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103 Cards in this Set

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Does Kansas ever apply article 2 to non-goods?
Yes, Kansas sometimes apply Article 2 rules to non-goods - like phone book advertising
Is computer software considered a good in Kansas even if it comes with incidental services?
Yes, even if it comes with incidental services
Are farmers merchants for Article 2 purposes in Kansas?
For warranty of merchantability - yes

For statute of frauds - no
My Kansas contract doesn't list consideration, am I okay?
Kansas will presume consideration.

This presumption may be rebutted
The Kansas court has presumed consideration in my contract, but there was none, what do I do?
Plead and prove lack of consideration as an affirmative defense.
What does Kansas think of consideration?
It recognizes consideration as either a benefit to the promisor or detriment to the promisee
Detrimenal reliance or promissory estoppel
What will Kansas accept in lieu of consideration?
Detrimenal reliance or promissory estoppel
Are covenants not to compete allowed in Kansas contracts?
Only to the extent they are reasonable
What will Kansas courts look at in determining if a covenant not to compete is reasonable?
1. protects a LEGITIMATE business interest

2. UNDUE BURDEN on the obligor?

3. Injures the public welfare? (doctors lawyers)

4. Reasonable time and geographical limitations
What is the age of majority in Kansas?
18
Can a minor disaffirm a contract in Kansas?
Only if he hasn't:

1. Misrepresented his age OR
2. Engaged in business as an adult
My contract is for more than 1 year but allows an option to cancel within one year. Is this within the statue of frauds in Kansas?
No.
Will a confirmatory memo bind a farmer to an oral contract in Kansas?
No, farmers are not merchants for statute of frauds purposes in Kansas.
My (Kansas) oral contract requires more than a year, so belongs within the statute of frauds. I've started performing it, can I enforce the contract?
Reliance may make enforceable an oral contract that would otherwise be unenforceable under the SOF
I (in Kansas) want to engage an agent to buy real estate or enter a contract that takes more than a year to perform, can I do it orally?
No. Equal Dignities rule in Kansas says agent's authority must be in writing if contract that agent will enter into must be in writing
In a Kansas divorce proceeding, the parties enter into an oral agreement that will take more than a year to perform. Is there any way that this isn't governed by the SOF?
If the agreement is placed on the record by the parties during the court proceeding, the SOF does not apply.
What does Kansas look at in unconscionability cases?
1. Procedural unconscionability
2. Substantive unconscionability
Will Kansas recognize unconscionability in a business contracts case?
Generally no, only consumers.
I'm a lawyer, will Kansas recognize unconscionability in a contract case involving me?
Generally no, only in cases involving those who are susceptible because of a deficit in education or low economic status.
What is procedural unconscionability?
Cases of overreaching where there is unequal bargaining position
What is substantive unconscionability
Excessive limitations on a buyer's remedies.
What will Kansas courts look at in unconscionability cases?
1. Adhesion contract?
2. Significantly excessive price?
3. Basic denial of rights and remedies?
4. Penalty clause?
5. Disadvantage BURIED in fine print?
6. language incomprehensible to lay person?
7. Overall imbalance in contract rights and duties?
8. Exploitation of one of the parties?
What happens in a battle of the forms between 2 merchants in KS?
Different, nonmaterial, terms drop out and UCC gap-filling terms substituted.
I've sent an acceptance expressly conditioned on new terms, what result in Kansas?
No contract - counteroffer
An inexperienced dealer affirms that the car I'm looking at will do what I want. I'm extremely knowledgeable and mostly being influenced by the manufacturer's affirmations. Can I still claim the dealer's affirmation was part of the bargain?
No, facts here don't support

inexperienced dealer
experienced buyer
reliance on manufacturer
Does livestock come with any implied warranties?
No, unless sale is for immediate slaughter OR seller knows livestock is diseased.
Can I disclaim an implied warranty in Kansas in a consumer contract?
No, with the exception of livestock
To whom do warranties extend in Kansas?
Any individual who may reasonably be expected to

use
consumer
or be affected

by the goods and is injured by them
Can I limit the scope of warranties in Kansas?
No, any individual who may reasonably use, consume, or be affected by the product and is injured by the breach. This cannot be limited.
Is there a duty of good faith and fair dealing implied in Kansas?
Yes, except at-will employment contracts
I've got an at-will employment contract, is there an implied term of good faith and fair dealing in that contract?
No
There's been a late September freeze, can I excuse performance of my crop contract by reason of impracticability?
No, the freeze was foreseeable.
What do I do about modifications to contracts in Kansas - do both parties have to agree to them?
Yes - both parties must EXPRESSLY agree to proposed amendments that materially alter the original agreement.
Okay, I understand that both parties have to consent to material modifications of contracts, but what if I modify the contract and the counterparty continues to perform? Isn't that an agreement to the new terms?
No - the agreement must be EXPRESS

Merely continuing to perform does not signify agreement with the modified terms.
I've discovered a defect in the goods delivered to me in Kansas. It's been a reasonable amount of time and no substantial change in the goods has occurred. Is there anything else before I can revoke my acceptance?
Yes - you must show that the noncomformity IMPAIRS the value of the goods
When, in Kansas, may a defendant in a suit for equitable performance be estopped from denying the existence of a fact?
If P:

1. Shows that D induced him to believe that a fact existed
2. Relied and acted on that fact
3. would be prejudiced if D could deny existence of that fact
What limits are there to the estoppel doctrine that says P can estop D from denying existence of fact that D induced him to believe, that he relied and acted on and about which it would be unjust to allow D to deny?
If the fact on which the estoppel argument is made is ambiguous and subject to more than one construction
What must I prove to get lost profits in KS?
1. Lost profits were contemplated at time of contracting
2. Lost profits must proximately result from breach or termination of K
3. Lost profits shown w/ reasonable degree of certainty.
Is there restitution available for a subcontractor against an owner?
Not usually.

Only when circumstances that reasonably notify owner that the one performing the services reasonably expects to be compensated by the one sought to be charged
What's the KS test for quasi-contract?
1. P conferred a benefit on D
2. D appreciated or knew of the benefit
3. Circumstances make it unjust to allow D to retain benefit w/o paying.
What's the test for intended beneficiaries in Kansas?
Contracting parties are presumed to act for themselves.

An intent to benefit a 3d party must be CLEARLY EXPRESSED in the K
If a KS crime doesn't say felony or misdemeanor, how do I know?
A felony is any "crime punishable by death or by imprisonment."
Does solicitation merge into underlying offense in KS?
No
Is unreasonable mistake of fact a defense to specific intent crimes in KS?
No.
Is second degree murder a specific intent crime in KS?
Yes
Is robbery a specific intent crime in KS?
No
If the KS crime doesn't list a culpable mental state, what's the default?
Purposefully or knowingly
Is there an intent requirement regarding a minor's age in KS?
No
Can I use the withdrawal defense to solicitation
Not for crimes involving terrorism or WMDs

All else, yes
What do I have to prove to use the withdrawal defense?
You persuaded the solicited person not to commit the crime or otherwise prevented its commission in such a manner as to manifest a COMPLETE AND VOLUNTARY renunciation of the crime
Is there an overt act requirement for attempt in KS?
Merely an overt act going beyond mere preparation
Is there an insanity defense in KS?
No
Wait, I'm insane, is that worthless in criminal matters in KS?
No, you can use mental disease or defect to show lack of requisite mental state
I have diminished mental capacity. What will that do for me in KS?
Lets you negate specific intent requirement of 1st degree murder

May be considered in determining existence of intent required by any specific intent offense
I've been involuntarily intoxicated. Can that be part of my criminal defense?
If it negates a requisite mental state OR if it rendered D "substantially incapable of knowing or understanding the wrongfulness of his conduct AND of conforming his conduct to the requirements of law."
How does battered woman syndrome work in KS?
Can be used to show reasonableness of use of woman's belief that she was threatened w/ great bodily harm or death.

BUT, must first be evidence of imminent threat before admissible.
I honestly, but unreasonably, believed that the use of force was necessary. Can that be used in my defense to a murder charge?
Can be used as "imperfect" self-defense to reduce murder to voluntary manslaughter
Imperfect self-defense means murder becomes _____?
Voluntary manslaughter
Can an initial agreesor use deadly force?
Only when he as exhausted all other reasonable means of escape from danger, including retreat
Do I have to retreat from my home to use self-defense in KS?
No
Do I have to retreat from my car to use self defense in KS?
No
I've been duressed to commit armed robbery, someone dies. Can I be charged with felony murder in KS?
No. If valid defense of duress to underlying offense, then no felony murder.
What is aggravated battery in KS?
D does one of these:

1. Intentionally/Recklessly (I/R) causes great bodily harm (BH) or disfigurement

2. I/R causes BH w/ deadly weapon (DW) or in a manner where Great BH, disfigurement or death could occur

3. Intentionally causes battery w/ DW or in any manner where Great BH, Disfigurement or Death could be inflicted
What is domestic battery in KS?
Battery committed by a family or household member against another
What is a "family or household member" for the crime of domestic battery?
Persons >=18 who are (former) spouses, (step)parents, (step)children, anyone residing together, or have kids together (whether married or not)

Plus, man and woman if woman = pregnant, regardless of living together or married
What is assault in KS?
Intentionally placing another person in reasaonable apprehension of immediate bodily harm
What is statutory aggravated assault in KS?
Assault
1. w/ a deadly weapon
2. Disguised OR
3. Intent to commit any felony
What is a reckless killing in KS?
Involuntary manslaughter

D must be SUBJECTIVELY aware of a substantial and unjustifiable risk and must grossly deviate from the reasonable person standard of care.
Are there limits to misdemeanor-manslaughter in KS?
Yes, only certain offenses, such as:

1. violations of public safety laws
2. Acts that pose foreseeable dangers to human life.

Traffic offenses (except DUI) not misdemeanor (involuntary) manslaughter
What are the classifications of homicide in KS?
First degree murder - premeditated or felony murder
Second Degree murder - intentional, but unpremeditated killings and killings done in reckless disregard
Is there are particular time period that equals premeditation in KS?
No
How can I prove premeditation without, say, a diary?
Premeditation can be reasonably presumed from the surrounding circumstances - use of deadly weapon, lack of provocation
Can I use involuntary intoxiation defense against first degree and felony murder charges?
First degree and SOME types of 2nd degree murder are specific intent crimes, so involuntary intoxication can be used, as well as any other defense negating specific intent.
What about homicides with a car?
Separate offense in KS - vehicular homicide.

Only needs gross negligence, not recklessness
What felonies are included in felony-murder?
Common law felonies PLUS
Kidnapping, voluntary manslaughter, aggravated criminal sodomy, felony theft, child abuse, various drug offenses, fleeing/eluding police, and criminal discharge of a firearm at an unoccupied building.
Do I have to convict of the underlying felony to convict of felony-murder?
No, but prosecution must prove, beyond reasonable doubt, that D has committed or attempted to commit the underlying felony.

Example - SOL bars prosecution on underlying felony, can still convict on felony-murder!
I've kidnapped someone in KS, and inflicted bodily harm, what crime?
Aggravated kidnapping
What force is required for rape in KS?
Victim must be overcome by "force or fear"
Does the rape victim's fear have to be reasonable?
No, need not be objectively reasonable as long as finder of fact believes victim was overcome by fear.
Is it rape if the woman is incapable of consenting in KS?
Yes - if D knew or should have known woman was incapable of consent.
What's the cutoff for statutory rape?
Under 14

14-16 = aggravated indecent liberties with a child
I've had sex with a girl on her 14th birthday, what crime in KS?
Aggravated indecent liberties with a child.
What is sodomy in KS?
Unmarried people committing the common law stuff (fun stuff)
Define criminal sodomy in KS
1. gay sodomy with anyone >= 16 (unconstitutional)
2. Sodomy w/ child 14-16 (inclusive) consent not defense
3. Causing child 14-16 to sodomy with 3d person/animal

Marriage is defense to 2. (see family law)
Sexual battery?
1. Nonconsensual intentional touching
2. >=16
3. not spouse
4. intent to arouse
Aggravated sexual battery?
Sexual battery PLUS

1. Overcome by fear/force
2. Unconscious or physically powerless
3. cannot consent due to mental deficiency or intoxication KNOWN To D
Indecent liberties w/ a child?
D
1. Lewdly fondles self
2. or child 14-16
3 or solicits child to fondle another
4. w/ intent to arouse or satisfy sexual desires of self, child or other.

Marriage to child is defense
Robbery?
Taking of property from the person or presence of another by force or threat of bodily harm to any person
Is robbery a specific intent crime in KS?
No - D may be convicted if he had general intent to take the property by force or threat of force.
X doesn't own the candy that I want, Z does. I brandish a gun to take that property away from X. Is that a good defense to robbery?
No. Ownership is not an element of robbery, need only show that D didn't have a bona fide claim to property.
Aggravated robbery?
Robbery plus bodily harm.
Theft?
Intentionally depriving owner of possession, use or benefit of property by exerting control over property w/o authorization, by deception or by threat.
Receiving stolen property?
Also = theft
Misdemeanor/felony cutoff for theft?
$1,000
For felony/misd distinction, can we group together items?
Yes, if takings resulted from "a single imcriminating impulse."
Burglary, still breaking into a dwelling at night in KS, right?
No, KS eliminated breaking, dwelling, and nighttime from definition.
What is burglary in KS, then, without the dwelling, night, and breaking?
1. Entering or remaining
2. In any building or conveyance (watercraft, auto, etc.)
3. W/ intent to felony or sexual assault or theft
Aggravated burglary?
Burglary plus actual person present in structure or vehicle
Can I burgle an automobile? A watercraft?
Any conveyance is included in definition of burglary in KS
Arson?
Includes explosions
Does arson require a dwelling
No,
What's the state of mind requirement for arson?
1. Knowingly OR
2. Accidentally during manufacture of controlled substance.
Aggravated arson?
Arson + person present OR
GBH or disfigurement of firefighter or LEO