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67 Cards in this Set
- Front
- Back
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Delivery of a Deed Analysis
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A deed is not effective to transfer a property interest unless it has been delivered and accepted. Physical transfer is not necessary for valid delivery. Rather "delivery" refers to the grantor's intent; it is satisfied by words or conduct evidencing the grantor's intention that the deed have some present operative effect, i.e. that title pass immediately and irrevocably even though the right of possessing the land may be postponed until some future time. To make an effective delivery, the grantor must relinquish control.
*Look for grantor's present intent in MC questions. Different types of delivery -manual - grantor physically/manually delivers Presumptions relating to delivery - a delivery may be made through words w/o a physical act. Delivery may be presumed if it is: i) handed to the grantee; ii) acknowledged by the grantor before a notary; and iii) recorded. -- if there is no clear expression of intent that the grantor envisioned passage of title w/o phy deliver, cont'd possession of deed by the grantor will raise a presumption of nondelivery. Delivery cannot be canceled. PE used to prove grantor's intent but not to show delivery was conditional. If deed is unconditional on its face and given directly to the grantee, PE is not admis to show delivery was subj to a condition Conditional delivery? If a grantor executes a deed but fails to deliver during his lifeime, not conveyance of title takes place. Conditions not contained in the deed if deed is absolute on its face (no condition) and delivered to the grantee w oral condition, condition drops out and delivery is absolute. Deed to Third Party Conditional delivery is permissible. Commercial transaction - ok for grantor to give to a third party to transfer when the amt of money is paid - true escrow situation. If a grantor seeks to recover deed prior to the occurence of the condition, grantee can object only if there is an enforceable K to convey. Transfer to 3rd pty - donative transaction -conditions unrelated to grantor's death, are irrevocable and grantee has a springing future interest. -where condition is grantor's death, most courts hold that the grantor cannot get her deed back bc her intent was to presently convey a future interest in the grantee -no delivery of deed if conditioned on survival bc no present intention to deliver, must wait to see what happens. |
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Easement by Estoppel Analysis
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1. some conduct or assertion by the owner of the easement
2. reasonable reliance by the owner of the servient tenement 3. a change in position |
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Construction annexation
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occurs when an article of personal property 9an accession) becomes an integral part of the property, even though it is not annexed to the property, in the same sense that a fixture becomes an integral part of the property.
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Accretion
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is the increase of riparian land by the slow and imperceptible change in course of a river serving as a boundary. Any deposit of soil belongs to the owner of the abutting land.
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What happens when no other disposition is made of the property after expiration of the lesser estate?
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A reversionary interest by operation of law until the remainder is ascertainable.
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Duty of buyer of property re title search and inspection.
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no duty to inspect or do title search however...
- The purchaser is charged w knowledge of whath ever an inspection of property would have disclosed and anyhing that would've been disclosed to the possession -charged w anything that a title search would've found. |
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What is a parent's liability regarding the acts of his children?
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GR, parents are not vicariously liable for the torts of their children. Parents may be liable for their own negligence by not exercising due care under the circumstances.
e.g. parents know their child has dangerous propensities and took her to day care w/o any precaustions. o Agency exceptions? Parents liable to a child if acting as parent’s agent o Modern Rule – some states have statutes that hold parent’s liable. |
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Duty of employers to employees
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No legal duty is imposed on upon any person to affirmatively act for the benefit of others. Hwr, a special relationship btwn the parties may create a duty. Thus, modern cases extend a duty to employers when employees are injured during the course of employment. Thus the employer has a duty to protect its employees against unreasonable risk of injury while he was acting w/in the scope of his employment
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Malice Prosecution Elements
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• Malice Prosecution
o Prima facie case, P must prove institution of criminal proceedings against ∏, termination favorable to ∏, absence of probable cause for prosecution, improper purpose of defendant, damages. |
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Abuse of Process Elements
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The tort of abuse of process prohibits the use of any form of process to bring about a result other than that for which the process was intended.
Prima facie case: -1. wrongful use of the process for an ulterior motive 2. some definite act or threat against P to accomplish ulterior motive. |
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Attributes of a Judgment Lien
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A judgment lien runs w the land and is binding on subsequent owners who have notice o fit.
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Factors to determine whether an equitable mortgage was created
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1. debt or promise of payment by the deed's grantor
2. grantee's promise to return land if the debt is paid 3. amt advanced was much lower than the value of the property 4. degree of grantor's financial distress 5. ptys prior negotiations |
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SOF analysis for land Ks
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K for land sale is unenforceable unless in writing and signed by the parties.
SOF req's the writing to contain all essential terms of the K: 1. description of the property 2. ptys to the K 3. price and manner of payment 4. signature of the party to be charged. How to get around SOF? 1. Doct of Part Performance - provided the acts of part perf unequivocally prove the existence of the K. Also a court may grant specific performance of a K despite the absence of a writing if there has been payment of the purchase price. |
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When could a state tax imports?
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Generally states have NO power to tax imports UNLESS Congress consents.
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When is there state entanglement and not state entanglement?
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Generally the Constitution, including the 14th A, does not apply to private actors. however, it will when state entanglement is found.
State entanglement is found where the state encourages, authorizes or facilitates behavior that is regulated under the 14th A. Cases are not follow a straight forward rule. So here is ea one: = State Action 1. court enforcing a racial covenant 2. gov't leasing property to an est that discriminates 3. Private entity that regulates interscholastic sports w/in a state 4. gov't giving free books to schools that discriminate Does not = State action 1. NCAA - nat'l organization regulating sports 2. 99% funding to a school that discriminates (funding alone not enough to show entanglement) 3. city grants liquor license to an establishment that discriminates. |
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Which Bill of Rights cannot be applied directly to the states through Sect. 5 of the 14th A?
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- 2nd A right to bear arms.
• Split in circuits • == does not apply bc no SC case -3rd A right to not have a solider quartered in a person’s home. - 5th A right to grand jury indictment in criminal cases - 7th A right to jury trial in civil cases - 8th A right against excessive fines |
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Analysis for States enforcing Restrictive Covenants
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Generally the Constitution does not apply to private action. However, if gov't action is "entangled" w private action, a court will apply the mandates of the Constitution to that "private" conduct. The SC has found that enforcing a restrictive covenant is entanglement and amounts to state action. Thus the court can only enforce it if it is constitutional.
If the covenant concerns a fundamental right - must pass strict scrutiny If covenant does NOT concern a fundamental right - must pass rational basis. |
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Is a a taking of a business license a deprivation of property?
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Yes, requires a due process analysis. Lack of notice and hearing prior to termination of an owner's license = due process violation.
A person has a protectable property interest in her business license license. |
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Federal Laws and 14th A Rights
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14th A does not apply to federal laws!!!!!! Incls Privileges and Immunities of 14th A or Equal Protection Clause of the 14th A.
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Ex Post Facto
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retroactively holding someone criminally liable for actions that were not illegal when he committed them.
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Is the following state action through "entanglement"?
A private school w a license by the state, receiving school funds, free books, and 20% of funding from the gov't? |
No.
In this case, the school is a private institution performing a function— education—that has never been considered to be an exclusively public function. [See Pierce v. Society of Sisters (1925)] Furthermore, its licensing by the state and receipt of state funds do not constitute significant state involvement with regard to its personnel matters; thus, the teacher cannot establish that the school exercised state action. |
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Congress allows a state to ban certain products, but state chooses not to. Instead, state chooses to ban advertisement of the products. Const'l?
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No. The right to ban all truthful advertising for a product is not automatically justified by the right to ban the product entirely when the state chose not ot.
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Access to Trial Rights
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Under the Constitution of the US, the First Amendment guarantees the public and press a right to attend criminal trials. But that right may be outweighed by an overriding interest articulated in findings by the trial judge.
Could also be 14th A/Due Process strict scrutiny analysis bc First Amendment is a fundamental right. |
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Analysis for public employee who can only be fired for "cause."
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under this situation, the person cannot be fired w/o due process of law.
Court has held that he must be given notice of the charges and a pre-termination opportunity to respond to the charges. Must also be given a subsequent evidentary hearing after termination and reinstatement if he prevails. |
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What happens when a lien is filed against the interest of one joint tenant
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Lien does not sever the joint tenancy until lien holder proceeds w foreclosure.
Purchaser at foreclosure will hold as a Tenant in Common until partition owning 1/2 interest in the property |
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Admissibility of Convictions
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All felonies and misdemeaners if involve a false stmt... no judge discretion
or felonies but judge discretion. e.g. evidence of crime of battery in a murder trial prob not admissible bc evidence of other crimes not admissible to show criminal disposition and seems like that's the only reason for admissiblity. no crimes > 10 years old after prison release. |
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Statement Against Interest
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Witness must be unavailable.
a. Against declarant’s financial, proprietary, penal interest when made b. Can be said by ANYONE, not just the party or adopted by the party. d. FRE ONLY: If stmt offered to exculpate D, statement must have corrob. evid. e. CA DISTINCTION: Includes statement against social interest (i.e. ridicule) |
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Preliminary fact determinations procedure
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All preliminary fact determinations are determined by the judge and it is his or her discretion whether the jury should be present or excused.
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When are in-court comparisons of handwriting appropriate for authentication?
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Only by an expert witness and the jury.
Jury only when the other letter is admitted into evidence the the pty has admitted to writing it. |
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Reply Letter Doctrine
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Witness allowed to testify and offer circumstantial evidence explaining that a letter was in response to a prior letter.
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Present sense impression v present state of mind
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state of mind - "intent" can be stmt of future intent to do something
impression - something said about an event while perceiving it. |
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Unavailable witness's stmt is offered under a hearsay exception. Can that stmt be impeached and how?
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Can be impeached w an inconsistent stmt but if that stmt does not fall w/in any hearsay exception, then it can only be offered to impeach and not for the truth of the matter.
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Atty hires a physician to examine client..is this protected under a privilege?
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If an atty hires a physician to examine the P for purposes of the case, what transpires between the doctor and P is protected under the client-atty privilege. The dr is acting as a “representative of the lawyer” which is one who is employed to assist in the rendition of legal services. If a physician examines a client at the request of an atty (e.g. to assess the extent of injury), the atty-client priv applies to all communications made to the physician bc he is deemed to be a representative of the atty.
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Admissiblity of J's in criminal and civil cases
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Evidence of a judgment is hearsay. FRE has an exception to the hearsay rule for J’s of felony convictions used in any civil or criminal actions; it is not applicable to J’s in civil actions. GR: Civil J is inadmissible in a subsequent criminal trial due to the differing standard of proof.
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Analysis for silence in front of a police officer
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Silence in front of a police officer MAY be deemed an admission if a reasonable person would object instead of remain quiet. This is arguable and that’s why MAY is used and not MUST
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Guilty Pleas and withdraws of pleas -- evidence?
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A plea of guilty which is later w/drawn may not be used against the D who made the plea, except in special circumstances. Hwr, a Def’s guilty plea that is not withdrawn is an admission by a pty-opponent and is admissible and not considered hearsay in a subsequent case.
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Can you impeach a W who says "I cannot remember"?
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If someone says ‘I don’t remember’ you may not be able to offer evidence of a conversation regarding what that person cannot remember bc not a proper impeachment. You can only impeach when casting doubt to the W’s truthfulness of a witness, i.e. when W made inconsistent stmts. Bc a W merely testified to a lack of memory concerning these matters, the P’s testimony would not be considered a prior inconsistent stmt. Either way, if another person is allowed to testify to a stmt that W cannot remember, it would only be to impeach and not for the truth of the matter asserted (unless under oath).
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When will a judge grant a motion to strike?
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a motion to strike is effective only where there was no basis or opp for an earlier objection. An objection must ordinarily be made after the question was asked but before the witness answers. If the question is not objectionable, but the answer is, a motion to strike is appropriate. Where the question is clearly objectionable and the prosecution had time to object but didn’t, the answer will not be striken.
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How are bribes analyzed under hearsay exception?
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Bribes are admissible as substantive evidence against D. An admission is a stmt made or act done that amts o a prior acknowledgement by one of the ptys of one of the relevant facts. Under FR, admissions by ptys are not hearsay. Various kinds of conduct, incl attempts to bribe W’s, may be held to manifest an awareness of liability or guil.t Since D’s guilt is an issue of the case, his attempt to bribe is admissible as an admission by pty-opponent.
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State tax analysis
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The state can impose use taxes on interstate business as long as the activity taxed has a substantial nexus to the taxing state; the tax is fairly apportioned; the tax does not discriminate against interstate commerce; and the tax is fairly related to the services provided by the state.
If the above is met, the tax will then be balanced against its burden on interstate commerce. Where a state enacts a law that does not discriminate against interstate commerce, it may still be invalid if the benefits from the law are outweighed by the burdens the law places on interstate commerce. This determination is a case-by-case basis, depending on the facts. |
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Advertising Space offered for sale by a state that but limits all “political” and “religious” advertising. Const’l?
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Probably if it is viewpoint neutral and reasonably related to a legitimate gov’t purpose. The billboards are not trad’l pub forums; rather, they will be found to be “commercial ventures” by the city. In a similar setting, SC held that cities could differentiate btwn broad categories of speech in accepting advertising on city-owned buses (i.e. Court allowed city to refuse political advertising and accept only commercial) as long as was viewpoint neutral and reasonably related to a gov’t interest.
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Analysis to determine whether a regulation of the electoral process is valid.
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If the restriction on First A activities is sever, the regulation will be upheld only if it is narrowly tailored to ach’v a compelling interest.
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Congress’s tax upheld? Analysis
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Pursuant to the Const’n Congress may tax and spend to provide for the general welfare. A congressional tax measure will be upheld if it bears some reasonable relationship to revenue production or if Congress has the power to regulate the taxed activity. Congress may spend for any pub purpose.
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A fed statute taxing residential real property will most likely be upheld if it
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It is applied to DC. A uniform tax throughout the country will probably be valid but the best answer is ability to tax DC.
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When is grand jury stmt admissible?
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Grand jury stmt is admissible both as impeachment evidence and as substantive evidenve bc it is a prior stmt made under oath in a proceeding.
Not admissible under Former testimony bc no ability to cross |
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What damages can a parent NOT recover for when a child is killed in a “wrongful pregnancy?”
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The future costs of raising her child
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Implied easement
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an easement may be implied if, prior to the time the tract is divided, a use eists on the servient part that is reasonably nec for the enjoyment of the dominant party, and a court determines that the ptys intended the use to cont after division of the property. To give rise to an easement, a use must be apparent and continuous at the time the tract is divided.
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Preexisting duty rule
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CL: Preexisting duty to perform is not adequate KSN
Modernly: Must pay if duty is owed to a third pty |
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Debt collection is barred by SOL and debtor makes a written promise to pay some of the debt. Enforceable?
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Yes, bc moral obligation = KSN
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when can silence statisfy as an acceptance in CL K?
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An executory bilateral contract may be formed without any communication of acceptance. A common example is where prior dealings between the parties, or trade practices known to both, create a commercially reasonable expectation by the offeror that silence represents an acceptance. In such a case, the offeree is under a duty to notify the offeror if it does not intend to accept
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Does SOF apply to service K's over $500?
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No, just sale of goods.
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2 parties come make an oral K and reduce it to writing req'ing both ptys to sign.
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The gourmet food store owner and the corporation’s president formed a contract when they agreed on all salient points after negotiations. One element of their agreement was that the terms would be put in writing, a process sometimes called “memorializing” the agreement. The writing does not constitute the agreement itself, but is merely a written record of it. Another element of their oral agreement concerned when it would take effect: on completion of the “memorialization.” The general counsel’s failure to initial the writing, whether deliberate or inadvertent, was not the failure of a condition, but rather a breach of the oral agreement that he would do so.
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Are these K's illusionary?
- K can be canceled at any time - K cannot be canceled for 2 mnths - K stating one pty can cancel at any time and one pty implied promise of best efforts |
If only ONE party is bound to perform, promise is ILLUSORY and unenforceable.
Courts often supply implied promises to infer mutuality (i.e. a party must use best efforts) -illusionary - not - not |
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M <----------->F
W is a third pty beneficiary Can W sue M for nonperformance, i.e. for W not getting benefit from M? |
If W's right is vested, W can sue for benefits UNLESS promisor (F) is in breach.
Any defenses that M can assert against the breaching party, he can assert against the third pty beneficiary. |
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Is there KSN when someone agrees to be the exclusive distributor
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in a case where someone is to be the exclusive distributor, the court will imply a promise to use best efforts to sell the product. This implied promise is valid consideration both under the common law and the Uniform Commercial
Code |
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Father sends son money if he gets a new girlfriend. Instead, son buys her an engagement ring. Father rescinds the deal. Can son sue Father for damages?
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No, bc he did not promise to send the money w the expectation that the son would buy an engagement ring for his gf.
The son, the promisee, incurred no legal detriment by either refraining from doing something that he had a legal right to do or doing something that he had no legal obligation to do, with such detriment being part of a bargained-for exchange with the father. However, KSN is not necessary if the promisor should be estopped from not performing. A promise is enforceable to the extent necessary to prevent injustice if: (i) the promisor should reasonably expect to induce action or forbearance; (ii) of a definite and substantial character; and (iii) such action or forbearance is induced. Given the father’s express disapproval of the girlfriend, he certainly did not promise to send the money expecting to induce the son to buy the girlfriend a ring. |
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Thirds pty beneficiary may enforce a K when
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Thirds pty beneficiary may enforce a K when
i) manifests asset to the promise in a manner invited or requested by K ptys ii) brings suit to enforce the promise iii) materially changes position in justifiable reliance on the promise |
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Half performed Unilateral K and the work is destroyed by an act of god. Performing pty get contract damages?
Quasi-K damages? |
No, bc performance is a condition precedent for duty to pay.
Quasi-contract damages – only for the benefit conferred and not the costs incurred. |
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Under the UCC, when a seller breaches and the buyer elects to buy goods elsewhere, what are his obligations?
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. If replacement goods are bought, the buyer must take a reasonable contract for substitute goods in good faith without unreasonable delay. If the buyer contracts for higher quality sunglasses at a higher price, even though the products or originally ordered were avail. Buyer need not find the lowest avail price or make a contract w an unreliable supplier, if he could have obtained the goods in plenty of time from someone else, he should be req’d to take pymt from that person’s price.
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What constitutes acceptance of nonconforming goods?
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Acceptance of nonconforming good
i) if he keeps the goods, after reasonable inspection, even though they are nonconforming a. will have a reasonable time to inspect the good before accepting or rejecting them. ii) fails to reject w/in a reasonable time after tender or delivery of goods or fails to seasonably notify the seller of rejection iii) does an act inconsistent w seller’s ownership |
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Formation of K
Unilateral Mistake |
If the nonmistaken pty is aware of the mistake made by the other party, he will not be permitted to snap up the offer, i.e. the mistaken pty will have the right to rescind the agreement.
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UCC - oral K, conformation memo, add'l terms - analysis?
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UCC Contract Formation
Oral deal for goods over $500 is usu not enforceable bc of SOF. One way to make enforceable is if the deal is btwn 2 merchants, reduce to writing, and sent to the other party and that other pty does not object within 10 days. Any additional terms in the confirmation memo will not be part of the original contract IF they materially alter the contract unless the other pty agrees. |
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If parties make a mistake when reducing their agreement to a writing, it’s called a
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“mistake in integration.”
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Analysis for a concealed condition on a possessor's land
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“Obviousness” of whether a condition is concealed is determined by surrounding circumstances, e.g. one whose attention might have been directed elsewhere may recover even though the condition was visible.
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What is the effect of a "no assignment" clause
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It is construed as only barring delegation of the assignor's performance to the assignee and not the assigning of payment, so
delegation --> breach assignment --> no breach |
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Novation v. Delegation
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Novation is only an option for executory Ks - ones where both pty's perf is still outstanding.
If K is non-executory when "novation" is made, then it is actually a delegation, i.e. one pty has performed and the other has not. |
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Right to Confront Witness - Co defendant's confessions
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Introduction of co-D's confession is prohibited in a joint trial unless the confessing D testifies.
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