Wrong Deck

Question 1

If a co-felon is killed by a police officer (or a victim) either in self-defense or to prevent escape

Answer 1

the defendant is not guilty of felony murder. The killing by the police officer is considered justifiable homicide.

Question 2

Under MPC, mental illness defense

Answer 2

Under the Model Penal Code test, a defendant is not guilty when, at the time of the conduct, as a result of a mental disease or defect, he did not have substantial capacity to appreciate the wrongfulness of the act or to conform his conduct to the law.

Question 3

Caught spouse cheating

Answer 3

Voluntary manslaughter is homicide committed with malice aforethought, but also with mitigating circumstances. It includes homicide committed in response to adequate provocation (i.e., in the “heat of passion”). The woman’s enraged mental state mitigates the crime from murder to voluntary manslaughter.

Question 4

Saw man commit crime but did not report to police

Answer 4

An accessory after the fact is a person who aids or assists a felon in avoiding apprehension or conviction after commission of the felony. An accessory after the fact must know that a felony was committed, act specifically to aid or assist the felon, and give the aid or assistance for the purpose of helping the felon avoid apprehension or conviction.

Question 5

Mother asking daughter to steal

Answer 5

Solicitation is the enticing, encouraging, requesting, or commanding of another person to commit a crime with the intent that the other person commits the crime. The encouragement may take the form of enticement, incitement, request, or command. The crime is completed upon the encouragement. The other person need not agree to commit the crime.

Question 6

robbery but clerk kills bystander

Answer 6

Felony murder is an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony, including a robbery. Most states apply the agency theory when a bystander is killed by a police officer or due to resistance by the victim of the felony. Under this theory, the felon will not be liable for the death of a bystander caused by a felony victim or police officer because neither person is the felon’s agent.

Question 7

Attractive Nuisance

Answer 7

Under the attractive nuisance doctrine, a land possessor may be liable for injuries to children trespassing on the land if:
i) an artificial condition exists in a place the land possessor knows or has reason to know children are likely to trespass;
ii) the owner knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children;
iii) the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition;
iv) the utility to the landowner of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children; and
v) the landowner fails to exercise reasonable care to protect children from the harm.

Did not matter that Nuisance was visible.

Question 8

Join and several liability

Answer 8

Under the doctrine of joint and several liability, each of two or more tortfeasors who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm.

Even if only 20% at fault, can be on hook for whole harm of tortfeasors

Question 9

Informed Consent

Answer 9

Physicians are under a special obligation to explain all material risks of a medical procedure to a patient in advance of a patient’s decision to consent to treatment. Failure of a physician to secure informed consent from the patient constitutes a breach of the physician’s duty toward the patient and is actionable as medical malpractice. Doctors are not under an obligation to disclose when the risk is a commonly known risk, the patient waives or refuses the information, the patient is incompetent (although the physician must make a reasonable attempt to secure informed consent from a guardian), or disclosure would be detrimental to the patient (e.g., it would upset the patient enough to cause extreme illness, such as a heart attack).

Material risks must disclose

Question 10

Landowner Duty of Care to invitee

Answer 10

While landowners owe some duty of care to anticipated trespassers, they owe no duty to trespassers who are neither discovered nor anticipated.

Question 11

NEID

Answer 11

A plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the plaintiff in harm’s way if the plaintiff demonstrates that: (i) he was within the “zone of danger” of the threatened physical impact—that he feared for his own safety because of the defendant’s negligence; and (ii) the threat of physical impact caused emotional distress.

Question 12

Professional Duty

Answer 12

A professional person, like an electrician, is expected to exhibit the same skill, knowledge, and care as an ordinary professional in the same community. Answer choice A is incorrect because it describes the common law duty of care owed by innkeepers, not professionals.

in the community*

Question 13

Landowner to Invitee beyond scope of invitation

Answer 13

An invitee is one who enters the land of another by invitation, often, but not necessarily, for the business purposes of the landowner. A landowner owes the greatest duty of care to invitees: he is under the same obligations owed to licensees (duty to warn and to use reasonable care), but he also must conduct reasonable inspections of his property and make the property safe for the protection of invitees. A landowner is liable for any negligence that causes an invitee to be injured due to unsafe conditions. The duty of care owed to an invitee does not extend beyond the scope of the invitation, however, and the invitee is treated as a trespasser in areas beyond that scope

Question 14

Preexisting Duty Rule

Answer 14

Traditional common law rule
- Promise to perform, or performance of, preexisting duty does not constitute consideration

Modern exception
- Consideration exists if preexisting duty owed to third person (ie, nonparty to contract)

Under the common law, modification of an existing contract is permitted if it is supported by new consideration—i.e., a bargained-for exchange of promises or performance—from both sides of the agreement

As a result, a modification is permitted when there are unanticipated difficulties* and one party agrees to compensate the other so long as the modification is fair and equitable in light of those difficulties.

Question 15

Accord Agreement

Answer 15

An existing contractual obligation can be discharged by an accord agreement. Under this agreement, a contracting party agrees to accept performance that differs from what was promised in an existing contract in satisfaction of the other party’s existing duty. When a claim is unliquidated or otherwise subject to dispute, it can be discharged by accord and satisfaction if:

the person against whom the claim is asserted tendered a negotiable instrument (e.g., a check)

the instrument was accompanied by a conspicuous statement indicating that it was tendered as full satisfaction of the claim (e.g., “payment in full”) and

the claimant obtained payment of the instrument.

Question 16

Perfect TEnder Rule

Answer 16

Under the UCC, a requirements contract is a contract under which the buyer agrees to purchase as many goods as the buyer requires from the seller. And under the perfect-tender rule, the goods and the seller’s tender of those goods must fully conform with the terms of the agreement. Substantial performance will not suffice.

Although goods must generally be tendered in a single delivery, this rule does not apply when the contract or circumstances indicate otherwise. For example, a single delivery would be unreasonable when the buyer would clearly have no room to store the goods if they were delivered all at once. In such an event, the buyer is entitled to reject the delivery for imperfect tender.

Question 17

Impracticability defense

Answer 17

Parties to a contract have an absolute duty to perform unless that duty is discharged. Performance can be discharged due to impracticability if:

an unforeseeable event has occurred
the contract was formed under the basic assumption that the event would not occur and
the party seeking discharge of performance is not at fault.
But if a party assumed the risk of an event happening that made performance impracticable, then the party’s performance will not be discharged by impracticability.

Question 18

Intended beneficiaries

Answer 18

A third-party beneficiary is a nonparty to a contract who receives some advantage or benefit from that contract. There are two types of third-party beneficiaries:

Intended – who receive a direct benefit from the contract because the contracting parties so intended (e.g., the contract provides that payment will go directly to a third party—as seen here)

Incidental – who receive some indirect benefit from the contract even though there was no contractual intent to benefit them (i.e., all third-party beneficiaries who are not intended beneficiaries)

Intended beneficiaries—not incidental beneficiaries—have contractual rights and may sue to enforce those rights once they vest. This occurs when the beneficiary detrimentally relies on the rights created, manifests assent to the contract at one party’s request, or files a lawsuit to enforce the contract. Until that time, the contracting parties can modify or rescind the contract without the beneficiary’s consent.

Question 19

condition precedent

Answer 19

Performance is generally due once a contract is formed, but a duty to perform can be delayed or discharged by a condition—i.e., an uncertain future event that must occur before performance becomes due or is discharged. There are two types of conditions:

condition precedent – delays performance until a specified event occurs
condition subsequent – excuses performance once a specified event occurs
A condition precedent will be excused if a party whose performance is subject to that condition wrongfully prevents or interferes with its occurrence—e.g., by breaching the duty of good faith and fair dealing (which includes the duty to cooperate) that is implied in every contract. When this occurs, the condition no longer needs to occur for the interfering party’s performance to become due.

Question 20

anticipatory repudiation

Answer 20

The doctrine of anticipatory repudiation generally applies when a contracting party clearly and unequivocally indicates an unwillingness to perform a promise before the time for performance is due. Upon repudiation, the nonrepudiating party may:

treat the repudiation as a breach of the contract or
ignore the repudiation and demand performance.
However, this doctrine does not apply when the date of performance has not passed and the nonrepudiating party has fully performed. Under those circumstances, the nonrepudiating party must wait until the repudiating party’s performance is due before filing suit.

Question 21

Parol Evidence Rule

Answer 21

The parol evidence rule generally bars evidence of prior or contemporaneous agreements that contradict the terms of an integrated writing—i.e., a writing that presents the final expression of the parties’ agreement. A writing may be fully or partially integrated. However, the UCC presumes that a contract for the sale of goods (e.g., jewelry) is only partially integrated.* As a result, evidence that supplements a written contract is admissible—but evidence that contradicts the writing is inadmissible.

Question 22

Substantial performance and recovery

Answer 22

A party who substantially performs contractual obligations (i.e., commits a minor breach) can recover on the contract even though that party has not rendered full performance. The substantially performing party can generally recover the contract price minus any cost that the nonbreaching party incurred to receive full performance.

In contrast, a party who commits a material breach by failing to substantially perform cannot recover under the contract. The breaching party can only recover in restitution for any benefit conferred on the nonbreaching party minus damages for the breach.

Question 23

UCC Intent to be bound

Answer 23

Under the UCC, a contract for the sale of goods is formed if both parties intend to contract and there is a reasonably certain basis for giving a remedy in the event of a breach. Intent to contract is judged by outward, objective manifestations of intent, as interpreted by a reasonable person. So when an agreement reflects an intent to be bound only if the price is subsequently set, no contract is formed until the price is set.

Question 24

UCC missing terms

Answer 24

Contract terms must be sufficiently certain and definite for the court to determine the existence of a breach and give an appropriate remedy. While the common law requires that all essential terms be covered in the agreement, the UCC—which governs contracts for the sale of goods—is more liberal.

The UCC encourages contract formation by providing “gap fillers” for many missing terms. For example, if a contract omits a price term—or if the parties agree to set the price in the future but fail to do so—then the UCC supplies a reasonable price at the time of delivery. Therefore, the court should award the manufacturer $3.25 per bottle, which was the reasonable price for the bottles at the time of delivery.

Question 25

Unconscionability

Answer 25

A court may modify or refuse to enforce a contract on the ground that it is unconscionable—i.e., so unfair to one party that no reasonable person in that party's position would have agreed to it. Unconscionability can be procedural or substantive, and it is a question of law for the court (not the jury) to decide based on the circumstances. The contract is substantively unconscionable if the terms are unduly unfair.

Question 26

Entrustment

Answer 26

Under the UCC, which applies to contracts for the sale of goods, the entrustment of goods by the owner to someone who sells goods of that kind (i.e., a merchant) gives the merchant the power to convey good title. Good title can be conveyed to a buyer in the ordinary course of business—i.e., someone who buys goods: in good faith without knowledge that the sale violates the owner's rights to the goods and from a merchant in the business of selling goods of that kind. Entrustment includes any delivery and acquiescence to the possession of goods, regardless of conditions expressed between the parties.

Question 27

Mutual mistake

Answer 27

When both parties are mistaken as to an essential element of a contract (i.e., mutual mistake) at the time the contract is formed, the contract is voidable by the adversely affected party if: the mistake relates to a basic assumption of the contract the mistake materially affects the agreed-upon exchange of performances and the adversely affected party did not assume the risk of mistake. A party assumes the risk of mistake if, at the time the contract is formed, the party is aware that he/she has limited knowledge of the facts and accepts this knowledge as sufficient.

Question 28

UCC and Irrevocable Offers

Answer 28

Under the mailbox rule, an acceptance that is mailed within the allotted response time is effective when sent unless the offer provides otherwise. However, this rule does not apply to firm offers, options, or other irrevocable offers. Under the UCC, a merchant's offer to sell goods is firm (i.e., irrevocable) if it is made in a signed writing that assures that the offer will remain open. Acceptance of a firm or otherwise irrevocable offer is effective only if it is received by the offeror before the offer expires.

Question 29

CL Material Breach and express conditions

Answer 29

Under common law, which governs contracts for services, a material breach allows the nonbreaching party to withhold its own performance. A breach is material when the nonbreaching party does not receive the substantial benefit of its bargain. As a result, substantial performance—i.e., less-than-full performance that, while imperfect, does not defeat the contract's main purpose—does not typically constitute a material breach. However, substantial performance will not suffice for express conditions in a contract. Such conditions must be performed in full. Words in the contract such as "on the condition that" or "provided that" are typical indicators of express conditions

Question 30

UCC parol evdience rule

Answer 30

Under the UCC parol evidence rule, evidence of a prior or contemporaneous agreement cannot be used to contradict the terms of a final written agreement. But evidence of the parties' course of performance, course of dealing, or trade usage can be used to explain or supplement those terms—even when the terms appear unambiguous. Trade usage is any practice or method of dealing in the particular business or industry that is observed with such regularity so as to justify an expectation that it will be observed in the instant case.

Question 31

Termiunation of offer before acceptance

Answer 31

*Counteroffer does not terminate offer if offeree manifests intent to take offer under advisement. An offer can be accepted at any time before the offer is revoked. The offeror can revoke the offer by manifesting an intent not to enter into the proposed contract. This can occur in two ways: expressly – when the offeror communicates the revocation directly to the offeree constructively – when the offeree acquires reliable information that the offeror has taken definite action inconsistent with the offer

Question 32

PER and Condition Precedent

Answer 32

The parol evidence rule generally prevents a party to a written contract from presenting extrinsic evidence of a prior or contemporaneous agreement that contradicts the terms of the contract as written. However, evidence may be admitted to prove a condition precedent to the existence of the contract. A condition precedent is a condition that must occur to trigger a party's obligation to perform.

Question 33

When nonoccurence of condition is excused

Answer 33

A party's obligation to perform may be conditioned on an uncertain future event that must occur before performance becomes due (i.e., a condition precedent). However, a party whose duty is subject to the condition can waive the condition by words or conduct.

Question 34

UCCC Missing Terms

Answer 34

For a contract to exist, the terms of the contract must be sufficiently certain and definite for the court to determine if there has been a breach and give an appropriate remedy. The UCC, which governs contracts for the sale of goods (e.g., computers), encourages contract formation by providing gap-fillers for many missing terms, but not for the following: identity of the contracting parties subject matter of the contract quantity of goods to be sold A contract must therefore specify a quantity that is certain or determinable by reference to objective facts, such as the buyer's actual requirements or the seller's actual output in a requirements or output contract. If it does not, the contract fails for indefiniteness.

Question 35

Contracts not specifying assortment of goods

Answer 35

When a contract for the sale of assorted goods does not specify who will choose the assortment, the UCC imposes a duty on the buyer to make that selection. If the buyer fails to specify the assortment of goods, then the seller can treat that failure as a breach—but only if the buyer's failure to specify the assortment materially impacts the seller's performance. Here, the store did not select an assortment of party kits by the October 15 deadline. However, the company had sufficient merchandise to satisfy the store's order on October 17, so the store's two-day delay did not materially impact the company's ability to perform.

Question 36

Warranty of Merchantability

Answer 36

Under the UCC, the warranty of merchantability is implied in all contracts for the sale of goods by a merchant—i.e., one who regularly deals in goods of the kind involved in the contract. Goods are merchantable if they are fit for their ordinary purpose and would pass without objection in the trade under the contract description. Here, the fact that the car's engine required a costly overhaul indicates that the car was not fit for its ordinary purpose. But since the storeowner was a merchant with respect to beauty products—not vehicles—the warranty of merchantability was not implied in this contract. As a result, the customer is not likely to be successful in her lawsuit against the storeowner.

Question 37

Termination of Offer before ACceptance

Answer 37

Offeror's revocation - Offeror communicates revocation directly to offeree - Offeree learns information from reliable source that reasonably indicates offer was revoked (eg, house sold to another buyer) Offeree's rejection -Offeree communicates rejection directly to offeror -Offeree's counteroffer serves as rejection & new offer* Lapse - Time period specified in offer expires - After reasonable time if no time period specified in offer By law - Either party dies or is adjudicated insane - Subject matter of offer is destroyed or becomes illegal *Counteroffer does not terminate offer if offeree manifests intent to take offer under advisement. Once an offer has been made, a binding contract will be formed if the offer is accepted before it terminates. Offers can be terminated by revocation, rejection, lapse, or operation of law (see table above). An offer terminates by operation of law when, for example, the subject matter of the offer is destroyed.

Question 38

Installment Contracts

Answer 38

Deliveries - Price for each installment generally due at time & place of each delivery - Seller's damages for breach amount to missed payments - Buyer's damages for breach amount to fair market value minus contract price for missed deliveries Payments -Creditor's damages for breach amount to missed payments Special rules apply to installment contracts for the sale of goods (e.g., windows), which are governed by the UCC. Under the UCC, an installment contract is defined as a contract in which the goods are to be delivered in multiple shipments, and each shipment is to be separately accepted by the buyer. Payment by the buyer is due upon each delivery unless the price cannot be apportioned.

Question 39

UCC - Contract Formation

Answer 39

Contract formation under the common law requires an offer with definite terms and an acceptance with knowledge of that offer. But these requirements are relaxed by the UCC, which governs contracts for the sale of goods (e.g., a ring). Under the UCC, a contract is formed if the parties intended to contract and there is a reasonably certain basis for giving a remedy. The contract may be made in any manner sufficient to show agreement—even if the moment of its making is undetermined.

Question 40

Promissory Estoppel

Answer 40

A contract must be supported by consideration—i.e., a benefit bargained for and received by the promisor from a promisee. Since a promise to make a gift does not involve a bargained-for exchange, it is generally unenforceable. But under the doctrine of promissory estoppel, a gift promise is enforceable if three requirements are met: the promisor should reasonably expect the promisee to rely on the promise the promisee detrimentally relies on the promise and injustice can be avoided only by enforcement of the promise.

Question 41

Order of performances

Answer 41

Simultaneous performance possible - Condition concurrent implied (ie, performance due simultaneously) One performance requires time - Condition precedent implied (ie, durational performance due before respective duty triggered) *These rules apply unless express contractual language or circumstances indicate otherwise. When a party performs one part of a divisible or installment contract, that party is generally entitled to the agreed equivalent for that part—even if the party fails to perform the other parts of the contract. In other words, that party's performance of the entire contract is generally not a condition precedent to the other party's duty to perform. A contract is divisible if: - the parties' duties can be broken down into at least two corresponding pairs of performances and - those pairs of performances can fairly be regarded as agreed (i.e., bargained-for) equivalents. Courts prefer to interpret contracts as divisible for reasons having to do with fairness. However, courts will not do so if the contract expressly states that it is indivisible or payment is due upon completion of the entire contract.

Question 42

Compensatory Damages

Answer 42

Primary (expectation measure) - Place nonbreaching party in same position as if contract had been performed - Expectation measure includes: > Expectation damages > Incidental damages > Consequential damages Fallback (reliance measure) - When expectation measure too speculative, place nonbreaching party in same position as if no contract had been formed - Reliance measure includes: > Reliance damages > Liquidated damages > Restitution Nonbreaching parties to a contract may choose between several types of damages, including: - expectation damages – damages that arise naturally and obviously from the breach - reliance damages – foreseeable expenses that the nonbreaching party incurred in reasonable reliance on the promise that the other party would perform Although the nonbreaching party can pursue reliance damages in lieu of expectation damages, the nonbreaching party cannot recover both for the same breach. Expectation damages are calculated by comparing the value of performance without the breach (what was promised) with the value of the performance with the breach (what was received)

Question 43

Auction Contracts

Answer 43

Auction contracts Goods in lots - Each lot of goods is sold in separate sale Type of auction - Reserve (default type) – auctioneer may withdraw goods prior to completion of sale - No-reserve (special announcement required) – goods cannot be withdrawn after auctioneer calls for bids unless no bid is received within reasonable time When seller bids - Winning bidder can avoid sale, or pay price of last good-faith bid, if auctioneer: > knowingly accepts bid by or on behalf of seller or > procures seller's bid to drive up price of goods - Exceptions – seller can bid: > at forced sale or > if seller gives notice reserving right to bid Completion of sale - When auctioneer announces end of sale (eg, by fall of hammer) - If bid is made contemporaneously with end-of-sale announcement, auctioneer has discretion to continue bidding The UCC has special rules for goods sold at auction. If goods are auctioned in lots, each lot represents a separate sale. Whether the goods can be withdrawn once the auctioneer calls for bids depends on the type of auction: - at a reserve auction—which is presumed unless a no-reserve action is announced—the auctioneer may withdraw goods from auction prior to completion of the sale - at a no-reserve auction—which must be specifically announced—goods cannot be withdrawn from auction after the auctioneer calls for bids unless no bid is received with a reasonable time In either type of auction, a bidder may retract a bid until the auctioneer announces the completion of the sale (e.g., at the fall of the auctioneer's hammer). However, the bidder's retraction will not revive any earlier bids.

Question 44

Operation of the Mailbox Rule

Answer 44

Contract formation requires both an offer and an acceptance (i.e., mutual assent). The offeror can dictate the manner and means by which the offer may be accepted. But if the offeror does not do so, then the offeree can accept the offer in any reasonable manner and by any reasonable means—e.g., delivering the acceptance by mail. Under the mailbox rule, an acceptance sent by mail or similar means is generally effective upon dispatch, while a rejection is effective upon receipt.

Question 45

Offer to satisfy debt with check

Answer 45

Under an accord and satisfaction, a party can fulfill its contractual obligation by rendering different performance than the one initially promised. This can be accomplished through a negotiable instrument (e.g., check) if three conditions are met: the obligation is unliquidated (i.e., uncertain in amount) or otherwise in dispute the obligor, in good faith, tenders the negotiable instrument with a conspicuous statement that the instrument is tendered as full satisfaction of the obligation and the obligee obtains payment of the instrument (e.g., by cashing the check).

Question 46

Enforceability of new promise to pay debt without consideration

Answer 46

A contract must generally be supported by consideration to be enforceable. However, there are circumstances in which a promise is enforceable without consideration. For example, a new promise to pay a debt after the statute of limitations has run is enforceable without any new consideration. When the new promise is an express promise, most jurisdictions require that the new promise be in writing and signed by the debtor to be enforceable.

Question 47

Closing date in a real estate contract

Answer 47

A closing date is not an essential term of a real estate contract. Therefore, a seller's performance is typically due at or within a reasonable time after the closing date—unless the real estate contract contains a "time is of the essence" clause (not seen here). Accordingly, the seller's failure to perform by the closing date is not a material breach that excuses the buyer's duty to perform—but it is still a breach. The buyer can therefore recover damages—even if the seller acted in good faith

Question 48

UCC - disclaimer of implied warranties

Answer 48

The UCC provides certain implied warranties for contracts involving the sale of goods (e.g., a machine), including the warranty of merchantability. This warranty applies when the seller is a merchant—i.e., one who regularly deals in goods of the kind involved (as seen here). It ensures that goods are merchantable, meaning that they are fit for their ordinary purpose and conform to the seller's representations. However, this warranty is disclaimed (i.e., waived) for defects that an examination would have revealed if the buyer: examined the goods as fully as desired before entering the contract or refused to examine the goods before entering the contract.

Question 49

UCC - Modifying existing Contracts

Answer 49

Article 2 of the UCC governs contracts for the sale of goods (e.g., designer jeans). Unlike the common law, the UCC requires no consideration to modify a contract. All that is required is good faith. Good faith requires honesty in fact and fair dealing between the parties according to reasonable commercial standards. Consequently, if a party extorts or otherwise forces the other party to agree to a modification, then the modification is unenforceable.

Question 50

Consideration problems that prevent contract formation

Answer 50

Gift No bargained-for exchange Token consideration No inducement to bargain if performance entirely devoid of value Sham consideration No legal detriment & no inducement to bargain if recited performance not intended to be completed Preexisting duty / past consideration No legal detriment if performance already owed or completed Illusory promise No legal detriment if apparent promise imposes no obligation

Question 51

Settlement of debts

Answer 51

The law permits the settlement of debts (e.g., by allowing a debtor to delay payment), but consideration is required for the settlement to be enforceable (Choice C). Consideration is evidenced by a bargained-for change in the legal position between the promisor and the promisee. This exists when there is a legal detriment to the promisee that supports the promise made by the promisor, which can take the form of an act, a return promise, or forbearance (i.e., refraining from exercising a legal right). However, under the common-law preexisting-duty rule, a promise to perform a preexisting duty is not consideration. That is because the promisee incurs no legal detriment by performing a duty that he/she is already bound to perform.

Question 52

UCC auction - owner bid

Answer 52

The UCC, which governs contracts for the sale of goods, provides special rules for auction sales. One such rule limits the seller's ability to bid at an auction sale. It allows a winning bidder to avoid the sale or pay the price of the last good-faith bid if the auctioneer (1) knowingly accepted a bid by the seller or on the seller's behalf or (2) procured the seller's bid to drive up the price of the goods. However, the winning bidder may not do so if: the seller bid at a forced sale* (e.g., a foreclosure sale initiated by a secured creditor) or the seller gave notice reserving the right to bid.

Question 53

Assignment made without consideration

Answer 53

An assignment is the transfer of rights under a contract. An assignment is valid so long as there is a present intent to transfer contractual rights. It need not be accompanied by consideration. But when an assignment is made without consideration (i.e., a gratuitous assignment), it is revocable by the assignor (i.e., the party assigning rights to another) unless: the obligor (i.e., the party obligated to perform) has already performed—i.e., the assignee obtained the payment or other performance under the contract from the obligor a document symbolizing the assigned right has been delivered to the assignee a written assignment signed by the assignor has been delivered to the assignee or the assignee (i.e., the party receiving assigned rights) has detrimentally relied on the assignment.

Question 54

UCC auctiion - right to withdraw

Answer 54

here are two types of auction sales, both of which are governed by Article 2 of the UCC: Reserve auctions* – during which the auctioneer may withdraw the goods any time before announcing the completion of the sale No-reserve auctions – during which goods cannot be withdrawn after the auctioneer calls for bids unless no bid is received within a reasonable time However, in either type of auction, a bidder has the right to withdraw a bid until the auctioneer announces the completion of the sale.

Question 55

UCC Firm Offer

Answer 55

Under the UCC firm-offer rule, an offer to buy or sell goods (e.g., tomatoes) will remain open and cannot be modified if: the offeror is a merchant* (here, the supplier regularly deals in produce) there is an assurance that the offer is to remain open (here, the supplier's letter states that the prices will remain firm until August) and the assurance is contained in a signed writing from the offeror (here, the supplier's letter was signed). A firm offer is irrevocable for the time stated in the offer or, if no time is stated, for a reasonable time. However, the period of irrevocability cannot exceed three months—even if a longer time period is stated or implied—unless the offeree gives consideration to validate it beyond the three-month period.

Question 56

Court-ordered guardianship and contracting

Answer 56

An individual who is the subject of a court-ordered guardianship over that individual’s property lacks the capacity to enter into a contract. Consequently, any contract purportedly entered into by such an individual is void. Since the father was under a court-ordered guardianship, his contract to purchase the furniture was void. (Note: If the furniture is a necessity, the store may be able to recover the furniture’s reasonable value in restitution under a quasi-contract action, but cannot enforce the contract of sale between the store and the father.)

Question 57

UCC warranty of merchantability

Answer 57

Goods that are not fit for the ordinary purpose for which such goods are used are not merchantable. As a merchant seller of the windows, the distributor can be liable for breach of the warranty of merchantability because the windows did not meet their ordinary purpose.

Question 58

Common law mirror image

Answer 58

Whether the email exchange in question has resulted in the formation of a contract is determined under the common law because the matter involves the provision of a service rather than the sale of goods. Under the common law, the acceptance must mirror the terms of the offer (i.e., the mirror-image rule applies). Any change to the terms of the offer, or the addition of another term not found in the offer, acts as a rejection of the original offer and as a new counteroffer. Because the owner’s response contains an additional term regarding when payment would be made, his response is not an acceptance that creates a contract, but is instead a counteroffer.

Question 59

SoF One Year

Answer 59

A contract that cannot be performed within one year from its making because of the constraints of the terms of the agreement falls within the Statute of Frauds and is unenforceable unless made in writing. Here, the director’s promise could not have been completed within a year of its making. The driver accepted the offer in early May to drive a school bus for the following school year that extended through the next June. Therefore, the driver cannot enforce the director’s promise without a writing to satisfy the Statute of Frauds.

Question 60

Acceptance by shipmentt

Answer 60

Contracts for the sale of goods are governed by th e UCC. A seller can accept an offer by shipping or promising to ship the ordered goods. Acceptance by shipment is effective immediately and creates a cntract with terms identical to those of the offer. Once created, the K cannot be modified unless both parties agree to the modification. And if either party breaches, the other part can recover consequential damages.

Question 61

unilateral mistake

Answer 61

When only one of the parties was mistaken as to an essential element of the contract at the time the contract was formed, either party can generally enforce the contract on its terms. However, the mistaken party can void the contract if (i) there was a mistake of fact existing at the time the contract was formed, (ii) the mistake relates to a basic assumption of the contract, (iii) the mistake has a material impact on the transaction, and (iv) the adversely affected party did not assume the risk of the mistake and either (i) the mistake would make enforcement of the contract unconscionable or (ii) the non-mistaken party caused the mistake, had a duty to disclose or failed to disclose the mistake, or knew or should have known that the other party was mistaken.

Question 62

Limitation of consequential damages

Answer 62

Generally consequential damages for breach of warranty may be limited or excluded unless the limitation or exclusion is unconscionable. Although limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable, a limitation of damages when the loss is commercial is not.

Question 63

Waiving a condition

Answer 63

party to a contract whose duty is subject to a condition can waive the condition, either by words or by conduct. In addition, that party may reinstate the condition if (i) the waiving party communicates a retraction of the waiver before the condition is due to occur, and (ii) the other party has not already suffered detrimental reliance.

Question 64

Express warranty

Answer 64

Any promise, affirmation, description, or sample that is part of the basis of the bargain is an express warranty, unless it is merely the seller’s opinion or commendation of the value of the goods.

Question 65

Unconscionability

Answer 65

A court may modify or refuse to enforce a contract or part of a contract on the ground that it is unconscionable when the contract is so unfair to one party that no reasonable person in the position of the parties would have agreed to it. The contract or part of the contract at issue must have been unconscionable at the time it was made.

Question 66

Rebuttable Presumptions

Answer 66

In federal cases in which state law supplies the rule of decision for a claim or defense (i.e., in diversity cases), it also governs the effect of presumptions related to the claim or defense. This means that state-law presumptions are recognized in federal diversity actions In federal cases in which state law supplies the rule of decision for a claim or defense (i.e., in diversity cases), it also governs the effect of presumptions related to the claim or defense.

Question 67

Defeasible Fee

Answer 67

Fee Simple Determinable - durational: "so long as" "during "until" - Grantor's poss of reverter or 3rd party exec interest - automatic revert Fee simple subject to condition subsequent - conditional: "but if" "provided that" "unless" - 3rd Party's executory interest or grnators right of entry - entry must be initiated

Question 68

Freedom of Press

Answer 68

Protects right to publish lawfully obtained and truthful info and matters of public cocern However, this right does not shield the press from generally applicalbe laws - even if such laws incidentally affect the press' ability to gather and report news

Question 69

When to apply state v federal law

Answer 69

In determining whether to apply state or federal law, the district court will start by determining whether there is a conflict between state and federal law with respect to the issue before the court. If the applicable state and federal laws do conflict, then the district court must ask whether a valid federal statute or Federal Rule covers the disputed issue. If no federal statute or rule is on point, then the court must determine whether federal common law, rather than state law, should be applied. In making this determination with respect to federal common law, the district court will ask whether the failure to apply state law will lead to different outcomes in state and federal court. If the answer is yes, then the court will apply state law, unless affirmative countervailing federal interests are at stake that warrant application of federal law. The Supreme Court has also recognized the application of federal common law when a “uniquely federal interest” is at stake and a significant conflict exists between that interest and the operation of state law.

Question 70

Shipment Contract

Answer 70

Under UCC § 2-509(1), a contract that requires the seller to ship goods to the buyer by a third-party carrier is either a shipment or a destination contract. In the absence of a contract term or trade usage to the contrary, a shipment contract is presumed when the contract requires shipment by a third-party carrier. Because this is presumed to be a shipment contract, the risk of loss would pass from the manufacturer to the merchant when the manufacturer duly delivered the clock to the third-party carrier.

Question 71

Destination Contract

Answer 71

The contract did not specify delivery to a particular place.

Question 72

Assigning Contract Rights

Answer 72

Generally, contract rights are assignable unless the assignment materially increases the duty or risk of the obligor or materially reduces the obligor’s chance of obtaining performance.

Question 73

Res Ipsa

Answer 73

Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of the defendant's negligent conduct in the absence of direct evidence of such negligence. To permit this inference, the plaintiff must prove that the accident (i) was of the kind that ordinarily does not occur in the absence of negligence, (ii) was caused by an agent or instrumentality within the exclusive control of the defendant, and (iii) was not due to any action on the part of the plaintiff.

Question 74

Equitable Servitude

Answer 74

For a promise restricting the use of land to be enforced in equity against a subsequent transferee of the land, the requirements for an equitable servitude must be satisfied. Among those requirements is that the promise must be in writing. ****

Question 75

Economic Loss Damages

Answer 75

The plaintiff must prove actual injury; nominal damages are not available in negligence actions, nor are damages for the threat of future harm. In addition, a plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover such loss through a negligence action.

Question 76

Mirror Image Rule

Answer 76

The mirror image rule, which states that the acceptance must mirror the terms of the offer, does not apply to a sale of goods, such as a glass ornament.

Question 77

Content Neutral

Answer 77

the First Amendment generally prohibits the government's ability to restrict speech. However, the government may impose reasonable restrictions on the time, place, and manner of protected speech in a public forum, such as a public sidewalk, provided the restrictions are (i) content neutral as to both subject matter and viewpoint, (ii) narrowly tailored to serve a significant government interest, and (iii) leave open alternate channels for communication of the information.

Question 78

Wharton Rule

Answer 78

Under the Wharton Rule, if a crime requires two or more participants (e.g., adultery) there is no conspiracy unless more parties than are necessary to complete the crime agree to commit the crime. However, the Wharton Rule does not apply to conspiracies under the MPC because the MPC does not require the participation of at least two conspirators.

Question 79

Custodial Interrogation

Answer 79

Any incriminating statement obtained as the result of custodial interrogation may not be used against the suspect at a subsequent trial unless the police provided procedural safeguards effective to secure the privilege against self-incrimination. A person is in custody when he is not free to leave or is otherwise deprived of his freedom in any significant way. The test is whether a reasonable person, under the totality of the circumstances, would believe that he is not free to leave. An interrogation refers not only to express questioning, but also to any words or actions that the police know or should know are likely to elicit an incriminating response.

Question 80

Order to Appoint a Receiver

Answer 80

Although generally a district court order that does not constitute a final order is not immediately appealable, there is a special statutory exception for an order that appoints or refuses to appoint a receiver.

Question 81

Real Covenants

Answer 81

moeny damages For Burden to run - Writing - intent to run - Touch and concern - Horizontal and vertical privity - Notice For benefit to run - writing - intent to run - touch and concern - limited vertical privity - no notie required

Question 82

Equitable Servitudes

Answer 82

equitable relief Express - writing -intent to run - touch and concern - notice Implied - intent to create common scheme - restrictive servitude - notice

Question 83

Forum Defendant Rule

Answer 83

Prohibits removal when (10 smj arises solely from diversity jx. and 2) a defendant is a citizen of the state in which the case was filed. However, this rule does not aplly - and removal is proper - when smj also arises from federal question jx.

Question 84

Attempt Act Requirement

Answer 84

Under the CL dangerous proximity test, an overt act occurs when the defendant comes so close to completing the target offense that it is essentially unstoppable. under the Substantial step test used in a majority of jx., a defendants conduct qualifies as an overt act when it exceeds mere preparation and strongly corroborates the defendant's criminal intent.

Question 85

Undue influence

Answer 85

A K induced by undue inflience is voidalbe by the asseting party. Arises when a party assents to aK due to unfair or excessive persuasion by someone who domiantes or holds a special relationship of trust and confidence with the asseting party. Persuausion is unfair or excessive if it seriously impairs the assenting party's ability to exercise free an dcompetent judgment. The following factors are often considered in making this determination - unfairness of the resulting bargain - unavailability of independent advice - susceiptibility of the assenting party Undue influence from a third party can still be avoided, unless the benefitng party 1) did not know of the undue infleunce and 2) had given value or relied on the K in good faith.

Question 86

Intentional Interference with a contract

Answer 86

requires evidence that - a valid contract existed between the P and 3rd party - the D knew of that contractual relationship - the D intentionally and improperly interefered with the K's performance and - that interference caused the P pecuniary loss

Question 87

Property Offenses

Answer 87

Embezzlement - specific intent - conversion of lawfully possess property that belongs to another Larceny - specific intent - unlawful taking and carrying away of another's property Larceny by trick - specific intent - knowlingly misrepresenting a material fact to obtain possession of another's property False pretenses - specific intent - knowingly misrepresenting a material fact to obtain titlte to another's property

Question 88

Authentication

Answer 88

Tangible evidence must be authenticated before it can be admitted at trial. This requires a prima facie showing that the object is what the proponent claims it to be. A photograph is authenticated by having a witness with personal knowledge of th ethinfg depicted testify that the photo fairly and accurately depcits that thing.

Question 89

Forfeiture of hearsay and confrontation

Answer 89

Forfeiture - Objection to use of unavailable declarant's hearsay statement is forefeited if party - wrongfully caused, or acquiesced in causing, decalarant's unavailabiity and -did so intending that result Standard of Proof - party attempting to prove forefeiture must do so by preponderance of evidence - ie - greater weight of evidence (more than 50%) supports argument.

Question 90

Proper venue

Answer 90

Case may be broguht in any federal district where: - any defendant resides, if defendants all reside in same state - substantial part of events giving rise to claim occured or property at issue is located - any defendant is subject to court's personal jx.

Question 91

Transfer from proper venue

Answer 91

When venue is proeprty, DC may trasnfer case to any other proper venue for convenience of parties/witnessses and in interest of jujstice

Question 92

Transfer of dismisal from improper venue

Answer 92

when venue is improper, DC must either - dismiss the case - transfer case to proper venue (ifP interest or justice requires)

Question 93

Punitive damages

Answer 93

Money damages awarded to punish the D for outrageous, maliciuos, or evil conduct, and to deter the D and others from engaging in similar conduct. Only available for torts involving wilful or wanton misconduct. A P cannot recover punitive damages for negligent conduct because these damages are designed to punish and deter outrageous, malicious, or evil conduct - not mere unreasonable conduct.

Question 94

Battery

Answer 94

A defendant is liable for battery if (i) the defendant intended to cause contact with the plaintiff's person, (ii) the defendant's affirmative conduct caused such contact, and (iii) that contact caused bodily harm or was offensive to the plaintiff. A plaintiff is generally precluded from recovery if the plaintiff consents either to the contact that is harmful or offensive or to the conduct by which the actor intends to cause such a contact. A plaintiff expressly consents to the defendant's otherwise tortious intentional conduct if the plaintiff is willing for that conduct to occur. Such willingness may be express or inferred from the facts

Question 95

Refund to defaulting buyer

Answer 95

For contracts for the sale of goods, a defaulting buyer is entitled to a refund of any payments made on the contract less damages provable by the seller and either (i) the amount to which the seller is entitled by virtue of an enforceable liquidated-damages provision or (ii) a penalty of “20 percent of the value of the total performance for which the buyer is obligated under the contract, or $500, whichever is smaller.”

Question 96

Manufacturing Defect

Answer 96

o prevail on a claim for manufacturing defect, the plaintiff must prove that: (i) the product was defective, (ii) the defect existed at the time the product left the defendant’s control, and (iii) the defect caused the plaintiff’s injury when the product was used in an intended or reasonably foreseeable way. The test for the existence of a manufacturing defect is whether the product conforms to the defendant’s own specifications.

Question 97

Special Warranty Deed

Answer 97

The covenant against encumbrances guarantees that the deed contains no undisclosed encumbrances. A special warranty deed contains this covenant but only warrants against defects arising during the time the grantor has title.

Question 98

Issue Preclusion

Answer 98

The doctrine of issue preclusion, often called “collateral estoppel,” precludes the re litigation of issues of fact or law that have already been necessarily determined by a judge or jury in an earlier action. For this doctrine to apply, the issue sought to be precluded must be the same as that involved in the prior action, must have been actually litigated in the prior action, and must have been essential to the prior valid, final judgment.

Question 99

Enabling Clause

Answer 99

The Court has interpreted the Eleventh Amendment as barring unconsented private suits against a state for retroactive money damages. Congress may expressly abrogate state immunity f it is clearly acting under Section Five of the Fourteenth Amendment to enforce rights created by Section One (or to enforce rights created by the remedial provisions of the other Civil War Amendments).

Question 100

Can state change burden of proving an affirmative defense:?

Answer 100

state (or the federal government) may place the burden of proving an affirmative defense, such as self-defense, on the defendant without violating the Due Process Clause. The preponderance of the evidence standard for judging whether the defendant has met this burden is also constitutional. Watch out for: The jury instructions, however, improperly prevent the jury from considering the defendant’s self-defense evidence, not as an affirmative defense, but as a defense to the elements of the crime that the prosecution must prove. Used in such a manner, this evidence need not satisfy the preponderance standard before being considered by the jury

Question 101

Grand Jury Testimony and Former Testimony Exception

Answer 101

Although the witness is “unavailable” for the purposes of the hearsay rules (as will be discussed below), and there is a “former testimony” exception to the hearsay rule, the former testimony exception does not apply to grand jury testimony. Although grand jury testimony could be admissible as a prior inconsistent statement, because the witness is not testifying here, there is no statement that is “inconsistent” with a prior statement. To be admissible, the former testimony of an unavailable witness must be given under oath in a hearing or deposition, and the party against whom the testimony is being offered must have had an opportunity and similar motive to develop the testimony by direct or cross-examination; grand jury testimony does not meet this standard because the defendant does not have the opportunity to cross-examine grand jury witnesses

Question 102

Judge Immunity

Answer 102

A judge is absolutely immune from civil liability for damages resulting from her judicial acts unless it is clear that the judge did not have jurisdiction. Since the judge in question had jurisdiction to issue the search warrant, the court should dismiss the homeowner’s action.

Question 103

Can police arrest in public place?

Answer 103

The police generally do not need a warrant to make a valid arrest in a public place, provided the arrest is supported by probable cause. Facts supporting probable cause may come from several sources, including a tip from an informant that can be independently verified.

Question 104

Nonhearsay

Answer 104

Declarant-witness - prior inconstistent statement - prior consistent statement for rehab - prior ID Party-opponent - made or adopted by party - made by agent, employee, coconspirator, or authorized person

Question 105

Hearsay Exceptions

Answer 105

Excepted - Former testimony - Dying declaration - Statement against interest - Personal/family history - Against party that wrongly caused declarant's absence Other inherently reliable statements - Present sense impression - then-existing stateof mind - etc.

Question 106

Business Record Exception

Answer 106

- made at or near the time of the recorded event (or act, condition, opinion, diagnosis_ - made by or based on information from someone with personal knowledge of that event and - made and kept as a regular practice in the ocurse of regularly conducted business activities record made in prep for litigation do not fall under this exception

Question 107

Past Recolection Recorded

Answer 107

Record may be read into evidence if - a witness once knew the recordied information but cannt recall it a trial - the witness made or adopted the record when the matter was fresh in his/her mind and - the record accurately reflects the witness' personal knowledge at the time it was made

Question 108

Congress' enumerated powers

Answer 108

taxing and spending interstate and foreign commerce war, armed forces, militia coin and borrow money immigration and naturalization mail copyright and patent laws federal courts DC Bankruptcy rules concerning captures

Question 109

Option Contracts

Answer 109

Option to purchase: Gives exclusive right to purcahse property at spceified price, usually within specificed time ROFR: Gives first opportunity to purchase property if it ever goes up for sale The holder of an option to purchase has the exclusive right to purcaase the property during a specificed time (eg during the term of this lease). Jx are split as to whether an option contained in a lease agreement can be assigned separately from the lease: - minority rule - an option is an independent provisions that can be assigned separately from the lease - majority rule - an option is an integral part of the lease agreement that cannt be separately assigned.

Question 110

UCC Gap Fillers

Answer 110

Places of delivery - seller's place of business if applicable - sellers home - some other place if parties know goods are there Time for shipment/delivery - reasonable time Price - reasonable price at time for delivery Time/place for payment - time and play buyer is to receive goods

Question 111

Waivers of right to sue over tort

Answer 111

Such waivers are genearlly valid unless they violate public policy - ie, when the defendant (1) is thge plaintiff's emplyer, (20 is a hotel or common carrier, (30 is a public servant or service, or (4) has substantially more bargaining power

Question 112

Easement by Prescription

Answer 112

presumptive nonpossessory right to use another's land for a limited purpose that is acquired throuhg OCAN - ie, use that is - open and notorious - continuous - actual - nonpermissive - hostile and adverse to the owner Tenants cannot acquire a prescriptive easement because they have permission to use them

Question 113

Oral Modification of K

Answer 113

At CL, a prior written K can be modified by a subsequent oral agreement unless the modified K falls within the SoF. This is true even if the written K contains a "no oral modification" (NOM) clause purporting to require thta any mof must be in writing. However, any mod must stil lbe supprted by consideration to be enforceable

Question 114

Pretrial Conferences

Answer 114

designed to improve the quality of trial, facilitate settlement, and expedite litigation. To underscore importance, a federal court typically must order a party and/or attorney to pay the other party's reasonable expenses when the party or attorney: -failed to attend a pretrial conference - was substantially unprepared for the conference - did not participaet in good faith in the conference or - failed to obey a pretrial order Court may impose sanctions on nocomplaint party or attorney. Court has discretion to decide which sanction to impose, but must be reasonable under the circumstances. Otherwise, an aribtrary sanction will be reversed on appeal for abuse of discretion

Question 115

CL Burglary

Answer 115

1) breaking and entering of another's dewlling at night 2) with specific intent to commite a felony therein. breaking can be -actual - when physical force is used to gain entry OR - constructive - when fraud, deception, or threat of force is used to gain entry

Question 116

CL Robbery

Answer 116

1) use or threat of force 2) to unlawfully take and carry away another's property with the specific intent to permanently deprive the owner of that property.

Question 117

Compulsory Counterclaim

Answer 117

if it - arises from the same transaction or occurence as the opposing party's claim and - does not require adding a party over whom the court cannot acquire jx.

Question 118

Expert Testimony

Answer 118

An expert witness is one who possesses specialized knowledge, skill, experience, education, or training in a subj that pertains to an issue in litigation. Expert witness testimony is admissible for substantive purposes - ie, to help prove a material facto or issue - if it is both - relevant - reliable - the testimony is 1) based on sufficient facts or data AND 2) the product of reliable principles and methods that the expert relaibly applied to the facts of the case

Question 119

Accomplice

Answer 119

A person becomes an accomplice by 1) intentinoally aiding or encouragin another before or during a crime 2) with the specific intent that the crime be completed. BUt mere presence at the scene of the crime does not amount to aid or encouraegment and is thus insufficent to make a person an accomplice Acomplices can be tried even if principal never tried or convicted

Question 120

Scope of Cross examination

Answer 120

scope is limited to the subject matter of directi examination and maters affecting the witness' credibility. And thouhg th ecourt has discretion to permit inquiry into additional matters, a party is never entitled to a wider scope of cross-exam

Question 121

Erie Doctrine

Answer 121

Federal courts sitting in diversity must apply state law to substantive issues and federal law to procedural isseues. However, there are instances when it is unclear whether an issue is substantive or procedural - as seen here with review of a jury verdict. A court must then determine if a federal law directly addresses the issue. Federal law encompasses federal constit. provisions, statutes, and rules - but not federal common law. As a result, no direct federal law applies here. In such a case, the Erie analysis must be used to decide if a federal court should supplant state law with federal common law. Under this analysis the issue will be considered substantive and state law wil ltherefore apply if it soutcome determinative AND there is no countervailing federal policy interest. Stae law is outcome determinative if the failure to apply state law would result in - forum-shopping - litigants will be encouraged to sue in federal court to take advatngae of benefits not afford in state court OR - inequitable administration of the laws - the aplication of substantially different rules in federal and state court would cause unfair outcomes

Question 122

Appurtenant

Answer 122

Easements are presumed to be appurtenant (i.e., tied to the land) unless there are clear facts to the contrary. The benefits of an easement must correspond directly to the use and enjoyment of the possessor of the dominant estate.

Question 123

Accomplice Before the Fact vs. Principal in Second Degree

Answer 123

The difference between an accessory before the fact and a principal in the second degree is presence. An accomplice who is physically or constructively present during the commission of the crime is a principal in the second degree. For example, a getaway driver some distance from the scene is deemed constructively present and will be considered a principal in the second degree. An accomplice who is neither physically nor constructively present during the commission of the crime, but who possesses the requisite intent, is an accessory before the fact.

Question 124

Cy Pres

Answer 124

nder the doctrine of cy pres, a court may make changes to a conveyance in order to come “as near as possible” to the intent of the transferor. While the doctrine of cy pres is most often applied by a court in the context of a charitable gift, it may also be applied to achieve the intent of a grantor or testator by avoiding the effect of the Rule Against Perpetuities.

Question 125

Rule of Convenience

Answer 125

although the rule of convenience is sometimes applied to a remainder interest to prevent it from running afoul of the Rule Against Perpetuities, and this rule could be applied to save the grandchildren’s remainder, it does not explain the court’s action. The rule of convenience closes the class of persons who are entitled to take a future interest when any member of the class becomes entitled to immediate possession of the property if the instrument creating the future interest does not specify a closing date for determining the class members. It does not allow the court to alter the express terms of the devise.

Question 126

Duress v. Undue Influence

Answer 126

Undue influence is the unfair persuasion of a party to assent to a contract. in order for a contract to be voidable for duress, there must be an improper threat that deprives a party of a meaningful choice. Generally, the threat of civil action is not improper unless it is made in bad faith.

Question 127

Prior Statment of Identification

Answer 127

Under Federal Rule of Evidence 801(d), a prior statement of identification, which otherwise would qualify as hearsay, is treated as non-hearsay. Under Rule 801(d)(1)(C), a previous out-of-court identification of a person after perceiving that person is admissible as substantive evidence, but only if the witness testifies at the present trial or hearing and is subject to cross-examination concerning the identification.

Question 128

Enforcement of the Restraining Order

Answer 128

A cognizable property interest involves more than an abstract need or desire; there must be a “legitimate claim of entitlement” by virtue of statute, employment contract, or custom. If enforcement of the restraining order is subject to the discretion of the police officers, then the woman cannot assert an absolute entitlement to having the order enforced. Unless the woman was entitled to have the restraining order enforced, she did not have a protected interest that triggered her procedural due process rights.

Question 129

When can have mistrial?

Answer 129

Where a mistrial is declared despite the defendant's opposition, the defendant cannot be retried unless the mistrial is due to a manifest necessity. A hung jury constitutes a manifest necessity.

Question 130

Zoning and Use

Answer 130

Generally, a zoning ordinance must make provisions for property with an existing nonconforming use. The right of the person currently entitled to possess the property (in this case, a lessee) can be lost in various ways, including enlargement of the nonconforming use. However, conduct by a business owner that leads to more consumers typically does not constitute an enlargement when the conduct does not involve a physical expansion of the property or the buildings on the property. Acts such as increasing the number of days that the business is open, or modernizing equipment involved in the nonconforming use, usually is not sufficient to constitute an enlargement of the nonconforming use.

Question 131

Questions re victim engaged in other sexual behavior

Answer 131

The Federal Rules establish a privilege that protects victims of sexual offenses. The rule states that evidence offered to prove that an alleged victim engaged in other sexual behavior and evidence offered to prove an alleged victim’s sexual predisposition is not admissible, subject to certain exceptions. One of the exceptions to the general rule stated above is that in a criminal case, evidence of a victim’s past sexual conduct is admissible to show the victim’s past sexual behavior with the defendant in order to prove consent. The victim’s past sexual behavior in general cannot be used to prove consent; only the victim’s past behavior with the defendant is relevant. Other examples include (i) to prove an alternate source of semen or injury, (ii) when the constitutional rights of the defendant require admission of the evidence, (iii) in civil cases, when the probative value substantially outweighs danger of harm to the victim, and (iv) in civil cases, when the victim herself has placed her reputation in controversy.

Question 132

Defendant with Mental Disability

Answer 132

A defendant is presumed to have average mental abilities and the same knowledge as an average member of the community. A defendant with a mental or emotional disability is not immune from tort liability, and the defendant's own mental or emotional disability is not considered in determining whether his conduct is negligent.

Question 133

Presumption

Answer 133

A presumption is a conclusion that the trier of fact is required to draw upon a party’s proof of an underlying set of facts. However, in a criminal case, the prosecution is responsible for proving every element of a crime, and whether the victims received the letters is an element of the crime. Therefore, the judge’s jury instruction was not proper, because it shifted the burden of disproving an element to the criminal defendant.

Question 134

When can a party be entitled to a rebuttable presumption that destroyed evidence would have been unfavorable to the party to destroy it?

Answer 134

When a party can show that another party intentionally destroyed evidence, that party is entitled to a rebuttable presumption that the destroyed evidence would have been unfavorable to the party that destroyed it. The party seeking the presumption must establish that (i) the destruction was intentional, (ii) the destroyed evidence was relevant to an issue about which the party seeks the inference, and (iii) the injured party acted with due diligence in seeking the evidence.

Question 135

Identification of Goods

Answer 135

Under UCC, a buyer of goods obtains an insurable interest in the goods as soon as the goods are identified to the contract. ID can be made at any time by the parties explicit agreement. In absence, ID occurs - for goods already existing and identified, when the K is made OR - for goods that are not already existing and identified (ie future goods), at the earliest of when the goods are shipped, marked, or otherwise designated by the seller