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Virginia Bar Exam - Edited Set (Full) > VA QUICK RUN > Flashcards

VA QUICK RUN Flashcards

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1
Q

Partnership Agreement

A
  • Written agreement not needed - If written, subject to SOF
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2
Q

Implied Contract SOL

A

3 years

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3
Q

Duty to Reject Representation

A

Lawyers must reject representation when representation would violate ethics rules or other law.

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4
Q

Laches

A

Party waited too long to bring claim to make it fair: - The delay worked to disadvantage the defendant; or - The delay warrants the presumption the party has waived their right.

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5
Q

How long does a party have to appeal from GDC?

A

10 days

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6
Q

Mens Rea Expert Testimony

A

Not allowed to use expert testimony negate mens rea

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7
Q

Homestead Allowance

A

$20,000 to spouse and $20,000 to children together - claimed in lieu of other share passing to family

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8
Q

Charity Immunity for Torts

A

Immune for liability for negligence of agents but not for negligent hiring

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9
Q

Exceptions to Ademption by Extinction

A
  • Specific securities include any securities in the same entity gained during the testator’s life because of merger or the like - Condemnation award for specifically devised property - Net value of devised property sold while testator is incapacitated or under disability
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10
Q

Right of Survivorship for Tenancy by Entirety

A

Does not require express language to make right of survivorship - happens automatically

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11
Q

SOL for Creditor of Corp

A

Three years after notice of dissolution

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12
Q

Summary Judgment Rules

A
  • Can’t be issued for divorce or annulment - Can’t be issued if material facts are in dispute - Can be issued in part
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13
Q

VA Long Arm Statute

A

Requires that def regularly does business in VA or derives substantial revenue from goods used in VA

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14
Q

Uniform Enforcement of Foreign Judgments Act

A

To enforce an out-of-state judgment against a VA resident: 1) File an authenticated copy of judgment in Circuit Court of VA 2) File an affidavit with name & address of debtor, and clerk will mail notice to him

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15
Q

Oral Agreement to Devise Property

A

Enforceable if: - Agreement is certain and definite in its terms and established by clear and convincing evidence; - The party seeking enforcement performed pursuant to the agreement; and - That failure to enforce the agreement would work a fraud on the party seeking enforcement

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16
Q

VA Parol Evidence Rule

A

Does NOT apply when writing is vague, ambiguous, or indefinite - only to establish that there was a real contract between the parties, NOT to establish meaning of the contract

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17
Q

VA Anticipatory Repudiation

A

Can sue WITHOUT waiting for time of performance to arrive

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18
Q

Intestate

A

Died without valid will

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19
Q

Contributory Negligence

A

Traditional rule as long as contrib. neg. was substantial cause of injury and occurred at the same time at def’s negligence

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20
Q

Common Law Marriages

A

Virginia does NOT permit

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21
Q

Assumption of Risk

A

Complete bar to recovery

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22
Q

Type of Misconduct that Must Be Reported

A

Misconduct that raises a substantial question of the lawyer’s honesty, trustworthiness, or fitness to practice law

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23
Q

Innocent Trespasser Accession

A

Can bring claim for goods created/improved

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24
Q

Acceptance under UCC

A
  • In any reasonable manner or medium; - Offer to buy goods for immediate shipment/send immediate shipment
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25
Q

Experts Discovery

A

If not expected to be called as a witness, can only discover if exceptional circumstances that make it impracticable to obtain those facts or opinions by other means

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26
Q

Termination of LLP

A

Canceling statement of qualification with state - transforms into partnership

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27
Q

Intestate Survived by Spouse

A
  • 1/3 if survived by children - 100% if no children
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28
Q

Spouse Omitted from Will

A

Passes by intestacy rules unless spouse was intentionally omitted

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29
Q

Lapsed Gift

A

Passes by intestacy

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30
Q

Conversion

A

A wrongful exercise of authority over property, inconsistent with party’s ownership right

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31
Q

Void Marriages

A

BIN: bigamy, incest, and nonage

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32
Q

Extra VA SOF Agreements

A
  • Promise to pay debt incurred in infancy - Promise to pay debt of estate with executor’s own money - Real estate brokerage contract - Promise to lend money or extend credit for $25,000 or more
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33
Q

Splitting a Cause of Action

A

Virginia follows MINORITY rule: can bring separate actions for personal injury and property damage from same set of facts

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34
Q

Family Allowance

A

Reasonable amount of money to support family during the administration of the estate - up to $24,000 or $2,000/month

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35
Q

Reliability of Expert Witness

A

No language on what opinion should be based on - more flexible than federal

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36
Q

Misplaced Property

A

Owner first, property where left second, and then finder

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37
Q

Child’s Home State

A

Where child has lived the past six months

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38
Q

Residuary Clause

A

Clause in a will that disposes of remainder of estate to beneficiaries

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39
Q

Challenging Long-Arm Jurisdiction

A
  1. Whether the facts alleged engage any specific provisions of the long-arm statute 2. Whether the defendant has sufficient minimum contacts with Virginia to ensure due process
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40
Q

Mental Capacity for Wills Test

A
  • Proponents of will have burden of proving mental competence by preponderance of evidence - Testator need not have all the force of intellect which they once had and may even be incompetent to do business - Testator was capable of recollecting property, bounty, and claims upon them, business they were engaged, and how they wanted to dispose of property (page 28 outline, commit to memory) - The relevant time is when will is executed
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41
Q

Foreign Corporation

A

May only do business in VA if it registers within the state

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42
Q

Demand for Assurance

A

If reasonable insecurity about performance, can demand in writing adequate assurance from other party - may suspend performance while waiting if reasonable

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43
Q

Duty to Report Misconduct

A

Lawyer must have reliable information that another lawyer has committed misconduct

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44
Q

Implied Authority

A

Applies to agent’s understanding

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45
Q

Intentional Torts by Employee

A

Vicarious liability when the tort is in furtherance of the employer’s interest or under the direction of the employer

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46
Q

Liens on Motor Vehicles

A

Perfected by registering a security interest with the DMV, not by filing a financing statement

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47
Q

Ways to Revoke a Will

A
  • Writing or physical act - Dependent relative revocation - Divorce or annulment
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48
Q

Ademption by Extinction

A

The specific thing bequeathed does not exist or has been disposed of prior to death (in other words, is the thing in the estate?)

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49
Q

Paternity by DNA

A

VA paternity is at least 98% probability

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50
Q

Cancellation

A

Negation of an instrument

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51
Q

Partnership Management Rights

A

Equal among partners

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52
Q

Equivocation

A

When words in will describe equally well two or more persons or things - can use statements by testator as to testamentary intent

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53
Q

Circuit Court Default Consequences

A
  • D gives up right to have notice of further proceedings - Def waives trail by jury - Court orders damages amount - Def can participate in damages hearing, but not on issues of the case
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54
Q

Defects in Marriage Licenses

A

NOT voided as long as: - lawful in all other respects - consummated with a full belief of parties that thy have been lawfully married

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55
Q

Sanction Statute

A

Every pleading or motion must certify that: 1. Attorney has read the pleading or motion. 2. Pleading or motion is grounded in fact and warranted by existing law or good faith effort change existing law 3. Pleading or motion is not interposed for improper purpose

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56
Q

Testate

A

Die with valid will

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57
Q

VTCA Time Limitations

A
  1. Notice of claim must be given within one year; 2. Can’t file suit until within six months of notice or when the claim is denied, whichever is sooner; and 3. Suit filed no later than 18 months from filing of the claim or within two years after cause of actions accrues
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58
Q

Cross-claim

A

Must involve subject matter growing out of matter pleaded in complaint

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59
Q

Anti-lapse with Multiple Beneficiaries

A

Treated like a class gift - if beneficiary not covered by anti-lapse predeceases testator, then the rest goes to surviving beneficiary

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60
Q

Impeachment by Specific Incidents

A

Can’t use past conduct at all to attack the credibility of the witness

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61
Q

Child Born after Will

A
  • No other children, get whatever intestacy provides - Other children - get whatever is greater, intestacy or what was left to other child in will
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62
Q

Personal Property

A

Moveable items

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63
Q

Lost Property

A

Belongs to finder except for as to original owner

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64
Q

When can you appeal from GDC to circuit court?

A

Only when a final order or judgment has been issued. If money claim, must be more than $20

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65
Q

Nolo Contendere Pleas

A

Admissible in subsequent civil cases arising out of the same occurrence

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66
Q

Merchant’s Firm Offer Elements

A
  • Words of firmness - In writing - Authenticated by the merchant
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67
Q

UCC Contracts SOL

A

4 years

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68
Q

What can’t be done in general district court?

A

Jury trials

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69
Q

Forum Selection Enforceability Test

A

Valid unless: Unfair or unreasonable; or Fraud or unequal bargaining power

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70
Q

Paternity Evidence Requirement

A

Clear and convincing

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71
Q

Summary Judgment for Compensatory Damages

A

Trial court can’t consider discovery depositions unless all parties agree

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72
Q

Partnership Decisions

A
  • Ordinary business decisions - majority - Special business decisions (like amending partnership agreement) - all partners
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73
Q

Involuntary Manslaughter

A

Unintentional killing in commission of crime that is not a felony or other act of criminal negligence

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74
Q

Writ of Fieri Facias (execution)

A

Used to get personal property judgments

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75
Q

Criminal Jurisdiction

A

County or city where crime wholly or partially took place

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76
Q

Right to Cure UCC

A

Have right to cure within the contract time

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77
Q

Polygraph Evidence

A

Never admissible in VA

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78
Q

Products Liability

A

No strict liability in VA

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79
Q

Objection to Commissioner in Chancery Report

A

Must be made within 10 days of filing of report

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80
Q

Felony Homicide

A

Unintended killing during the commission of a felony - counts as second degree murder

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81
Q

Judicial Separation/Divorce from Bed and Board/Divorce a mensa et thoro

A

Marriage still exists: - no division of property obtained after marriage - neither party can remarry

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82
Q

Lapse

A

Gift in a will to a deceased benificiary

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83
Q

Specific Jurisdiction

A

Sufficient minimum contacts

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84
Q

Defense to Bigamy

A
  • Spouse of first marriage has been absent for seven years and not known to have been living in that time; - Remarrying spouse reasonably believed in good faith that spouse is dead; or - The first marriage was void
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85
Q

Specific Restitution

A

May be available when permitting def to retain property would result in unjust enrichment

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86
Q

Revocation under UCC

A

Based on substantial impairment - occurs after acceptance

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87
Q

Duty to Licensees

A

No duty to protect from open and obvious dangers

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88
Q

Financing Statement

A

Must have: - Debtor’s name; - Name of secured party; and - Collateral covered by financing statement

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89
Q

Term of Director

A

No more than three years

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90
Q

Default LLC Management

A

Member-managed

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91
Q

Negligent Supervision

A

In VA, no cause of action based on a duty by an employer to supervise employee

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92
Q

Divorce from Felony

A

Sentence of confinement for more than one year, unless cohabitation continues after knowledge of confinement

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93
Q

Robbery

A

Larceny + violence or intimidation

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94
Q

UCC Modification of Contract

A
  • Consideration not required - In good faith - SOF if agreement as modified needs it - Parties may prohibit oral modification
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95
Q

Motion to Strike

A

Used to challenge the sufficiency of defensive pleading

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96
Q

Supplementation/Explanation of Agreement UCC

A
  • Consistent additional terms (if not completely integrated); - Course of dealing on earlier occasions; - Use of the trade or business; or - Course of performance
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97
Q

Ultimate Issue

A

Expert can testify to ultimate issue in civil but not criminal

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98
Q

When Writing is Not Required for UCC

A
  • Goods specifically made for buyer - Goods unsuitable for any other buyer in ordinary course of seller’s business - Seller makes substantial beginnings in manufacture OR makes commitments for its purchase
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99
Q

Accessory after the Fact

A

Knows felony has been committed and helps afterwards - not subject to same punishment as principal

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100
Q

How to Determine Priority

A
  • Identify status of each claimant; then - Apply appropriate priority rule
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101
Q

Circuit Court Default

A

No responsive pleadings within 21 days of service

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102
Q

Second Degree Murder

A

All other murders that aren’t capital or first degree

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103
Q

Elective Share (Augmented Estate)

A

Amount claimed by surviving spouse regardless of whether spouse was provided for in will or decedent died intestate

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104
Q

Elective Share for Death on or after Jan. 1, 2017

A

1/2 of the value of the marital property portion of the augmented estate

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105
Q

Private Nuisance

A

Substantial, unreasonable interference with another individual’s use or enjoyment of their property

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106
Q

Virginia Frivolous Claims

A

Reporting lawyer does NOT have to give notice and provide chance to remedy before filing frivolous claim complaint

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107
Q

GDC Judgment Enforcement SOL

A

10 years

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108
Q

Catch-All SOL

A

2 years

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109
Q

Risk of Loss (Real Property)

A

Risk falls on buyer after contract of sale

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110
Q

Attachment of Security Interest

A
  • Value has been given be secured party; - Debtor has rights in the collateral; and - Debtor has authenticated a security agreement that describes the collateral, or secured party has possession/control of collateral
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111
Q

Termination of Partnership

A
  • Dissolution - Winding up
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112
Q

Dead Man’s Statute

A

Party with financial interest in outcome of proceeding cannot testify about communications with person whose estate is at issue if testimony is adverse to the estate

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113
Q

Grounds for Judicial Separation

A
  • Cruelty and reasonable apprehension of bodily injury - Abandonment - Willful desertion
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114
Q

Types of Undertakings that Can Be in Negotiable Instrument

A
  • Power to give, maintain, or protect collateral - Authorization to confess judgment or realize on dispose of collateral - Waiver of any legal benefit intended for the advantage of the obligor
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115
Q

Debtor

A

Person who has an interest, other than the security interest, in the collateral

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116
Q

Right of Survivorship for Joint Tenancy

A

VA requires express language to establish right of survivorship

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117
Q

Two types of venue

A

Preferred (Class A) Permissible (Class B)

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118
Q

Uniform Disposition of Unclaimed Property Act

A

Property is assumed abandoned if rights aren’t asserted within 5 years

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119
Q

Escheat

A

Property of estate goes to Commonwealth if there are no surviving kin

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120
Q

Slayer Statute

A

Bars inheritance to slayer of decedent if: - Convicted of murder or voluntary manslaughter of decedent - Shown by preponderance of evidence to have committed murder or voluntary manslaughter

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121
Q

Disclaimer

A
  • Must be in writing; - Declare the act of disclaiming and describe the interest disclaimed; and - Must sign and deliver to executor of estate
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122
Q

Defendant Person Under Disability

A

Gets GAL

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123
Q

Tortious Injury to Personal Property SOL

A

5 years

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124
Q

Burglary

A

Breaking and entering with intent to commit felony or larceny

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125
Q

De Facto Corporations

A

Not recognized in VA

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126
Q

Fair Dealing Test

A
  • Would have been approved by disinterested board of directors; or - Whether same result would have been accomplished between two parties of same bargaining power and not under duress
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127
Q

Vicarious Liability

A
  • Agent is an employee; and - Agent commits tort within the scope of employment
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128
Q

Notice of Withdrawal of Representation

A

Clients must be given reasonable notice before lawyers withdraws

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129
Q

Rejection under UCC

A

Based on perfect tender rule - buyer must: - notify seller in reasonable time - notify seller of particular defect - hold the goods for a reasonable time

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130
Q

Work Product Discovery

A

Discoverable only if shown that there is a substantial need

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131
Q

Accession

A

Adding value to property through labor or adding new materials

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132
Q

Gift Causa Mortis

A

Donative Intent, delivery, acceptance, donor’s anticipation of imminent death

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133
Q

Unilateral Mistake

A

NOT grounds for reformation or recission

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134
Q

Prenups

A
  • No consideration needed - Valid upon marriage
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135
Q

Negligence of Children

A
  • Irrebuttable presumption that child under 7 is incapable of negligence - Rebuttable presumption that child bewteen 7 and 14 is incapable of negligence
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136
Q

Declaratory Judgments

A
  • Jurisdiction in circuit court - Must have real live controversy - Not ideal for a mature action
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137
Q

Annulment for Felony Conviction

A

Only when: - Conviction predates marriage; and - Party seeking annulment was unaware of the conviction at the time of marriage

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138
Q

Gifts Made in Contemplation of Marriage

A

Conditional gifts - can have actions to recover

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139
Q

Goods under UCC in Virginia

A

Animals, including unborn offspring, count as goods

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140
Q

Irresistible Impulse Test

A

Def so mentally impaired that they can’t control actions

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141
Q

Offer in VA

A

Only if person to whom it is communicated could reasonably interpret it as an offer

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142
Q

Lis Pendens

A

Used to give notice to the world that an action is presently pending, which may affect title to land - can’t be filed until action is actually pending in court with authority to affect change to title

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143
Q

Notice of Appeal

A

Must be filed within 30 days of entry of final order

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144
Q

Merchant’s Firm Offer

A

When merchant signs written offer giving assurances that offer will be available for a certain period of time - irrevocable for a period of up to three months without consideration

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145
Q

Ejectment

A

Deals with title to land - plaintiff must win by strength of their title, not the lack of def’s title

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146
Q

Joinder after Removal

A

If joinder would destroy SMJ, then court has discretion to deny or permit and remand

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147
Q

Secured Party

A

Party in whose favor the security interest is created (like person who loaned money)

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148
Q

Remittitur

A

Judge rules plaintiff must accept lower damages or judge will order new trial

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149
Q

Waiver of Conflict of Interest

A

Consent after consultation

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150
Q

Elective Share for Death before Jan. 1, 2017

A
  • If decedent left children, 1/3 of augmented estate - If decedent left no children, 1/2 of augmented estate
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151
Q

Independent Contractor

A

Can also be referred to as a “non-employee agent”

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152
Q

Testamentary Fraud

A
  • Wrongdoer misrepresented a material fact to the testator; and - Wrongdoer intended to deceive in order to influence the testator to make a disposition they would not otherwise have made
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153
Q

Incorporation by Reference

A
  • Paper must have been in actual existence at the time of the will; - The face of the will must indicate that the paper is in existence at the time; and - The paper must be identified and described within the will
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154
Q

How to Perfect Right to Sue in Derivative Suit

A
  • Have standing; - Written demand on corp; and - Wait until demand is rejected or 90 days pass
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155
Q

Types of Found Property

A

Lost, Mislaid, Abandoned, Treasure Trove

156
Q

Types of Injunctions

A
  • Against prosecution, by lawsuit, of an action; - Compel or prohibit any other act or proceeding; and - Ancillary relief in a suit for another main purpose
157
Q

Resident Agent

A

Either: - Director or officer of the corporation; or - Member of the VA state bar

158
Q

What happens if served improperly?

A

If it reaches person in time, the service will be good, except in divorce and annulment.

159
Q

Divorce with Tenancy by Entirety

A

Coverts to tenancy in common

160
Q

M’Naghten Test

A

Def doesn’t know nature and quality of act or wrongfulness of act

161
Q

Specific Performance UCC

A

When goods are unique

162
Q

Abandonment and Willful Desertion Requirements

A
  • Leave cohabitation; and - Intent to desert
163
Q

Voting Trusts

A
  • Trustee votes on behalf of shareholders - Duration must be in agreement - If made before July 1, 2015, ten year duration.
164
Q

Superseding Cause

A

An intervening cause is a superseding cause only when it completely supersede’s the def’s actions, such that the intervening cause alone caused the injury

165
Q

VA Unconscionability

A

No one in their right mind would make or accept the offer - inequality shocks the conscience

166
Q

Duty to Return Papers and Property

A

Client papers and property must be returned upon withdrawal EVEN IF those papers are work product and client hasn’t paid.

167
Q

General Jurisdiction

A

Home state

168
Q

Merchant

A

Person who deals in the same kind of goods involved in the transaction or holds themselves out as one with special knowledge or skills concerning the goods in the transaction

169
Q

Prohibitory Injunction

A

Forbids def from engaging in harmful or illegal conduct

170
Q

Draft (Bill of Exchange) Definition

A

Three-party negotiable instrument in which drawer orders the second party (drawee or payor) to pay a sum of money to a third party payee - key word “order”

171
Q

Emancipation

A
  • Minor entered into valid marriage; - Minor willingly lives separate and apart from parents and is capable of managing affairs; - Minor is on active duty with armed forces; or - Minor desires to enter into marriage and requirements to do so have been met
172
Q

Transfer on Death Deed

A

Must be recorded before death at the circuit court and never revoked

173
Q

Permanent Injunction

A

Only granted after: - notice to adverse party; - posting sufficient bond except when not required by court; and - full hearing on the merits

174
Q

Adverse Possession of Personal Property

A

Same elements as real property; open and notorious more difficult to prove

175
Q

Physician-patient Privilege

A
  • Only available in civil cases - Not available if physical or mental condition of the patient is at issue
176
Q

Appeals of Right in Supreme Court

A
  • State corporation commission rulings - Death penalty cases where death sentence has been imposed
177
Q

Defect on City Property

A

Must give city notice of the defect - can be constructive notice if the defect lasts long enough

178
Q

How to Take Instrument as Holder

A

Issuance or negotiation

179
Q

Anti-lapse Statute

A
  • Applies when deceased beneficiary is a grandparent or descendant of a grandparent of the testator
180
Q

Absence of Price Term by Fault of One Party

A

Other party can cancel contract or fix a reasonable price

181
Q

Parent’s Claim for Infant Injury SOL

A

Means expenses for trying to cure injury - 5 years

182
Q

Conveyance Made with Intent to Hinder Creditors

A

Void unless goes to bona fide purchaser

183
Q

Virginia Tort Claims Act (VTCA)

A

Waives immunity for state employees but NOT local governments’ immunity

184
Q

When to refile after nonsuit

A

Within six months of nonsuit or within the original SOL, whichever is later

185
Q

Parol Evidence UCC

A

No extrinsic evidence of prior agreement or contemporaneous oral agreements

186
Q

Merchant’s Confirmation Memo

A

When merchant sends written confirmation of oral agreement for SOF agreement - if recipient has reason to know of agreement and doesn’t object w/in 10 days of receipt, agreement is binding

187
Q

Ambiguities in Wills

A

Extrinsic evidence is always admissible to determine meaning except for what testator said as to their testamentary intentions

188
Q

Types of Gift Delivery

A

Manual, constructive, symbolic

189
Q

Conspiracy

A

Virginia does not require an overt act.

190
Q

Sale

A

Contract under which the title to goods passes from the seller to the buyer for a price

191
Q

Prior Inconsistent/Consistent Statement

A

Used for impeachment/rehabilitation, rather than being related to hearsay

192
Q

Statutory Defenses to Adultery

A
  • Voluntary cohabitation after knowledge of fact - Act occurred more than five years before filing of the suit - Procurement or connivance of alleging party
193
Q

Termination of Spousal Support

A
  • Remarriage - Death - Cohabitation
194
Q

Treasure Trove

A

Not recognized anymore and regular found property rules apply

195
Q

Burden of Proof for Fraud Claim

A

Clear and convincing

196
Q

Anti-lapse with Class Gifts

A

If not to grandparents, ant-lapse does not apply and only goes to the surviving beneficiaries

197
Q

Laches Rules

A
  • Applies only to equitable claims with no set SOL - Plaintiff must have knowledge of rights - A legal disability excuses delay unless there was fiduciary - Raised by please of laches, an affirmative defense
198
Q

Equitable Estoppel

A
  • Representation by party to be estopped; - Reliance on the representation by other party; - Change in position by the other party; and - Detriment suffered by the other party
199
Q

VTCA Liability Limit

A

$100,000 or applicable insurance coverage, whichever is greater

200
Q

Pleadings Under Oath

A

If pleading that should have oath doesn’t, other party must object within 7 days or they waive right.

201
Q

Felony Murder

A

First degree murder committed during the commission of a felony

202
Q

Elective Share Claim

A

Must be made within 6 months of admission of will to probate or qualification of administrator of estate

203
Q

Uniform Statutory Rule Against Perpetuities

A

Wait and see rule - don’t impose rule as long as interest does actually vest within 90 years

204
Q

Fraud or Duress of Marriage

A

Voidable if fraud goes to essence of the marriage

205
Q

Money Damages Fraud SOL

A

2 years

206
Q

Unclean Hands

A

Plaintiff can be denied equitable relief is they committed wrongdoing to def or the subject matter of litigation

207
Q

Mandatory Injunction

A

Requires affirmative action by def

208
Q

Qualification for Executor or Administrator

A

Legally competent and over 18 that gives the oath to: - Faithfully perform duties to the best of their judgment; - If there’s a will, that the writing is the decedent’s true last will; and - If intestacy, the decedent left no will

209
Q

Family Allowance, Exempt Property, and Homestead Allowance

A
  • Must be claimed within one year of decedent’s death - Can be waived
210
Q

Execution of Tangible Property Jugdment

A

Sheriff levies and sells property

211
Q

Principal in the Second Degree

A

Present at crime and has same intent as principal

212
Q

Attested Will

A
  • In writing - Signed by testator, or proxy at testator’s direction and in their presence - Signed in the presence of at least two competent witnesses - Witnesses sign in the presence of the testator but not necessarily in front of each other
213
Q

Distress

A

Claim by landlord to recover rent by proceeding against tenant’s tangible property (GDC has exclusive jurisdiction)

214
Q

Obligor

A

Person who must pay/perform with respect to obligation that is secured

215
Q

Motion for Bill of Particulars

A

Motion that asks the court to compel the other party to provide factual details that form the basis of their pleading

216
Q

Quasi-bailee

A
  • Right to property except for against original owner
217
Q

Merger

A

Combination of two or more corporations such that only one corporation survives

218
Q

Remedies for Wrongful Deprivation of Personal Property

A

Detinue, trespass, and trover

219
Q

Wrongful Rejection

A

Says good aren’t conforming when they are and don’t correct mistake

220
Q

Venue for Estate Administration

A

In order: - Where decedent has house or known place of residence; - Where decedent owned real property that is devised or owned by the decedent; or - Where decedent dies or has personal property

221
Q

Written Contract SOL

A

5 years

222
Q

Opposing Party’s Statement (Admission)

A
  • Treated as hearsay exception - Can be conclusive if unequivocal
223
Q

Gifts Intended to Pass at Death

A

Can only be passed through will - cannot be gift causa mortis (which has to be delivered at the time)

224
Q

Dependent Relative Will

A

When testator intends to replace a revoked will with a new will but doesn’t, then the old will stands and replaces the new will

225
Q

Area that Bounds Property

A

When deed says property is bounded by an area, the owner may use that area (such as a road)

226
Q

Proof of Character

A

Reputation testimony but not opinion testimony

227
Q

Partnership Formation

A

At least two persons intend to carry on a business for profits as co-owners

228
Q

Insolvency

A
  • Party cannot pay its debts when due; - Party has ceased to pay its debts; or - Party has liabilities that exceed its assets
229
Q

PMSI Applies to

A

Only goods and software

230
Q

Demurrer Info

A
  • Can be filed before or with other responsive pleadings, but not after - Must be in writing and specifically state the grounds relied on
231
Q

Acceptance with Nonmerchants

A

Additional terms are treated as proposals for additions to the contract

232
Q

UCC Warranties

A
  • Warranty of Title - Warranty against Infringement - Express Warranties - Implied Warranty of Merchantability - Implied Warranty of Fitness for a Particular Purpose
233
Q

Prior Statement of Identification

A

Treated as hearsay exception in VA

234
Q

Cy Pres

A

Gift to charitable organization that no longer exists allows the court to reform the gift to carry out intent of testator

235
Q

Personal Injury SOL

A

2 years

236
Q

Court Reform of Will

A

Available when proved by clear and convincing evidence that both decedent’s intent and terms of the will were affect by mistake of fact or law

237
Q

Contradictory Terms in Negotiable Instrument

A

Handwritten over typewritten, words over numbers

238
Q

VA Consideration Rule

A

Legal detriment OR benefit can constitute consideration

239
Q

Anticipatory Repudiation UCC

A

Aggrieved party can await performance for commercially reasonable time or immediately seek remedies for breach

240
Q

Criminal Expert Opinion

A

Cannot be based on inadmissible facts (civil can)

241
Q

Default LLC Allocations of Profit/Loss

A

According to member’s contributions

242
Q

Evidence of Abuse

A

Relevant evidence of repeated physical or psychological abuse is admissible for crimes of personal injury or death, or attempted of either

243
Q

Gross Negligence

A

Utter disregard of prudence, amounting to neglect for safety

244
Q

Child Support Guidelines

A

Based on child receiving the same proportion of support as if parents continued to live together

245
Q

Proximate Cause

A

When the injury is the natural and probably consequence of the act and is foreseeable

246
Q

Shelter Rule for UCC 3

A

Gives rights of holder in due course to subsequent persons to whom the instrument is transferred to (except people that have committed fraud or illegality affecting the instrument)

247
Q

Accessory before the Fact

A

Not present for crime

248
Q

Survival

A

Survive decedent by 120 hours as shown by clear and convincing evidence

249
Q

Voluntary Manslaughter

A

No malice - heat of passion or sudden mutual combat

250
Q

Detinue

A

Claim to recover specific personal property and damages for the wrongful retention of the property

251
Q

No Right of Exoneration

A

Means that in VA devised property remains subject to any encumbrances

252
Q

Exclusion of Implied Warranties

A
  • “As is” language - Buyer’s inspection of goods
253
Q

Past Consideration

A

NOT accepted in VA

254
Q

Jury without the Right to One

A

Can be done with consent of all parties and judge

255
Q

Equitable Distribution Steps

A
  1. Determine ownership and worth of property 2. Determine whether property is marital or separate 3. Use statutory factors to determine how to divide 4. Award money and/or judgment
256
Q

Authenticated Security Agreement

A
  • Be in a record; - Contain description of collateral; and - Authenticated by debtor
257
Q

Additur

A

Judge rules that def must pay more or judge will order new trial

258
Q

Undue Influence for Wills

A
  • Testator suffered from weakness of mind when the will was made; - Testator named a beneficiary who stood in a relationship of confidence or dependence; and - Testator previously expressed intention to make a contrary disposition
259
Q

Annulment Equitable Distribution

A
  • Void - no support or distribution - Voidable - can have support and distribution
260
Q

Causation with Multiple Defendants

A

No substantial factor test - if each def’s actions could have been a factual cause of injury alone, then each action is treated as factual cause

261
Q

First Degree Murder

A

Willing, deliberate, and premeditated

262
Q

Unlawful Entry or Detainer

A

Deals with possession NOT title - recover rent/damages for wrongful detention of premises

263
Q

Exceptions to Marital Privilege

A
  • Spouses are adverse parties; - One spouse charged with crime or tort against the other; or - One spouse charged with crime or tort against the minor child of either spouse
264
Q

Nonsuit with Cross/Counterclaims

A

Cannot have nonsuit if there are cross/counterclaims unless judge allows separate adjudication

265
Q

Trespass Remedy

A

Recover monetary damages for lack of possession

266
Q

Absence of Price Term

A

UCC sets as reasonable price at the time of delivery

267
Q

Temporary Injunction Considerations

A
  • Is there an adequate remedy at law; - Irreparable harm w/o temp injunction; - Likelihood of plaintiff winning on merits; - Does the balancing of equities in the latter favor the plaintiff; - Is granting relief in the public interest?
268
Q

Out-of-state Divorce Decrees

A

VA gives full faith and credit, so long as other state had valid jurisdiction

269
Q

Codicil

A

Amendment of prior will - must be executed with the same formalities of the will itself

270
Q

Limit on Number of Depositions

A

None unless imposed by the judge

271
Q

Responsive Pleading in Circuit Court

A

Must be filed within 21 days

272
Q

Intrusion upon Seclusion and False Light

A

Not recognized in VA

273
Q

Note Definition

A

Two-party instrument in which the maker promises to pay a sum of money to the payee

274
Q

Equity Relief Available When

A

Adequate and complete remedy cannot be obtained through an action seeking damages

275
Q

Perfecting Security Interest

A

Required for secured party to have superior rights to collateral

276
Q

Benefit Corporation

A
  • Provides products or services to underserved/low-income individuals; - Preserving or improving the environment; - Improving human health; or - Conferring other benefit on society or environment
277
Q

Out-of-State Common Law Marriages

A

VA recognizes valid common law marriages created in states that recognize common law marriage

278
Q

Motion Craving Oyer

A

Asks to require document being sued on at the pleading stage

279
Q

Possibility of Reverter/Right of Reentry Time Limit

A

10 years after breach to commence action to recover

280
Q

Laughing Heir Statute

A

Allows relatives to inherit no matter how distantly related

281
Q

Physicians Duty of Care

A

Held to standard of other physicians in VA

282
Q

Exempt Property

A

Entitles surviving spouse to up to $20,000 in household furniture, automobiles, furnishings, appliances, and personal effects

283
Q

Special Warranty Deed

A

Seller only warrants that they have not created any defects in the title

284
Q

Exculpatory Clauses for Torts

A

Provisions that release form liability for personal injury by future negligence are prohibited

285
Q

Ways to Perfect Security Interest

A
  • Filing a financing statement - Possession of the collateral - Control over the collateral - Automatic perfection
286
Q

Requirements for Non-Compete Clauses

A
  1. No greater than necessary to protect legitimate business interests; 2. Not unduly harsh or oppressive in restricting ability to earn a living; and 3. Not against public policy
287
Q

Mandatory Withdrawal of Representation

A
  • Continued representation will violate ethics rules - Continued representation will violate law - The lawyer’s physical or mental health is impaired - The lawyer is discharged
288
Q

VA Recording Statute

A

Reads like a notice statute, but functions like race-notice

289
Q

Demurrer

A

Used to challenge the sufficiency of an aggressive pleading

290
Q

Adverse Possession Term

A

15 years

291
Q

When can you nonsuit?

A

Any time before: - a motion to strike has been sustained - the jury retires to decide the case, or - the action has been submitted to the court for a decision

292
Q

Plaintiff Person Under Disability

A

Must sue by their next friend

293
Q

Wrongful Dissociation

A
  • Breach of partnership agreement - Partner liable for any damage caused by wrongful dissociation
294
Q

Evidence for Adultery

A

Clear and convincing

295
Q

Motion to Transfer

A

Defendant can move to change venue. If Plaintiff doesn’t object, there is waiver. If Plaintiff doesn’t object, there is waiver.

296
Q

Attractive Nuisance

A

Repudiated in VA

297
Q

Ademption by Satisfaction

A

Much like advancement but only applies if - the will provides for deduction of lifetime gift; - testator declares in a contemporaneous writing that gift is satisfaction; or - devisee acknowledges in writing that gift is satisfaction

298
Q

Commissioner in Chancery

A

Appointed by circuit court for equitable matters to review evidence and do research and then submit a recommendation - recommendations are entitled to great weight by the court

299
Q

Execution of Intangible Property Judgment

A

Sheriff puts lien on property and garnishment enforces the lien

300
Q

UCC 9

A

Secured transactions

301
Q

Uniform Arbitration Act

A
  • Agreements to arbitrate are generally enforceable - Courts will compel arbitration is there is an agreement to arbitrate
302
Q

Reformation

A

Modification of contract based on failure of instrument to reflect intent of parties

303
Q

Process in GDC

A

Complaint, motion for judgment, or warrant

304
Q

Permission to Withdraw from Representation

A

If litigation is pending, must get court’s permission to withdraw.

305
Q

Holder in Due Course

A
  • Take the instrument as holder; - For value; - In good faith; and - Without notice of certain infirmities of the instrument or the transaction
306
Q

Wrongful Death SOL

A

2 years

307
Q

Inter Vivos Gift

A

Donative intent, delivery, acceptance

308
Q

Residential Lease Duty to Give Possession

A

Must be actual possession

309
Q

Duties of Secured Party

A
  • Duty of care - Duty to keep collateral identifiable - Duty to relinquish possession/control upon satisfaction
310
Q

VA Security Interest in Goods

A

Can’t take security interest in any other property besides goods sold

311
Q

General Lien

A

Lienor can retain debtor’s property until payment is made

312
Q

Negligence in Maintenance of Local Recreational Facilities

A

Local governments have immunity from negligence arising from the maintenance of pools, parks, etc.

313
Q

Post Trial Motions

A
  • JNOV or new trial - Within 21 days
314
Q

Disclaimer of Implied Warranty of Merchantability

A

Must include the word “merchantability”

315
Q

Holographic Will

A
  • Wholly in the writing of the testator (though can include typewritten words or writing of another); - Handwriting identified as that of testator by two witnesses; - Testator must sign or have someone sign for them; and - Must manifest testator’s intent of making a last and final disposition of their property
316
Q

Partial Intestacy

A

Die with will with an ineffective residuary clause

317
Q

Bailment Elements

A
  1. Bailee must physically possess property with intent to exercise control over it; 2. Bailee must consent to the bailment; and 3. Bailee must be aware that the property exists
318
Q

Collateral

A

Property subject to a security interest

319
Q

Good Faith for Merchants

A

Includes observance of reasonable commercial standards of fair dealing in the trade - objective test

320
Q

Quantum Meruit Requirements

A
  • Benefit conferred upon def by plaintiff - Def has knowledge of receipt of benefit - Retention of benefit without payment would be inequitable
321
Q

Loss of Consortium

A

No right of action in VA

322
Q

Willful Trespasser Accession

A

Cannot gain rights be accession

323
Q

Tolling of SOL

A

Commencement of action, not service, stops the running of SOL

324
Q

GDC Default Consequences

A
  • D waives all objections to admissibility of evidence - Def not entitled to notice of further proceedings (unless served by posting) - Court enters judgment for amount appearing to be due
325
Q

Part Four of Rules of Supreme Court

A
  • Includes pretrial procedures, depositions, and production at trial (aka discovery) - Applies ONLY to circuit court
326
Q

Circuit Court Judgment Enforcement SOL

A

20 years

327
Q

Duty of Competence

A

Includes negotiating as well as litigating

328
Q

Process in Circuit Court

A

Complaint with summons attached

329
Q

Modes of Service in Order

A

Personal service Delivery to family member Posting on door

330
Q

Abandoned Property

A

Must be intention of original owner to completely abandon

331
Q

Merger in regards to Land Sale Contracts

A

Land sale contract merges with deed and contract provisions go away - only if provisions are related to title

332
Q

Inadequate Capitalization

A

Not alone sufficient for piercing corporate veil

333
Q

Quorum for Directors

A

Majority of directors, unless otherwise provided in articles

334
Q

Apparent Authority

A

Applies to third party’s understanding

335
Q

False Imprisonment

A

VA defines as illegal restraint on another’s freedom - plaintiff shows prima facie case, and then def must show restraint was legal

336
Q

Good Faith in Sales

A

Applies to sellers and buyers - subjective test of behaving in a way they believe is honest

337
Q

Order Instrument

A

Payable only to the person named on the instrument

338
Q

Advancements

A

Substantial gifts from the decedent to the heir within the decedent’s lifetime - deducts from what heir receives through intestacy

339
Q

Negotiability Requirements

A
  • Writing, signed by maker/drawer; - Unconditional promise or order; - To pay a fixed amount; - To order or bearer; - Payable on demand or at a definite time; and - Without stating any additional undertaking or instruction
340
Q

Punitive Damages for Torts

A

Available if def acted with actual malice or willful and wanton disregard

341
Q

Appellate Review of Equitable Actions

A

Abuse of discretion

342
Q

Bill of Review

A

Reviews final orders if: - error of law; or - newly discovered evidence

343
Q

Administrator CTA

A

When will doesn’t name executor, court appoints administrator CTA

344
Q

Time to Go from Judicial Separation to Absolute Divorce

A

6 months/1 year depending on regular rules

345
Q

Disclaimer of Warranty of Fitness for a Particular Purpose

A

Must be in writing with conspicuous langauge

346
Q

Surface Water Rule

A

Modified Common Enemy - can put out water but can’t needlessly or negligently injure property of another

347
Q

Jury Verdict

A

Must be unanimous

348
Q

Minimum Child Support Obligation

A

$68/month

349
Q

VA Partial Impracticability

A

Seller may allocate goods in any manner that is fair and reasonable

350
Q

Voting Agreements among Directors

A

Unenforceable

351
Q

Acceptance by Conduct under UCC

A

Will create a contract even if one had no existed

352
Q

Temporary Injunction Factors

A
  • Plaintiff does not have an adequate remedy at law; - Plaintiff will likely succeed on the merits; - Plaintiff will likely suffer irreparable harm without relief; - Balance of equities in plaintiff’s favor; and - Relief is in the public interest
353
Q

Conflict between Former and Current Clients

A

Conflict exists if interests are directly adverse or there is a substantial relationship between the representations

354
Q

Equitable Actions

A

No jury

355
Q

Violation of Sanction Statute

A

Court must issue sanction against party

356
Q

Quorum for Shareholders

A

Can be stated in articles but cannot be less than 1/3 of eligible votes

357
Q

Elements of Agency Relationship

A
  • Principal manifests assent to agent; - Agent acts of principal’s behalf; - Agent’s actions are subject to principal’s control; and - Agent manifests assent
358
Q

Appeals of Right to Court of Appeals

A
  • Final decision of circuit court reviewing agency action - Workers’ Compensation Commission rulings - Circuit court decisions on domestic relations - Interlocutory decrees in any of the above (has to be something affecting final outcome of case, so not pedente lite for ex) - Civil contempt
359
Q

Voluntary Intoxication

A

Not a defense unless couldn’t have deliberation and premeditation

360
Q

Joinder of Causes of Action

A

Litigant can bring multiple causes of action, contract and tort, even if inconsistent, so long as they arise out of the same transaction or occurrence.

361
Q

Easement by Prescription Term

A

20 years

362
Q

Larceny

A

Taking of property by trespass with intent to permanently deprive person of property

363
Q

Cover

A

Cost of replacement less contract price - must reasonable, in good faith, and without unreasonable delay

364
Q

Knock-out Rule

A

If the terms in offer and acceptance conflict, the terms are excluded from the contract - gap-filler provisions fill in anything missing

365
Q

No Service within One Year (without due diligence)

A

Action dismissed with prejudice

366
Q

Administrator in Intestacy

A

Administrator is selected from heirs

367
Q

Waiver of Objections to Jurisdiction and Service

A

Participating in the adjudication of the merits of the case

368
Q

Types of Negotiable Instruments

A

Notes and drafts

369
Q

Sustained Demurrer

A

Plaintiff can seek leave to amend

370
Q

Duty of Care for Common Carriers and Inkeepers

A

Utmost duty of care to protect customers and guests from personal injury

371
Q

Conditional Bailment

A

Owner gives bailee property for specific purpose

372
Q

Acceptance with Both Parties Merchants

A

Additional terms are automatically included unless: - They materially alter the original contract; - The offer expressly limits acceptance to the terms of the offer; or - Offeror has already objected to the additional terms or objects within a reasonable time

373
Q

Employment Contracts

A

Presumed to be at-will

374
Q

Trover Remedy

A

Value of property AND damages for lack of possession

375
Q

Contract Actions with Law of Another State SOL

A

Whichever SOL is shorter, Virginia’s or other state’s

376
Q

Recission

A

Unmaking of contract - back to square one

377
Q

Prospective Partners

A

No fiduciary duties - only regular contractual obligations of honesty and no fraud

378
Q

UCC Article 3

A

Commercial paper/negotiable instruments

379
Q

Biological Father Determination of Child Born Out of Wedlock (for wills)

A
  • Biological parents participated in a wedding ceremony before or after birth - Paternity established by clear and convincing evidence
380
Q

Sexual Abuse SOL

A

20 years IF occurred during infancy or incapacity

381
Q

Conspiracy to Induce Breach of Contract

A

VA recognizes this tort - requires agreement between two people

382
Q

Criminal Conviction

A

No time limit on convictions used for impeachment purposes

383
Q

GDC Default

A

Nonappearance by defendant

384
Q

Specific Lien

A

Holds only specific property

385
Q

Bearer Instrument

A

Payable to whoever possesses the instrument: - Payable to “bearer”; - No payee is identified; or - Made payable to “cash”

386
Q

Choice-of-Law Selection Enforceability Test

A

Apply choice of law b/c reasonably related to the purpose of the agreement (procedural rules of forum still apply)

Virginia Bar Exam - Edited Set (Full) (24 decks)

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