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95 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Agency - Subject Outline
Principals CORRAL Their agent's activities. |
CREATION
OBLIGATIONS RIGHTS RATIFICATION AUTHORITY LIABILITY TERMINATION |
CREATION of agent/principal relationship
OBLIGATIONS – loyalty, obedience, stewardship RIGHTS of parties RATIFICATION by principal AUTHORITY – express, implied, apparent LIABILITY - primary & vicarious (respondeat superior) TERMINATION of agent/principal relationship |
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Agency - Creation
Creating an agency relationship is as easy as ABCD. |
ASSENT (usually requires mutuality)
BENEFIT conferred upon principal CONTROL of agent by principal DURING and within scope of agent's employment |
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Civil Procedure - Personal Jurisdiction acrostic
My Parents Frequently Forgot to Read Children's Stories |
minimum contacts
purposeful availment foreseeable defendant fair play and substantial justice relatedness of contact convenience state's interest |
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Civil Procedure - Challenging The Complaint
Defendant PICT VALID reasons to challenge the complaint. |
PLEADINGS
INSUFFICIENCY CLAIM TRIABLE VENUE ALLEGATIONS LACK INDISPENSABLE DEFINITE |
motion for judgment on the PLEADINGS
INSUFFICIENCY of process (motion to dismiss) failure to state a CLAIM (motion to dismiss) no TRIABLE issue of material fact exists as a matter of law (motion for summary judgment) improper VENUE (motion to transfer) ALLEGATIONS that are irrelevant, impertinent, scandalous (motion to strike) LACK of jurisdiction over subject matter or person (motion to dismiss) failure to join INDISPENSABLE party (motion to dismiss) motion for more DEFINITE statement of claim against defendant |
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Civil Procedure - Discovery Devices
DADIES discover what you don't want them to know. |
DEPOSITIONS
ADMISSIONS DOCUMENTS INTERROGATORIES EXAMINATIONS SUBPOENAS |
depositions (written or oral)
admissions of facts documents related to cause of action (if for good cause) interrogatories examination (mental or physical) subpoena (duces tecum) |
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Civil Procedure - basic jurisdictional requirements
The due process clause requires you to MOP up before jurisdiction can be asserted |
MINIMUM contacts
OPPORTUNITY PROPER service |
minimum contact with the state
opportunity for defendant to be heard proper service of process upon defendant |
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Civil Procedure - Discovery Devices
the MAID must get PAID to discover evidence |
MENTAL
ADMISSIONS INTERROGATORIES DEPOSITIONS PHYSICAL ADDRESSES INSPECTION DISCOVERY not held |
MENTAL exam
request for ADMISSIONS written INTERROGATORIES DEPOSITIONS (aka "examination before trial") PHYSICAL exam demand for ADDRESSES INSPECTION of evidence DISCOVERY request for relevant evidence held by opposing party |
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Constitutional Law
Due process - Fundamental Liberties Courts strictly scrutinize government action involving a STAR VP CAMPER. |
STAR VP - six fundamental freedoms
CAMPER - privacy rights |
STAR VP:
freedom of SPEECH right to TRAVEL freedom of ASSOCIATION freedom of RELIGION right to VOTE right to PRIVACY CAMPER: Contraception Abortion ("undue influence" branches w/intermediate scrutiny) Marriage (including dissolution) Procreation Education of children outside public schools Related persons' right to live together |
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Constitutional Law - Equal Protection
Strict Scrutiny Suspect Classes The government RAN out of class when the judge strictly scrutinized its behavior. |
RACE - purposeful discrimination required (facially or as applied)
ALIENAGE - state/local action only (except regulation of participation in government, e.g. teachers, police, jury duty subject to rational basis test); fed action gets rational basis test) NATIONAL origin |
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Constitutional Law - Dormant Commerce Clause
(limitation on state action) Nonresident Statutes Are Rude. |
NONDISCRIMINATORY
SUBSTANTIAL nexus APPORTIONED RELATEDNESS |
SUBSTANTIAL nexus between state interest and burden on non-resident
NONDISCRIMINATORY intent, construction and application APPORTIONED between residents and non-residents that reflects fundamental fairness RELATED to State services or resources |
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Constitutional Law - Obscenity
The porn on Miller's LAPTOP is not obscene in the privacy of his home unless it includes kiddie porn. |
Miller v. California
LAPTOP |
LACKS literary, artistic, political or scientific value
AVERAGE person, applying contemporary community standards appeals to the PRURIENT interest in sex TAKEN as a whole patently OFFENSIVE depiction of sexual conduct POSSESSION of obscenity in privacy of home OK but child pornography can be entirely prohibited |
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Constitutional Law - Establishment Clause Violations
Church and state can't PEE in the same urinal. |
PURPOSE. Law or conduct must have a primarily secular purpose
EFFECT. Primary or inevitable effect of law or conduct must neither advance nor inhibit nor endorse religion. ENTANGLEMENT. Law or conduct can't foster excessive governmental administration or entanglement with religion |
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Contracts - Common Law
Essential Contract Terms |
Q-TIPS
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Quantity
Time of performance Identification of parties Price Subject matter |
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Contracts - Termination of Offer
Don't offer IDLE CIDER that's expired. |
INCAPACITY
DEATH LAPSE EXPRESS rejection COUNTEROFFER ILLEGALITY DESTRUCTION EFFECTIVE mailbox REVOCATION |
Incapacity of offeror
Death of offeror Lapse of time Express or implied rejection Counteroffer Intervening illegality Destruction of contract’s subject matter Effective termination under mailbox rule Revocation communicated to offeror before acceptance effective |
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Contracts - Termination of Options
three ways options can DIE |
DESTRUCTION of subject matter of option
INTERVENING illegality EXPIRATION of stated option time |
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Contracts - Defenses to Formation
IF (I) C SCUM, this contract never happened. |
IF (I) C SCUM = equity of rescission
ILLEGALITY FRAUD - in inducement or execution (I) love contracts COERCION - lack of consent or duress STATUTE of frauds CAPACITY - minors, mental UNCONSCIONABLE k - gross disparity, against public policy MISTAKE - generally only allowed with mutually grave error while contract is still executory |
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Contracts - Formation by Quasi-Contract
I painted your CURB so you owe me. |
CONTRACT implied in FACT or at LAW
UNJUST enrichment if defendant allowed to keep benefit without legal detriment REASONABLE expectation of being compensated BENEFIT conferred upon defendant by express request or implied permission |
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Contracts - UCC Article 2
Material Alteration of Offer A merchant that WARPS my offer with his reply memo makes me Just Livid. |
WARRANTY
ARBITRATION RISK of loss PAYMENT SHORTENING SoL JURISDICTION LIABILITY waiver |
WARRANTY negation such as merchantability or fitness
ARBITRATION requirement added (unless customary practice in trade) RISK of loss shifted, adjusted or altered PAYMENT terms and amount changed SHORTENING Statute of Limitations to sue for non-conforming goods JURISDICTION clause bestowing or changing laws covering K LIABILITY waiver or limitation (in tort or contract) |
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Contracts - UCC Article 2
Implied Terms in Sales Contracts I CITE the UCC to prove implied terms. |
INSPECTION
CREDIT INSURANCE TENDER EXCHANGE UNIFORM COMMERCIAL CODE |
INSPECTION. Buyer usually has a right to inspect tendered goods before acceptance.
CREDIT. Seller is not obligated to extend credit to buyer. INSURANCE. Risk of loss falls on party in best position to bear loss (usually the one who protected goods by insuring them). TENDER of delivery is implied at Seller's place of business. EXCHANGE of performance is usually concurrent. UNIFORM COMMERCIAL CODE |
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Contracts - UCC Article 2
Seller's Remedies for Buyer's Breach When the buyer is a K LAPSER, seller has remedies. |
KEEP deposit
LOST profit ASSURANCES PRICE STOP goods EXERCISE reclamation RESELL |
KEEP deposit if under $500
sue for LOST profit (if "unlimited supply" available) demand ASSURANCES if insolvency/incapability is evident sue for entire contract PRICE STOP goods in transit. EXERCISE right to reclaim goods delivered to insolvent buyer RESELL goods to another buyer |
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Contracts - UCC Article 2
Buyers Remedies for Seller's Breach a buyer Can Revoke Security or WAIT when seller breaches. |
CANCEL
REVOKE SECURITY WITHHOLD $ ACCEPT & recover $ INADEQUATE = demand TENDER & claim |
CANCEL the contract, purchase from another, recover damages.
REVOKE contract if substantial breach where acceptance induced by reasonable expectation of prompt cure or latent (undetectable) defect withhold non-conforming goods as SECURITY for damages. WITHHOLD amount equal to damages (notice to seller required) ACCEPT non-conforming goods at k price, recover consequential & incidental damages if money damages are INADEQUATE, buyer can demand goods. TENDER balance due & claim goods if buyer has partially paid |
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Contracts - UCC Article 2
Warranties warranties are Fully TEAMED with goods sold. |
FITNESS
TITLE ENCUMBRANCES AFFIRMATIONS MERCHANTABILITY EXPRESS warranties as DESCRIBED |
FITNESS for a particular purpose
seller's warranty of TITLE EXPRESS warranties written into contract AFFIRMATION of fact or promise made by seller relating to goods (written or oral) MERCHANTABILITY warranty against ENCUMBRANCES DESCRIPTION of goods in advertisement, brochure or catalog |
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Contracts - UCC Article 2
Defenses to Breach of Warranty GRAMPA can't be liable for breach of warranty. |
Government
Running SoL Absence Misuse Preemption Assumption |
GOVERNMENT military & surplus contracts
RUNNING of statute of limitations ABSENCE of privity of contract unforeseen MISUSE of a product federal PREEMPTION ASSUMPTION of risk |
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Corporations - Piercing The Corporate Veil
TWIST the knife to pierce the corporate veil. |
TEN sh
WORKER's comp ILLEGALITY SALES/corp tax unpaid TORTIOUS acts |
TEN largest shareholders of private company are personally liable for unpaid wages/benefits
WORKER's compensation insurance must be obtained. If not, officers are criminally, strictly liable to injured employee. ILLEGAL conduct by shareholders. SALES or corporate income tax not paid renders directors & officers (D&O) responsible to taxing authority. TORTIOUS conduct of D&O, employees and shareholders cannot use corporate veil to hide from personal liability. |
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Corporations - Contents of Articles of Incorporation.
It's A PAIN to write the articles of incorporation. |
AUTHORIZED shares
PURPOSE AGENT authorized to receive service of process INCORPORATORS NAME and address of corporation |
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Corporations - Contents of Certificate of Incorporation
the corporation's certificate of incorporation lists PVT MCLAW |
PREEMPTIVE rights
VALUE of par TRANSFER restrictions MAJORITY CUMULATIVE voting LESS than maj to dissolve sh AGREEMENTS at WILL |
PREEMPTIVE rights
VALUE of par shares (if to be fixed by shareholders rather than directors) stock TRANSFER restrictions MAXI-MAJORITY, super-majority, quorum voting requirements CUMULATIVE voting rights when electing directors whether LESS than majority of shares can vote to voluntarily dissolve corporation shareholder AGREEMENTS regarding actions authorized without SH meetings, restrictions on D&O powers, or if SH can directly manage company (no BoD) corporate dissolution at WILL or upon specific event |
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Corporations
Actions Requiring Shareholder Approval Shareholders deserve A DAMN SALAD if the corporation makes a big change. |
AMENDMENT
DISSOLUTION ASSET MERGER NAME SURETY AGENT LOCATION ABOLISHING liability DIRECTOR loans |
AMENDMENT of certificate of incorporation that changes quorum, maxi/super majority, preemptive or cumulative voting rights, and/or corporate purpose
DISSOLUTION (voluntary) ASSET sale, lease or exchange (>75% of assets) MERGER or consolidation NAME change SURETY interests in debt not acquired for corporate purposes change of AGENT for service of process change of LOCATION of corporate office ABOLISHING or limiting directors’ liability for negligence DIRECTOR loans |
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Corporations - Appraisal Rights of Shareholders
if PAM C dissents, she gets appraisal rights. |
PREEMPTIVE
ASSET MERGER CUMULATIVE |
PREEMPTIVE, redemptive or other share of ownership rights affected
ASSET sale, lease or exchange (>75% of corp assets) MERGER or consolidation into another entity CUMULATIVE voting rights affected |
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Corporations - Appraisal Right Valuation
The court will AIM for fair value in determining appraisal rights. |
ASSET
INVESTMENT MARKET |
net ASSET value - where company holds substantial tangible assets (e.g. real estate investment holding co's, retail and wholesale co's)
INVESTMENT value - earning power of corporate stock MARKET value of stock (court considers arms-length similar sales in same community or marketplace) |
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Corporations - Duties of Directors & Officers
Directors & Officers who get SUED For being OLD can fire a FLARE. |
SUED - types of conflict of interest
FOLD - usurpation of corporate opportunity tests FLARE - defenses to usurping corporate opportunity |
SELF-dealing
USURPATION EXECUTIVE compensation unreasonable DIRECT conflict of interest FITNESS & fairness of transaction OPPORTUNITY was available to corporation LINE of business was same as corporation's DISCLOSURE was not proper FINANCIAL incapacity of corporation to enter K LEGAL incapacity of corporation to enter K ABANDONED (purposeful failure to deal) REJECTED (purposefully declining to transact) EXPLICIT approval by uninterested BoD or SH |
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Corporations -
Actions of Directors that cannot be indemnified Directors can't be indemnified for RIBALD Gains. |
REDEMPTION
INTENTIONAL misconduct BAD faith ASSETS before creditors improper LOAN DIVIDEND unjust GAIN |
REDEMPTION of shares when not permitted (no surplus)
INTENTIONAL misconduct or knowing violation of law BAD faith conduct ASSETS distributed to shareholders before paying creditors LOAN granted improperly to fellow director without dissent declaration of improper DIVIDEND (no surplus) GAINS personally derived due to misconduct |
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Corporations - Shares With No Preemptive Rights
If your shares have a STAMP, you don't have preemptive rights. |
STOCK INCENTIVES
TREASURY AUTHORIZED w/in 2 yrs MERGER PURCHASE w/o cash |
STOCK incentives used to retain and attract corporate talent
TREASURY stock AUTHORIZED in certificate of incorporation and sold within 1st 2 years (no preemptive rights for 2 years) MERGER or consolidation caused shares to be created PURCHASE of shares occurred without cash |
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Corporations - Irrevocable Proxy Voting Rights
You can't revoke a proxy for PEACE. |
if PLEDGED
not ENTITLED AGREEMENT by sh CREDITOR EMPLOYEE w/proxy |
PLEDGED shares (for loan)
ENTITLEMENT to vote is not vested on record date (bought/sold too early/late) AGREEMENT executed for specified period between shareholders CREDITOR holding shares as collateral for extending credit EMPLOYEE owned shares issued with specified proxy requirements |
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Corporations - Elements of 10b-5
Stock Transfer Liability In the MIDST of the STORM, it feels like a category 10b-5. |
MATERIAL fact
INTERSTATE DAMAGES STANDING TIPPER/TIPPEE SCIENTER TARGETED sh OMISSION RELIANCE MISSTATEMENT |
MATERIAL fact – is the information important?
INSTRUMENTALITY of interstate commerce used in connection with transaction (mail) DAMAGES – civil, regulatory, criminal Civil: expectation damages or rescission Regulatory: SEC can impose treble damages (triple profits) and order injunction Criminal: Federal DOJ can impose criminal fines and imprisonment STANDING – purchaser/seller who purchased/sold stock in connection with alleged fraud TIP liability – inside tip given for improper purpose where tipper breached duty and tippee knew of the breach SCIENTER – defendant had actual knowledge of material misrepresentation regarding material information TARGETED persons who are already shareholders have standing to sue even if they didn’t buy/sell shares in conjunction with 10b-5 violation OMISSION or failure to disclose material fact by fiduciary will be treated similarly by the court as material misrepresentation RELIANCE on misrepresentation resulted in purchase or sale (exception: non-disclosure cases do not require reliance) MISSTATEMENT of material fact will be treated similarly by the court as material misrepresentation |
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Corporations - Liability Under Sarbanes-Oxley
Get the BAD TIC out of your SOx. |
BANNED loans
ATTORNEY liability DISCLOSE ethics req. TRADING limits INDEPENDENT auditing CERTIFICATION of internal controls SARBANES OXley |
BAN on loans to offficers/directors of large public companies
ATTORNEY liability attaches if aware of illegal transactions DISCLOSURE of ethics requirements must be made to all persons with authority to transact TRADING limitations cannot be exceeded or circumvented INDEPENDENT directors or firms must be appointed to audit records in question CERTIFICATION of internal controls required, with CEO & BoD on the hook for failure to comply. Sarbanes-OXley |
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Corporations
Valid Reasons For Judicial or Voluntary Dissolution To dissolve a corporation, just I.D. the WOLF in the boardroom. |
ILLEGAL conduct
DIVERSION of corporate assets to directors/officers WASTE (including that which results from deadlock) OPPRESSION of minority shareholders LOOTING FRAUD |
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Criminal Law - Crimes Requiring Specific Intent
It's a specific intent crime to Purposely FLAME CRABS. |
false PRETENSES
Forgery Larceny Attempt Murder, first degree Embezzlement Conspiracy Robbery Assault Battery (aggravated) Solicitation |
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Criminal Law - Crimes Requiring General Intent
It's a general intent crime for MARK to FIB. |
Murder in the commission of a dangerous, statutorily enumerated felony
Arson Rape Kidnapping False imprisonment Involuntary manslaughter Battery |
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Criminal Law - Defenses Available
the prosecutor PACED as his charges against defendant fell like DOMINOS |
defense of PROPERTY
AGE (7 to 13 = rebuttable presumption that child doesn't understand) prevention of CRIME constituting breach of peace (non-deadly) or risking human life (deadly) ENTRAPMENT DURESS (mitigates murder to manslaughter) DRUNKENNESS OTHER party consented to act MISTAKE of fact INSANITY NECESSITY - avoid a greater evil defense of OTHERS SELF-DEFENSE |
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Criminal Law - When Omission To Act Is A Crime
You can't just watch them SCRAP when you've got a legal duty to break it up. |
STATUTORY duty (filing taxes)
CONTRACT (nurse, lifeguard) RELATIONSHIP (parent, spouse) ASSUMPTION of duty voluntarily (rescuer liability) PERIL (caused risk of harm) |
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Criminal Law - Defense To Felony Murder
the BUC stops at the co-felon |
no reason to BELIEVE co-felon was armed or intended to engage in conduct likely to result in death
UNARMED; and didn't COMMIT, command or request homicide; |
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Criminal Law - Strict Liability Crimes
If you pick a SCAB, you're strictly liable as a criminal. |
STATUTORY
CONTRIBUTING ABNORMALLY BIGAMY |
STATUTORY rape
CONTRIBUTING to the delinquency of a minor ABNORMALLY dangerous activities BIGAMY |
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Criminal Procedure
Exceptions to Search Warrant Requirement SHAPE up WISEACRE or I'll search you without a warrant. |
STOP (articulable, reasonable suspicion) & frisk (armed & dangerous) of outer clothing
HOT pursuit AUTOMOBILE PLAIN view EVANESCENT evidence (up) WIRETAP w/ one party’s consent INCIDENT to lawful arrest SCHOOL property EXIGENT circumstances ADMINISTRATIVE searches (e.g. Border, Airport) CONSENT to search expressly granted ROUTINE, non-discriminatory checkpoint stops EAVESDROPPING on conversation with no reasonable expectation of privacy |
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Criminal Procedure
Exceptions to the Exclusionary Rule U SAID G was fruit of the poisonous tree but he's not. |
USE for impeachment
independent SOURCE ATTENUATED chain of causation between tainted evidence and illegal action INTERVENING act of free will inevitable DISCOVERY GOOD faith of police & magistrate in issuing invalid warrant |
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Evidence - Subject Outline Mnemonic
Follow RECIP(e) H to decide if the evidence is admissible. |
Relevance
Extrinsic policies Character evidence Impeachment Privileges (e) HEARSAY |
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Evidence - Rule 403
Exclusion of Relevant Evidence the UMP doesn't have to let the evidence IN |
UNDUE delay
MISLEAD the jury PREJUDICIAL effect on jury confusion of ISSUES NEEDLESS presentation of cumulative evidence |
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Evidence - Inadmissible Relevant Evidence
I like PORN but it's still inadmissible. |
INSURANCE proving fault
PRIVILEGED communication OFFERS of compromise REMEDIAL measures NEGOTIATION during plea |
INSURANCE introduced to prove fault or deep pockets
PRIVILEGED evidence OFFERS of compromise or settlement (except in conjunction with offer to pay medical expenses) subsequent REMEDIAL repairs NEGOTIATED admissions made by criminal defendant during unsuccessful plea bargaining |
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Evidence - Self-Authenticating Documents
OIL CANS are self-authenticating. |
OFFICIAL
INSTRUMENTS LABEL CERTIFIED ACKNOWLEDGED NEWSPAPERS SEALED |
OFFICIAL publications issued by public authority
INSTRUMENTS - negotiable and commercial paper LABEL, tag or trademark affixed on item in regular course of business CERTIFIED public documents (by clerk of agency or court that had custody) ACKNOWLEDGED documents signed before notary, swore to truth, content and execution (except wills) NEWSPAPERS and periodicals with reasonably wide circulation SEALED documents (government certified) |
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Evidence - Non-Hearsay Requiring Testimony
The "4 Priors" aren't hearsay provided the declarant testifies. |
1. prior recorded recollection
2. prior out of court identification 3. prior consistent statement 4. prior inconsistent statement given under oath and subject to perjury |
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Evidence - Non-Hearsay Regardless of Testimony
SANE evidence is not hearsay so it's admissible. |
STATE of mind
ADMISSION by party opponent NONASSERTIVE conduct EFFECT on listener |
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Evidence - Introduction of Character Evidence at
Civil Trials Character evidence can be introduced in a civil trial after Chopping WEEDS. |
CHILD custody cases
WRONGFUL death ENTRAPMENT negligent ENTRUSTMENT DEFAMATION SELF-DEFENSE |
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Evidence - Introduction of Character Evidence at
Criminal Trials MIMIC the criminal before introducing character evidence. |
MOTIVE
IDENTITY MODUS operandi or preparation of plan INTENT or knowledge, absence of mistake or accident COMMON scheme or plan |
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Evidence - Hearsay Exceptions
Admissibility of Business Records Business records feature the sound of DRUMS. |
DURING
ROUTINE UNTRUSTWORTHY MADE SOURCE |
written statement made DURING or near time of matter in issue
ROUTINE, systematic practice of maintaining/storing this type of record UNTRUSTWORTHY. admissible unless circumstances indicate lack of trustworthiness MADE in ordinary course of business SOURCE of business record has personal knowledge of matter recorded |
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Professional Responsibility - Duties To Client
When playing 5-Card STUD with a client's money, I must be a responsible professional. |
CCCCC (5-Card)
STUD |
COMMUNICATE with client
act COMPETENTLY do not reveal CONFIDENCES avoid CONFLICTS of interest render CANDID advice SAFEGUARD client's money & property TERMINATE atty/client relationship fairly and properly UNREASONABLE fees should not be charged act with reasonable DILIGENCE |
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Professional Responsibility
Withdrawing from Attorney/Client relationship WE attorneys suffer from MANICURE withdrawal. |
attorney is a WITNESS in the case, resulting in unfair prejudice to client
ETHICAL violation will occur if client is represented MALICIOUS harassment will be brought upon opposing party with no good faith that claim/defense is warranted under law ATTORNEY is being employed to commit past crime/fraud *proper NOTICE of withdrawal must be given to client INCOMPETENCY of attorney to handle matter CRIMINAL or fraudulent conduct required UNREASONABLE financial burden on attorney *REFUND all papers/property of client, along with unearned fees, upon withdrawal EXPENSES or fees promised by client are not paid *these are procedural requirements of withdrawal |
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Real Property - Covenants of Title under Warranty Deed
The buyer CEASED worrying when seller delivered a warranty deed. |
CONVEY
ENCUMBRANCES ASSURANCES SEISIN ENJOYMENT DEFENSE |
right to CONVEY
ENCUMBRANCEs have been disclosed further ASSURANCES that seller will provide cooperation and assistance to the other party in executing their duties under the contract SEISIN (immediate possession) quiet ENJOYMENT warrant to DEFEND title against DEFECTS |
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Real Property - Requirements for obtaining title by
Adverse Possession An adverse possessor's voice must ECHO long enough to get title to the property. |
EXCLUSIVE and actual
CONTINUOUS for the statutory period HOSTILE (without permission) OPEN and notorious |
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Real Property - Non-Possessory Interests In Land
Let me C NIPPLES and I'll let you use my land. |
COVENANT
NECESSITY IMPLICATION PROFIT PRESCRIPTION LICENSE EXPRESS SERVITUDE |
COVENANT running with the land (writing, intent, touch & concern, privity of estate)
easement by NECESSITY (landlocked) easement by IMPLICATION (conveyance with retention by owner of part of property; must be reasonably necessary) PROFIT that complies with SoF to extract something therefrom easement by PRESCRIPTION (adverse, open/notorious, continuous for statutory period - does not need to be exclusive) revocable LICENSE that grants permission to enter without being a trespasser EXPRESS easement by deed or will SERVITUDE equitably enforceable by another lot owner |
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Real Property
Termination or Expiration of Non-Possessory Interests In Land REMAND use of that ACRE back to its rightful owner! |
RELEASE
EMINENT DOMAIN MERGER ABANDONMENT NECESSITY DESTRUCTION ABUSE CHANGED REVOCATION (licenses) ESTOPPEL |
RELEASE by party with non-possessory interest (written)
EMINENT DOMAIN (condemnation / taking by regulation or physical possession) MERGER - common ownership of dominant and servient tenement ABANDONMENT (non-use is NOT sufficient) end of NECESSITY DESTRUCTION of servient tenement ABUSE - servient landowner may receive injunction & damages CHANGED neighborhood conditions (equitable servitudes only) REVOCATION (applies to revocable LICENSES only) ESTOPPEL - where holder represents intent to abandon & servient tenement so relies |
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Real Propert - Ways to Sever a Joint Tenancy
to sever a joint tenancy's TTIP, RIP'M apart |
TTIP - 4 Unities
RIP'M - ways to sever a JT |
TIME
TITLE INTEREST POSSESSION RIGHT of survivorship upon death INTER VIVOS conveyance resulting in tenancy in common PARTITION by MORTGAGING interest in title theory state |
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Real Property - Permissible Zoning Practices
The zoning board won't let me plant my FICUS in that GAP. |
FLOATING zone
ISSUE permits CONTRACT zoning planned UNIT development SEGREGATE incompatible use GRANT variances AMEND ordinance PLANNING |
FLOATING zones - specified circumstances that allow landowners to circumvent zoning restrictions
ISSUE conditional use permits (provided specified conditions exist) CONTRACT with developers to rezone land if developed in a certain way planned UNIT development that permits developers to vary use and space of tract to appropriately balance residential, commercial and business use SEGREGATE land into districts to divide incompatible uses and protect established uses from economic loss GRANT variances if: unnecessary hardship is shown, zoning precludes reasonable use, and public will not suffer substantial detriment AMEND zoning ordinances by local legislative action comprehensive PLANNING |
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Real Property - Deed Requirements
You can't transfer property unless the deed IS WILD. |
IDENTIFIES
SIGNED WRITING INTENT LAND DELIVERED |
IDENTIFIES parties
SIGNED by grantor in WRITING must show INTENT to transfer an interest LAND conveyed is described must be DELIVERED |
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Real Property - Tenant's Remedies for Breach by Landlord
If landlord breaches, tenant can hit the ROAD. |
RESCIND the lease agreement
OFFSET rent payment after repair ABATE rent until landlord fixes problem (must place in escrow) DAMAGES ordered by court |
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Real Property - Landlord's Obligations to Tenant
A landlord's day is MIRED with responsibilities to his tenants. |
MAINTAIN
IMPLIED warranty of habitability REPAIR warrant quiet ENJOYMENT DELIVER possession |
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Real Property - Tenant's Duties to Landlord
WE R UP to date with rent payments. |
abstain from committing WASTE
refrain from interfering with quiet ENJOYMENT of other tenants pay RENT USE premises for legal activities only fulfill PROMISES made to repair |
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Real Property - Landlord's Remedies for Breach by Tenant
Pay the rent or you're DEAD. |
withhold DEPOSIT
EVICTION ACCELERATION clause DAMAGES for holdover |
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UCC Article 9 Secured Transactions
Classes of Tangible & Intangible Goods a FAN is a SPECIFIC type of goods covered under UCC Article 9. |
FARMING products
ACCOUNT proceeds received upon sale of collateral NOTES (promissory & drafts) STOCKS, bonds & mutual funds PERSONALTY - chattels / movable goods generally EQUIPMENT CONSENSUAL security interests only (not statutory or mechanic liens) INVENTORY FIXTURES annexed to real estate (lighting fixtures, sprinkler systems, furnaces, etc.) INTELLECTUAL properties CONSUMER goods |
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UCC Article 9 Secured Transactions
VCR The 3 Requirements for Attachment |
VALUE must be given by creditor
CONTRACT - the security agreement serves as evidence of the secured transaction unless the secured party has taken possession of the collateral. debtor must have RIGHTS in the collateral. |
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UCC Article 9 Secured Transactions
Priority of Creditors Article 9 dictates which creditor gets to keep the O-PA-L NUG(get). |
buyer in ORDINARY course
PERFECTED ATTACHED creditor LIEN creditor NON-ordinary course buyer attached UNPERFECTED creditor (including bankruptcy trustee) GENERAL unsecured creditor |
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UCC Article 9 Secured Transactions
Advantages to Purchase Money Security Interest (PMSI) Status HATS off to PMSI creditors because they get top priority. |
HOUSEHOLD goods
mere ATTACHMENT TWENTY day grace SUPER priority on inventory |
a PMSI in HOUSEHOLD goods is effective unlike every other security interest
mere ATTACHMENT perfection TWENTY day grace period to perfect interest in non-inventory goods through filing SUPER priority on inventory if creditor provides advance notice to other creditors who have a security interest (e.g. after acquired interest clause) in that same collateral |
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UCC Article 9 Secured Transactions - Assignees
& UCC Article 3 Commercial Paper - Holder in Due Course three requirements to avoid being subject to personal defenses |
FOR value
IN good faith without NOTICE |
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UCC Article 9 Secured Transactions
Methods of Perfection Perfection Calls For Many Things (5) |
Possession
Control Filing the financing statement in debtor's state Mere attachment (consumer goods and PMSI) Title certificate |
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UCC Article 9 Secured Transactions
Permitted Contents of Security Agreements The FOCAL Point of a security agreement is the collateral. |
FUTURE cash advances
OTHER duties/rights describe COLLATERAL AFTER-ACQUIRED clauses floating LIEN on fast-turning inventory PROCEEDS upon disposition |
FUTURE advances clause - allows further cash advances to be secured by collateral covered in earlier security agreement
OTHER provisions, such as set-off or recoupment rights, debtor duties, circumstances constituting default, remedies, entitlement to costs & attorneys fees, and good faith requirement COLLATERAL description in reasonable detail - specify collateral's primary use in debtor's hands AFTER-ACQUIRED property clauses require that future collateral acquired or manufactured by the debtor later (including unmatured commercial tort claims) be covered by the present security agreement floating LIEN - type of security agreement on retail inventory that turns over frequently (executing new agreements each time not practical) PROCEEDS include whatever is received by the debtor upon the sale, exchange or other disposition of the primary collateral. |
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UCC Article 9 Secured Transactions
Repossession Right of Creditor upon Default by Debtor The repo man SCAR'D the debtor but that's his right. |
STRICT foreclosure
get CONSENT to take judicial ACTION REPOSSESSION DISPOSITION sale |
STRICT foreclosure, where creditor legally retains the collateral and outstanding debt is cancelled
CONSENT, voluntary and contemporaneous, from debtor to enter and take collateral from home or other private property ACTION by judicial writ authorizing Sheriff to repossess self-help REPOSSESSION unless it causes breach of peace DISPOSITION sale. Non-judicial liquidation by creditor (after notifying debtor and other perfected parties). Creditor can obtain deficiency judgment against debtor if collateral brings less than the debt. |
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Torts - Transferred Intent Doctrine
Five Relevant Torts you Can't BAIL if you intended one tort but did something else |
trespass to CHATTELS
BATTERY ASSAULT false IMPRISONMENT trespass to LAND |
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Torts - Negligence
Elements to make out a Prima Facie case Any band that puts out a DRAB CD is guilty of negligence to its fans. |
DUTY to exercise
REASONABLE care to ANYONE in plaintiff's position a BREACH of the duty to prevent the foreseeable risk of harm CAUSATION (actual/"but for" and proximate/legal) resulting DAMAGES caused by the breach |
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Torts - Negligence
Alternative Standards of Care beyond "the reasonable person" SKIDMART didn't HELP that COUPLE so they'll be held to a different standard of care. |
SCHOOL and pupils (special relationship)
K duty (contractual special relationship) INNKEEPER and guests ("highest" duty) DRAMSHOP laws impose liability upon drinking establishments MALPRACTICE standards for professionals liability to AUTOMOTIVE non-paying guests for reckless driving RES ipsa loquitur TRAVELERS aboard a common carrier ("highest" duty) HOSPITAL and patients (special relationship) EMPLOYER and employees (special relationship) LANDLORD and tenants (special relationship) PRISONERS held by law enforcement (special relationship) CREATION of harm - duty to alleviate consequences of defendant's act when it creates risk of harm to others, even if act was not negligent OWNER/OCCUPIER of land - varying duties to invitees, licensees and trespassors UNDERTAKING to act - may not abandon an attempted rescue if defendant leaves plaintiff in worse condition negligence PER SE - statute conclusively establishes standard for liability (reasonableness of defendant's actions irrelevant) LOCAL ordinance violation by defendant is "evidence of negligence" by defendant - helps plaintiff establish prima facie case EMERGENCY situation will lower defendant's standard of care unless defendant's negligence caused the emergency |
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Torts - Causes of action related to Products Liability
You are liable for harm done if you use your PENIS as a product. |
PUBLIC misrepresentation
EXPRESS warranty NEGLIGENCE IMPLIED warranty STRICT products liability |
PUBLIC MISREPRESENTATION under restatement 402(B)
EXPRESS warranty under UCC 2-313 NEGLIGENCE IMPLIED warranty under UCC 2-314 to 2-318 merchantability fitness for a particular purpose remote purchasers covered STRICT products liability - known as "Absolute Liability in Tort" under Restatement 402(A) |
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Torts - Bases of Strict Liability for Injury to Persons or Property
You will be strictly liable for missing the day if you are not UP at DAWN. |
ULTRA-HAZARDOUS, abnormally dangerous activities
defective PRODUCTS (at) DOMESTIC animals with known dangerous propensities ALL injuries caused by wild ANIMALS WORKER's compensation (statutory strict liability) NO-FAULT automobile insurance (statutory strict liability) |
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Torts - Causes of Action for Economic Injury
causing FAMINE is an economic tort. |
FRAUD
ABUSE of process MALICIOUS prosecution INJURIOUS falsehood NEGLIGENT misrepresentation interference with prospective ECONOMIC advantage |
FRAUD - misrepresentation of a past or present material fact
ABUSE of process - initiation of civil or criminal proceedings against plaintiff with malicious intent (prior action NEED NOT have terminated in favor of present plaintiff) MALICIOUS prosecution - initiation of civil or ciminal proceeding against plaintiff with no probable cause that plaintiff is liable or guilty, malicious intent (prior action MUST have terminated in favor of present plaintiff) INJURIOUS falsehood (disparagement) - recklessly or intentionally published false assertion of fact leading to pecuniary injury caused by 3rd party's response NEGLIGENT misrepresentation - negligent misstatement of material fact in business of supplying information to others justifiably relied upon by plaintiff interference with prospective ECONOMIC advantage, including contractual relations |
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Torts - Theories of Vicarious Liability
i DARE Plaintiff to Join vicariously liable tortfeasors. |
DELEGATION of danger
AUTOMOBILE ownership RESPONDEAT superior Negligent ENTRUSTMENT known PROPENSITIES JOINT enterprise |
DELEGATION of non-delegable duties (inherently dangerous work, like excavation)
AUTOMOBILE ownership negligent entrustment (knew of unsafe driving habits) use by family members for a family purpose statutory liability for consenting to another's use of the vehicle RESPONDEAT superior - "master" liable for acts of "servant" if committed within scope of employment negligent ENTRUSTMENT of dangerous instrumentalities to a child failure to control child's known dangerous PROPENSITIES JOINT enterprises - when two or more persons act in concert |
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Torts - Attractive Nuisance
Test To Determine Liability An attractive nuisance is a REAL threat to the safety of children. |
RECOGNITION of danger
EXPENSE ARTIFICIAL LIKELY trespassors |
children cannot RECOGNIZE danger
EXPENSE of making condition is slight compared to danger dangerous condition on property is ARTIFICIAL children are LIKELY to trespass on property (and possessor knows or should know) |
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Torts - Defenses to Defamation
Privileges It's bad P.R. to defend FOGIES in defamation cases. |
PROCEEDINGS
REPORTS FIRST amendment OPINIONS GOVERNMENT officials INTEREST of EQUAL time broadcasts SPOUSES |
statement occurred during PROCEEDINGS of legislative or judicial branch
REPORTS of public proceedings FIRST amendment qualified privileges - non-malicious statements about public figures and public controversies, non-negligent statements about a private person fair comment OPINIONS official statements of GOVERNMENT officials statements made in the INTEREST of self, third persons or the public EQUAL time broadcasts communication between SPOUSES |
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Torts - Statements that Constitute Slander Per Se
It's slander per se to call someone SLIM. |
SEXUAL misconduct (lack of chastity of a woman)
LOATHSOME, communicable disease INCOMPETENCE in trade or profession conduct/crime involving MORAL turpitude |
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Torts - Defenses to Intentional Torts
Hell hath no fury like A SCORN'D tort victim. |
ARREST
SHOPKEEPER's privilege CONSENT defense of OTHERS RECAPTURE of property NECESSITY DEFENSE under protective privilege (self, land, chattels) |
use of reasonable force to effect an ARREST
SHOPKEEPER's privilege to detain suspect for reasonable time using non-deadly force CONSENT defense of OTHERS if protected party was entitled to use same amount of force RECAPTURE of property if entitled to immediate possession NECESSITY for public purpose or to abate nuisance DEFENSE of self, land and chattels under protective privilege |
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Torts - Available Remedies
Damages, Restitution, Equity Get back at a tortfeasor by Playing CLARINET. |
PUNITIVE damages
COMPENSATORY damages equitable LIEN ASSUMPSIT REPLEVIN INJUNCTION NOMINAL damages EJECTMENT constructive TRUST |
PUNITIVE damages for willful, wanton or malicious conduct normally associated with intentional torts
COMPENSATORY damages for past, present and foreseeable future loss or injury (unforeseeable special damages must be specifically pleaded) equitable LIEN on defendant's property to secure payment of debt owed to plaintiff ASSUMPSIT (quasi-contract) suit to recover reasonable value of a benefit unjustly retained by defendant (plaintiff must waive tort liability) REPLEVIN to recover possession of specific personal property wrongfully taken INJUNCTION if there is inadequate remedy at law, threat of multiplicity of suits, damages are speculative or too small, and plaintiff will suffer from irreparable injury NOMINAL damages recoverable where no injury sustained EJECTMENT to restore possession of real property from which plaintiff was wrongfully ousted, PLUS mesne damages (rental value during that period) constructive TRUST - equitable creation of a "trust" to compel defendant to reconvey title to property unjustly retained |
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Torts - Limitations on Awarding of Damages
tort damages are measured by how well you FUCC. |
FORESEEABLE - damage/injury must be foreseeable at the time duty is breached (proximate cause)
UNAVOIDABLE - no recovery for losses which reasonably could have been avoided or mitigated damages must be CAUSED by defendant's breach ("but for" causation) sufficiently CERTAIN - damages cannot be speculative |
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Torts - Defenses to Claims Brought in Equity
Rights in equity LAPSE if U assert a proper defense. |
LACHES
freedom of ASSOCIATION injunction against PROSECUTION freedom of SPEECH injunction to ENJOIN crime UNCLEAN hands |
LACHES - equity aids the vigilant, not those who knowingly sit on rights waiting for a defendant to detrimentally change position
freedom of ASSOCIATION - equity will not interfere with the internal management of an ASSOCIATION (exception: where property right is embedded in association membership) injunction sought against PROSECUTION of a crime - equity will not enjoin PROSECUTION of a crime (exception: where criminal statute has been declared unconstitutional) freedom of SPEECH - equity will not enjoin SPEECH (exception: national security at stake, sometimes trade libel) injunction sought against criminal act - equity will not ENJOIN crime (exception: public nuisance if criminal prosecution is an inadequate remedy) UNCLEAN hands - he who seeks equity must do equity (where plaintiff's unclean conduct is related to subject matter of suit and defendant is injured by it) |
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Trusts - Ways a Trust can be Created
it's WICKED smart to create a trust. |
by WILL
INTER VIVOS CONSTRUCTIVE/resulting by K (contract) EXERCISING power of appt. DECLARATION |
created by WILL (testamentary trust)
INTER VIVOS trust created by transfer of property CONSTRUCTIVE or resulting trust created as a matter of law creation of trust by K (contract) creation of trust by EXERCISING the power of appointment DECLARATION of trust by property owner |
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Trusts - Trustee's Defenses for Breach of Duty
A trustee can KIL a suit against him for breach of duty. |
KNOWING
INSTRUMENT LACHES |
KNOWING consent (or waiver) to breach of trustee's duties by beneficiary (implicitly applied to beneficiaries who benefited from wrongful act)
INSTRUMENT contains exculpatory or "hold harmless" provisions. These are enforceable ONLY if breach was merely negligent and trustee lacked bad faith. LACHES or statute of limitations - failure by beneficiary to timely assert claims |
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Trusts - When a "Charging Order" to
Invade a Spendthrift, Support or Discretionary is Permitted Certain ANTICS let creditors invade the principal of protective trusts. |
ALIMONY
NECESSITIES TAXES INTENTIONAL hindrance of creditor CHILD SUPPORT SELF-SETTLED trust assets |
ALIMONY obligations due a former spouse
NECESSITIES - debts incurred for food, shelter, medical expenses, etc. TAXES - income necessary to satisfy beneficiary's tax responsibility can usually be attached INTENTIONAL hindrance, delay or defrauding of creditor's claims by transfering assets into a trust CHILD support owed to minor children SELF-settled asset protection trusts where settlor is also the beneficiary (minority rule: permitted if irrevocable and not created to defraud creditors) |
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Future Interests - Applicability of Rule Against Perpetuities
Jay-Z is a RAP CEO |
RULE AGAINST PERPETUITIES
CONTINGENT remainders EXECUTORY interests OPEN class remainders |
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Future Interests - Allowed Restraints on Alienation
U F See fighters are good at restraining aliens. |
USE restrictions
right of FIRST refusal "wait and SEE" |
USE restrictions (with reversionary interest) - "To A but if not used for church purposes, the land shall revert to me."
right of FIRST REFUSAL - allows holder to match a third party's offer (if accepted) to buy the property within a reasonable time "wait and SEE" doctrine - imposed by statute where operation of trust continues until last possible relevant time under the RAP (or 90 years) to see if the trust will survive. |
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Trusts - Ways a Trust can be Terminated
When a trust wants to be terminated, it yells "Pour some ACID on ME!!!" |
PETITION to court
ACCOMPLISHED purpose CONSOLIDATION of trusts INCOME interest terminates DONOR termination MERGER of title EXPIRATION of trust term |
PETITION to court by beneficiary, spendthrift provision or settlor (if beneficiary is in agreement)
purpose ACCOMPLISHED, illegal or impossible (such as if the sole beneficiary dies without heirs) CONSOLIDATION by the court where multiple trusts have same purpose, trustees, settlors and beneficiaries INCOME interest terminates - corpus is distributed to remainder beneficiaries if all income beneficiaries die (doctrine of acceleration) unilateral DONOR termination permitted if this right is specified in the instrument. This right is called a "grantor trust," so assets are included in grantor's estate for tax purposes. MERGER of legal and equitable title when beneficiary and trustee are the same person EXPIRATION of term specified in the trust instrument |
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Wills - Elements of a Valid Will
I CAST a valid will into the stream of probate court. |
INTENT to devise contents upon death at time of execution
CAPACITY to understand the property, people involved and the effect of executing the instrument. ATTESTED to by two competent, non-interested witnesses SIGNED by testator or person directed who is within "line-of-sight" TESTAMENTARY age of legal capacity |
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