weaknesses that I need to work on Flashcards
Promisee contracts with promisor, so that the promisor provides a service for the INTENDED 3rd party beneficiary, if the 3rd party has the the K rights to sue, who can they sue to enforce the K?
the third party can sue the promisor
Promisee contracts with promisor so that the promisor provides a service for the benefit of the INTENDED DONEE beneficiary, if the 3rd party has K rights to enforce the K, can they sue the promisee?
No, a 3rd party DONEE beneficiary cannot sue the promisee!
promisee owes a debt to the 3rd party CREDITOR beneficiary. If promisor promises to discharge the promisee’s debt, who can the 3rd party CREDITOR beneficiary sue?
The creditor 3rd party can only sue promisee for the pre-existing debt that the promisee owed.
who is the promisor?
the promisor is the party promising to perform a service for the benefit of the 3rd party
who is the promisee?
the promisee is the person who contracts with the promisor, so that the promisor performs a service to benefit the 3rd party beneficiary.
the original parties (promisor and promisee) will lose their rights to modify or discharge the K if beneficiary?
detrimentally relies on the promise
brings suit on the promisee- intended beneficiary only
or
manifests assent to the promise to either party
a 3rd party intended beneficiary can sue the ________ on the contract. The 3rd party does not waive her right to sue the _______ by bringing the first lawsuit.
promisor
promisee
Can an intended 3rd party donee beneficiary sue the promisee?
No
Can an intended CREDITOR 3rd party beneficiary sue the promisee?
yes but only to recover the pre-existing debt that the promisor failed to perform (to pay the debt)
can the promisee sue the promisor on the K?
yes but note that the 3rd party beneficiary and the promisee cannot recover both
what two steps are required for one of the original parties to assign their contract rights?
there must have been an original K
AND
one of the original parties to the original K assigns his or her rights/ benefits under the K to a 3rd party
who is the obligor?
the other party to the original K who owed performance to the assignor
A writing to assign K rights is not required unless:
it is: a
wage assignment- assignment of an employee’s wage to a 3rd party
land K
over $5000
or is an assignment of an Article 9 security interest
T or F since an assignment is a present transfer, consideration is not needed
True
T or F gratuitous assignments are revocable
True
what is a material breach?
note: under CL substantial performance
what are the non-breaching party’s options?
a refusal to perform a contract that goes to the heart of the promised performance (non-breaching party does not receive substantial benefit of her bargain)
treat contract as terminated and immediate right to all remedies available for the breach
material breach of a divisible contract remedy
non breaching party can recover damages for that particular performance
what are the requirements for specific performance
Mnemonic Cha Cha Is My Favorite Dance
Valid Contract Conditions satisfied by P? Mutuality of obligation Inadequate legal remedy Feasibility of enforcement Defenses to contract
when a mistake is unilateral, reformation is usually denied unless
the other party knows of the other’s mistake. When it is mutual, reformation is allowed
a regulatory taking that isnt a per se regulatory taking can still be considered a regulatory taking under the 5th amendment if:
what factors are considered for the balancing test?
the burden on the property owner of the taking outweighs the benefit of the regulation. Balancing test
factors
1. Nature of Government action -may constitute a taking if it is not reasonably necessary to the effectuation of a substantial public purpose or it has an unduly harsh effect on the property owner’s use of the property
- level of diminution in value of the property;
- property owner’s reasonable investment backed expectations.
what is the remedy for an invalid taking?
the gov’t regulation will be terminated and the gov’t will pay the owner for damages that occurred while the regulation was in effect.
T or F a tenancy by the entirety can be created through a common law marriage
false, it cannot, a legal marriage is required
Court has held it to be a violation of ______ _______ for a judge to give a mandatory jury instruction in a criminal case on an element of the charged crime
due process
what is larceny under the theory of continuing trespass
its when one takes another’s property and carries it away originally not having intent to deprive the owner of it permanently, but then later decides to keep it or deprive the owner from the property permanently.
UCC Article 2 adopts the perfect tender rule, but that rule is inapplicable to assess the conformance of a seller’s performance under an installment contract. What standard governs the buyer’s right to reject a shipment in an installment K?
In an installment contract, the substantial impairment standard governs the buyer’s right to reject, and the bakery is entitled to reject under that standard.
a buyer is entitled to reject any installment that is nonconforming if the nonconformity substantially impairs the value of that installment and it cannot be cured. Is a buyer’s right to reject a particular installment dependent on a substantial impairment of the entire K?
No A buyer’s right to reject a particular installment is not dependent on a substantial impairment of the entire contract.
what is the required foundation to be able to use the past recollection recorded exception to hearsay?
The witness must testify that she has insufficient recollection (can’t remember the events) to testify fully and accurately without the notes; and
and that the record or notes are an accurate reflection of the witness’s knowledge when the matter was fresh in her memory.
note: a past recollection recorded may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
a past recollection recorded may be read into evidence but may not itself be received as an exhibit unless
offered by an adverse party.
T or f A person can sign a valid contract of sale for land even if that person does not own the land at the time of signing if there is no time is of the essence clause. why?
True because there is still a reasonable amount of time to enforce the contract when the seller gains ownership of the land.
FRE 411 bars evidence of liability insurance to prove negligence or wrongful conduct. However, the rule contains an exception allowing the use of such evidence to prove _______.
bias
what is article 1 section 10 of the constitution
the ex post facto clause
An out-of-court identification procedure is improper if it is unnecessarily suggestive, which this procedure (involving just one photograph and the detective’s leading statement) plainly was. However, even if an out-of-court identification procedure is unnecessarily suggestive, suppression of in-court testimony is not required if the eyewitness’s identification is shown to be reliable under a multi-factor inquiry.
what are the factors that the court considers?
The factors for determining whether an eye-witness identification is admissible are:
1) Witness’ opportunity to view the perpetrator
2) The degree of attention the witness focused on the perpetrator
3) The accuracy of the witness’ description
4) The time elapsed between the witness’ identification of the perpetrator and the time of witnessing the crime
5) The certainty of the witness’ identification of the subject
T or F The recording of a judgment against a joint tenant with right of survivorship allows the judgment creditor to obtain a writ of execution but does not effect a severance of the joint tenancy.
true
T or F A bill of attainder is a legislative act that inflicts punishment on named individuals or on easily identifiable members of groups. Because the statute proscribes a type of conduct when engaged in by anyone, it is not a bill of attainder.
True
When a criminal defendant seeks to prove his good character under FRE 404(a)(1), FRE 405(a) allows proof only by
reputation evidence or opinion evidence, not by specific instances of conduct.
At common law, a defendant could be convicted of murder not only for an intentional killing but also for causing another’s death by actions intended to cause
serious bodily injury short of death
To prevail on a nuisance claim, the plaintiff must show that the defendant’s activity.
what kind of facts would support such a claim?
has substantially and unreasonably interfered with the plaintiff’s use and enjoyment of his property.
The evidence that there has been a significant decrease in the value of the landowner’s property and
that his business is suffering a marked decline would support a claim that the intrusion by the gas company is both substantial and unreasonable.
For double jeopardy purposes, jeopardy does not attach until trial,
when the jury is sworn in (or, in a bench trial, when the first witness is sworn in).
there is no provision of the Constitution creating a cause of action against a state-accredited institution that restricts freedom of speech as a condition of employment. Does state accreditation of a private university affect whether the action is a state action?
No, State accreditation of an institution does not constitute sufficient involvement by the state to make the institution’s conduct state action.
T or F Evidence of express terms is given greater weight than evidence of trade usage.
True
what types of cases does the privilege against self-incrimination apply to?
civil and criminal cases. A D cannot be forced to testify on facts that could expose her to criminal liability
T or F an intended 3rd party beneficiary can have contract rights regardless of whether the party is identified as an intended beneficiary at the time of K.
What is required that allows an intended 3rd party beneficiary to enforce the K?
True
requires knowledge of the K and reliance.
To justify the use of force sufficient to cause death or serious bodily injury, a defendant must have a
reasonable belief that he himself is threatened with force of that sort.
T or F A landowner has no right to forcibly expel a trespasser or a trespasser’s property when the trespasser was driven by necessity to trespass on his land, and the landowner is liable for any damage to property of the trespasser that results from an expulsion
True
Photographs are often useful evidence in establishing DISPUTED facts. However, under FRE 403, the judge always has the right to exclude such evidence if the:
if the fact (severity of P’s injuries) is not controverted or in dispute, will the judge likely exclude a photograph?
danger of unfair prejudice substantially outweighs the probative value of the photograph.
Yes, if the fact is not controverted (i.e. if the severity of plaintiff’s injuries is not in dispute), then it is more likely that the judge would exercise her right under FRE 403 to exclude the photographic evidence on account of the danger of unfair prejudice substantially outweighing the photograph’s probative value.
T or F. an owner’s policy of title insurance continues to protect the owner if the owner (here, the buyer) is ever successfully sued on a title covenant in a future conveyance.
True
Ordinarily, someone who hires an independent contractor would not be vicariously liable for the contractor’s negligence. However, a landowner who holds his land open to the public has a nondelegable duty to
keep the premises safe for business visitors.
U.S. Supreme Court precedent establishes that a state law requiring children to attend public schools infringes on the right of parents to control the upbringing of their children. Supreme Court precedent also establishes that this right is a fundamental aspect of liberty protected by the due process clause of the Fourteenth Amendment. A state law that infringes on that right must therefore undergo what level of scrutiny?
strict judicial scrutiny, which requires the state to prove that the law is necessary to further a compelling state interest.
T or F a statement admissible only to impeach (such as a prior inconsistent statement not under oath) cannot be used for substantive purposes such as to prove negligence
True
T or F FRE 612 does not allow an opponent to see material used to refresh the memory of a witness regardless of whether the material was read and approved by the witness while the matter was fresh in his or her mind.
False, it does
if a witness uses a writing to refresh memory for the purpose of testifying, either (1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to
have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.”
NOTE: do not confuse with past recollection recorded!
Under Article 2, evidence of trade usage that can be construed as reasonably consistent with an agreement’s express language is admissible to interpret or supplement an agreement. The majority rule provides that
trade usage will be viewed as consistent with an agreement’s express language unless the usage completely negates specific express language
Congress may exercise its authority under the commerce clause to permit a state regulation that would otherwise violate the negative implications of the commerce clause, as long as
the congressional legislation unmistakably grants such permission.
T or F Someone who refuses to surrender a chattel to another person who is entitled to its immediate possession is liable for conversion even if the one holding the chattel originally came into possession lawfully
true
A conviction for accomplice liability requires not only proof that an accomplice aided a principal’s crime but also proof that the accomplice acted with
a culpable mental state
The protection of the restitutionary interest restores to a party
any benefit conferred to the other party
Whether a failure to perform is material depends on several factors, including:
If one party fails to substantially perform, do they have to pay on the contract? generally without considering other theories?
(1) extent to which the injured party will be deprived of the benefit he expected
(2) the extent the injured person can be adequately compensated for the part of that benefit of which he will be deprived,
(3) the extent to which the other party failing to perform or to offer to perform will suffer forfeiture,
(4) the likelihood that the party failing to perform will cure his failure, and
(5) the extent to which the behavior of the party failing to perform comports with standards of good faith and fair dealing. Id. § 241.
NO
when is a contract considered to be divisible?
A contract is said to be divisible if the performances to be exchanged can be divided into corresponding pairs of part performances in such a way that a court will treat the elements of each pair as if the parties had agreed they were equivalents.
An easement implied from prior use arises in favor of a grantee when
(1) two parcels of land are in common ownership;
(2) one of the parcels is conveyed to a grantee;
(3) the parcel conveyed had been receiving a benefit from the parcel retained prior to the conveyance to the grantee, i.e., there was a use over the retained parcel in favor of the conveyed parcel which could have been the subject of an express easement appurtenant;
(4) the usage is reasonably necessary or convenient; and
(5) the usage is apparent
Whether the future-advances mortgage payments are obligatory or optional is critical to the rights of a junior lender.
what is the effect if the future advance mortgage is obligatory?
what is the effect if the future advance mortgage is optional?
If payments under a future-advances mortgage are obligatory, then the junior lender’s lien is junior both to amounts loaned to the debtor before the junior lien was recorded and to amounts loaned after the junior lien is recorded. If the payments under a future- advances mortgage are optional, the junior lender has a priority over amounts transferred to the debtor by the senior lender after the junior lender transfers funds to the debtor and records its mortgage.
