All Subjects

Front 1

DUTY TO INVITEES

Back 1

Duty to warn of any known dangerous conditions

Front 2

DUTY TO TRESPASSERS

Back 2

Duty to refrain from gross negligence and wonton and willful conduct.
There is a heightened duty to child and known trespassers

Front 3

REMEMBER- RESPONDEAT SUPERIOR

Back 3

1. Begin by addressing the employee's underlying negligence
2. Address the employer's potential liability under respondeat superior.

Front 4

INDEPENDENT CONTRACTOR

Back 4

one who hires an independent contract is not responsible for torts committed, EXCEPT:
1. Where the employer is also negligent in dealing w/ contractor
2. Employer's duty is nondelegable

Defenses: Contributory negligence, compar. negligence

Front 5

STRICT LIABILITY CLAIMS

Back 5

1. Products liability
2. Engaging in abnormally dangerous activities.
3. Wild animals

Front 6

PRODUCTS LIABILITY

Back 6

1. Warnings defects
2. Manufacturing defects
3. Design defects

Front 7

INTERFERENCE WITH CONTRACTUAL RELATIONS

Back 7

1. P had advantageous relationship with third party
2. D knowingly induced breaking of contract or relationship
3. D's interference with relationship was intentional and improper in motive and means
4. P was harmed by D's actions

Front 8

INDEFINITENESS

Back 8

Courts try to read contract as valid and give words ordinary meaning or look to see what the custom and usage is in the industry. Courts construe conflicting meanings against drafter.

Front 9

IMPLIED IN FACT CONTRACT

Back 9

When conduct of parties demonstrates a contract exists.

Front 10

QUASI CONTRACT

Back 10

Focuses on unjust enrichment.

Front 11

DUTY TO INVITEES

Back 11

Duty to warn of any known dangerous conditions

Front 12

DUTY TO TRESPASSERS

Back 12

Duty to refrain from gross negligence and wonton and willful conduct.
There is a heightened duty to child and known trespassers

Front 13

ATTRACTIVE NUISANCE

Back 13

Any person who maintains an artificial condition upon his own land may be liable for physical harm to children trespassing if:
1. Reason to know children will trespass
2. Unreasonable risk of death or harm
3. Children don't discover the condition or realize the risk involved
4. Utility to landowner of maintaining the condition
5. Landowner fails to exercise reasonable care to eliminate the danger

Front 14

CONSEQUENTIAL DAMAGES

Back 14

Any aggrieved buyer may recover the equivalent of lost profits under common law through consequential damages under the UCC. Buyer must show that he knew or had reason to know of buyer's requirements and needs for contracting and that the losses couldn't have been prevented or further mitigated.

Front 15

LIQUIDATED DAMAGES

Back 15

Parties are free to agree in advance on the measure of damages to be paid in event of a breach. The parties must use good faith in attempting to calculate damages.
If a party uses its superior bargaining position to inflate the amount of damages caused by the breach, the court will ignore the liquidated damages clause in the contract as a penalty.

Front 16

RESTITUTIONARY AND RELIANCE RECOVERIES

Back 16

An injured party may seek restitution damages (value of benefit given by injured party to breaching party). Or, the injured party may seek its expenses incurred in reliance on the contract (this is done on a losing contract or when an injured party can't prove its actual damages with reasonable certainty).

Front 17

RECISSION AND REFORMATION

Back 17

If both parties to contract mutually agree to rescind the contract, they may do so. If one party to a contract breaches, the nonbreaching party may rescind the contract

Front 18

COVER (Common Law)

Back 18

Injured party buys goods elsewhere with good faith and without unreasonable delay. His damages will then be the difference between what he is going to pay under the contract, and the higher price he paid by "covering".
In nonUCC cases, the non-breaching party has a duty to mitigate damages.

Front 19

COVER (UCC)

Back 19

Buyer need not cover. If he doesn't , he will be awarded the difference between the (higher) marking price at the time of breach and the contract price. A buyer will get foreseeable incidental and consequential damages as a result of the breach.
If buyer breaches, only incidental.

Front 20

LOST VOLUME SELLER (UCC)

Back 20

Lost volume seller is a merchant. If a buyer breaches, the merchant will sell the goods to someone else. The seller would have made two sales and two profits, but because of the breach, he made one profit. To put lost volume seller in position he would have been in had customer not breached, he is entitled to profit from first sale.

Front 21

PROSPECTIVE INABILITY TO PERFORM

Back 21

If something occurs after the contract is entered into which causes one party to have reasonable doubts about the other party's ability to perform as promised, the doubting party may demand adequate assurances from the other party that he or she will perform. If the other party fails to give these assurances, the doubting party can treat this as an anticipatory repudiation and sue immediately.

Front 22

3RD PARTY BENEFICIARY

Back 22

When 2 parties enter into a contract with the understanding and intent that the performance be rendered to a third person

Front 23

INTENDED BENEFICIARIES

Back 23

Those who have a right to sue on a third party beneficiary contract because the original contracting parties either explicitly or implicitly intended to benefit them.

Front 24

INCIDENTAL BENEFICIARIES

Back 24

Third parties who will benefit from a promise of performance, but who may not meet the test for intended beneficiaries. No rights to enforce a third party beneficiary contract.

Front 25

IMPAIRMENT OR EXTINGUISHMENT OF THIRD PARTY BENEFICIARY RIGHTS

Back 25

Parties to contract are free to modify or extinguish the third party beneficiary's rights under the contract prior to his knowledge of, and reliance on, the contract.

Front 26

POSSESSION AND ADVERSE POSSESSION

Back 26

All cotenants have equal rights of possession in the real estate. You can't have adverse possession against another cotenant. Mere nonpossession won't suffice. Cotenant seeking title by adverse possession will have to show an ouster.

Front 27

POWERS OF TENANTS

Back 27

Owner of a nonfreehold estate has roughly the same powers as the owner of a freehold estate. However, nonfreehold estate holder can't commit waste

Front 28

TERM OF YEARS

Back 28

Fixed beginning and fixed ending. Term must be fixed in advance of the occupance, and once created, is enforceable by the landlord even if the tenant never takes possession.

Front 29

TERM OF YEARS (2)

Back 29

Term of years will automatically end when the term ends, withough the landlord or tenant having to take any action. There is no automatic right of renewal. If the parties want to extend they must create another tenancy through a new loease or words or actions.

Front 30

SOF (TENANCIES)

Back 30

Writing must have:

1. Identity of landlord or tenant
2. Description of leased premises
3. Actual fixed term of tenancy
4. Signature of party to be charged

Front 31

TERMINATION OF TERM OF YEARS

Back 31

Death of landlord or tenant, landlord's sale to a third person, or tenant's assignment of a tenancy at will to a 3rd person, doesn't terminate the term of years.

Front 32

TENANCY AT WILL

Back 32

No fixed term. Indefininte.
no SOF requirement
No tenantcy until possession
Attempt to create a teanncy for years that fails under SOF will default to a tenancy at will if tenant takes possession
Tenancy at will terminates by operation of law.

Front 33

PERIODIC TENANCY

Back 33

1. Revolving tenancy- for a fixed period which will automatically renew unless either ll or tenant give written notice against renewal.
2. SOF needed
3. Requires 6 month termination notice
4. Holdover tenant can start periodic tenancy if rent is paid and accepted.

Front 34

TENANCY AT SUFFERENCE

Back 34

No real tenancy- A tenancy at sufference was once a valid tenant under a term of years, periodic tenancy or tenancy at will, but is remaining in premises without right because prior tenancy has ended naturally or has been properly terminated by LL. Holdover tenant waiting to get evicted.
LL may either evict him or create a new tenancy.

Front 35

LANDLORD'S OBLIGATIONS (1)

Back 35

1. Tenant has right of exclusive possession.
2. LL must deliver habitable premises (warranty of habitability)
3. Quiet enjoyment. Intentional interference of this was breach. Remedy is to declare constructive eviction and vacate premises a reasonable time after breach.

Front 36

RETALIATION

Back 36

Prevents a landlord from evicting tenants or raising rents within a certain time period after a tenant engages in a protected activity such as complaining about the condition of the premises, etc.

Front 37

COMMON AREAS

Back 37

LL owes duty of care to tenants, guests, and licensees in common areas of leased premises and may be liable in negligence for personal injury or property damage.

Front 38

RENT

Back 38

Tenant msut be rent. Failure to pay rent may lead to eviction by land lord. Tenant must comply with other rent provisions of lease.

Front 39

WASTE

Back 39

No waste or use of premises for illegal purpose. Result is eviction

Front 40

GUESTS OF TENANT

Back 40

Tenant owes a duty of care to his or her guests and licensees who are in portion of leased premises exclusively possessed by tenant, and may be liable for negligence for personal injury or property damage.

Front 41

EVICTION

Back 41

1. Give written notice to tenant that terminates tenancy
2. Go to court under summary process or unlawful detainer process that confers the right to a hearing.
A LL who doesn't do these things engages in self-help and may be liable for multiple damages and possible criminal charges.

Front 42

ABANDONMENT

Back 42

A tenant abandons the premises on his own and without an eviction. Abandonment requires the tenant to relinquish possession with the intent not to come back. LL need not proceed with a full eviction action. Tenant remains liable for remaining rent.

Front 43

SURRENDER

Back 43

It's possible for LL to waive any claim to remaining rent due after tenant abandons if the landlord accepts the tenant's surrender. The act of reentering the premises and taking possession is enough to cause a landlord's acceptance of the tenant's surrender.

Front 44

OPTIONS WHEN TENANT ABANDONS PREMISES

Back 44

1. Unless the state requires the landlord mitigate damages, the landlord can do nothing, allow the rent to accrue, and later seek rent from abandoning tenant.
2. Accept surrender by entering premises and taking possession
3. Make a qualified entry that doesn't constitute an acceptance of surrender (make repairs, etc.)

Front 45

FULL FAITH AND CREDIT CLAUSE

Back 45

Full faith and credit shall be given in each state to the public acts, records and judicial proceddings of every other state

Front 46

PROCEDURAL DUE PROCESS

Back 46

1. Deprivation of life, liberty or property interest (employment, benefits, licenses).
2. Process due
- Importance of right
- Reasonable expectation of continued receipt of the benefit

Front 47

EMINENT DOMAIN

(moratoriums, public use, etc.)

Back 47

1. Physical occupation
2. Denies all beneficial or productive use
3. Regulatory taking (less than full deprivation).
Balance the burden on private property interests against the legitimacy of hte gvt interest asserted.

Front 48

COMMERCIAL SPEECH PROTECTION

(Must directly advance a substantial govt interest and be narrowly tailored to serve that interest.

Back 48

1. Advertisement of illegal activities- no protection
2. False or deceptive ads- no protection
3. True advertising that risks becoming false- gvt may regulate
4. Laws that limit commercial advertising to achieve other goals.

Front 49

EXCLUSIONARY RULE

Back 49

Excludes or suppresses evidence that's obtained in violation of a defendant's rights

Front 50

FRUIT OF POISONOUS TREE

Back 50

Evidence that's discovered from info found through an illegal search or other unconstitutional means may generally not be introduced by the prosecutor during the case in chief.

Front 51

WARRANTLESS SEARCHES

Back 51

Automobiles
Admin searches
Exigent circumstances
Consent (express)
Inventory
Incident to arrest
Plain view
Objects in grabbable area
Stop and frisk- reasonable suspicion

Front 52

TERRY STOP

Back 52

Allows a person to stop without making an arrest. Reasonable suspicion that person committed or is about to commit a crime. Frisk must be based on officer's reasonable belief that person has a weapon or poses a danger.

Front 53

CURTILEGE

Back 53

Areas surrounding the home to which one may have a reasonable expectation of privacy.

Front 54

MIRANDA RIGHTS

Back 54

Must be provided prior to a custodial interrogation.

Front 55

CUSTODIAL INTERROGATION

Back 55

Questioning initiated by law enforcement offers in connection with one being deprived his freedom of movement in a major way.

Front 56

PROFITS

Back 56

Nonlawyers may not share in profits of firm.

Front 57

COMPETENCE FACTORS

Back 57

1. Complexity of matter.
2. Lawyer's experience
3. Preparation and study

Front 58

DETERMINING FEES

Back 58

1. Time and labor required
2. Will it preclude from accepting other employment.
3. Fee customarily charged.
4. Amt involved
5. Time limitations
6. Nature and length of relationship
7. Experience of lawyer.