile driver to gues

A

ordinary care

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15
Q

Nuisance - Injunctive Relief

A

will be rewarded if legal remedy is inadequate or unavailable

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16
Q

Scope of Foreseeable Risk

A

proximate cause is limited only to foreseeable risks. not liable for unforeseeable harmful results

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17
Q

Actual Cause

A

causation in fact to injury.1. But-For – injury would not have occurred but for the act of X, applies with multiple acts2. Joint Causes – several causes bring injury but only 1 alone is enough to cause injury3. Alternative Causes – 2 simultaneous acts and any 1 alone is enough to cause, burden shifts to D to say it wasn’t him

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18
Q

Duties owed by bailee

A

a. Benefit of bailor – low standard of care (person giving chattel)b. Benefit for bailee – high standard of care (person receiving chattel)c. Mutual benefit – ordinary standard of care

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19
Q

Comparative Neglience

A

not a complete bar to recovery

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20
Q

Wild Animals Strict Liability

A

strict liability

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21
Q

Assault

A

intentionally causing reasonable fear of imminent harm or incomplete battery

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22
Q

Privilege

A

invasion of land to arrest 3rd party

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23
Q

Personal injury Damages

A

compensation for past, present, and prospective damages, economic & noneconomic

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24
Q

Negligence Per Se

A

Statutory Standards of Care – imposed by the law if (1) P is within the protected class and (2) the statute was designed to prevent the type of harm suffered by P, creates presumptive breach of duty. Excuse – may be excused if compliance with statute would cause more harm than violation

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25
Q

Indemnity

A

shifting the entire loss among tortfeasors. Available by (1) contract (2) vicarious liability situations (3) strict products liability (4) unknown degree of fault

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26
Q

Duty

A

Owed to all foreseeable Ps to conform to a specific standard of conduct

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27
Q

Duty to Licensees

A

enter for benefit of owner. (1) Duty to warn/make safe and (2) exercise reasonable care in conduct of operations

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28
Q

Assumptive of Risk

A

P may be denied recovery if P knew the risk and proceeded in face of the risk

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29
Q

Dramshop Acts

A

imposes liability based on ordinary negligence principles, also creates cause of action for 3rd person injured by intoxicated vendee

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30
Q

Proving a Defect - Scientifically Unknowable Risks

A

D is not held liable is dangers are not foreseeable at time of marketing

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31
Q

Vicarious Liability - Frolic and detour

A

minor deviation is still under scope of employment, if deviate is substantial then not liable

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32
Q

Breach - Custom or Usage

A

may be used to establish standard but does not control if negligent

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33
Q

Proving a Defect - Design Defect

A

D could have made the product safer w/o impact on price

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34
Q

Damages

A

not presumed and nominal damages are not available

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35
Q

Duties to People off Premises

A

no duty for natural conditions, only artificial if unreasonable dangerous

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36
Q

Bystander IIED

A

P is present during injury, P is closely related to injured person, D should have known that

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37
Q

Absolute Privilege

A

(1) remarks made during judicial processing, (2) legislators during proceedings, (3) federal executive in compelled broadcasts, and (4) between spouses

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38
Q

Shoplifting detention

A

may keep D if there is (1) reasonable belief to theft, (3) reasonable manner and nondeadly force, and (3) for a reasonable period of time for purpose of making an investigation

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39
Q

Discipline

A

parent or teacher may use reasonable force to discipline a child

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40
Q

Conversion

A

signification interference of possession of personal property

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41
Q

Last clear Chance Doctrine

A

person with last clear chance who fails to do so is negligent

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42
Q

Duties to Trespassers

A

no duty to undiscovered trespassers. If discovered duty to (1) warn/make safe, artificial conditions involving risk of death or bodily harm (2) reasonable care for active operations

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43
Q

Self Defense of Others

A

If intended target is allowed to use the D can use

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44
Q

Products Liability Theories

A

5 Theories: (1) Intent (2) Negligence (3) Strict (4) Warranties and (5) Representation

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45
Q

Intrusion upon Seclusion & Disclosure

A

prying into business that is highly offense to a reasonable person

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46
Q

Manufacturing Defects

A

comes from manufacturing more dangerous than if properly made

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47
Q

Proving a Defect - Gov. Safety Standards

A

noncompliance with gov. standard shows product is defective, compliance is not conclusive

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48
Q

Defense to Defamation: Truth

A

Truth

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49
Q

Duty to Invitees

A

land held open to public. Duty to (1) warn/make safe, (2) exercise reasonable care in operation, and (3) reasonable inspection

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50
Q

Qualified Privilege

A

can be lost through abuse (1) if not within scope of privilege or (2) actual malice

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51
Q

Standard Of Care for Medical Specialist

A

National standard of Care, also duty to disclose risk of treatment

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52
Q

Punitive Damages

A

not available unless D’s actions are wanton & willful, reckless or w/malice

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53
Q

Intentional Torts

A

voluntary action by plaintiff

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54
Q

Partial comparative neglience

A

bars P’s recovery if P is more that 50% negligence

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55
Q

Battery

A

intentional offensive touch or strike against another

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56
Q

Vicarious Liability - Intentional Torts

A

generally not liable unless force or friction is generated by nature of the job or furthering business of employer

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57
Q

Vicarious Liability - Automobiles

A
  1. Family use doctrine – is liable for household members driving with express or implied permission2. Permissive use – liability imposed on anyone driving with owner’s consent3. Negligent Entrustment – owner liable for own negligence in entrusting car to driver
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58
Q

Self Defense

A

D reasonably believed he or she is about to be attacked and uses force to protect oneself

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59
Q

Vicarious Liability

A

employer is liable for torts under employee if within scope of employment

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60
Q

Slander

A

spoken defamation, special damages required unless about a. Conduct in one’s professionb. STDc. Chastityd. Crime of moral turpitude (common law crimes)

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61
Q

Public Nuisance

A

act that unreasonably interferes with the health, safety, or property rights of the community

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62
Q

Trespass to Chattel

A

interference of possession of personal property

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63
Q

Inadequate warnings

A

manufacturer fails to give correct warnings

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64
Q

Domestic Animals

A

no strict liability unless D has knowledge of propensity, not duty for trespassers but strict liability for injuries inflicted by watchdogs

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65
Q

Self Defense of Property

A

may be used to prevent tort against property or in hot pursuit to recapture, D must request to leave/desist

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66
Q

Public Nuisance - Recovery by private party

A

only allowed if unique damages not suffered to public at large

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67
Q

Consent

A

allowing the tort to occur, may be expressed or implied

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68
Q

Duty to Act

A

no duty to act1. Good Samaritan Statues – exempt medical staff for ordinary but not gross negligence2. Peril – duty to assist if one negligently or innocently placed in peril3. Special Relationship – common carriers, innkeepers, and shopkeepers, reasonable care

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69
Q

Intention Infliction of Emotional Distress (IIED)

A

intentional or reckless extreme or outrageous conduct causing severe emotional distress

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70
Q

Actual malice

A

(1) knowledge that the statement was false or (2) reckless disregard

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71
Q

Contribution

A

D who pays more than his share under joint and several liability now has a claim to other liable parties for excess damages paid

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72
Q

Products Liability - Misrepresentation of fact

A

statement was material concerning quality of goods and seller intended to induce reliance

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73
Q

Products Liability - Strict Theory

A

(1) commercial supplier (2) produced/sold a defective product (3) that caused (4) damages

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74
Q

Intentional Interference with Business Relations

A

(1) contract exists (2) that D knew about (3) and intentionally interfered (4) which caused damages.

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75
Q

Duty to mitigate

A

P must take all reasonable steps to mitigate damages

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76
Q

Proving a Defect - Manufacturing Defect

A

P must show that product failed to be safe under ordinary circumstances

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77
Q

Pure Comparative Negligence

A

bars P’s recovery if negligence was more serious than defendant’s negligence

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78
Q

Products Liability - Breach of Warranty Theory

A

product fails to live up to standards and causes damages

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79
Q

Products Liability Negligence Theory

A

Commercial supplies were negligent in selling a defective product. Can be rebutted by cursory insoection

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80
Q

Extreme & Dangerous Activity

A

must create a foreseeable risk of serious harm when reasonable care is exercised and not a common activity

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81
Q

Release

A

release of 1 tortfeasor does not discharge others unless provided for

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82
Q

Collateral Source Rule

A

damages are not reduced by insurance

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83
Q

Proving a Defect - Unavoidably Unsafe Products

A

D not liable is danger is apparent by nature of product & no way to make safer

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84
Q

Design Defect

A

all products are the same but have dangerous propensities

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85
Q

Standard of Care bailment duties

A

bailee transfers possession of chattel but not title,

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86
Q

Nuisance

A

invasion of private property rights or public rights

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87
Q

Private Nuisance

A

substantial unreasonable interference with one’s use or enjoyment of land

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88
Q

Defamation of Public Concern

A

add (1) falsity of statement and (2) actual malice

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89
Q

Property Damages

A

reasonable cost of repair or fair market value at time of incident

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90
Q

Appropriation

A

using P’s image w/o consent for monetary gain

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91
Q

Trespass to Land

A

physical invasion of real property

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92
Q

Res Ipsa Loquitur

A

occurrence of event establishes a breach if (1) accident would not normally occur absent negligence and (2) negligence is attributed to D

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93
Q

Misrepresentation

A

making a false statement of material fact with for the intent of P to rely on statement which causes damages.

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94
Q

Warranty of Merchantability Theory

A

whether goods are of average quality and fit for ordinary purpose for which goods are used

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95
Q

Standard of Negligence

A

Objective. Reasonably Prudent Person

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96
Q

Rescuers

A

Are always foreseeable Ps

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97
Q

Libel

A

written defamation, general damages presumed

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98
Q

Satisfaction

A

recovery of full payment, only 1 allowed

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99
Q

Joint and Several Liability

A

2 or more negligent acts combined to cause an indivisible injury, each D is jointly and severally liable. If injury is divisible then each D is liable for their portion of injury

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100
Q

Vicarious Liability - Independent Contractor

A

not liable unless engaged in inherently dangerous activity or duty is nondelegable for public policy considerations

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101
Q

Necessity

A

may interfere with real or personal property when necessary to avoid threatened injury and threatened injury or substantially more serious than invasion. Public and private (actor must pay for an injury caused).

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102
Q

Contributory Negligence

A

attributing P’s action which bar recovery

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103
Q

Nonrecoverable Damages

A

cannot get back attorney’s fees or interest

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104
Q

False Light

A

(1) attributing highly offensive characteristics to P and publishing it or (2) publishing private info about P

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105
Q

Defamation

A

(1) defamatory language (2) about P that was (3) publicized to a 3rd person and (4) damaged P’s reputation

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106
Q

Defense to Defamation: Consent

A

complete defense

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107
Q

Duty of Lessor and Lesee

A

Lesee has duty to maintain, Lessor has duty to warn of existing defects

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108
Q

Warranty of Fitness for a Particular Purpose

A

seller knows purpose of what goods are used for and P relied on seller’s skill in selection

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109
Q

Standard of Care - Children

A

standard of a child of like age, education, intelligence, and experience. Subjective

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110
Q

Strict Liability

A

(1) absolute duty to make safe (2) the danger of the activity is the actual and proximate cause of P’s injury (3) damages.

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111
Q

Attractive Nuisance Doctrine

A

(1) owner knows of condition (2) owner knows kids are there (3) condition is likely to cause injury (4) expense of remedying situation is cheaper than risk

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112
Q

Supremacy Clause

A

Fed and State Law Conflict = federal ALWAYS wins

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113
Q

10th Amendment Police Power

A

ONLY states have this. Fed gov has NO police power

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114
Q

10th Amendment General Welfare Power

A

States can make laws for General welfare. Fed gov CANNOT do this

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115
Q

Commandeering

A

fed gov cannot require state to act.

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116
Q

Dormant Commerce Clause

A

state is passing law regulating a business, cannot discriminate against out of state business

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117
Q

Dormant Commerce Clause - On its Face Discrimination

A

SS applies, gov shows compelling interest

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118
Q

Incidental Discrimination

A

mid level scrutiny, must have and important gov interest and must not have an excessive burden on commerce

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119
Q

when can states discriminate against out of state business?

A
  1. when Congress lets them. 2. when state acts as a market participant AKA monopolizes industry
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120
Q

Full faith and credit

A

judgment on merits in one state are valid in another state

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121
Q

Original Jurisdiction

A

Congress may not enlarge or restrict the Original Jurisdiction of SCOTUS

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122
Q

Appellate Jurisdiction

A

Congress may enlarge or restrict

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123
Q

SCOTUS & Congress

A

Congress CANNOT tell SCOTUS what to do

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124
Q

Lower federal courts & Congress

A

Congress can create and direct new federal courts

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125
Q

What will stop case from going to federal court?

A

(1) Mootness(2) Ripeness(3) Standing(4) Independent and Adequate State Ground(5) Political Question/Justiciability

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126
Q

Federal Immunity

A

states CANNOT sue fed gov1. States CANNOT tax fed gov, but may tax people who work with fed gov2. States can tax private businesses3. Individuals cannot sue fed gov, except when fed gov consents via statute

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127
Q

State Immunity

A

fed gov and other states may sue individual state1. Fed gov CANNOT tax a state if a gov function2. Fed gov can tax a private business

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128
Q

11th Ammendment

A

citizens of one state cannot sue its own state or another statei. Gov official may be suedii. Municipality may be suediii. If statute allows citizens to sue, may sue

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129
Q

Interstate Commerce - Balancing Test

A

Burden on interstate commerce outweighed by legitimate state interest

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130
Q

State Action

A

Government must be the one doing the discrimination

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131
Q

13th Amendment

A

Allows suit against private individuals for racial discrimination

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132
Q

Privileges and Immunities Clause

A

Discrimination based on RESIDENCY

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133
Q

15th Amendment

A

Racial discrimination on basis of voting

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134
Q

Equal Protection

A

Discrimination based on classes of people

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135
Q

Strict scrutiny

A

Race, alienage, and national origin. Gov has burden to show necessary to achieve COMPELLING state interest

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136
Q

Intermediate Scrutiny

A

gender, and illegitimacy; gov has burden to show it is substantially related to an important gov interest

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137
Q

Rational Basis

A

everyone else; P has burden to show not rationally related to a LEGITIMATE gov interest

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138
Q

Procedural Due Process

A

no person shall be deprived of life, liberty, or property w/o due process of law

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139
Q

Procedural Due Process Rights

A

Notice and Hearing if gov tries to take away jobs, license, benefits, and public education

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140
Q

Substantive Due Process

A

liberty rights/freedoms of EVERYONE

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141
Q

Fundamental Right

A

a. Travel Interstateb. Votec. Privacy Rights – Strict Scrutinyvi. Raise Familyd. Free Speech

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142
Q

Privacy Rights - Fundamental

A

i. Contraceptionii. Abortion – cannot place undue burdeniii. Marriageiv. Procreationv. Education (Private)

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143
Q

Abortion

A

cannot place undue burden

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144
Q

Non-Fundamental Rights

A

Rational Basis, everything that isn’t rational basis

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145
Q

State Due Process

A

14th Amendment

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146
Q

Federal Due Process

A

5th Amendment

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147
Q

Taking

A

Gov can take private property for public use as long as just compensation

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148
Q

Just Compensation

A

fair market value

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149
Q

Public purpose

A

private person can take property for public purpose

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150
Q

i. Diminished value of property

A

Also a taking

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151
Q

Establishment Clause

A

separation of church and state

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152
Q

Lemon Test

A

(1) secular purpose (2) cannot advance or inhibit religion (3) shall be no excessive entanglement

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153
Q

Free Exercise Clause

A

(1) Gov must be neutral (2) cannot break law in name of religion (3) look for gov INTENT vs affects practice of religion

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154
Q

Speech

A

Fundamental Right cannot ban, but can regulate

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155
Q

Content Based Regulation

A

gov says NO = strict scrutiny applies

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156
Q

Content Neutral Regulation

A

regulating time, place, and manner, okay if (1) Significant OR IMPORTANT gov interest and (2) leave alternative means of communication

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157
Q

Public Forum

A

significant or important gov interest w/ alt means

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158
Q

nonpublic forum

A

ads, reasonable related to legitimate gov interest

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159
Q

Obscenity

A

– (1) object person applying LOCAL COMMUNITY STANDARDS appeals prurient issues of sex (2) work depicts sex in a patently offensive manner (3) work acts serious literally, artistic, political, or scientific value

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160
Q

Clear and Present Danger

A

not protected, fighting words, harsh actions, to incite violence

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161
Q

Commercial Speech

A

if reasonable fit to a substantial gov interest and narrowly tailored

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162
Q

False/Misleading advertisements

A

not protected

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163
Q

Prior Restraint

A

gag orders, injunctions, before speech is published, unprotected

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164
Q

Unfettered Discretion

A

gov official choosing one form of speech over another

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165
Q

Overbreadth and vagueness

A

statute cannot be overbroad

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166
Q

Bill of attainder

A

fed or state gove passes a law punishing a named individual or group

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167
Q

Ex post facto

A

retroactively making something criminal, unconstitutional

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168
Q

Contracts Clause

A

only when a STATE impairs the right to enter into contract

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169
Q

Offer

A

an outward manifestation to enter into a contract (1) Intent + (2) specific terms

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170
Q

Advertisements

A

not an offer, invitation to offer

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171
Q

Termination of Offer

A

(1) Death(2) Lapse of Time(3) Rejection(4) Counter Offer(5) Revocation

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172
Q

Indirect Reovcation

A

person receiving offer LEARNS another deal was made

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173
Q

Option Contract

A

additional consideration to have option contract to make irrevocable

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174
Q

Firm Offer

A

UCC K (1) between merchant (2) signed writing by merchant1. If no time states 3 months is MAX time valid

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175
Q

Unilateral Contract

A

a promise for an act1. Offer is Irrevocable when performance begins

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176
Q

Bilateral Contract

A

a promise for a promise – words enough for K

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177
Q

Acceptance

A

agree to offer

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178
Q

Mirror Image Rule

A

acceptance has to mirror offer, Common Law

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179
Q

Acceptance by Silence

A

effective if offeror know silence is okay

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180
Q

Acceptance by Performance

A

words or performance to accept

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181
Q

Mailbox Rule

A

Acceptance is effective when sentException – Rejection 1st, then Acceptance, 1st in time wins

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182
Q

UCC Acceptance

A

sale of goods1. Can accept even if there is difference

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183
Q

Consideration

A

bargained for exchange

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184
Q

Ways to be tested on Consideration

A

(1) Illusory Promise(2) Promise to give a gift(3) Past or Moral Consideration(4) Promise to Pay(5) Forbearance for Lawsuit(6) Promissory Estoppel(7) Accord and Satisfaction

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185
Q

Illusory Promise

A

not valid consideration

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186
Q

Promise to give a gift

A

invalid consideration

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187
Q

Past or moral consideration

A

not enforceable

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188
Q

Promise to Pay a Debt barred by SoL

A

Valid

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189
Q

Forbearance for Lawsuit

A

Valid

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190
Q

Promissory Estoppel

A

promise that induces on to rely to their detriment

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191
Q

Accord and Satisfaction

A

occurs when there is a debt. Settlement – cannot come after rest of ita. Part payment even though paid in full, still owe remainingb. Debt, can’t pay, settlement, can’t go after remainingc. Not sure if there is debt, make payment, amount is final

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192
Q

Defenses to Enforceability

A

(1) Age(2) Mental Illness(3) Duress(4) Undue Influence(5) Unconscionability(6) Illegal(7) Mistake(8) Misrepresentation(9) Non-Compete Clause(10) Statute of Frauds

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193
Q

Age

A

Voidable at option of Minor

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194
Q

Mental Illness

A

Void

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195
Q

Duress

A

Wrongful Threat

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196
Q

Undue Influence

A

Unfair Bargaining Position

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197
Q

Unconscionability

A

result of enforcing K is unfair

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198
Q

Illegal Contract

A

not enforceable

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199
Q

Unilateral Mistake

A

1 party is mistaken about term in K, not a defense, UNLESS (1) other party knew it was a mistake, OR (2) clerical error

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200
Q

Mutual Mistake

A

defense, no meeting of the minds. Remedy? Rescission

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201
Q

Intentional Misrepresentation

A

(1) intentionally say with scienter (2) w/intent to induce reliance

202
Q

Negligent Misrepresentation

A

(1) special relationship (2) omission (3) reliance (4) injury

203
Q

Non-Compete Clauses

A

MUST be reasonable to be enforceable

204
Q

Statute of Frauds

A

(1) Marriage(2) Ks over a Year(3) Land(4) Executor Contracts(5) Guarantor Contracts(6) Sale of Good over $500

205
Q

Land Contracts - Part Performance Exception

A

pay or take possession or make improvements on the land, does not be in writing if part performance

206
Q

Guarantor/Surety Contracts

A

promising to pay for debt of another1. Exception: if purpose is to benefit me, not other person, then no need for writing

207
Q

Sale of Goods over $500

A

Exception: part-performance also applies

208
Q

Merchant Confirmation

A

if one merchant sends another a (1) written confirmation signed by sender (2) includes the quantity (3) no objection w/10 days of receipt (4) acts as a writing for SoF

209
Q

What is included in a Legal writing?

A
  1. Parties Subject Matter2. Material Terms3. Signed by Party to be Charged
210
Q

Parol Evidence and Interpretation

A

Applies to things prior to or at the time entered into the contract

211
Q

Final/Complete Integration Contract

A

Parol Evidence is NOT admissible

212
Q

Merger Clause

A

final agreement between parties

213
Q

Ambiguous term

A

parol evidence allowed to clear up an ambiguity

214
Q

Partial Integration

A

parol evidence is admission, anything that supplements original terms with contract that are CONSISTENTi. Anything that contradicts or materially alters contract is NOT admissible

215
Q

Always Admissible Parol Evidence

A

i. Fraudii. Mistakeiii. Duressiv. Condition Precedentv. Course of Dealingvi. Trade Custom

216
Q

Risk of Loss - NO Carrier

A

if seller is merchant, risk is on seller until buyer takes possession1. If seller is not merchant, risk of loss is on seller until seller makes item available to buyer

217
Q

Shipment Contract

A

default rule, risk of loss shifts to buyer when goods are delivered to carrier

218
Q

Destination Contract

A

risk of loss shifts to buyer when goods are delivered to destination

219
Q

F.O.B. Seller

A

shipment contract, risk until good delivered

220
Q

F.O.B. “anything else”

A

destination contract, risk on buyer

221
Q

Requirements Contract

A

desire to buy all the widgets

222
Q

Good faith

A

as long as good faith okay

223
Q

Modification - Common Law

A

needs new consideration

224
Q

Modification - UCC

A

good faith, no new consideration

225
Q

Oral or Written Consideration - Common Law

A

Both are valid

226
Q

UCC Oral or Written Modification

A

clause prohibiting oral modification in K valid

227
Q

Mutual Modification

A

as long as terms are fair and reasonable

228
Q

Condition Precedent

A

event before contract

229
Q

Condition Concurrent

A

event during contract

230
Q

Condition Subsequent

A

event after contract

231
Q

Waiver of condition

A

saying forget about condition, you may perform regularly

232
Q

Bad Faith

A

if one party acts in bad faith then that party still has to perform

233
Q

Avoiding Forfeiture

A

condition excused if big loss

234
Q

Non-conforming goods

A

(1) may reject, (2) may accept, (3) may reject part and accept part

235
Q

Installment contract & non-conforming goods

A

if one shipment is nonconforming then not total breach of contract if it affects the installment and it cannot be cured1. If the 1 nonconforming shipment will ruin entire value of contract then contract is breached

236
Q

Impracticability

A

unforeseen event makes performance too difficult or expensive

237
Q

Impossibility

A

nobody can perform, i. Exception- (1) temporary impossibility or (2) preparation of impossibility

238
Q

Frustrations of Purpose

A

reason you entered contract is no longer present

239
Q

Anticipatory Repudiation

A

before contract performance, unequivocal refusal to perform = total breach

240
Q

Demand Assurances

A

when doubtful about performance, need to respond to demand in a reasonable amount of time. In UCC, demand must be in writing and within 30 days

241
Q

Expectation Damages

A

default, value of contract if performed; (1) foreseeable and (2) reasonably certainty1. Contract price (–) minus what you already would have received (+) plus any costs

242
Q

Reliance Damages

A

(1) unreimbursed costs prior to contract (2) cannot get expectation damages

243
Q

Restitution Damages

A

market value of the services, option of the non-breach party instead of expectation damages. (1) getting back value already given and (2) contract partially performed

244
Q

Consequential Damages

A

because of breach foreseeable costs

245
Q

Liquidated Damages

A

determined at time of contract enforceable if (1) reasonable and (2) not a penalty

246
Q

Quantum Meruit

A

BREACH PARTY is seeking damages, reasonable value of services, even breaching can recover value of work done minus whatever damages

247
Q

Seller Damages

A

contract price if goods delivered and accepteda. Some or none delivered and not resold – contract price minus market priceb. None delivered and resold – contract price minus resell pricec. Incidental Damages – seller can always getd. Lost Volume Profits – measure by profit seller would have made plus any costs minus payment of resale

248
Q

Buyer Damages

A

depends if buy replaceda. If replaced, Contract price minus new goodsb. If not, contract price minus the market price of goods at the time you learn of the breach

249
Q

Equitable Damages

A

when remedy at law is inadequate

250
Q

Specific Performance

A

subject matter is unique, land is always unique

251
Q

Injunction

A

to prevent irreparable harm

252
Q

Recession

A

no meeting of the minds, if K never happeneda. Mistakeb. Misrepresentationc. Duressd. Lack of Capacity

253
Q

Filing of a NOTICE OF APPEAL

A

30 days of judgement, must make obj. during trial or else waived

254
Q

Harmless Error Rule

A

if errors do not make a difference then no appeal

255
Q

Final Judgement Rule

A

cannot have an appeal unless final Judgement was made, all issued were finally determined by the court

256
Q

Collateral Order Exception

A

issue may be decided ifa. It resolves the issue that is completely separate from the merits of the actionb. Any delay would cause too much damage

257
Q

Injunctions

A

can be appeal the granted or denying an injunction before all issues decided

258
Q

Standard of Review - Issue of Fact

A

Clearly erroneous standard

259
Q

Standard of Review - Issue of Law

A

De Novo Review

260
Q

Standard of Review - Relevancy, Prejudice, Court Orders

A

abuse of discretion

261
Q

Federal Court Diversity

A

state substantive, federal procedural

262
Q

Choice of Laws - Statute of Limitations

A

State substantive

263
Q

Choice of Law - Venue Issue

A

federal procedure applies

264
Q

Choice of Law - 2 state conflicting laws

A

Apply law where federal court sits

265
Q

Erroneous Jury Verdicts

A

(1) to approve an appropriate judgment according to the answers; notwithstanding the verdict; (2) direct the jury to further consider its answers and verdict; or (3) order a new trial.

266
Q

Default Judgement

A

one party fails to plead

267
Q

Voluntary Dismissal

A

P voluntary dismisses his or her own actioni. Once w/o prejudiceii. Before D answers/Summary Judgementiii. After D answers, need court approval

268
Q

Involuntary Dismissal

A

court will dismiss by orderi. Failure to prosecuteii. Failure to obey a court orderiii. Lack of venue/jurisdiction

269
Q

Prejudice exceptions of involuntary dismissal

A

a. Lack of Jurisdictionb. Venuec. Insufficient service of processd. Failure to join a party

270
Q

Grounds to Dismiss a Judge

A

(1) Appearance of Bias (2) Actual Bias

271
Q

Appearance of Bias

A

parties MAY waive

272
Q

Actual Judicial Bias

A

Parties MAY NOT waive1. Judge has personal knowledge – recused2. Judge was a lawyer – recused3. Judge or family has financial issues - recused4. Expressed opinion on merits – recused

273
Q

Red Judicata/Claim Preclusion

A

can claim or cause of action be relitigated1. Generally no if same parties, same claim, decided on the MERITS, based on same transaction

274
Q

Claim Preclusion - Merger Doctrine

A

P wins, claim is merged into the judgment and cannot sue same cause of action againi. If P loses = P is Barred from bringing it up again, cannot split via damages

275
Q

Collateral Estoppel/Issue Preclusion

A

(1) must have SAME issues, (2) actually litigated and DECIDED, (3) necessary to judgment

276
Q

Collateral Estoppel - Not Litigated Issues

A

resolved in settlement or Default Judgement

277
Q

Collateral Estoppel - Mutuality in Issue Preclusion

A

original parties no longer applies, now look to privity

278
Q

Collateral Estoppel - Defense Use of Collateral Estoppel

A

allowed generally, nonparty in 1st case is not D in 2nd case

279
Q

Collateral Estoppel - Offense Use of Collateral Estoppel

A

not allowed generally

280
Q

Full Faith and Credit

A

one state must give full legal effect in another state

281
Q

12b Motion to Dismiss SMJ

A

pre-answer motion - lack of SMJ – can be raised ANYTIME,

282
Q

Waived Motion to Dismiss

A

Pre-answer motion - waived if not in Motion or Answer1. Personal Jurisdiction2. Improper Venue3. Insufficient Process

283
Q

Motion to Dismiss for Failure to Join a PArty

A

pre-answer motion - raise BEFORE or AT TRIAL

284
Q

12b6 Motion to Dismiss Based on Failure to State Claim Upon Relief

A

even if stacks true, no recovery, dismissed with prejudice, raised BEFORE or AT TRIAL

285
Q

Motion to Strike

A

pre-answer motion - made w/21 days of service, strike Redundant, Immaterial info

286
Q

Motion for More Definitive Statement

A

pre-answer motion, pleading is vague or ambiguous

287
Q

Summary Judgement

A

no genuine dispute of material fact, can be made up to 30 days after discovery, if denied NOT appealable

288
Q

Partial Summary Judgment

A

on a particular issue

289
Q

Judgement as a Matter of Law/Directed Verdict

A

D makes motion after D=P’s case or either party after evidence

290
Q

Judgement as a Matter of Law/Directed Verdict - Standard

A

whether a reasonable jury would have a legally sufficient evidence to find for the party

291
Q

Renewed Judgement as a Matter of Law

A

(1) make 1st motion so you can bring the RENEWED motion (2) 28 days after verdict (3) same standard as JMOL

292
Q

Motion for relief of judgement

A

clerical error or mistake, judge may correct mistake

293
Q

Motion for new trial

A
  1. granted if error would change result of trial2. judge acted erroneous3. jury, party, witness, or lawyer misconduct 4. verdict is against the clear weight of the evidence
294
Q

Remitter

A

too much money, new trial ordered unless party accepts reduction of damages, no appeal

295
Q

Additur

A

to add more money, NOT allowed in federal court

296
Q

Motion for partially new trial

297
Q

Motion for new trial when new info

A

(1) if evidence discovered after trial, (2) couldn’t find during or before trial but tried, (3) material

298
Q

7th Amendment

A

right to a jury trial

299
Q

Amount of Jurors

A

Must have at least 6 not more than 12 jurors

300
Q

Verdict

A

must be unanimous

301
Q

Demand for Jury trial

A

must be made within 14 days of last pleading

302
Q

Equitable Relief

A

no right to a jury trial

303
Q

Voire Dire

A

juror can be dismissed for cause

304
Q

For Cause Dismissal

A

(1) actual bias (2) possible bias (3) felony conviction (4) no limit to amount of strikes

305
Q

Peemptory Challenge

306
Q

Jury Instructions

A

must object before jury retires or will be lost on appealh. Jury make take anything into evidence to the jury room, no science experiments

307
Q

Grounds for new Trial

A

(1) outside information brought into jury room (2) juror lies in questioning in voir dire

308
Q

Complaint

A

filing of complaint with the court commences statute of limitations1. Service – w/90 days2. Elements: (1) Short and plain statement with grounds of jurisdiction (2) Statement of the claim (3) Demand for Relief3. Demand for Special Relief – (1) Fraud (2) Special Damages, must be pled with specificity

309
Q

Answer

A

signed by Lawyer, whatever is not denied is admitted, 21 days

310
Q

Affirmative Defenses

A

(1) contributory negligence (2) SoF, (3) SoL (4) illegality, (5) duress

311
Q

Amendment of Complaint

A

a right as long as within 21 days after service of original pleading1. Leave of Court Amendment – allowed when justice so requires

312
Q

Relation Back Doctrine

A

related back if claim or defense arose out of the same conduct, transaction or occurrence of original pleading

313
Q

Relation Back Regardings Parties

A

(1) arose from same T/O (2) w/90 days of filing complaint (3) new party knew or should have been brought but for mistake of ID

314
Q

Rule 11

A

when a lawyer signs a pleading, the lawyer says basis for claim;i. Ensures legal arguments are warranted by existing lawii. Allegations have evidentiary supportiii. Not presented for improper purpose

315
Q

Compulsory Counterclaim

A

(1) same T/O (2) Assert it or lose it

316
Q

Permissive Counterclaim

A

(1) D may bring claim not T/O (2) needs independent JD

317
Q

Permissive Joinder

A

multiple Ps can join together if claim (1) same T/O and (2) question of law or fact is in common

318
Q

Compulsory Joinder

A

party must be joined if it is unfair to litigate w/o them

319
Q

Compulsory Joinder - Necessary Party

A

impaired interest by not includinga. If joining would destroy diversity, then case can still go forward

320
Q

Compulsory Joinder - Indispensable Party

A

won’t join will prejudicea. If joining would destroy diversity, case will be dismissed

321
Q

Adding Claims

A

may add as many claims as long as new claims have SMJ

322
Q

Class Actions

A

(1) size (2) common question of law or fact (3) typical of class (4) fair representation

323
Q

B1 Class Action

A

impairment of interests of class members, members may not opt out, notice is discretion of court

324
Q

B2 Class Action

A

injunctive relief is sought, members may not opt out, notice is discretion of court

325
Q

B3 Class Action

A

common question of all class members, may opt out, all members must give notice

326
Q

Diversity Class Action

A

(1) citizenship of representative is the one that counts, (2) ok as long as 1 named member has claim over $75,000, (3) if entire claim is over $5 million then okay if not one person have over $75

327
Q

Intervention

A

someone not in suit wants to come in

328
Q

Intervention as of Right

A

(1) interest in property of litigation (2) would impair protection of interest if not involved (3) NO court permission needed

329
Q

Permissive Intervention

A

(1) claim/defense is common question of law or fact to the suit (2) court permission is required

330
Q

Interpleader

A

1 party owes money to 2 or more people, make then fight over damages

331
Q

Statutory Interpleader

A

(1) nationwide service of process is allowed (2) as long as any two claims are diverse (3) min of $500 claim (3) person deposits money/property in Court or Bond

332
Q

Rule Interpleader

A

(1) complete diversity (2) no nationwide service (3) over $75,000 (4) NOT required to deposit money/property

333
Q

3rd Party Interpleader

A

D who believes 3P is liable for part or all of claim, D can implead them into claim AKA contribution/indemnity

334
Q

Cross Claims

A

one party sues co-party (1) same T/O (2) actual damages

335
Q

What is discoverable?

A

(1) not privileges (2) relevant (3) proportional to Needs of the Case

336
Q

Work Product

A

Immune from discovery, anything prepared by counsel for trial, also people working for lawyer

337
Q

When is work product discoverable?

A

(1) Substantial need (2) cannot obtain w/o UNDUE HARDSHIP

338
Q

Experts for trial

A

must give a list IDing expert, expert must provide a report with data and compensation

339
Q

Experts not testifying

A

discoverable only in EXCEPTIONAL CIRCUMSTANCES when impractical

340
Q

Deposition

A

(1) party of non-party (2) written or oral (3) limit 10 depos, cannot depo same person more than once w/o court permission

341
Q

Deposition of Non-party

342
Q

Deposition of Party

A

NO subpoena, can get sanctions

343
Q

Interrogatory

A

(1) only to a PARTY (2) written/answered in writing (3) limit – 25

344
Q

Request for Admission

A

written request, conclusively established

345
Q

Request to Produce

A

documents in the other side’s possession, control custody

346
Q

Physical/Mental Exam

A

if condition is subject of controversy (10 court order (2) good cause

347
Q

Objection to Request

A

Info not relevant

348
Q

Protective Order to Stop Discovery

A

for embarrassment, harassment, undue burdenxv. Motion to Compel – one party not complying

349
Q

Conference of Parties

A

(1) court MUST have conference (2) parties MUST submit Discovery plan

350
Q

Scheduling Conference

A

(1) court MUST have conference (2) issue order w/ 90 days of filing (3) CANNOT be modified unless GOOD CAUSE

351
Q

Final Pre-trial Conference

A

(1) MAY hold it (2) if exists, court MUST issue Pre-trial orders (2) ONLY modified to prevent MANIFEST INJUSTICE

352
Q

Temporary Restraining Order

A

(1) no notice (2) IMMEDIATE IRREPARABLE HARM (3) expires in no more than 14 days

353
Q

Preliminary Injunction

A

(1) notice and hearing (2) irreparable injury (3) more than 14 days

354
Q

Subject Matter Jurisdiction

A

(1) diversity or (2) federal question

355
Q

Diversity

A

(1) parties are citizens of different states AND (2) over $75,000

356
Q

Domicile

A

permanent home and intent to stay there

357
Q

Corporations

A

(1)domicile in principal place of business and (2) state where incorporated

358
Q

Well-pleaded complaint rule

A

federal law must be obvious in complaint, federal defense =/= good enough for federal question

359
Q

Supplemental Jurisdiction/SJ

A

normally won’t be fed court, but court let you add claims and parties MUST arise from common nucleus of operative fact

360
Q

If FQ SJ

A

common nucleus of facts

361
Q

If Diversity SJ

A

common nucleus of facts (1) compulsory counterclaim (2) joinder of parties in compulsory counterclaim (3) cross claims (4) impleader of 3rd party Ds

362
Q

IF D trying to add SJ claim/party

363
Q

If P trying to add SJ claim/party

A

not allowed

364
Q

SJ not allowed

A

(1) original P vs. 3rd party D (2) compulsory joinder (3) joinder of Ds (4) intervention, P’s trying to intervene

365
Q

In personam Jurisdiction

A

domicile, living, present

366
Q

Long Arm Statute

A

law allowing nonresident to be brought into state to be sued

367
Q

Minimum Contacts

A

enough contacts so D could REASONABLY anticipate to be brought into court w/p offending traditional notions of fair play and substantial justice

368
Q

Service of Process

A

(1) limited to state where court sits or (2) long arm statute

369
Q

100 miles budge system

A

okay if w/100 miles of fed courthouse where suit is sitting for additional parties for current case, 3PD and indispensable parties

370
Q

Who can serve process?

A

(1) anyone not a party (2) over 18 years old

371
Q

Indirect service

A

yes can leave with (1) over 18 (2) likely to give to D

372
Q

In-Rem jurisdiction

A

getting PJ over property itself

373
Q

Quasi-in Rem Jurisdiction

A

trying to get JD to satisfy judgement against individual

374
Q

Removal

A

proper if could have been brought in fed court

375
Q

Who may remove?

A

ONLY DEFENDANT can remove, if multiple D  All must join to remove

376
Q

Timing of Removal

A

30 days of service of complaint

377
Q

Diversity Removal

A

(1) no removal is allowed if D is a citizen of forum state (2) not allowed over 1 year after beginning of action

378
Q

Venue

A

(1) any D resides, and all D reside in that state (2) substantial part of events took place (3) D is reachable – has PJ

379
Q

Corporation Venue

A

any district where principal place of business or state of incorporation

380
Q

Forum Non Convensce

A

yes can be transferred if venue in 1st place but law of original state applies

381
Q

fee simple absolute

A

own property, 100%, forever

382
Q

life estate

A

conveyance for life, has rights while alive, but NO WASTE

383
Q

grantor

384
Q

life tenant responsibilities

A

MUST pay interest and taxes

385
Q

remainder

A

comes after life estate

386
Q

vested remainder

A

you just get it, automatically get it, nothing stops you

387
Q

Contingent Remainder

A

something must happen to get it

388
Q

Vested Remainder Subject to Open (partial divestment

A

classes of people

389
Q

Vested Remainder Subject to Total Divestment

A

then to but something can happen that will wipe out interest

390
Q

Fee Simple Determination

A

SO LONG AS// AS LONG AS

391
Q

Possibility of Reverter

A

grantor gets it back automatically

392
Q

Fee Simple Subject to Condition Subsequent

A

“BUT IF” condition

393
Q

Right of Re-entry

A

Grantor must do something to re-enter

394
Q

Rule Against Perpetuities

A

interest must vest within 21 years in the life in being

395
Q

Questions to ask if RAPs?

A

Could you get it within 21 years? Maybe? Not RAP. Not sure, NO. DON’T DO THE MATH

396
Q

Executory Interest

A

violated RAPS, If property goes to someone else not grantor, violates RAPS, VOID interest

397
Q

Joint Tenancy

A

right of survivorship

398
Q

Conveying interest in Joint Tenancy

A

severs joint-tenancy into tenancy in Common, present conveyance

399
Q

Joint-Tenancy vs Will

A

Right of survivorship wins over the will

400
Q

One Joint Tenant Has a Debt

A

dies with persona, debt not with other Joint-Tenant

401
Q

Tenancy in Common

A

no right of survivorship

402
Q

Tenancy by the Entirety

A

joint-tenancy between married people, right of survivorship, ones spouse may not convey w/o other spouses’ consent. Severed by DIVORCE

403
Q

Right of a Tenant

A

i. Each tenant has right to whole property unless ouster

404
Q

Ouster

A

someone got kicked off

405
Q

Partition

A

gets land divided, awarded unless it’s not practical

406
Q

Contribution

A

Co-tenant who is paying the mortgage and the taxes may seek contribution from co-tenant, but if co-tenant is in sole possession, may only get extent that it exceeds the market value of the property

407
Q

Rent

A

out of possession co-tenant may share in the rent and profits from property but cannot demand rent from tenant who is living on the land unless they are damaging the property

408
Q

Repairs

A

co-tenant may not seek contribution for repairs on property, however if repairs necessary and requested but refused, co-tenant can get repairs

409
Q

Improvements

A

one co-tenant may not seek contribution unless improvements increase rent or profits

410
Q

Periodic Tenancy

A

has a start date, then period of time, generally renews unless there is a set end date, notice is required to terminate

411
Q

Month to month Tenancy

A

1 month notice

412
Q

Year to year Tenancy

A

6 months notice to vacate

413
Q

Tenancy for Years

A

start date and a particular end date, no notice required.

414
Q

Tenancy at will

A

no specific term until either party terminates, tenant needs reasonable amount of time

415
Q

Tenancy at Sufferance

A

holdover tenant, parties will be bound by original terms of lease, tenancy ends with tenant leaves or gets kicked out

416
Q

Landlord Duties

A
  1. Give actual possession on the 1st day of lease term, if not, lease is done2. Basic Repairs3. Warranty of Habitability4. Warranty of Quiet Enjoyment
417
Q

Warranty of Habitability

A

if breach, tenant can refuse to pay rent, violation of codes, so oppressive that person cannot live on land

418
Q

Warranty of Quiet Enjoyment

A

stopping other nuisance to disturb you so you can live on land, if not tenant can refuse to pay rent

419
Q

Tenant Duties

A
  1. Pay rent, unless Landlord breaches warranties or property is destroyed2. No waste does not allow property to be destroyed, must give notice3. Ordinary repairs -make themselves
420
Q

Assignment

A

new tenant primarily liable for rent, original tenant secondarily liable unless ovation

421
Q

Sublease

A

original tenant stays liable to original landlord

422
Q

Fair Housing Act

A

prevents discrimination in sale or rental of property in a home based on race, color, religion, sex, disability, family status, or being pregnant

423
Q

Fixture

A

property that if removed would cause damage

424
Q

Conflict of Laws in states

A

law of state where the property is located WINS, unless deed says otherwise

425
Q

Easement

A

allowing not or not allowing someone on property

426
Q

Express Easement

A

in writing

427
Q

Easement By Prescription

A

looks like adverse possession, open, notorious, hostile, no need for exclusivity

428
Q

Easement by implication

A

applied by prior use, land divided into 2

429
Q

Easement by necessity

A

no other way out

430
Q

Ways to end easement

A
  1. Agreement 2. Time expired 3. Merger 4. Abandonment
431
Q

Merger of Easement

A

one owner buys and now owns both pieces of land

432
Q

Abandonment

A

(1) nonuse and (2) show intent not to return

433
Q

Covenant

A

grants right to do, or restricts right. Contract. Promise for promise. Governed by contract principals. ALWAYS A WRITING

434
Q

Covenant Creation

A

always created by a writing

435
Q

How do you know covenant runs with the land?

A

(1) writing (2) intent between parties (3) notice (4) privity (5) touch and concern the land

436
Q

When will covenant not touch and concern land?

A

(1) Personal characteristic of individual, (2) a lease – it’s a contract

437
Q

Equitable Servitude

A

looks like a restrictive covenant, this is actually an injunction

438
Q

Implied reciprocal servitude

A

(other equitable servitude)– (1) common scheme + (2) notice , restrictions to all (gated community). ii. Restrictions keep on going as long as profile of community continues

439
Q

License

A

freely revocable by grantori. Exception – if coupled with interest then not revocable

440
Q

Profit

A

take stuff from the ground

441
Q

Taking

A

gov can take private property for public use and just compensation

442
Q

Water Rights Reasonable Use

A

water can be used reasonably

443
Q

Water Rights Crops

A

except in tenancy, runs with land

444
Q

Excavation - undeveloped property

A

strict liability

445
Q

Excavation - developed property

A

strict if damages would have happened anyway. if you let them then negligence standard

446
Q

Nuisance

A

interference with reasonable person’s use of land and property

447
Q

Public Nuisance

A

private plaintiff must prove special damages (otherwise gov makes it)

448
Q

Common Interest Owned Community

A

lot owners must pay dues

449
Q

Property Owners Association

A

owners required to belong and pay the dues

450
Q

Condominium Association

A

created by statute, file a declaration, and plat (describing physical boundaries and common areas)

451
Q

Condo Owners

A

own inside of unit, pay taxes, insurance, mortgage their own unit, own common areas as tenants in common with other owners

452
Q

Condo Association Rules

A

reasonably related to further legitimate purpose of Association

453
Q

Real Estate Contract

A

(1) intent to sell (2) basic contract terms (3) must be in writing (SoF)

454
Q

Equitable Conversion

A

(1) equitable title + (2) risk of loss on buyer1. day of signing, transfer of equitable interest, seller still has legal title. RISK OF LOSS shifts to buyer

455
Q

Marketable Title

A

implied in EVERY real estate contract, free of encumbrances and liens

456
Q

Real Estate Contract Merger

A

contents of real estate contract merge into the deed, after merger must sue on deed

457
Q

Real Estate Contract Duty to Disclose

A

seller has duty to disclose defects that cannot be seen by buyer

458
Q

Purchase Money Mortgage

A

the loan used to buy the property, land is collaterali. Always gets paid back 1st

459
Q

Redemption

A

trying to get property back after foreclosure,

460
Q

Equitable Redemption

A

(1) period of time from notice until foreclosure sale (2) NEVER WAIVED

461
Q

Statutory Redemption

A

after foreclosure sale, not automatically gotten.

462
Q

Lien Theory

A

resident has equitable interest, bank owns title, cannot sell

463
Q

Joint-Tenancy in Lien Thoery

A

mortgage does NOT sever tenancy

464
Q

Title Theory

A

resident has equitable interest, bank owns title, cannot sell

465
Q

Joint-Tenancy in Title Theory

A

mortgage severs the joint tenancy into a tenancy in common

466
Q

Subject to Mortgage

A

new buyer NOT liable for payments, old buyer owes no money but bank may still foreclose on old buyer

467
Q

Assumption of Mortgage

A

new buyer takes over payment, old buyer as secondary still liable unless novation

468
Q

Deed in Lieu of Foreclosure

A

giving deed to bank immediately instead of waiting for foreclosure

469
Q

Effect on Foreclosure sale

A

any junior mortgage will be wiped out as long as (1) notice given and (2) junior interests joined the suit

470
Q

Deficiency Sale

A

amount money not recovered from sale may be recovered from original buyer, amount recovered is what was owed after foreclosure sale

471
Q

Installment Contract

A

title only transfers after the entire contract balance is paid, if buyer defaults, seller may retake unless foreclosure proceeding rules that supersedes. Seller does not have to give marketable title until final payment

472
Q

Deed

A

legal title

473
Q

Warranty Deeds

A

6 warranties, 3 present, 3 future

474
Q

3 present warranties

A

breached on day of closing1. Right to Seisin – own2. Right to Convey3. Right - Covenant against encumbrances

475
Q

3 future warranties

A

will last forever1. Quiet enjoyment – no problem2. Warranty – defend3. Further assurances – fix defects

476
Q

General Warranty Deed

A

title good since forever

477
Q

Special Warranty Deed

A

all good since current owner had title

478
Q

Quitclaim Deed

A

no promises

479
Q

Valid Deed Requirements

A

i. Writing ii. Delivery iii. Acceptance iv. Merger v. Legal Description of propertyvi. Identifiable grantees

480
Q

Deed Delivery

A

from seller to buyer (1) intent, give up all control

481
Q

Deed Acceptance

A

is presumed, unless facts say otherwise

482
Q

Deed Merger

A

contract merges with deed

483
Q

Ademption

A

land left in will but during life, sold to someone else. Get nothing at death

484
Q

Lapse

A

if left something in will but you die before me, the your part goes back to residuary estate

485
Q

Adverse Possession

A

if elements met you get title, squatter (1) continuous for statutory period of time(2) actual, open, and notorious (3) hostile (4) exclusive.

486
Q

Tacking

A

when squatter intentionally gives right to someone else

487
Q

Executing a Deed - signatures

A

agent for the grantor may sign a deed on behalf of a grantor, but the authority granting the ability to do it has to be in writing

488
Q

Notice Statute

A

last BFP wins “SUBSEQUENT PURCHASER FOR VALUE WITH NO NOTICE”

489
Q

BFP

A

(1) pays value (2) no notice // bank/mortgagee is a BFP

490
Q

Not a BFP

A

(1) gift (2) will (3) adverse possession (4) creditor

491
Q

Race Statute

A

1st to record wins

492
Q

Race-Notce Statutes

A

1st BFP who recorded

493
Q

Shelter Rule

A

someone who would normally lose will win because the previous grantor will prevail, sheltered by the BFP

494
Q

Wild Deed

A

out of the chain of title, no double dealing.

495
Q

After-Acquired Title

A

(1) when grantor intends to convey but doesn’t have full title, (2) title automatically goes to end grantee when title is fixed.

496
Q

Dedication of land for public use

A

(i) dedication, and (ii) acceptance

497
Q

Offer of dedication

A

i) a written or oral statement, (ii) the submission of a map or plat showing the dedication, or (iii) the opening of the land to public use

498
Q

Offer of acceptance

A

(i) a formal resolution, (ii) the approval of the map or plat, or (iii) the actual assumption of maintenance or construction of improvements.

499
Q

Negligence Per Se

A

Negligence Per Se

500
Q

Intentional Infliction of Emotional Distress

A

intentional or reckless (2) extreme or outrageous conduct (3) causing severe emotional distress

ube mine (16 decks)

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