VIRGINIA EXAM RULES Flashcards
BIZ Closely held corporation
A closely held corporation is a corporation with only a few shareholders that in some states has distinctive characteristics. In Virginia, it does not represent a distinvely separate corportate form from a regular corporation.
BIZ Corporation distributions
Under Virginia law, a distribution when the corporation is insolvent are wrongful. A corporation is considered insolvent for these purposes if its debts exceed its assets, or if making the distribution will prevent the corporation from meeting its liabilities. This rule holds true at any point in a corporation’s life, including during the winding up period after termination of the corporation.
BIZ
Director liabiity
Excess distributions
Under securities law, directors are liable for wrongful distributions. If a director votes against or abstains from the vote on an illegal distribution, he/she will not be personally liable. While directors who approve illegal distributions can be held personally liable to the extent such distributions are illegal, they have the right seek indemnification by disgorging such illegal distributions from the shareholders who received them.
BIZ BOD
liability defences
A director may avoid liability for corporate decisions by objecting to the action at the meeting at which the decision is made, and by abstaining or dissenting from the action.
BIZ BOD
Director liability
Virginia follows the rule of joint and several liability with the right of contribution. Joint wrongdoers are liable severally for their share of the judgment and jointly for the entire amount, subject to the right of contribution.
BIZ GP duty of loyalty
General partners owe a fiduciary duty of loyalty to the partnership. The duty of loyalty forbids secret self-dealing with the corporation by the GP.
BIZ GP/LP
Definition
A limited partnership is an entity which limits the liability of the limited partners to their contribution to or investment in the partnership. In sharp contrast, however, general partners within a limited partnership remain personally liable for the partnership’s organization, as with a general partnership.
CREDIT DISPUTE
Guarantor
A guarantor is liable on a particular obligation if he, for consideration, agrees to guarantee the loan.
A guarantor of collection is secondarily liable on the loan, while a guarantor of payment or a surety is primarily liable on the loan.
BIZ LP
Derivative action
Limited partners in a limited partnership are entitled to file a derivative action to protect the rights of the partnership at large. In order to do so, the limited partners must have been limited partners both at the time of the alleged occurrence or transaction and at the time of the institution of the suit. They must also demonstrate that they made a demand upon the general partners to defend the partnership’s rights with regard to that particular transaction and that such a demand failed, or demonstrate why such an action would have been likely to fail if brought. If successful, the recovery from the derivative suit goes to the partnership itself, although the partners can recover reasonable fees and expenses from the partnership.
BIZ LP
Liability of limited partners
in general, a limited partner is generally not personally liable for the obligations of the partnership, and is liable only in the amount of their contribution to the partnership.
A limited partner becomes personally liable, however, if he exercises dominion or control over the affairs of the partnership; in such cases, the limited liability ceases to exist.
The limited partner, however, only becomes personally liable to third parties who reasonably believed that he was a general partner and entered into transactions on such a basis.
BIZ Partnership defintion
In Virginia, a partnership is an association of two or more persons to carry on as co-owners a business for profit formed under Virignia law, or comparable law of another jurisdiction, and includes, for all purposes of the laws of this Commonwealth, a registered limited liability partnership.
BIZ Partnership liability in general
in Virginia, a partnership, whether a general partnership, a limited liability partnership, a registered limited liability partnership or a PLLP , the partnership has the ability to sue and be sued as well as the individual partners.
BIZ Partnership Liability PLLP
Virginia law also recognizes professional limited liability partnerships in which professionals may form a partnership for purposes of providing professional services and an individual may limit their exposure to the malpractice of other individual partners in the professional partnership. The individual does not limit their liability with respect to their own malpractice. When converting from a general partnerhsip to a PLLP, a former general partner may only limit their personal liability prospectively from the time that the PLLP is formed. Finally, in Virginia, a partnership, whether a general partnership, a limited liability partnership, a registered limited liability partnership or a PLLP has the ability to sue and be sued.
BIZ Liabiilty
Piercing Corporate Veil
Requirements
Under Virginia law, the stockholders and directors of a legal corporation may not be held personally liable for the obligations of the corporation unless:
(1) they agreed to be held liable;
(2) they caused the obligation by their own tort; or
(3) there are grounds for piercing the corporate veil and holding the stockholders liable.
Grounds for piercing the corporate veil include:
(a) abuse of the corporate structure and formalities such that the corporation is merely an alter-ego of one or more of the stockholders;
(b) undercapitalization of the corporation against foreseeable liabilities at the outset of its formation; or
(c) to otherwise prevent the stockholders from using the corporation to commit a fraud or other bad act.
BIZ AGENCY
Principal Agent Relationship
In order to have an agency relationship there must be
(i) assent of the parties to be in the relationship;
(ii) a benefit to the principal; and
(iii) control excercised by the principal over the agent.
BIZ CORP
Shareholder liability
A corporate creditor can enforce its claim against shareholders personally up to the amount of corporate assets distributed illegally to the individual shareholder.
BIZ PARTNER Liability
Who to sue
With a general partnership, all of the individual partners are liable as well as the partnership.
With limited liability partnerships, the individual tort feaser partner can be sued as well as the partenrhship
CON Does adding an arbitration clause materially alter a contract?
A Catholic University Law Review article of a half dozen cases in 2016 found that there was a slight bias towards consiering non-material, but the general rule is better described as it is a matter of facts and circumstnatc,es, heavily influenced by industry standards and local business preferences.
CON Elements of consideration
Promisee must suffer legal detriment
Detriment must induce promise
Promise must induce detriment
CONT FORM
Consideration
Forms of legal detriment
Performance
-Doing something not legally obligated to do
Forbearance
- Not doing something legally allowed to do
Promise to perform
Promise to forbear
CONTRACT
Illusory Promise
What is an illusory promise?
Does it constitute consideration in exchange for another promise?
It is a promise in form, but not in substance
It is not consideration for the other promise
E.g., I will buy your house if I decide I want it
CONTRACT SOF
What makes a surety contract subject to the statute of frauds?
A surety contract comes under the statute of frauds if it is a promise to the creditor (not the debtor) regarding a debt that is over $500 and does not come due for more than one year (not a promise to pay immediately)..
CON FORM
What is the rule regarding moral obligations and consideration?
Modern approach (not in Virginia)
A moral obligation is not a substitute for consideration unless:
- The promisor requested the act
- The promisee expected to be paid
Traditional approach (Virginia)
A moral obligation is not a substitute for consideration
CONT FORM
What is the rule regarding past consideration?
Past performance is not valid consideration to create an enforcible contract. An agreement based upon past performance is an unenforceable gratuitious promise
CONTRACT
When can acceptance be done by mail?
When is it effective?
Acceptance by mail is reasonable if:
- Offer is by mail
- Customary in similar transactions at time and place
Acceptance by mail is effective when posted (i.e., dropped in mailbox)
(Mailbox rule)
CONT CONSIDER
When is consideration adequate?
Courts generally do not inquire to the adequacy of consideration
If the consideration is grossly inadequate, there may be some flaw in the bargaining process, such as:
Fraud
Duress
Incapacity
CONT FORM
Who lacks capacity to contract?
Infants (minors)
- Persons under 18 years old
Mental incompetents
Person who is either:
- Unable to understand in a reasonable manner nature and consequences of transaction
- Unable to act in a reasonable manner in relation to the transaction
Intoxicated persons
- Other party has reason to know that by reason of intoxicationt the person is unable to either:
- Understand in a reasonable manner nature and consequences of transaction
- Act in a reasonable manner in relation to the transaction
CONT FORM FORM
How does a party reject an offer?
Expressly
Counteroffer (but not mere bargaining)
Conditional acceptance
Acceptance with additional terms (but not under UCC)
Acceptance with conflicting terms (but not under UCC)
CONT FORM
Is an advertisement an offer?
Generally, no.
Exceptions:
An advertisement is an offer if it: Is specific to quantity Indicates who can accept An advertisement is an offer it it: Is in the nature of a reward
CONT FORM CONDITIONS
a “true condition”
A condition that is outside the control of either party
CONT FORM
Accepting an offer
By performance or promise
Performance
- Unilateral contract - performance must be complete
- Bilateral contract - performance must begin
Promise to perform
CONT DISPUTE
Allowable parole evidence
Using the earlier agreement to:
- Explain the writing
- Establish a defense
- Show the writing wouldn’t be effective until a condition is met
- Add to a writing that is only partially integrated
CONT UCC
Are leases covered by the UCC?
Yes, Article 2A
CONT LEASE WARRANTY
Are leases subject to the warranty of fitness for a particular purpose
Yes
CONT UCC
Resolution of differing terms
Battle of forms in UCC
8.2-207(b)
CONT FULFILL
Buyer liabiity for rejected good
Must be held “with reasonable care” until returned
CONT DAMAGE
Can a breaching party recover under quasi-contract?
Majority view
YES, if:
Not a willful breach
For the party’s own convenience and financial advantage
Minority view
NO
CONT DISPUTE
Can a contract ever be enforced against a minor?
Yes, under the quasi-contract theory if the contract is for necessaries - i.e., items that the minor needs in order to live
Whether soemthing is a necessary is a question of fact
CONT DISPUTE
Can a court fill in vague or material terms in a contract?
No. Both common law and the UCC this makes the contract insufficiently definite and clear
CONT ASSIGN
Can an obligor continue to pay the assignor after an assignment?
What if the assignment was gratuitous?
If he does so without notice of the assignment, obligor’s debt is discharged
If he does so with notice of the assignment, obligor still owes assignee
If assignment is gratuitous, acceptance of payment by assignor revokes assignment
CONT FORM
Can an offer be assigned?
No
Only the person to whom the offer was made, and they must be aware of it
So, the power to accept cannot be assigned
But, an option can be assigned unless it says otherwise
CONT DISPUTE
Can one get attorney’s fees in UCC litigation?
Rarely
CONT WARRANT
Can packaging create warranty
yes, mercantability warranty that item matches description
must conform to affirmations on container or label 8.2-313(2)(f)
CONT FORM
Can silence be acceptance?
Generally, no.
Exception:
When reasonable to interpret silence as acceptance based on prior course of conduct/past dealings
CONT DISPUTE
Can specific performance be invoked in requirements contracts?
Yes, if buyer does not have means to cover
Change to UCC 8.2-716
Alternatively position as detinue as identified goods
CONT ASSIGN
Can the obligor and assignor modify their contract if there is an assignment?
Yes, until obligor receives notice of the assignment
CONT ASSIGN
Can you assign your rights in a requirements contract?
Yes. This does not substantially change the duties of the obligor because you are inherently required to have reasonably proportionate requirements`
CONT DISPUTE
Can you retract anticipatory repudiation?
Yes, so long as the other party has not changes its position in reliance
CONT DISPUTE
Choice of law details
Contract where contract was made
Performance where performance occurred
In Virginia, shortest relevant SOL applies
CONT UCC DISPUTE
Claim for late delivery as substantial impairment
§ 8.2-612. “Installment contract”; breach.
(1) An “installment contract” is one which requires or authorizes the delivery of goods in separate lots to be separately accepted, even though the contract contains a clause “each delivery is a separate contract” or its equivalent.
(2) The buyer may reject any installment which is nonconforming if the nonconformity substantially impairs the value of that installment and cannot be cured or if the nonconformity is a defect in the required documents; but if the nonconformity does not fall within subsection (3) and the seller gives adequate assurance of its cure the buyer must accept that installment.
(3) Whenever nonconformity or default with respect to one or more installments substantially impairs the value of the whole contract there is a breach of the whole. But the aggrieved party reinstates the contract if he accepts a nonconforming installment without seasonably notifying of cancellation or if he brings an action with respect only to past installments or demands performance as to future installments.
!
CONT collateral agreement
Admissible despite the parole evidence rule
Either:
Agreement made for separate consideration
Agreement that would naturally be omitted from the writing under the circumstances (i.e., writing is only partially integrated)
CONT Condition precedent
A condition precedent is an event or state of affairs that is required before something else will occur. In contract law, a condition precedent is an event which must occur, unless its non-occurrence is excused, before performance under a contract becomes due, i.e., before any contractual duty exists.
CONT Condition subsequent
A condition subsequent is an event or state of affairs that brings an end to something else. A condition subsequent is often used in a legal context as a marker bringing an end to one’s legal rights or duties. A condition subsequent may be either an event or a state of affairs that must either (1) occur or (2) fail to continue to occur
In contract law:
A contract may be frustrated on the occurrence of a condition subsequent: in a contract to provide a music hall for a musical performance, the burning down of the music hall may frustrate the contract and automatically bring it to an end.
CONT FORM
Conditional gift
May not be a contract if donor gets no personal benefit - not a “bargained for exchange”
CONT FORM
Conditions precedent and subsequest`
Contracts may include conditions precedent, the non-occurrence of which excuses performance because the contract duty never arises, thus there can be no breach.
Conditions subsequent should be clear in the agreement of the parties. A party must act in good faith in seeking to bring about the condition subsequent, and it must be reasonable (that is, not a condition so unlikely as to make the promise illusory for lack of consideration)
CONT DISPUTE SOF
Consequence of failing statute of frauds defense
Can still argue no contract exists on other grounds
CONT DISPUTE SOF
Status of contract failing to satisfy statute of frauds
Contract is unenforcible but not illegal
CONT DAMAGES
Consequential damages
Any of the following resulting from the breach:
Injury to person
Injury to property
Lost profits
CONT Contract construction
Virginia will construe all the agreements to be a single contract. Virginia construe the contract pursuant to the rule that ambiguities in contracts are construed narrowly against the drafter, especially when the drafter is a commercial seller and the buyer is not.
CONT FORM
Contract fails for ambiguity
When:
- Parties use a material term open to at least two reasonable interpretations
- Each party attaches a different meaning
- Neither party knows or has reason to know of the other’s meaning
CONT DISPUTE
Contract fails for mistake
- Both parties are mistaken
- Regarding a basic assumption of fact
- That materially affects the agreement
- And is not a risk that either party bears
No relief if mistake is just as to value
CONT FORM
Contract formation vs change of entity
Different entity can accept offer
CONT DISPUTE
contract provides that all modifications have to be in writing - enforcible?
common law - no
UCC - yes
CONT DAMAGES
Damages when non-comforming goods are received
Buyer still entitled for losses after selling as best he can
CONT TERM
Death does not terminate what contracts?
Option contract
Part performance of unilateral contract
CONT WARRANT
disclaiming warranty of merchantability
requires explicit denial of merchantability
must be conspicuous
CONT FORM
Do you need a writing to rescind a contract subject to the statute of frauds?
Generally, not unless:
Land contract
Sales contract
CONT DAMAGES
Does a breach of one installment ever permit the buyer to reject the entire contract?
Only if the breach substantially impairs the value of the entire contract
E.g., one beer delivery has e coli so nobody would drink beer from that supplier
CONT DISPUTE
Does buying goods from a company in Virginia satisfy for personal jurisdiction
No. Due process minimum countacts is not satisfied by purchase alone.
CONT WARRANTY
Does the UCC warranty of merchantability apply to used goods
Yes -
CONT DISPUTE
Duress to void a contract
- Personal duress (e.g., gun to head)
2. Economic duress (e.g., caterer demands more money day before wedding)
CONT DISPUTE
Duty to disclose bad facts
Limited to:
Disclosure required by statute
Active concealment of negative fact
Partial disclosure would be misleading
Changed circumstances make previous assertion false
Party becomes aware that other party is operating under mistake as to a material fact
Confidential or fiduciary relationship
CONT WARRANTY
Effect of not ordering what is described
Voids claim of express warranty
CONT FORM
Elements of an offer
Identity of the offeree Subject matter Price to be paid Time of payment, delivery, or performance Quantity involved Nature of work involved
Not all essential
CONT FORM
Elements of quasi contract
P has conferred a benefit on D
P reasonably expected to be paid
D would realize unjust enrichment if P is not compensated
CONT SOF FORM
Elements to satisfy statute of frauds
Writing that contains:
- Identity of parties
- Description of subject matter
- All essential terms
- Signature by party to be charged
CONT SOF DISPUTE
Estoppel to plead statute of frauds
D told P he would draft agreement
P acted in reliance on this
CONT DAMAGES
Excuse for failure to cover
Seller’s promise of delivering soon
CONT WARRANTY
express warranty
Must be a basis of the bargain
Words
- Must have natural tendency to induce reliance
- Not mere puffing
Conduct
- Use of sample of model
CONT FORM
External sources contract terms
Custom and usage
Past dealings
UCC (if sale of goods)
CONT DISPUTE
Factors in parole evidence assessment
Merger or integration clauses
How complete it looks
How long negotiations were
Whether the parties had lawyers
CONT DISPUTE
Failure to reject after reasonable opportunity to inspect
Constitutes acceptance
CONT INTRO
First line in any UCC essay
XXXXX are moveable goods and thus UCC applies
CONT WARRANTY
Fitness for a specific purpose
Only holds if purpose adequately communicated
CONT FORM
Fraud in the factum
Misrepresenting document - void
CONT FORM
Fraud in the inducement
Lying about the contract contents or meaning or context - voidable
CONT WARRANTY
Gaining good title to stolen goods
Not possible.
No one in chain ever has good title
Good faith purchaser gets void title, not voidable title.
UCC 20-403(1)
CONT FORM UCC
Goods vs services
“Predominant purpose” test
Factors: Price of goods v. services Amount of labor involved Sophistication of labor Does contract contains typical sales language?
CONT ASSIGN
How can a gratuitous assignment be revoked?
Provided no exceptions apply:
- Directly
- Death of assignor
- Bankruptcy of assignor
- Acceptance of performance by assignor
- Subsequent assignment by assignor
So, last assignee under gift assignment wins
CONT WARRANTY
How can a limited warranty fail
Repeated failed attempts results in failure of essential purpose.
CONT DISPUTE
How do you determine whether a breach is material and therefore excuses the other party’s performance?
Did you basically get what you bargained for? If so, breach is only minor.
CONT DIPSUTE
How does a buyer reject goods?
Provide notice to the seller that is:
Timely (so seller can cure or preserve the goods)
Oral or written
CONT FORM
How does a party revoke an offer?
Statement to the offeree indicating an unwillingness to contract
Conduct of the offeror that is inconsistent with an intention to contract and
- the offeree is aware of the conduct
- Must be reliable
CONT FORM UCC
If a buyer continues using the goods after rejection, is that always an acceptance?
Yes, unless the use was necessary
CONT FORM
If a contract is silent as to what should be done first, what is the presumption?
Sale of goods
Each party’s performance is a constructive concurrent condition to the other
Service contract
Service is a constructive condition precedent to payment
CONT DISPUTE
If a seller’s inventory is partially destroyed, how does he decide which orders to fill with the remaining inventory?
What rights do the buyers have?
Allocate remaining inventory in a way that is fair and reasonable
Buyers can refuse to accept partial delivery, but they then have no breach of contract claim
CONT If before performance is due, a party says that he will not perform based on an erroneous belief that the other has breached, what is the result?
Anticipatory repudiation, so the other party is excused from performing and can sue for immediate damages
CONT UCC DISPUTE
If buyer fails to pick up goods
Under UCC, after a commercially reasonable time the seller is no longer entitled to price (but still has breach of contract claim)
CONT UCC DISPUTE
If buyer has the right to reject, what is the effect on risk of loss?
Risk remains on seller until either:
Defect cured
Buyer accepts despite defect
CONT UCC DISPUTE
If buyer rightfully revokes, what is the effect on risk of loss?
Risk is on seller to the extent of deficiency in buyer’s insurance coverage
CONT DISPUTE
Is delegation allowed if:
Contract prohibits delegation?
Contract prohibits assignment?
Yes
Yes - prohibition of assignment is prohibition of both assignment and delegation
CONT UCC DISPUTE ROL
If seller hasn’t shipped the goods, and buyer breaches, can risk of loss ever fall on buyer?
Only if seller has identified the goods (i.e., segregated them for delivery), risk is on buyer to the extent of deficiency in seller’s insurance coverage
CONT DISPUTE
Define illegal contract
Subject is illegal (goods)
Purpose is illegal (activity)
CONT UCC WARRANTY
Implied warranties of merchantability and fitness
Implied warranties of merchantability and fitness:
To disclaim
- -Must be conspicuous
- -Must mention either:
- – Merchantability
- – General language removing implied warranty
- — E.g., “as is”, “with all faults”
Exceptions
- Course of dealing, course of performance, trade usage
- Defects that should have been revealed by examination that seller demanded buyer undertake
CONT TPB DISPUTE
In a third-party beneficiary relationship, who can sue whom?
TPB can sue promisor
Promisee can sue promisor
Creditor beneficiary can sue promisee
But not regular TPB
CONT TPB
In a third-party beneficiary situation, who is the promisor and promisee?
Promisor - Person who renders performance that benefits TPB
Promisee - Person bargaining with promisor for TPB’s benefit
CONT UCC
In a UCC sale of goods contract, what can a party do if they are worried about the other’s performance?
- In writing demand adequate assurance of performance
- Suspend performance until assurance is received
- Treat as repudiation if assurance not received in 30 days
CONT UCC
In what form should the buyer make payment?
In the absence of agreement otherwise:
Buyer must pay by either:
Cash
Check
Seller can reject check, but must give buyer reasonable time to get cash
CONT UCC
Inconsistent terms under UCC
Must be between merchants
material differences knoock out
- defer UCC default
performance constitutes acceptance
CONT FORM OFFER
Is a price quotation an offer?
Only if it is sent in response to an inquiry
E.g., catalog sent after purchaser says, “I need ten of these, how much will you sell them for?”
CONT SOF DISPUTE
Is a promise to pay debt barred by the statute of limitations enforceable?
Only if it is written, and only to the extent of the new promise, and not the original balance due
CONT FORM
Is consideration required in a requirements contract
no
CONT DISPUTE
Licensing impact on contract
When the license is required to protect public welfare, the contract is illegal
When the license is required to raise revenue, the contract is not illegal
CONT FORM
Mailbox rule exceptions
Rejection mailed first, rejection received first
Acceptance is a counteroffer
Acceptance mailed first, rejection received first
If offeror relied on rejection, estoppel may apply
Option deadline
Acceptance must be received by deadline (i.e., mailbox rule does not apply)
CONT UCC WARRANTY
Manufacturer warranty exposure personal injury
Anyone who might reasonably be expected to:
Use
Consume
Be affected
CONT UCC WARRANTY
Manufacturer warranty liability for consequential loss
Only parties in privity
CONT FORM
What is offer at auction?
Effect of reserve price.
The bid, not the auctioneer asking for bids
An auction is with reserve unless the terms state otherwise
Auction without reserve
Auctioneer obligated to accept highest bid
CONT FORM
Partially vs fully integrated contract
Partially integrated - everything in here is final, but not everything is in here
Completely integrated - everything in here is final, and everything is in here
CONT FORM
Based on pre-existing duty
Common law
Performing a pre-existing duty is not consideration for a new promise unless:
- Duty owed to a third person (not promisor)
- Unforeseen difficulty renders performance vitally different than was was originally agreed upon
UCC Article 2
Additional consideration not required for modification if:
The party modifying acts in good faith
CONT SOF DEFENSES
Promissory estoppel statute of frauds
Modern trend
D estopped from raising statute of frauds if:
D makes oral promise to P
P acts in reliance on this
Virginia
NO PROMISSORY ESTOPPE
CONT UCC
Protection against arbitrary action
UCC standard of good faith and commercial fair dealing
CONT UCC DISPUTE
Punitive damages for breach of contract?
No
CONT UCC DISPUTE
Punitive damages under UCC
rare. only for willful or wanton conduct
CONT FORM
Quasi-contract in Virginia
Under Virginia law, to recover unjust enrichment or “quasi contract” damages, a plaintiff must show that:
(1) it conferred a benefit on the defendant;
(2) with the reasonable expectation of payment;
(3) the defendant knew or should have known of both the benefit conferred and the expectation of payment; and that
(4) allowing the defendant to accept or retain the benefit without paying for its value would be inequitable.
CONT UCC DISPUTE
Recovery purchase price (buyer)
§ 2-711. Buyer’s Remedies in General; Buyer’s Security Interest in Rejected Goods.
(1) Where the seller fails to make delivery or repudiates or the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract (Section 2-612), the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid
- (a) “cover” and have damages under the next section as to all the goods affected whether or not they have been identified to the contract; or
- (b) recover damages for non-delivery as provided in this Article (Section 2-713).
(2) Where the seller fails to deliver or repudiates the buyer may also
- -(a) if the goods have been identified recover them as provided in this Article (Section 2-502); or
- -(b) in a proper case obtain specific performance or replevy the goods as provided in this Article (Section 2-716).
(3) On rightful rejection or justifiable revocation of acceptance a buyer has a security interest in goods in his possession or control for any payments made on their price and any expenses reasonably incurred in their inspection, receipt, transportation, care and custody and may hold such goods and resell them in like manner as an aggrieved seller (Section 2-706).
CONT UCC DISPUTE
Rejection of non-conforming goods after sale
Acceptance can be revoked after discovery of defect in use
CONT UCC DISPUTE
Remedies avaiable when party fails to perform under requirements contract
Temporary injunction
Detinue with pre-trial seizure
CONT UCC DISPUTE Requirements
Seller protection rejected goods
Subject to statutory standard of good faith
Protects against arbitrary rejection of goods
SECURED
Requirements to create security interest
give value
debtor has rights in the collateral
possess collateral or hold an authenticated security agreement
CONT UCC DISPUTE
revocation of acceptance vs
compensatory damages
Can make claims under both.
This is a change from earlier times
CONT FORM
Revocation of public offer
Equally publicized retraction
SECURE
Rights superior to secured loan
Mechanics lien
up to $1,000 in Virginia
CONT SOF FORM
Satisfy statute of frauds by performance
Real estate specfic
In real estate: 2/3 of the following: - Full or part payment - Possession - Improvements
CONT Scope of Statute of Frauds
“MY LEGS”
Contract in consideration of marriage
Contract that cannot be performed within one year
Promise creating interest in land
Promise by executor or administrator to pay own funds
Contract for the sale of goods $500 or more
Promise to act as a surety for the debt of another
CONT UCC FORM
Shipment contract vs destination contract
Which is default?
know this
shipment is default
CONT FORM
Signature by email
Uniform Electronic Signatures Act
federal E-sign act
SECURE
Signature requirement for financing statement
Only the lender, not borrower.
It is a notice (statement), not a right (loan)
CONT SOF FORM
Significance of custom goods
Seller has no re-sale recourse Requires - oral order - custom product - performance
CONT SOF FORM
Marriage contracts covered by SOF,
Must be a promise in consideration of marriage (not just a promise to marry), e.g,. exchange of property
CONT SOF DEFENSE
What is the MAIN PURPOSE rule with respect to the statute of frauds?
If a promise to pay the debt of another is for the main purpose of the promisor, it is not within the statute of frauds
E.g., main shareholder promises to act as a surety on the debt of the corporation
CONT SOF FORM
When does the modification of a contract fall within the statute of frauds?
When both:
Contract, as modified, falls within the statute of frauds
Modified terms are essential to the contract
CONT Statue of Frauds sale of goods
A contract for the sale of goods of $500 or more is within the statute of frauds and generally must be evidenced by awriting signed by the defendant to be enforceable.
CONT SOF
Statue of Frauds Custom goods
An oral contract for the sale of goods is enforceable if the goods are specially ordered by the buyer, cannot be resold by the seller in the ordinary course of its business, and the seller has made a substantial beginning of performance.
CONT Statute of Frauds
In Virginia, the writing need only establish evidence that an agreement existed.
CONT Statute of Frauds Agency
A designation of an agent to execute documents in ones own name that pertain to a document that is subject to the Statute of Frauds is also subject to the Statute of Frauds.
CONT Statute of Frauds Part Performance
First, an oral contract is enforceable to the extent that the goods have been received and accepted.
CONT SOF UCC
General Requirements
Writing that contains:
- Quantity (or output/requirements)
- Indication that contract for sale was made
- Signature by party to be charged
Writing signed by party seeking enforcement
- Under UCC 2-201(2), statute of frauds waived if:
- Both parties are merchants
- Writing claims there is a contract
- Writing is signed
- Writing included quantity
- Other party fails to object in 10 days of receipt
Part performance of contract for sale of goods
- Satisfied statute of frauds:
- To the extent of part performance
Specially manufactured goods
- Statute of frauds waived if:
- Seller made substantial beginning of manufacture
Judicial admission
- Statute of frauds waived if:
- Party admits under oath there was a contract
CONT DISPUTE WARRANTY
statute of limitations for breach of warranty?
4 years from tender of delivery, unless:
Explicitly extended, in which case:
4 years from when breach is discovered or should have been discovered
CONT UCC
Statute of limitations warranty UCC
four years 8.2-725(1)
CONT UCC DISPUTE
Sue manufacturer as well as seller?
Yes, but limited to x warranty
Must then give separate notice of warranty failure and opportunity to cure
CONT FORM TERM OFFER
Termination of offer - causes
Lapse of time
Revocation
Rejection
Death
CONT UCC defenses
Not a merchant - infrequent sales
Tardy notice
CONT UCC
Defnition of merchant
A person who either:
Deals in good of the kind
Holds himself out as having knowledge/skill particular to the goods
CONT UCC Firm offer duration
3 months unless otherwise stated or less is reasonable
CONT SOF UCC
$500
But remember performance - accepting goods validates
Also, actual manufacture of custom goods does not require a writing
CONT UCC
statute of limitations
4 years
CONT UCC FORM
Under the UCC, what happens when conflicting terms are added to a contract?
Majority (including Virginia)
Knock out doctrine
The conflicting terms cancel each other out, and the UCC fills in the gaps
Minority
Offeror’s terms control and offeree’s conflicting terms drop out
CONT UCC FORM
Under the UCC, when do additional terms become part of the contracts?
When:
Both parties are merchants
Additional terms do not materially alter the contract
Offeror does not object within reasonable time
Otherwise:
Agreed terms become part of the contract
Disagreed terms are left out
CONT UCC DISPUTE
vendor right to cure
tender or delivery by the seller is rejected
the time for performance has not yet expired
seller may seasonably notify the buyer of his intention to cure
and may then within the contract time make a conforming delivery.
buyer rejects a non-conforming tender which
the seller had reasonable grounds to believe would be acceptable
with or without money allowance
the seller may have a further reasonable time to substitute a conforming tender.
if he seasonably notifies the buyer
CONT UCC DISPUTE
vendor right to notice
If not notified promptly, vendor has defense against claim
CONT UCC WARRANTY
Implied UCC warranties
Merchantability
Fitnesss for purpose
Title
CONT DISPUTE FORM
Unconscionable contract
judge decides whether at the time of the contracting, there was both:
- Procedural unconsionability (i.e., unfair bargaining power)
- Substantive unconscionability (i.e., unfair terms)
CONT FORM
Under common law, what can you not delegate?
Duties that arise from:
Special skills
Special reputation
CONT FROM
Undue influence in contracts
unfair persuasion rather than coersion
CONT FORM
unilateral contract
Contract formed from an offer that requires performance as the method of acceptance
Two examples on bar exam:
Offer that expressly requires performance
Offer of a reward
CONT FORM
Usage of trade as part of contract
Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented
(a) by course of performance, course of dealing or usage of trade (§ 8.1A-303); and
(b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.
CONT DISPUTE
valuing quasi contract
Reasonable value of the services rendered (i.e., quantum meruit)
Extent to which other party’s property increased in value or his other interests were advanced
CONT DISPUTE FORM
Voiding contract for unilateral mistake
Generally never, unless:
- The mistake was obvious (i.e., the other party knew or should have known about it)
- The mistaken party seeks avoidance before the other party relies on the contract (limited to bid situations)
CONT ICC WARRANTY
Warrangty of Fitness
Applies to all sellers, not just merchants
Goods fit for particular purpose for which buyer relied on person selling
Purpose must have been communicated
CONT UCC WARRANTY
Warranty of Merchantability
Only by merchants with respect to goods of the kind
Goods fit for ordinary purpose for which used
CONT WARRANTY
Warranty of Title
Applies to all sellers
Seller has good title
CONT WARRANTY
Basic warranty types
- 1 Express warranty.
- 2 Implied warranty.
- 3 Defects In Materials and Workmanship.
- 4 Satisfaction guarantee.
- 5 Lifetime warranty.
- 6 Breach of warranty.
CONT What are “goods”
Moveable property 8.2-105(1)
CONT DISPUTE
What are incidental damages?
Costs incurred in a reasonable effort to avoid loss resulting from the breach
CONT DIPSUTE
What are the consequences of incapacity?
The contract is voidable - i.e., incapacitated party can disaffirm
CONT DISPUTE
What are the elements of promisorry estoppel?
Promise
Reliance that is both:
- Foreseeable
- Justifiable
Enforcement is necessary to avoid injustice
NOT RECOGNIZED IN VA FOR AFFIRMATIVE RELIEF
CONT ASSIGN
What are the limits on assignment?
Assignment cannot substantially change the duties of the obligor
CONT ASSIGN
What are the requirements for assignment?
Must have language of present assignment
I assign, not I promise to assign
Must be in writing if:
- Wage assignment
- Assignment of interest in land
- Assignment of choses in action > - – $5,000
- Assignments intended as security interests
CONT ASSIGN
What are the requirements for delegation?
(Actually, what is not required)
Consent of obligee not required (unlike novation)
Consideration not required
But:
No consideration
-Delegate can’t be liable
Consideration
-Delegate can be liable
CONT DISPUTE
What are the requirements for revocation?
Noncomformity substantially impairs value to buyer
Excusable ignorance of grounds for revocation, or reasonable reliance on seller’s assurances
Revocation within reasonable time after discovery of noncomformity
Revocation before substantial change in condition of goods not caused by defect
CONT DISPUTE
What are the ways in which performance can be excused by agreement of the parties?
Modification
- Changes duties under the contract
- Original duties are discharged immediately
- - E.g., paint house three days later
Accord and satisfaction
- Substitution of performance under the contract
- Original duties remain until new performance
- - E.g., paint house instead of paying cash
Rescission
- Discharges all duties under the contract
- Some performance must remain on both sides, otherwise no consideration
Novation
- Substitution of parties under the contract
- Original party is excused immediately
- Requires agreement of:
- - Both parties to original contract
- - New party
CONT DISPUTE
What happens when a TPB’s rights vest?
The promisor and promisee can no longer terminate the TPB’s rights
CONT What happens when someone without title (i.e., thief) sells or entrusts goods to a merchant, who then sells them to a customer?
The customer does not have good title, and cannot keep the items even if the customer was a buyer in due course
CONT DISPUTE
What happens when you give goods to a merchant who deals in goods of that kind, and the merchant sells those goods without your permission?
The merchant has the power to transfer all rights of the entruster to a buyer in due course (i.e., good faith purchaser)
You just sue merchant for conversion
CONT ASSIGN
What if a subsequent assignee notifies the obligor of his rights first?
Majority (American rule)
- Does not matter
Minority (English rule)
- Subsequent assignee gets priority
CONT TPB
What if a third party was already a creditor of a promisee when the third-party beneficiary contract was entered?
The third party is a creditor beneficiary
CONT DISPUTE
What if one uses goods after revocation of acceptance?
Not proper, but might commecially reasonable
Must adjust damages for value of unauthorized use.
Create a rental fee as a setoff?
CONT DISPUTE
What if P’s expectation damages are too speculative to measure?
Reliance damages may be recovered to return the party to the status quo - i.e., costs spent in preparation for performance
E.g., profit that would have been earned had the contract been performed may be very speculative, so reimburse the party for costs incurred
CONT FORM
What is a condition coupled with a covenant?
Condition that is in some way within the control of one party, and therefore creates an obligation on that party to make a good faith effort to cause the event to occur
E.g., obtaining financing
CONT FORM
What is a constructive condition?
A condition by operation of law
E.g., each party’s substantial performance of the contract
CONT FORM
What is a force majeure clause?
Excuses performance on the occurence of specific types of events
CONT DAMAGE
What is a lost volume seller?
Seller whose supply was greater than demand
So, if there is a breach, seller could have sold the original item and another
So, seller gets lost profits
CONT FORM
What is a sale on approval?
When a buyer takes possession of goods for a trial period
Risk does not shift until the buyer formally accepts
CONT FORM
What is an installment sales contract?
Requires or authorizes:
Delivery in separate lots
To be separately accepted
CONT DISPUTE
What is anticipatory repudiation?
What is the effect?
When one party manifests before his performance is due that he cannot or will not perform his duty
Effect:
Excuses other party’s duty to perform
Provides an immediate claim to damages for breach
Unless non-repudiating party fully performed
In which case, must wait until actual breach
CONT DIPSUTE
What is negative specific performance?
When a court of equity prevents a party from working for someone else because he breached a service contract
CONT UCC WARRANTY
What is required to waive a UCC warranty
Prominent type - bold - capital letters - two sizes larger
Specificity as to what waiver is being waived
Phrase SOLD AS IS
CONT What is the difference between creating a third party beneficiary and assigning your rights?
Assignment substitutes a party, TPB adds someone who can sue
CONT DIPSUTE
What is the difference between intended and incidental beneficiaries?
How can you tell?
Only intended beneficiaries have contract rights as TPB
Look at the intention of the parties, including:
- Whether TPB is expressly designated in contract
- Whether performance by promisor is directly to TPB
- Whether TPB has rights under the contract
- Relationship between promisee and TPB
CONT FORM
What is the difference in terms of the effectiveness of acceptance and revocation?
Revocation - effective when received
Acceptance - effective when posted
CONT ASSIGN
What is the distinction between prohibition and invalidation of assignments?
If the contract only prohibits assignments, the assignor is in breach after assigning, but the assignment is still valid
The contract must specifically state that assignments are invalid for that to be the case
CONT SOF FORM
What is the equal dignity rule with respect to the statute of frauds?
If a contract is subject to the statute of frauds, and therefore must be in writing, you must have a writing in order to authorize someone else to sign it for you
CONT DISPUTE
What is the general measure of damages for ordinary contracts?
Expectation damages - i.e., put the non-breaching party in as good a position as if the contract had been performed
CONT ASSIGN
What is the general rule regarding the priority of assignments for consideration?
First in time, first in right, unless:
Subsequent assignee takes assignment without notice of prior assignments and it either:
Is first to obtain payment from obligor
Is first to obtain judgment against obligor
Enters into new contract with obligor by novation
Gets a token or writing from obligor, surrender of which is required by obligor’s contract
It can use estoppel against first assignee
CONT DISPUTE
What is the remedy for promissory estoppel?
The remedy is limited to what justice requires
So, it may be limited to the extent of reliance
NOT RECOGNIZED IN VA FOR AFFIRMATIVE RELIEF
CONT DISPUTE
What is the rule regarding mitigation?
A party cannot recover damages that could have reasonably been avoided
However, a party is not required to take steps that involve:
Undue burden
Risk
Humiliation
CONT DISPUTE DAMAGES
What is the standard for determining the reasonableness of damages?
Damages must be reasonably certain (i.e., mathematical precision not necessary)
CONT UCC FORM
What is the standard for the performance of sale of goods contracts under UCC Article 2?
Perfect tender - i.e., seller must deliver perfect goods
If not, buyer can reject whole, accept, whole, or accept part
CONT DISPUTE
What is the standard used if an express condition involves personal taste?
Subjective good faith (i.e., objective reasonable person irrelevant)
CONT DISPUTE
What is the standard used to determine if a party satisfied a condition?
Express condition
- Strict compliance
Constructive condition
- Substantial performance
CONT SOF FORM
What makes an executor promise subject to the statute of frauds?
Must be a promise by executor to pay his own funds for an obligation of the estate
CONT FORM
When are liquidated damages valid?
Liquidated damages are enforceable if:
At time of contract, damages difficult to estimate
At time of contract, provision reasonable forecast of possible damages
CONT DISPUTE
When can a buyer get specific performance for the sale of goods?
Either when:
Goods are unique
Other circumstances apply - e.g., inability to cover
CONT When can a gratuitous assignment not be revoked?
Obligor already performed
Assignee obtained a judgment against obligor
Assignee entered a new contract with obligor by novation
Assignee reasonably relied on assignment
CONT When can a party revoke offer
Anytime before acceptance, unless:
Option contract Promise to keep offer open Supported by consideration UCC firm offer Contract for the sale of goods Written promise to keep offer open Made by a merchant Reliance Must be reasonably foreseeable Performance Must be on a unilateral contract only Must be more than mere preparation
CONT When can a seller cure an imperfect tender?
Limited remedy clause gives contractual right to cure
Time for performance not expired
Time for performance expired, but reasonable basis for believing improper tender was acceptable
CONT DISPUTE
When can a seller retain rights in goods it sells if it is not paid?
If the seller has either:
A security interest
A right to reclamation
CONT When can partial payment be consideration for a promise to forgive the balance of debt?
Only when the debt is either:
Not yet due
Disputed
E.g., the release of the remaining balance is enforceable if the promisor pays any amount that is either disputed or not due
CONT When can price be left out of a contract?
When is it required?
Real estate contract
Required
Because real estate is unique
UCC sale of goods
Not required
Because goods are fungible
CONT When do a TPB’s rights vest?
Either:
When the TPB brings suit to enforce the promise
When the TPB materially changes its position in justifiable reliance on the promise
When the TPB manifests assent to the promise in a way invited or requested by the promisor and promisee
CONT When does an offer terminate?
After a reasonable time under the circumstances
2 years - yes
2 weeks - probably
2 days - no
CONT DISPUTE
When does an unpaid seller have a right to reclamation?
When:
Credit sale
Buyer insolvent when received goods
Demand for return made either:
- Within 10 days of buyer’s receipt
- Within reasonable time if buyer lied about solevency
CONT When does revocation become effective?
When the revocation is received (i.e., mailbox rule does not apply)
CONT When does risk of loss shift when a buyer takes goods on consignment?
Same rules as normal goods (i.e., merchant - receipt; non-merchant - tender)
CONT When has a buyer accepted goods?
When, after reasonable opportunity for inspection, buyer indicates that either:
- The goods conform
- She will keep them even if they don’t conform
Buyer fails to make an effective rejection
Buyer acts inconsistent with seller’s ownership
CONT When is a party excused by reason of frustration of purpose?
Post-contract occurrence
Not reasonable foreseeable at time of contracting
Totally or nearly destroys purpose or value of contract
Purpose was known to both parties at contracting
CONT When is a party excused by reason of impossibility or impracticability?
Post-contract occurence
Not reasonably foreseeable at time of contracting
Not a risk assumed by either party
Renders performance impossible or impracticable
Without fault of party seeking to be excused
CONT When rejecting goods, does a buyer have to explain why he is rejecting?
Generally, no but he probably should.
If the buyer doesn’t, the buyer cannot rely on an unstated defect to justify rejection to establish breach:
If seller could have cured
If both parties are merchants and seller requested in writing for a full and final written statement of defects
CONT When the person is specific to the contract
E.g., person is necessary to the contract
When the person is specific to the contract
E.g., person is necessary to the contract
CONT When will a condition be excused?
Look to see if the person protected by the condition (i.e., person who benefits from it) has done or said anything to justify taking it away
Failure to make good faith effort to satisfy condition
- E.g., obtain financing
Estoppel
- Person says something before condition arises
- Other person changes position in reliance
Waiver
- Person says something after condition arises
CONT When will the courts imply the quantity for a contract?
Requirements contract:
-Buyer agrees to buy all of its good faith requirements
Output contract:
- Buyer agrees to buy all of the seller’s good faith output
Limitations:
- Must be reasonably proportionate to either:
- Stated estimate
- Normal or comparable prior requirements/output
CONT Where is a financing statement filed
State Corporation Commission (Richmond) unless there is an exception. Different for a fixture attach property
CONT Who has the burden to plead:
Condition precedent
Condition subsequent
Precedent - plaintiff
Subsequent - defendant
CONT Why is it necessary to identify installment sales contracts?
Buyer can only reject an installment if there is:
Substantial impairment
That cannot be cured
CONT Wrongful exercise of ownership
constitutes conversion, liable for value not price
CREDIT COLLECT
Attachment joint bank accounts
In Virginia, creditors are allowed to attach to bank accounts held in common. If the holders are H/W, each is rebutably presumed to hold 50%. Otherwise, relative ownership is determinied by the net of individual contributions and withdrawals
CREDIT
Define Insolvency
In Virginia law, “insolvent” or “insolvency” means incapable of meeting the current demands of creditors or having liabilities which, in total, exceed the book value of assets.
CREDIT COLLECTIONS
Filing a Claim - Process
In Virginia, in order for a judgment that has been rendered in favor of a creditor to become enforceable, the creditor must file the judgment in the circuit for which it was rendered for it to be docketed. The judgment is valid and may attach a lien on the debtor’s property even if located in a different jurisdiction, however the creditor must enforce through the circuit court in which the debtor’s property is located. A creditor may do this through an abstract of judgment in the circuit court where the debtor’s property is located. That jurisdiction may then issue a writ of execution for property of the debtor’s to be seized in order to pay off the judgment.
CREDIT Gratuitious transfer by insolvent
In Virginia, a gratuitious tranfer of assets to antoher party by an insolvement is a voidable transfer, but does not automatically constitute fraud against the creditor.
CREDIT Joint Assets
Virginia recognizes tenancy by the entirety which is the co-ownership of property that is reserved exclusively for married couples. In addition, marital property that is owned by both husband and wife is exempt from the claims of individual creditors. Meaning, that creditors of either only the husband or only the wife may not receive payment through a lien on property owned by both husband and wife jointly. The only creditors who may go after the marital property are creditors of the husband and wife jointly.
CREDIT Joint Bank Accounts
In Virginia, jointly owned bank accounts may be subject to the individual creditor of one owner if the funds in that account can be reasonably separated from the funds of the other owner. If such funds can be traced to the debtor, the creditor may place a lien on that account despite the joint ownership. there is a rebuttable presumption that the spouses contributed equally to the account,
CREDIT Legal status of funds deposited w law firm
Funds deposited with a law firm as credits against future legal fees and expesnese remain property of client until fees earned and expenses incurred. As such the deposit is subject to garnishment by creditors.
CREDIT Reaching LLC owned by debtor
A creditor seeking to collect from a debtor can get a charging order against income and distributions to the debtor from an LLC controlled by the debtor, but not against LLC itself.
CREDIT Reaching property held tennants in common
If takes more that five years to get satisfcation, can seek partition and sale
CREDIT Sale for fair value by insolvent
A sale by of property for fair value by a debtor is not voidable by the creditor if the value of the property is stil held by the debtor in a different form (e.g., cash).
CREDIT PRIORITY
Secured Asset PMSI
Under UCC article 9 as applied by Virginia, a purchase money security interest takes priority over a judgment lien if it attaches before the lien and is perfected.
A PMSI is created when a secured party gives the debtor value in order to purchase the collateral. Perfection for consumer goods, those used for household or personal use, is automatic upon the attachment of the security interest and is also permanent.
However, in Virginia there is a special requirement for cars which require that a lien be registered in the title office in which the car is registered (the Department of motor vehicles).
CREDIT COLLECTIONS
Transfers when insolvevent
Transfers by an insolvent to a creditor whose claim predeeded the onset of insolvency are not presumptively fraudulent.
CREDIT DISPUTE
Standard of proof for civil fraud
To prove fraud in a civil case requres clear and convincing evidence, a higher standard than the presponderance of the evidence more typical in civil proceedings.
CRIM capital murder
willful, deliberate,premeditated
14 specific situations
CRIM Accelerating cause
can change “actual” cause
CRIM accessory before the fact – .
one who was not present at the time of the commission of the crime but who encouraged, incited, or aided in its commission, with knowledge of the intent of the principal
CRIM accessory before the fact – .
accessory before the fact – .
punishable as if a principal in the first degree [Va. Code §18.2-18].
CRIM Accomplice liability elements
aiding or abetting
with intent that crime be committed
CRIM Accomplice withdrawal
discouraging negated encouraging
negating aid required
- neutralizing the aid
- preventing the crime (call police)
CRIM actual causation
“but for” test of relevance of defendant conduct
CRIM AGGRAVATED assault and battery
use of a weapon’
involves child, elderly, handicapped (vulnerable)
intent to commit robbery or rape
CRIM Agreement to search vehicle implications
Officer can look anywhere, including glove box and floorboards. Trunk?
CRIM Alford plea
an accused to consent to being convicted without admitting that he committed the offense, but acknowledging his awareness of the quantity of evidence against him and that he did not want to take a chance on a jury trial.
CRIM alternative insanity defenses
M’Naughten
Irresistable impulse
Product
MPC
CRIM an accessory after the fact
learned of the plan and the act only after the fact.
CRIM appliction of continuing trespass
relevant to larceny
no relevant to burglary
CRIM CRIME Attempt
Elements
Attempt in an inchoate crime. By definition, the crime of attempt is not completed. In the Commonwealth, an attempt occurs when someone
1) has the specific intent to commit a crime and
2) takes a direct act that falls short of committing the ultimate crime.
CRIM classes of felonies in Virginia
F1: death or life in prison
F2: 20 years to life
F3: 5-20 years
F4: 2-10 years
F5: 1-10 years, or
up to 1 year and/or up to $2,500
F6: 1-5 years, or
up to 1 year and/or up to $2,500CRIM common law arson elements
malicious
burning
(material wasting)
CRIM common law catergories accomplice liability
principal first degree principal second degree - present and -- assisting and/or encouraging accessory before the fact accessory after the fact - separate crime after the crime - avoid arrest or conviction
CRIM common law homicide types
murder
voluntary manslaughter
involuntary manslaughter
CRIM common law mental states
specific intent
malice
general intent
strict liability
CRIM Common law theft crimes
larceny embezzlement false pretenses larceny by trick robbery
CRIM CRIME Conspiracy
Conspiracy is an inchoate crime. It is an agreement between two people to commit a felony. It does not matter if the crime is ultimately committed because crime of conspiracy is committed once the agreement is formed. In Virginia, a conspiracy can only be formed between two guilty minds. Additionally, in Virginia, a conspiracy does not require an overt act
CRIM Continuing trespass
Wrongful taking of property without intent to steal
CRIM “control” of contraband
constructive possession =
close enough to exercise dominion and control
CRIM CRIME bribery
giving or receiving a corrupt gift or other offer
to/as public official/candidate
with intent to influence official acts
CRIM CRIME concealing/compounding offences
taking money to compound, conceal, or not presecute
concealing or destroying evidence with intent to hinder prosecution
CRIM CRIME elements of common law felony murder
guilty underlying felony felony inherently dangerous felony separate from the killing killing during felony or immediate flight must be in furtherance of the felony must be forseeable victim is NOT a co-felon
CRIM CRIME false imprisonment
unlawful
confinement of a person
without that person’s consent
CRIM CRIME False reports
taking money to compound, conceal, or not presecute
concealing or destroying evidence with intent to hinder prosecution
CRIM CRIME Homicide - involuntray manslaughter
accidental killing, contrary to intentions, during
- the performance of a non-felony
- improper performance of lawful act w criminal negligence
CRIM CRIME Homicide - Manslaughter
unlawful killing without malice (heat of passion)
CRIM CRIME Homicide
Involuntary Manslaughter
elements of common law involuntary manslaughter
killing with
- criminal negligence
- during a crime if not felony murder
CRIM CRIME Kidnapping
false imprisonment plus
- moving the victim
- concealing the victim in a secret place
aggravated if purpose is
- colllect ransom
- commit robbery of rape
or if victim is a child
CRIM CRIME Kidnapping
by force, intimidation, or deception without legal justification or excuse seize, detain, take, transport, secret another person with intent to either - deprive such person of liberty - withold or conceal person from another person, authority, or institution lawfully entitled to his charge
CRIM CRIME obstruction of justice
attempt to intimidate
- witness
- officer of the court
- law enforcement officer
willful false statement or representation
- to law enforcement
- in the course of an investigation
CRIM CRIME perjury and consequence
willful false swearing under oath of material matter
OR
subsequently giving conflicting testimony under oath on same matter (doesn’t matter which is untrue)
Added consequences
- can not hold public office
- can not serve as juror
CRIM CRIME resisting arrest
preventing a law enforcement officer, with or without a warrant, from making a lawful arrest
CRIM CRIME subornation of perjury
inducing another to give false facts
inducer can be punised as perjurer
CRIM CRIME
Attempt
Common law attempt elements
MPC - substantial act AND corroborative of criminal purpose
Common law - “dangerously close” to commission of crime
Virginia - like MPC
- direct act
- with intent to commit crime
- but falling short of crime itself
CRIM CRIME
Attempt
Crime not subject to attempt
Reckless crimes
Negligent crimes
Felony murder
CRIM CRIME
Conspiracy
conspiritor vicarious liability
all acts of co-conspirators
related to conspiracy
are forseeable as a consequence
CRIM CRIME
elements of voluntary manslaughter
intentional killing in the heat of passiion after adequate provocation - to arrouse intense passion - without time to cool off
CRIM CRIME
Failure to Act
Criminal liability for failure to act
legal duty to act - statute - contract - relationship (spouse, child) - assumption of duty - creation of peril knowledge of the facts ability to help
CRIM CRIME
Homicide
Degrees of murder - majority view
First degree
- any killling with premeditation and deliberation
- plus felony murder (enumerated felonies)
Second degree
- all others
CRIM CRIME
inchoate offenses
solicitation
conspiracy
attempt
CRIM CRIME
Principals
accessory after fact and principal in second degree in felony cases
treated as principals
CRIM CRIME
Punishment
death penalty
actual murderer
principals and accessories
- murder for hire
- terrorism
CRIM Crimes attributablle to accomplice
Crimes
- aided
- encouraged
- reasonably should have foreseen
CRIM crimes sufficiently specific
crimes against person
crimes against property
CRIM Crimes that do not merge
when each crime has an element the other crime does not have
CRIM CRIME
Solicitation
elements of solicitation
asking someone else to commit crime
with intent crime be committed
CRIM CRIME
Virginia Bad Check
“present consideration” versus post-dated check
Post-dated check is not present check
CRIM CRIME
Virginia Bad Check
“present consideration” versus making payment on an existing debt
Can’t “take” something you already have
CRIM Criminal Generic Answer
Elements
Felony vs Misdemeanor
CRIM Deady weapon inference
initional use of deadly weapon creates inference of intent to kill
CRIM DEFENSE duress
crime committed caused by a third party forced to commit crime under threat of - death - serious physical injuct can not excuse homicide
CRIM DEFENSE entrapment defense in Virginia
only if
- criminal design was originated by government
- defendant not predispsed to commit crime
in Virginia, can use prior crimes to show predispostion if prior crimes
- close in time
- similar
- probabtive value outweighs prejudice
CRIM DEFENSE
Insanity
Virginia test for insanity
defendant can argue on of these
- M’Naughton
- Irresistable impulse
CRIM DEFENSE
Insanity
procedural requirements for insanity
Notice to state of intent to plead
- at least 60 days prior to trial
Burden of proof
- prove insanity to the satisfaction of the jury
CRIM DEFENSE intoxication in Virginia
involuntary intox a defense to anything
- follow insanity rules
voluntary intoxication
- can be a defense to premeditation
CRIM DEFENSE necessity
crime committed to prevent greater harm
based on reasonable belief conduct was ncessary, but can not excuse homicide
CRIM defense of dwelling
non-deadly
- reasonably believed needed to
- prevent unlawful entry
- terminate unlawful entry
deadly
- reasonably beleived necessary to prvent
- personal attack on self or other
- entry by someone who plans to commit felony
Virginia
- deadly force only when fearing great bodily injury
CRIM defense of others
common law
- only if defendant reasonably believed victim had right to self defense
Virginia
- only if defendant actually had legal right to use self-defense
CRIM defense of property
non deadly
- need is imminent
- while in immediate pursuit
deadly
- never
CRIM DEFENSE
capacity defenses
insanity
intoxication
infancy
CRIM DEFENSE
Impossibility defense
Factual impossibility does not count as defense
- pocket has no wallet in it.
Legal impossibility does count
- baby powder is not heroin no matter what you think
CRIM DEFENSE
Insanity
MPC test insanity
lacked the capacity to either
- appreciate the criminality of his conduct
- conform his conduct to the law
CRIM DEFENSE
Insanity test
Irresistable impluse test
test xxx
CRIM DEFENSE
Insanity test
product test insanity
was crime a product of his insanity
CRIM DEFENSE
Insanity
Differentiate insanity vs incompetence
commit crime versus stand trial
CRIM DEFENSE
Insanity
M’Naughton test
either:
- did not know act was wrong
- did nou understand the nature of the act
CRIM DEFENSE
Involuntary Act
Physical act requirement exceptions
sleepwalking reflex or convulsion - blackout on meds once, not an act - after that, on notice, so responsible for controlling someone else moves defendant
CRIM Defenses to accomplice
Mere presence
Mere knowledge
Victim
CRIM DEFENSE
Withdrawal
Withdrawal from incohate crime
common law - protects only from after-withdrawal crimes
MPC - requires
- voluntary and complete renunciation
- based on change of heart not fear of apprehension
CRIM Definitiion of murder
killing with malice.
CRIM detaining all persons in stop
always permitted
CRIM doctrine of ransferred intent
mens rea remains even though the actus reus was suffered by unintended victim
CRIM eggshell victim doctrine
defendent takes his victim as he finds him
pre-existing weakness in victim not a defense in criminal law
CRIM element of malicious mischief in Virginia
destroying or damaging the property of another
CRIM elements of conspiracy in Virginia
proof beyond a reasonable doubt of
- an agreement to commit a felony, and
2 the intent by the defendant to commit that felony
No overt act required
CRIM elements of common law assault
Attempted battery (swing and miss)
Fake punch
- intentional creation
- beyond mere words
- reasonable apprehension
- imminent bodily harm
CRIM Elements of abduction
CRIM \when a person by force or intimidation seizes, takes, transports or detains another person with intent to deprive that person of liberty. Va. Code §18.2-47
CRIM elements of common law battery
unlawful application of force to another resulting in - bodily injury, or - offensive touching
CRIM elements of common law burglary
breaking entering (some part of body) dwelling (where someone sleeps) of another at night with intent to commit a felony inside
CRIM elements of common law embezzlement
conversion
property of another
by person already in lawful possession
with intent to defraud
CRIM elements of common law murder
causing death' of another with malice aforethough - intent to kill - intent do great physical harm - extreme recklessness (depraved heart) - felony murder
CRIM elements of common law possession
- control for a long enough period of time to be able
- to terminate possession
- of contraband that is specifically criminalized
CRIM elements of common law robbery
larceny
from a person or in person’s presence
by force or threat of immediate injury
CRIM CRIME
elements of conspiracy
agreement between two or more persons to commit a crime plus an overt act in furtherance of the crime (No overt act in Virginia)
CRIM Elements of embezzlement
Entrustment of possession
Taking
Intent to permanently deprive
CRIM Elements of extortion
Threaten injury in exchange for acquision less that fair value
CRIM Elements of extortion in Virginia
Either:
- threatening injury to another
- accusing another of an office
in order to extort money, property, benefit, note - sending note or email threatning to kill or do great bodily harm to victim or family.
CRIM elements of false pretenses
obtaining TITLE (rather than possession) to the property of another by intentional false statement with intent to defraud
CRIM Elements of false statement in false pretenses
knowingly false statement regarding
past / present / (future) event
CRIM elements of felony homicide
accidental killing while committing a non-enumerated felony - where there is a causal connection
CRIM Elements of forgery
making or altering a writing
so that it is false
with intent to defraud
CRIM elements of larceny
trespassory (wrong or no permission) taking and carrying away personal property of another intent to permanently deprive (steal)
CRIM Elements of robbery
taking, with the intent to deprive the owner or custodian, permanently, of personal property, from his person or in his presence, against his will, by force, threat or intimidation
CRIM Elements of uttering
offering as genuine
a forged instrument
with intent to defraud
CRIM elements second degree murder
assumed 2nd degree if not raised or lowered
CRIM Elements to common law forcible rape
Sex w/o victims consent accomplished by - force - threat of force - unconscious
CRIM entrapment
the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer
CRIM Erroneous takings rule
Taking under a claim of right is not larceny
CRIM felonies w felony murder in Virginia
7. four unique -arson -robbery -burglary -abductpon three sexual -inantimate object sex pentration -rape -forcible sodomy
CRIM felony / misdemeanor dividing line
OVER one year incarceration
