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143 Cards in this Set

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REOP in objects or places held out to public or that may be viewed from a public vantage point?
No - police may fly over area to observe w/naked eye, even low flyover by helicopter to view inside partially covered building BUT may not use means of enhancing their vision that is not available to general public.
Rights of TPB - Charitable Contrubition Cases
Ex: Insurance co. sent letter to chirch informing it that ee had named it the b under his ee benefits program. Company did not warn church that ee had right to change his b and should have reasonable expected that church would rely on promise in some way; not necessary in charitable contrib. cases that promisor know of a specific expenditure that recipient made or is going to make. To prevent injustive, the church can recover against co on a promissory estoppel theory b/c interests of justice require it.
The church's right as a TPD did NOT vest on receipt of letter.
When may an intended TPD prevent contracting parties from rescinding/modifying K?
Once his rights have vested. Occurs when b:
(1) manifests assent to promise in a manner invited or requested by parties;
(2) brings suit to enforce promise; or
(3) materially changes position in justifiable reliance on promise.
Pure Notice Statute - Language
"Any conveyance of an estate in land, other than a lease less than one year, shall not be valid against any subsequent purchaser for value, without notice, unless the conveyance is recorded."
Race-Notice Statute - Language
“No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof, whose conveyance is first recorded.”
Race Statute - Language
“No conveyance or mortgage of an interest in land is valid against any subsequent purchaser whose conveyance is first recorded.”
Notice Statute
Only a subsequent BFP can prevail under a notice statute, and the BFP will prevail over a prior grantee who failed to record. Be certain that the subsequent purchaser had no actual or constructive notice of any previous conveyance at the time of the subsequent conveyance. If the purchaser had either, then the purchaser is not a BFP, and cannot prevail over a previous purchaser when a notice statute is at issue.
Race-Notice Statute
A subsequent purchaser prevails over a previous purchaser, only if the subsequent purchaser takes w/out notice of any previous conveyance AND records before the previous purchaser. This, in effect, combines the two requirements above. In other words, for a subsequent purchaser to prevail in a race-notice statute, that subsequent purchaser must be a BFP, and win the race to record.
Shelter Rule
Allows a person who takes from a BFP to prevail against any interest that the transferor-BFP would have prevailed against, EVEN if transferee had actual knowledge or the prior unrecorded interest.
Mortgages for Value
treated as "purchasers" under the recording statutes and if a bank, for ex., had no notice of prior purchaser's interest.
Under a race-notice statute would allow purchaser to take free of bank's mortgage if bank did not record and purchaser dud subsequently record. This is not true under a notice statute.
Vicarious Admission
Rule 801(d) provides that admissions by a party are NOT hearsay and thus will not be excluded by the hearsay rule. An admission is a statement by a party to the action offered by the opponent of the party. They also include statements by party's ees if made during scope of employment relationship. It is removed from the definition of hearsay and will be admissible under 801(d)
Right to Protect Property from Trespassers
Generally, one may use reasonable force to prevent commission of a tort against one's property, BUT force likely to cause death or serious bodily harm is NOT permitted when invasion is threatening property alone. Moreover, one may NOT use INDIRECT deadly force when such force could not lawfully be directly used.
First Amendment - freedoms of speech and press
A tax exemption that regulates based on its content violates the First Amendment. However, the freedom doesn't prohibit all gov't regulation of the press, but it does place some limits on regulation. Press and broadcasting companies can be subject to general business regulations and taxes, but generally may not be singled out for a special tax. Moreover, a tax impacting on the press or subpart of press can't be based on content of the publication absent a compelling justification.
Conversion - Measure of damages
measured NOT by cost of replacing converted chattel BUT BY ITS FMV AT THE TIME AND PLACE OF CONVERSION

D is given title upon satisfaction of the judgment = forced sale of chattel

If D wants to return, P not obligated to take it back once converted
Effects of a Tax Sale
LT is obligated to pay all ordinary taxes on the land to the extent of income or profits from the land. If the income from the land exceeds the taxes due, LT is personally liable for the taxes.

HOWEVER, a tax sale will cut off the rights of the remaindermen; so they definitely have an interest in paying the taxes, although they are not liable in any way for the taxes.

One remainderman cannot be forced to pay 1/2 of actual tax bill if other pays 1/2 BUT if other pays full amt to protect the property, he can as a co-tenant seek contribution from the other for her 1/2 share.
Discrimination Against Minorities to Suppress their Voting power - likely to win case with which constitutional argument?
14th Am EPC has been interpreted by SC as prohibiting state dilution of right to vote by malapportionment of electoral districts. In effect, this constitutes a ban on fewer reps per voter in some districts than in others.

Generally, an at-large system of election presents no one person-one vote problem, b/c such a system contains no electoral districts. BUT, if a city-at large election system appears to have been est. and maintained for purpose of suppressing the voting power of minority-race voters, it violates the EPC.

In one ex., Alpha Party, which dominates city's political life and has only slated one member of a minority race as a candidate for city council. When Alpha didn't support his reelection, he was defeated, even though his recepit of 95% of the AfAm vote indicated he had considerable support among the AfAm community. Alpha's withdrawal of support b/c he raised concern of minority voters and subsequent failure to slate any other min. cand. suggests pattern of disc. against min. and unresponsiveness to their needs, thus supporting an inference of purposeful discrimination against min. to suppress their voting power.

DP NOT good b/c city voting system does NOT limit voting powers of ALL persons, just minority races.
State Action Requirement and EPC
EPC prohibits only gov't infringement, but it does NOT mean that only direct action is proscribed.

Private action may constitute state action where:
-private actor is preforming an exclusive state function (e.g., running elections but not a museum)
-gov't is significantly involved in private actor's activities

The grant of land simply doe NOT constitute state action, which requires the state affirmatively facilitate, encourage, or authorize acts of discrimination.

Merely granting land to an entity then decides to adopt a discriminatory polity does NOT constitute the necessary aff. action.
Remedying Past Discrimination
If there is state action, this excuse would not validate the discrimination.

Remedying past discrimination has never been used as a basis for explicit discrimination against a suspect class, but rather has only been used to justify action favoring a group in limited circumstances.

Discrimination against a suspect class must must meet SS.

Japanese internment is the ONLY case of explicit discrimination against a suspect class has been upheld.
Lost Volume Seller - Buyer Breach
Seller can obtain or manufacture as many goods as it can sell.

Ex: But for B's breach, S would have made 2 sales instead of 1.

S's recovery: lost profit measured by K price less cost to dealer.

Ex: S can get as many of a particular model of speedboat as it required from mfr for wholesale price of $7k. B orders for $10k w/$2k down payment. B then breaches and wants $ back. S then sold boat to someone else for $10.5k. Seller lost profit of $3k as result of Bs breach, which is offset against amt of down payment B made. Thus, S's net recovery is $1k ($3k LP - $2k DP).
Malice aforethought #3 - unjustifiable high risk to human life
Ex: Robber forces principal of school to dress in robber's clothes and leave school first, robber knew that there was a high risk that police would mistake principal for robber and shoot principal, who could not raise hands in air b/c robber tied them to the side.

malice #3 + act of placing principal in this position = guilty of murder of principal
Promises to Answer for the Debt of Default of Another
Covered by SOF where promise is collateral rather than primary.

A collateral promise is a secondary promise that is ancillary (subsidiary) to a principal transaction or primary contractual relationship, such as a promise made by one person to pay the debts of another if the latter fails to perform. A collateral promise normally must be in writing to be enforceable.

If a person guarantees a loan to another, it means that the person agrees to pay the loan only if the other refuses to do so. Therefore, the person made a collateral promise to answer for the debt or default of the other regarding the loan to from the bank.
Promisor's Main Purpose in Making an Agreement is to Benefit Himself
where main purpose or leading object of promisor is to secure and advantage or pecuniary benefit for HIMSELF, agreement is outside the SOF and enforceable, even if the effect is still to pay the debt of another, and even it it was oral
Delivery of a Deed
continued possession of deed by grantor ordinarily raises REBUTTABLE presumption of nondelivery and thus no passage of title

words or conduct w/out an act of physical transfer can overcome presumption

delivery occurs when grantor intends that deed have some present operative effect -- i.e., that title pass immediately and irrevocably, even though right of possession might be postponed until some future time.

things to look for: owner signed deed, had it notarized, previously told person he was going to convey property to them

if determined that O conveyed property to someone before he died, that property is not in his estate at time of death, and so any conveyance of real property in O's will does not include property conveyed before O died
Unconscionability (Contracts)
tested at TIME a K is FORMED

K will be found unconscionable where ct finds that terms are extremely one-sided. Such Ks are often found where parties are of unequal bargaining positions
Is there a contract?

a good example
HYPO: Friend told quilter friend that for 15% commission, she could find her a buyer who would pay at least $5k for it. Q said nothing in reply. Next day, F told Q she had a prospective B willing to pay $5200, sight unseen. Q asked for Bs number, which F gave to her. Q called B and arranged a sale. Q refuses to pay F.

ANSWER: F can can recover if there was a K? Fs statement she could find a B for 15% of at least $5k is sufficiently definite to be an offer. Q didn't accept immediately, but she asked for Bs number when F told her she found a B -- this is sufficient acceptance even though it wasn't explicit, b/c acceptances are tested by OBJ std, and a RP would presume Qs statement was acceptance -- given that Q knew info was being supplied under terms of Fs offer.
Declaration Against Interest Hearsay Exception
Only applies if declarant UNAVAILABLE
Admission by Party-Opponent
admissible nonhearsay

an admission is a statement made that amounts to a prior acknowledgement by one of the parties of the relevant facts, offered by the opposing party
Reciprocal Negative Servitude
a court will imply a covenant--known as a reciprocal negative servitude--where evidence shows that developer had a scheme for development when sales began and grantee in question had notice of the plan. The covenant protects parties who purchased in reliance on the scheme.

Evidence of the scheme can be obtained by the general pattern of other restrictions, and notice can be from actual, record, or inquiry.

*BINDS subsequent purchasers WHETHER OR NOT the restriction appeared in their deeds. And despite the fact that restrictive language in B's deed purported to bind only B and her successors.

Based on developer's representations (had scheme for development when sales began and grantee in question had notice of plan), B entitled to rely only on fact that similar restrictions would be imposed on all other purchasers of the lots.
Judicial Notice - Criminal Case
-operates as a substitute for proof as to facts that are matters of common knowledge in the community; or
-capable of verification through easily accessible, well-est sources

In criminal case - jury MAY but is NOT required to accept the fact noticed. Thus, its effect is ONLY to relieve prosecutor of her burden of producing evidence on THAT fact. It does NOT est. proof of the fact beyond a reasonable doubt.
Judicial Notice - Civil Case
the fact judicially noticed is CONCLUSIVELY established
K for sale of property + property destroyed - who bears risk of loss?
Majority Rule: where property subject to an enforceable K for sale is destroyed WITHOUT FAULT OF EITHER party BEFORE date set for closing, ROL is on BUYER.

If K silent re ROL, S entitled to received specific perf. of K - B must pay full K price.

(this has nothing to do w/marketable title, which refers to a deed free of any poss. dispute as to who is owner of property)
Character Evidence - Civil Trials
inadmissible to prove that litigant acted in conformity w/that character

EXCEPTION: when litigant's character is directly in issue (e.g., defamation)

character evidence generally is inadmissible in civil cases whether or not witness had pers. knowl. of specific conduct of litigant, but when it is admissible, it is OK to testify to litigant's reputation in community; knowledge of SA not required

there is no rule exception to the rule against reputation evidence in civil cases that would allow character evidence that can be verified by an unbiased witness, BUT it would be proper to call unbiased witness to testify as to how much D drank that night

rule that evidence of character only if party puts his character in issue is NOT the rule in civil trials
Easement Appurtenant
right of use of property of another that attaches to land and benefits owner

if it contains no limitation, it is perpetual

if perpetual, it is binding on all the owner's subseq. transferees regardless of whether the conveyance refers to the easement, so long as transferee has notice of it

must have 2 pieces of land + 2 different owners

dominant estate + servient estate

passes w/a transfer of dominant tenement, even though it is an interest in the servient tenement
Express Easement
EE By Grant: Arises when the servient owner grants an easement to the dominant owner.

EE Reservation: Created when the owner of a certain piece of property conveys the land to another but saves or reserves an easement in it.

Note: Express easements must satisfy the Statute of Frauds.
Tract Index
organizes all the docs according to the location of the property
Grantor-Grantee Index
lists kept by County Recorder which list all recorded transfers of title by deed (as well as liens, mortgages, deeds of trust and other documents affecting title)

each index is alphabetized by the last names of grantors and grantees and includes date of transfer

key instrument in tracking a chain of title
Refreshing Recollection
first figure out if W has PK of the relevant into so that he may testify

if W indicates he can't remember, FRE allow a w's recollection to be refreshed by just about anything

ONLY used to jog memory
W may NOT read from writing while testifying

opposing counsel can examine item being used to refresh and cross-examine W, he may NOT object to it

NOT offered into evidence, so NOT offered for truth of matter it asserts - NO violation of hearsay rule

(compare with past recoll rec)
What is best way for a landowner who wants to temporarily open up his property for public use?
grant an EASEMENT for x years where land can only be used for purposes provided in easement and which could be limited by owner

bad choices (depending on fact pattern)
-dedicate land
-lease for certain amount of time
-covenant (promise some act or forbearance w/respect to property and generally not used to grant rights for access to property)
Right to a Jury Trial
required for serious offenses = those authorizing imprisonment of MORE than 6 mothns

no constitutional right to jury of 12, but must be AT LEAST 6

no right to unanimous verdict BUT SCOTUS has held that 6-member juries MUST be unanimous
Marketable Title
an implied covenant in a land contract that S will provide B w/marketable title

it is bridge protection for B b/w execution of land K and delivery of deed at closing

MERGER - at closing K merges w/deed, so that S is no longer liable on implied contractual covenant of marketable title
Rights of Junior Mortgagee
re foreclosure
because foreclosure will destroy all interests junior to the mortgage being foreclosed, junior mortgagee has right to pay it off (i.e., redeem it) to avoid being wiped out by its foreclosure

if junior mortgagee pays off outstanding balance of senior mortgage, it will be subrogated to senior
Equitable Subrogation
when the proceeds from one mortgagee’s loan are utilized to satisfy the outstanding obligations under an earlier mortgage, equitable subrogation affords such second (junior) mortgagee the right to be substituted into the position of the earlier mortgagee and afforded priority over subsequent liens and creditors, to the extent it satisfied the earlier debt
Statutory Right of Redemption for Lienholders
available in about 1/2 states

gives mortgagor and sometimes jr lienholders statutory right to redeem for some fixed period AFTER the foreclosure sale has occurred

amt to be pd generally foreclosure sale price, not amt of original debt
Declarations of PRESENT Bodily Condition vs. Declarations of PAST Physical Condition
PRESENT: admissible as an exception to hearsay rule when made to anyone, not just physician

PAST: admissible as a hearsay exception ONLY if made to assist in diagnosing or treating the condition

if statement doesn't fall w/in these or any exceptions to hearsay rule, then admissible ONLY for IMPEACHMENT
Proving an Inconsistent Statement
-by cross-examination

-extrinsic evidence: only if W is is given opp to explain/deny allegedly inconsistent statement BUT it need NOT come before the intro of the statement under the FRE
covenants for quiet enjoyment and warranty
future covenants that are breached when a third party interferes w/possession of the grantee or her successors
who gets paid first?
priority is determined either under the common law "first in time rule" or the jdxs recording act
"first in time rule"
The traditional rule is that the person whose interest is first delivered prevails over anyone who acquires an interest later. However, the recording acts adopted in most states carve out two exceptions to this basic first-in-time rule.
First Exception: Subsequent BFP Prevails
In a title dispute between a first-in-time owner and a later bona fide purchaser, the bona fide purchaser prevails. The recording act in each state defines the precise requirements for bona fide purchaser status. Roughly half of the states are notice jurisdictions, about half are race-notice jurisdictions, and two states do not recognize the exception at all.
Second Exception: The "Shelter Rule"
a grantee from a bona fide purchaser is protected as a bona fide purchaser, even though the grantee would not otherwise qualify for this status. Suppose O conveys to A, and then to B (a bona fide purchaser). Before B can convey to C, A notifies C about the O-A deed; because C has notice, C cannot be a bona fide purchaser. However, under the shelter rule, C prevails over A.
Declaration of Present/Existing State of Mind Exception to Hearsay Rule
-admissible when declarant's state of mind is directly in issue and material to the controversy
-when declarant's state of mind is NOT directly in issue, but the declarations of intent are offered to show subsequent acts of the declarant; i.e., a declaration of intent to do something in the future is offered as circumstantial evidence tending to show that the intent was carried out
Humiliation
not an actionable tort in and of itself BUT is a recognized element of damages for the commission of an intentional tort
Riparian Doctrine for Allocation of Water in Watercourses
reasonable use theory permits each riparian owner (i.e., owner of land bordering the watercourse) a reasonable use of water, and a downstream owner cannot enjoin the reasonable use by an upstream riparian owner unless it substantially interferes w/the downstream owner's comparable use

natural uses prevail over artificial
natural: household consumption, gardening, limited grazing
artificial: irrigation, mfg

riparian owners can take all the water they need for natural uses, but cannot for artificial unless there is enough water for the domestic needs of all others
Preliminary Facts
re trial
jury determines whether the offered evidence is relevant to issues in the case

judge determine whether offered evidence is competent to be admitted at all
Right to Counsel - Misdemeanor Trials
only when a sentence of imprisonment is ACTUALLY imposed (including a suspended sentence)

if the misdemeanor statute permits an alternative penalty of a fine, it may be imposed w/out violating the constitutional right to counsel at trial
Free Exercise Clause
does not require exemptions from govt regs for a person whose religious beliefs prevent him from conforming his behavior to the requirements of the law

unless the law was motivated by a desire to interfere w/religion rather than a neutral law of general applicability, it can be applied to regulate the conduct of one whose religious beliefs conflict w/the law
Private Nuisance Action
interference with Ps use or enjoyment of land must be substantial - it must be offensive, inconvenient, or annoying to the AVERAGE person in the community

not substantial if merely result of Ps hypersensitivuty
Sixth Amendment Right to Counsel
use to evaluate the admissibility of any statement made AFTER D has been charged w/the relevant crime

Unless D knowingly and intelligently waived right to counsel, any post-indictment interrogation relating to those charges must be in presence of Ds counsel

BUT - SC has held that a statement obtained in viol. of Ds 6th Am. right to counsel MAY be used to IMPEACH Ds contrary trial testimony

Ex: Before trial, bailiff got D to admit he committed crime. At trial, D testified he had nothing to do with crime. In rebuttal, prosecution wants to but bailiff on stand to testify as to Ds statements. This is OK b/c prosecution is seeking only to impeach Ds testimony.
Q: At Ds trial for armed robbery, prosecutor offers indisputable evidence tending to show that D committed 2 other armed robberies in year preceding the present offense, and that he committed all 3 to get $ for his heroin habit. D has no prior convictions and has chosen not to take stand in his defense. Should court admit this evidence?
(A) No, b/c D was not convicted of the other robberies.
(B) No, b/c D has not testified at his trial.
(C) Yes, unless ct determines that probative value of evidence is substantially outweighed by its prejudicial effect.
(D) Yes, b/c prosecution can establish by clear and convincing evidence that D committed the robberies.
(A) This choice states the critical factor for admitting evidence of other crimes or misconduct to show motive, while the other choices raise issues that are relevant only when other crimes evidence is being offered for impeachment purposes.
**It is ESSENTIAL you keep impeachment rules distinct from the rules for admitting other crimes evidence when the evidence is independently relevant--the bar examiners will often mix these issues in the answer choices for this type of question.
Defendant's Other Crimes for Non-Character Purposes
General Rule: extrinsic evidence of other crimes NOT admissible to show a criminal disposition or conduct in conformity w/the other crimes

BUT if the D's other crimes or specific bad acts are offered to show something specific about the charged crime, such evidence will be admissible under 404(b)
MIMIC RULE - admissible if independently relevant
-Motive (burn building to hide embezzlement)
-Intent (guilty knowledge, lack of good faith)
-Mistake or accident, absence of (evidence D committed same act in past can rebut argument he didn't mean to do it now)
-Identity
-Common scheme or plan

NOTE: Opportunity is sometime included in MIMIC exceptions
-capacity to commit crime argument
-D in possession of something that allowed him to commit crime
MIMIC Requirements
To prove MIMIC-purpose crimes:
-by a conviction (if D previously convicted)
-by evidence that tends to prove that prior bad act occurred

Admissibility Reqs (BOP)
-FRE: P must produce sufficient evidence for a reasonable jury to conclude D committed prior act by preponderance of evidence
-CA:
Add'l MIMIC Reqs:
-Judge must weigh probative value against undue prejudice
-Limiting instruction to jury about limited purpose of MIMIC evidence
-Upon Ds request, P must give pretrial notice of intent to introduce MIMIC evidence
Duty of Care - Common Carriers
P still must establish a PF case of negligence against D in order to survive a motion for a directed verdict.

While a common carrier may have owed P a high duty of care, and therefore liable for slight negligence, P must offer evidence to establish evidence that D breached its duty of high care.
Q: A large scale bakery in the South entered into written K w/commercial apple orchard in Midwest to buy 200 bushels @ $/bushel. K provided that orchard would deliver applies "FOB Louisville RR Depot," where apples would be loaded onto a train headed South. Orchard assigned all of its right under the K to a large produce distributor which, in turn, hired a trucking company to deliver applies to Louisville. En route, truck skidded off road due to inclement weather and apples destroyed. Bakery sued orchard for breach of K. What is probable outcome of litigation?
(A) Bakery will lose
(B) Bakery will recover amt necessary to replace destroyed apples, over the K price
(C) Bakery will recover full K price
(D) Bakery will be able to compel specific perf of K
(B) B will be able to recover cost of replacing b/c orchard remained liable on the assigned K and it had the ROL.

While most contractual duties can be assigned (not personal ones) and obligee must accept performance from delegate, delegating party (delegator) remains liable on his obligation. Thus, an assignment of a K that includes a delegation of duties does NOT relieve assignor from its duty to perform.

Bakery would have lost if UCC 2-613 were applicable - it provides for avoidance of K when goods are lost w/out fault of either party before ROL passes to B. But, it only applies when particular goods are identified to the K WHEN THE K WAS MADE; here there is no designation of specific bushels until shipment.
Commerce Clause - activities that have a substantial effect on interstate commerce
Under this prong, ct will uphold regulation if it involves ECONOMIC or COMMERCIAL activity as long as there is a rationa basis for concluding that the activity in AGGREGATE substantially affects IC.

So, substantial economic effects can be found in the aggregate and thus the question is not whether an individual instance of regulated activity affects commerce (wheat grown by farmer Filburn or guests who stay at Heart of ATL Motel), but whether the reg activity in its ENTIRETY (adding together the impact of each individual instance of the reg activity) has a substantial effect on IC (ALL the farmers who grow wheat for home consumption or ALL the travelers who stay at hotels that racially discriminate).
for NON-economic and NON-commercial activities, ct is less deferential to Congress and requires that activity have a direct and substantial economic effect on interstate commerce.

NON-economic effects cannot be based on cumulative effects.
President's Authority as Commander-in-Chief of the Military
Art. II, § 2 - has extensive power to deploy military forces against any enemy, foreign or domestic.

Even if C was to enact an emergency measure directing P to dispatch troops to preserve order and ensure the continued flow of commerce, C's power under CC does not supersede other powers that Constitution has specifically bestowed on another branch.
Larceny or Embezzlement?
HYPO: Cashier accepted $50 payment from customer and placed underneath all of the $20 bills in the cash register and took it home w/her at closing time.
Cashier is guilty of larceny. When cashier took bill from register at end of day, she committed TRESPASSORY taking from Es possession and thus committed larceny.


When cashier placed bill in register, E then obtained possession of the bill, and cashier's rights over the money were reduced to custody, which is not sufficient for embezzlement.

For embezzlement, the original taking can NOT be trespassory, meaning that the person performing the embezzlement had the right to possess, use, and/or access the assets in question, and that such person subsequently secreted and converted the assets for an unintended and/or unsanctioned use. Thus, if cashier had converted it when she first received the money from the customer, she would have been guilty of embezzlement b/c the $50 never reached possession of her E.
Character Evidence in Civil Cases
Rule: evidence of the character of a person is generally inadmissible if offered to prove that person may have acted in conformity w/his character on a particular occasion.

HOWEVER, if character evidence is offered for some other purpose, such as where a person's character ITSELF is an essential element of a claim or defense in the case, Rule 404 will not exclude the evidence.
Ex: Bank hired security guard after routine background check. Bank gave him a gun he was allowed to take w/him off-duty but bullets had to be removed. Required to sign statement he would abide by this rule. Guard was off-duty and got in altercation and waved gun and accidentally went off and injured P.

P brings action against bank and guard, alleging bank was negligent in entrusting gun to guard, and guard negligent in handling of gun. P offers testimony of guard's former co-worker who's going to testify that guard had rep for being hothead, keeping gun loaded off-duty, and threatening ppl w/gun when he got into argument.

Testimony is evidence of guard's character BUT, if offered AGAINST bank, it would be offered to show that bank may have been negligent when entrusted gun. It would also be relevant even if bank didn't know of guard's rep b/c jury could find that a reas invest by bank would have uncovered the info and bank should have known.

BUT REMEMBER - NOT admissible to help establish that GUARD may have been negligent
Sale of Goods Contracts Between Merchants - Additional Terms
BETWEEN MERCHANTS: add'l terms proposed by offeree in an acceptance automatically become part of K unless:
-MATERIALLY alter original terms of offer (e.g. change party's risk or remedies available)
-offer expressly limits acceptance to terms of offer
-offeror objects to add'l terms w/in reasonable time
Most courts consider clauses requiring disagreements be subject to arbitration to be a material alteration b/c it affects the remedies that parties can pursue.

REMEMBER - inclusion of add'l material term does NOT prevent K formation; rather, a K IS FORMED w/out inclusion of add'l term.
When is declarant's unavailability to testify relevant to the admission of hearsay?
When statement is:
-former testimony of declarant
-statement against interest
-dying declaration
-statement of personal or family history
-statement offered against a party procuring Ds unavailability

Thus, a statement is not admissible merely b/c declarant is unavailable.
Statement of Prior Identification
a statement of prior id of a person made after perceiving him is hearsay unless the witness is subject to cross-examination
Duty to Perform - Personal Services Contract
A duty to perform under a personal services K is discharged where it has b/c impossible to perform (e.g., b/c of physical incapacity). In addition to being discharged of his duty to perform, he will not be liable for add'l costs the other party incurred in hiring a replacement, for ex.

If the impossibility is only temporary, the duty is only suspended and "springs back" into existence when perf once more b/c possible.

Impossibility is NOT a breach of K and general rule about mitigation of damages doesn't apply.
HOWEVER, duty NOT discharged if delegable to a THIRD party.

NON-delegable duties include those involving personal judgment and skill (ex: an acclaimed tennis instructor)
Assignments
writing NOT required to have effective assignment

no consideration for gratuitous assignments

absence of writing or consideration may allow assignor (debtor) to revoke assignment, but it will not prevent assignee from enforcing it against obligor

while obligor may raise K defenses on obligation he owes to assignor (debtor), he may NOT raise defenses that assignor might have had against assignee (creditor) on a diff obligation as a means of avoiding his own obligation
a NEW promise to pay a legal obligation barred by law MUST be in writing - if debtor makes oral promise to creditor to pay him, creditor may have difficulty enforcing it against debtor

BUT third party has a separate obligation to debtor that is NOT barred by any defense; a debtor's gratuitous assignment to creditor of his right to the $ does not allow third party to raise a defense that debtor may have had against creditor
What if a state court was incorrect in holding that federal statutes preempted the state legislation, BUT also held that the STATE constitution prohibited the state legislation?
SCOTUS will refuse jurisdiction b/c there are adequate and independent nonfederal grounds to support the state decision, because a different interp of the fed statutes would have no effect on the outcome of the case, so that the SC, in effect, would be rendering an advisory opinion.
In general, do recording statutes protect subsequent judgment creditors?
No, based on the theory that the creditor is not offering consideration at the time its lien is created, and the language of the rec statute generally extends protection to "purchaser," defined as those obtaining an interest in exchange for consideration.
"Any judgement properly filed shall, for 10 years from filing, be a lien on real property then owned or subsequently acquired by any person against whom the judgment is rendered."

Also, cts generally interpret a judgment lien statute like the one above to apply to "any land" ACTUALLY OWNED by the judgment debtor rather than any land for which the judgement debtor has record title.

So, for example, if aunt executed and delivered a valid warranty deed conveying her home to her niece as a gift prior to aunt's death, it is not subject to a lien creditor's claim that the home is part of the aunt's estate.

An insurance company's lien only applies against the judgment debtor (aunt) or her estate. Even though niece is sole beneficiary and executrix, she has no responsibility to pay charges against the estate out of what she already owns.
Does a LLs promise in a lease to maintain the property terminate if LL sells the property?
No - although no longer in privity of estate, the original LL and tenant remain in privity of K, and original LL remains liable on the covenant UNLESS there is a NOVATION.

NOVATION: substitutes a new party for an original party to the K and requires assent of ALL parties. If this occurs, original is completely released.
When leased property is sold, buyer may be liable for predecessor's promises if they run w/the land. A covenant in a lease runs w/the land if parties to lease so intend and covenant touches and concerns land.

Generally, promises to do a physical act, such as maintain or repair property, run w/land. Thus, buyer is liable b/c he is in privity of estate w/tenant and covenant to repair runs w/land. LL is also liable b/c he is in privity of K w/buyer.
What happens when an invitee exceeds the scope of the invitation?
When invitee goes into a portion of premises where his invitation cannot be reasonably said to extend, (e.g., invitee of resort climbs over gate to get into a closed bar) he loses his status as an invitee and becomes a trespasser.

Undiscovered trespasser: owner owes no duty

Discovered/anticipated trespasser: duty to warn of artificial conditions - owner MUST KNOW of highly dangerous artificial condition(s) that trespasser is unlikely to discover to be liable (NOT should have known)
If dismissal is sought based on the ground that P lacks standing to sue, what does the court consider?
P must demonstrate a concrete stake in outcome of controversy and an impairment of its constitutional rights by the state statute.

A person challenging the constitutionality of a statute does not need to violate it and await prosecution as the sole means of seeking relief. **Where there exists a CLEAR threat of PROSECUTION if person fails to comply w/statute (such as PREVIOUS prosecution of others), injury in fact is established.

Even if a federal question is involved, the court would still dismiss the suit if P lacked standing to sue.
Double Jeopardy
5th Am incorporated into 14th and so applies to states

Jury trials: jeopardy attaches when jury is empanelled and sworn

Hung jury: state may retry D even if jeopardy has attached when first trial ends in a hung jury

Jeopardy doesn't attach when:
-magistrate finds insufficient grounds to prosecute
-case presented to grand jury

second trial + jury empanelled and sworn + acquittal = DJ attached
Can there be a hearsay problem when out-of-court declarant and in-court witness are the same person?
YES - if D is attempting to testify as to a statement made by her out of court, and this statement is being offered to prove the truth of the matter asserted.

D is free to make that assertion as part of her in-court testimony, but cannot use her out-of-court statement for that purpose.

Even if Ds testimony tends to explain prosecution evidence, this does not provide a ground for the admission of hearsay.
Related: a prior statement by a testifying witness is NOT hearsay if it is consistent w/declarant's in-court testimony and is offered to rebut a charge that D is lying or exaggerating because of some motive.

However, if prosecution has not charged D of the above, Ds out-of-court statement is not admissible as a prior consistent statement.
6 Factors Courts Look at to Determine Materiality of a Breach of Contract
(i) amount of benefit the nonbreaching party will receive ("substantial benefit" test)
(ii) adequacy of damages remedy
(iii) extent of performance already completed by breaching party
(iv) hardship to breaching party
(v) whether breaching party's behavior was negligent or willful
(vi) likelihood of breaching party completing performance

Note that notification of delay is not itself one of the factors cts consider in determining materiality of breach (although it may indicate absence of willful behavior)
trapeze artist/circus example: K for entire season and delay only 9 days; circus had adequate remedy for damages for 9-day period; nothing in facts suggest artist's conduct was willful or negligent; circus has full roster of performers and another performer already in its employ to take his place during 9-day absence, so no hardship. Thus breach would be minor and manager can't cancel K.

hardship = one that would result from artist's absence, NOT whether hardship to pay artist for 10 months (less 9 days) when another performer subsequently offers to work for less
Subsequent Repairs/Precautionary Measures Following an Injury
NOT admissible if offered to prove D was negligent - want to encourage people to make repairs

MAY be admissible to show ownership and control if Ds defense is that he did not own the property

NOT necessary that evidence prove ownership. If evidence would help establish ownership = relevant
Gratuitous Assignments
First, neither writing or consideration required for a valid assignment.

BUT these factors DO affect revocability - gratuitous assignments (not given for value) are generally revocable. One way to terminate a gratuitous revocable assignment is when assignor takes performance directly from obligor.

BUT EXCEPTIONS:
-where obligor has already performed
-where assignor is estopped from revoking by virtue of the fact that he should reasonable foresee that assignee will change his position in reliance on assignment and such detrimental assignment occurs
NOTE: see if facts indicate a NOVATION where a new K substitutes a new party to receive benefits and assume duties that had originally belonged to one of the original parties under the terms of the old contract, who is thereby released.
Commercial Leases - when tenant remains in possession after termination of his right to possession
in a commercial lease, if original lease term was for a year or more, a year-to-year tenancy results

LL may evict or bind T to a new periodic tenancy

if prior to termination of original tenancy, LL notifies T that occupancy after termination will be at an increased rent, T will be held to have acquiesced to new terms if he does not surrender - a periodic tenancy is automatically renewed until proper notice given

proper notice for year-to-year tenancy = 6 months' notice
Accord and Satisfaction
An agreement (accord) between two contracting parties to accept alternate performance to discharge a preexisting duty between them and the subsequent performance (satisfaction) of that agreement. An accord and satisfaction differs from a modification in that a modification immediately discharges a preexisting duty, whereas an accord and satisfaction does not discharge a preexisting duty until the agreed upon, alternate performance occurs.
What if federal legislation merely allows an Article III court to issue a "recommendation"?
Article III provides that the judicial power extends to "cases and controversies."

Congress can NOT require Article III courts to render advisory opinions or perform administrative or nonjudicial functions - it would constitute a violation of the Constitution.
How to identify a FSSCS
provided that

but if

on the condition that

provided, however
Grantor MUST ASSERT his right of entry
How to identity a FSD
so long as

during

while

unless

until
Grantor has possibility of reverter

estate AUTOMATICALLY ends on happening of event/nonevent
Authenticating or Identifying Evidence - Nonexpert Opinion About a Voice
whether heard first hand or through a tape recording, a voice may be identified by the opinion of anyone who has heard the voice at any time

as long as such a foundation is laid to show familiarity w/the voice, a lay opinion as to the identity of the speaker is permissible

familiarity w/persons voice before the dispute arose is NOT critical to admissibility of testimony - all that is necessary is previous familiarity with the voice at any time
NOTE: even if person is testifying that voice is that of a party-opponent, it is OK as long if testifying as to identity of speaker rather than any admissions party-opponent had made
Authenticating or Identifying Evidence - Nonexpert Opinion About Handwriting
A nonexpert’s opinion that handwriting is genuine, based on a familiarity w/it that was NOT acquired for the CURRENT litigation.

Sufficient familiarity w/handwriting of another may be acquired by seeing him write, by exchanging correspondence, or by other means, to afford a basis for identifying it on subsequent occasions.
CA:
UCC Firm Offers
-offer buy merchant to buy or sell goods
-in a SIGNED writing
-that assures it will be held open
-is NOT revocable during time stated (not to exceed 3 months)

if term assuring offer will be held open is on a form supplied by OFFEREE, it MUST be SEPARATELY signed by OFFEROR

merchant's verbal assent NOT sufficient and thus K may be effectively revoked

if firm offer stated term more than 3 months, it does NOT invalidate it
Automobile Exception to Warrant Requirement
if police have probable cause to believe that an auto contains contraband or evidence of a crime, they may search WHATEVER AREA of car that may contain the object of their search w/out a warrant

PC to search = reasonable grounds for believing that a particular item of seizure is located at a particular place - does NOT require actual knowledge

police can open package if have PC (old law required them to secure package and then obtain warrant)
COMPARE with a search INCIDENT TO AN ARREST - only can search area w/in immediate control of driver = passenger area but NOT TRUNK
May police search an automobile's passenger compartment incident to ANY arrest of an occupant?
NO - such a warrantless search is only valid if:
(i) arrestee is UNSECURED and still may gain access to interior of automobile
(ii) police have "REASON TO BELIEVE" (less than PC) that the car contains evidence of a crime for which occupant was arrested
Does a gap in the title to property by itself render title unmarketable?
NO - rather, it is the seller's inability to establish a record chain of title or otherwise satisfactorily explain the gap by the closing date, after being notified of it, that renders title unmarketable.
Valid Gov't Regulations of Speech and Assembly in Public Forums
must be:
(i) content neutral
(ii) narrowly tailored to serve an IMPORTANT gov't interest, and
(iii) leave open alternative channels of communication
Ex of a valid regulation:city adopted an ordinance prohibiting any picketing on a public sidewalk or street adjacent to and directed at a specific residence

content neutral - regulates location and manner of picketing w/out regard to content

narrowly tailored/imp interest: protecting privacy of homeowners while in their homes

leaves open alternative channels: does not ban marching through residential areas or other means of protesting
"time-is-of-the-essence" clause
Generally, failure of promisor to render timely performance, although a breach, will NOT be material and thus the nonbreaching party may NOT treat the K as at an end and NOT have an immediate right to all remedies for breach of the entire K.

HOWEVER, if K contains a clause stating time was of the essence, failure of timely performance IS a material breach.

NONBREACHING party:
-may treat K as at an and
-duty owed by him to perform (pay) under the K is discharged
-even if he suffered no damages as a result of of the material breach

BREACHING party will recover nothing
shipment of nonconforming goods PLUS seasonable notice to buyer
Ordinarily, shipment of nonconforming goods = acceptance creating a bilateral K as well as a breach of that K

BUT if S seasonably notifies buyer that shipment of nonconforming goods is offered only as an accommodation to B, shipment is a COUNTEROFFER rather than an acceptance:

B's options:
-accept shipment and thus must pay S
-reject shipment and have no further remedy against S
valid right of first refusal
a preemptive option that gives its holder the right to meet any 3rd party's offer to purchase real estate

valid if it is reasonable (e.g., based on the sale price of the property)

NOT subject to RAP b/c treated as a contingent future interest
O devised his property by will to a friend "so long as one or more dogs are kept on the property; if dogs are no longer kept on the property, then to the ASPCA." The will also provided that the residuary estate would go to O's niece.
friend = FSD
niece = POR
ASPCA = interest stricken b/c violates RAP - b/c the triggering event that will transfer the property (no dogs kept on property) MAY occur more than 21 years after lives in being at the creation of the interest

if ASPCA's interest was valid, it would be an shifting executory interest NOT a remainder (a remainder must always follow a LE)
NOTE: the charity-to-charity exception only applies when there is a gift to one charity followed by a gift over to ANOTHER CHARITY upon a possibility remote event
Indemnification from Manufacturer
Ex: Owner of mower prepares to mow and clutch suddenly engaged and owner unable to grab handle in time before mower out of reach and headed for street. Motorist driving down street swerved to avoid mower and hit tree and injured. M sued O and awarded damages. O then sought indemnification from mfr in a jdx following trad. indemnity rules.

Q: If O prevails, it will be because:
A: Mower clutch engaged b/c of some defect in manufacture.

O must show that mfr breached a duty that caused injury to M

indemnity involves shifting the ENTIRE loss b/w tortfeasors

one way in which indemnity is available allows one JT to recover against a fellow JT due to considerable diff in degree of fault - where tortfeasor is retailer or user of product who neg failed to discover or guard against a product's defect, he can receive indem from mfr who was liable for defect under either neg or SL

if mower clutch engaged due to some defect in mfr, then mfr = JT and thus mfr's conduct, either in neg mfring mower or in placing into commerce mower that was so defective as to be unreas dangerous, actually and prox caused Ms injuries

O is entitled to indemnity if his neg is appreciably less than any wrongful conduct by mfr, and thus Os recovery of indemnity NOT dependent on finding that he exercised reas care in maintaining mower
Products Liability - PF Case for Negligence
P must show:
(i) existence of legal duty owed by D to THAT particular P
(ii) breach of that duty
(iii) actual and proximate cause
(iv) damages

DUTY OF CARE
-arises when D acts as comm supp of products
-comm supp who assembles a product from components manufactured by others is subject to same liability as mfr of defective component

BREACH OF DUTY - P must show:
(i) neg conduct by D that leads to
(ii) supplying of defective product
**IN PL ACTIONS, ALWAYS MAKE SURE YOU ARE APPLYING THE APPROPRIATE THEORY OF LIABILITY

Ex: If P were suing snowmobile mfr on SL theory, P would need to prove that steering mechanism was in a defective condition unreasonably dangerous to users

Existence of defect does NOT by ITSELF est negligence
Is an intermediary's negligent failure to discover a defect a superseding cause, thus relieving D who supplied the defective product of liability?
NO - regardless of whether using a negligence or SL theory, this is NOT a superseding cause, and D will be held liable along w/the intermediary.

Thus, even if Ds failure to inspect were negligent, it would not relieve the intermediary of liability.
Where SL rules apply, each supplier of a defective product is liable to injured person, BUT each has a right of indemnification against all PREVIOUS suppliers of the defective prod in the dist chain.

Ex: the previous supplier in the chain would be liable to a machinery company who sold a complete unit to the buyer for indemnity, rather than the machinery company being liable to the previous supplier for indemnity.
Respondeat Superior
E is vicariously liable for tortious acts committed by his ee if such acts occur w/in scope of employment relationship.
NO respondeat superior:
-companies are independent of each other
-only relationship is contractual

What happens when purchaser of real property dies before sale is completed?
once parties have entered into a valid land sale K, the rights of parties are fixed according to the DOCTRINE OF EQUITABLE CONVERSION

a deceased buyer's interest passes as real property to the taker of the buyer's real property interests

taker can compel specific performance and demand conveyance of the land

moreover, under the traditional CL rule, taker is entitled to exoneration out of the personal property estate, thus taker of decedent's real estate can compel other taker of decedent's personal property under the will to pay purchase price out of her share of the estate
Spousal Testimonial Privilege
CRIMINAL CASES ONLY
-applies if valid marriage at time of trial and includes matters that predated marriage
-spouse MAY but can NOT be compelled to testify against spouse
-privilege belongs to w-spouse in federal cts; party-spouse in state cts
-failure to object to spouse's

WAIVER OF PRIVILEGE:
-failure to object to spouse's testimony at trial
-voluntary disclosure to 3rd party
-may be waived by holder or spouse testifying

EXCEPTIONS:
-typically doesn't apply when charged offense involves crime against other spouse or their children
-some fed cts have engrafted a "joint participant" in crime exception onto the CL privilege
CA:
-applies to criminal AND civil cases
-privileged spouse cannot even be called on to witness stand
What is the test to determine whether someone is in custody?
OBJECTIVE

Ask: is the person's freedom being constrained in a significant way?
Subjective beliefs of interrogator or accused are NOT determinative.

Wrong answer: the motion will be granted b/c the onlooker believed that he was not free to leave
Admissibility and Authentication of Real Evidence
ADMISSIBILITY
-all relevant evidence admissible under 402 (but always subject to rule that keeps out or limits)

AUTHENTICATION
-requires evidence sufficient to support a finding that item is what proponent claims
-real evidence commonly authenticated by recognition testimony
-if Ps testimony satisfies, add'l extrinsic evidence not required
-judge can always determine probative value substantially outweighed by unfair prejudice
gender-based classifications - actions by federal gov't
5th Amendment DPC, not 14th

govt must have an exceedingly persuasive justification that restriction is substantially related to important gov't interests

must have discriminatory impact AND intent for court to treat as a gender-based classification
REMEMBER THAT "BEST OF THE LOT" QUESTIONS ARE SOMETIMES "BEST OF A BAD LOT" AND SO YOU MIGHT NEED TO WORK THROUGH ALL OF THE ALTERNATIVES AND ARRIVE AT THE BEST ANSWER BY PROCESS OF ELIMINATION
What would be LEAST helpful to a kidnapping participant's defense?
if kidnapping were a GENERAL intent crime in the jdx

although cts have not always clearly defined "general intent," the mental state req for the material elements of the offense are analogous to "recklessness" under the MPC: conscious disregard of a substantial or unjustifiable risk that the material element exists or will result from his conduct

thus, D need not be certain that his conduct will cause the result or that the attendant circumstances req by the crime exist; it is enough if he is aware of a high likelihood of that result or circumstance

voluntary intoxication and unreasonable mistake of fact (i.e., must be reasonable to be valid) are NOT recognized as defenses to GI crimes
in contrast, a SI crime requires the doing of an act w/a conscious intent or objective

if jdx treats kidnapping as a SI crime, intoxication could be used to show that he was incapable of forming the requisite intent or that he mistakenly believed that the person had consented

for SI, ANY mistake of FACT, even if unreasonable, is a defense
Under CL, is a parent vicariously liable for the tortious conduct of her child?
NO, but parent may be held liable for her OWN negligence in allowing child to do something that injures another's person or property.

Under ordinary neg principles, a parent owes a duty to others if foreseeable that her child might cause damage to them if left unattended.

Then, it is a question for jury whether she breached her duty, and whether her conduct was an actual and proximate cause of the damage.
Be careful - is P relying on vicarious liability to hold parent liable, which would result in a directed verdict in parents favor OR is P relying on parent's OWN negligence in allowing child to do something that injures another?
Under contract law, when does a latent ambiguity occur?
uncertainty that arises when a seemingly clear written instrument is matched against an extrinsic fact, as when K language may be reasonably interpreted in either of 2 ways

cts look to the SUBJECTIVE intention and doesn't apply when one party is arguing that, as b/w the parties, there was no ambiguity as to the term
Ex: On the other hand, when one party claims that the parties understood the term "oriental rug" to have a narrower definition than a layperson's understanding of the term (w/the latter typically defining the term based on appearance or pattern rather than country of origin), the party may introduce evidence of trade usage to support its definition of "Oriental rug." Here, the intro of trade usage is being introduced for the sole purpose of explaining the term.

Under the UCC, PER does NOT bar inro of evidence based on course of dealing, usage in the trade, or course of performance to explain/supplement a contractual term, even when the writing is otherwise a complete integration/final expression of parties' agreement (despite the general rule).
Written Confirmation Between Merchants Exception to SOF (merchants' confirmatory memos)
b/w merchants, a writing in confirmation of the K that is sufficient against the sender and received by the other merchant who has reason to know of its contents satisfies SOF, UNLESS written notice of objection to writing's contents is given w/on 10 days after writing received

even if sale of goods is $500 or more
SOF requires K for sale of goods $500 or more be evidenced by a writing signed by party to be charged BUT under the exception, party to be charged need only know of the contents of the writing signed by other party and not object to it w/in 10-day period, so long as BOTH PARTIES ARE MERCHANTS. IT IS NOT NECESSARY THAT THE PARTY TO BE CHARGED SIGN THE WRITING.
Double Jeopardy - Blockburger Test
Two crimes do not constitute the same offense if each crime requires proof of an add'l element that the other crime does not require, even though some of the facts may be necessary to prove both crimes.

This test governs regardless of whether punishments are imposed at a single trial or multiple trials.
Ex: Reckless homicide and driving while intoxicated are separate offenses b/c the first requires proof that someone die, while the second requires proof that D was intoxicated (and recklessness for the homicide offense can be shown by evidence other than intoxication). Thus, there is no violation of DJ if D was convicted of driving drunk and then subsequently prosecuted for reckless homicide.
When can a purchase money security interest in an affixed chattel prevail over a prior recorded mortgage on the land?
Generally, under a race-notice statute, a subseq BFP prevails over a prior grantee only if it records first.

EXCEPTION: allows a purchase money security interest in an affixed chattel to prevail even over a prior recorded mortgage on land, so land as the chattel interest is recorded (fixture filing) w/in TWENTY days after chattel affixed to land.
Q: O devised her land to H for life, then "to my grandchildren in fee simple." When O died, she had 1 granddaughter. 3 months later, a grandson was born. Os husband died shortly after that. 6 months later, a 2nd grandson was born. What result?
Granddaughter owns the land in FS along with the first and second grandson.

Rule of Convenience: provides that the class closes when some member(s) of the call can call for a distribution of their share of the class gift. Persons born after that date are excluded from the class.

Here, the class of Os grandchildren entitled to share in the FS closed when they b/c entitled to take - at the termination of H's life estate.

The second grandson qualifies as a class member b/c persons in GESTATION at time set for distribution are included in the class.
How is the priority of a mortgage determined?
by the time it was placed on the property

When a mortgage is foreclosed, the purchaser at the sale will take title as it existed when the mortgage was placed on the property. Thus, foreclosure will terminate interests junior to the mortgage being foreclosed but will NOT affect senior interests.

1st: proceeds of foreclosure sale used (after expenses and fees) to pay the principal and accrued interest on the loan that was for closed

2nd: then to pay off any junior interests in order of priority

where proceeds of sale insufficient to satisfy a mortgage debt, mortgagee can bring a personal action against mortgagor/debtor for the deficiency
Intervening and Superseding Causes
Ask: What kinds of events break the chain of causation to an original negligent D and what kinds of events do not break that chain?

INTERVENING = we expected this
-D is still on hook for negligence b/c it was something we all new could easily happen

SUPERSEDING = we did NOT expect this
-new and independent and unforeseen cause intervenes to produce a result that negligent actor could NOT have reasonable foreseen
-original D only responsible for damage he directly cause, but not this new negligence

Elements: only applies when intervening act:
(1) was suff by itself to cause the injury
(2) was not reas foreseeable to negligent actor, and
(3) was not a normal response to negligent actor's conduct

if above are met, intervening act said to be a superseding cause which breaks chain of prox caus - the conduct of the 3rd party or other force supplants Ds conduct as the legal cause of Ps injuries and thus relieves D of liability to P

Ex: Mechanic spills gas in pkg lot and fails to clean up and customer flicks lit cig that hits gas and results in fire that burns customer. M may raise aff def that cig C dropeed was an intervening cause that broke chain b/w Ms spill and Cs burns. While it was an intervening cause, D prob still liable b/c M could have reas foreseen that spilled gas might catch fire and injure someone.

On other hand, if C fligked cig near gas but not burned by flames but instead C so startled by sudden fire that he has heart attack. Most likely cig is a superseding cause b/c M would not have reas foreseen that a gas spill would result in heart attack.
3 exceptions a where an intervening cause, although foreseeable, may still eliminate Ds liability:
(1) intervening cause was an intentional tort or action by another party
(2) a criminal act may intervene to relieve D of liability even if crime was foreseeable
(3) if a 3rd person w/ability to fix condition that will lead to injury sees condition but doesn't fix it

Ex: Garage mgr sees gas spill but doesn't have it cleaned up. Here, mgr and not mechanic may be liable for Ds injuries. May also be liable under premises liab theory for failing to protect dangerous cond in lot, such as gas puddles.
What is the effect of an oral attempt to create an easement interest greater than 1 year in duration?
there is a revocable license

SOF requires any conveyance of an easement interest greater than 1 year in duration be in wiriting to be enforceable.
miscellaneous:
-if there is consent, there can NOT be a prescriptive easement
-acquiring title by adverse possession requires that possessor's actions amt to EXCLUSIVE possession of the land, RATHER than a use of the land that does not exclude others (so running electrical wires across lands could at most create a prescriptive easement)
-continuous use req does NOT require constant use; it merely precludes sporadic and occasional trespasses from ripening into prescriptive easements
-as with the continuous use req for AP, seasonal use IS sufficient if it is a use that owner might make of the property under the circumstances
5th Amendment - Takings Clause
TAKING:
-gov't reg denies O ALL econ use of his land
-requires just compensation

MAYBE BUT NOT NECESSARILY A TAKING:
-regs that merely decrease value of prop
-even substantial impairment of econ value not necessarily a taking
-as long as some econ viable use for prop remains
-to determine, ct will look to the test below

Considerations by Ct:
-econ impact on claimant and if reg substantially interferes w/distinct, investment backed objectives
-whether statute promotes important public purpose
-whether imp pub purpose may benefit property in the longer term
How can a witness's be rehabilitated if her credibility was attacked by a conviction of a felony?
Ct wil admit rehab test of w's good reputation for truthfulness if her credibility was attacked by conviction of a felony.

608: when w's gen char for truth and veracity has been attacked, the party for whim impeached w has testified may call other ws to testify to the good REPUTATION for truth of the impeached w OR to give their OPINION as to truthfulness of impeached

Attack on w veracity can be by:
-reputation
-opinion
-conviction of a crime under 609

if FELONY conviction - crime does NOT have to involve dishonesty/false statement

after attack on Ps gen char for truth/veracity, she may present
-reputation evidence OR
-opinion evidence
-as to her truthfulness
"I don't think I have much time left. I want you to remember when they come looking for suspects that I believe my assistant would kill for my job." Assistant charged with attempted murder. Admissible?
NO - hearsay not w/in any exception

RULE: USE OF DYING DEC IN CRIMINAL PROS LIMITED TO HOMICIDE CASES
Liquidated Damages Clauses
Enforceable if:
(i) damages are diff to ascertain at time of making of K, and
(ii) damages are a reasonable forecast of compensatory damages

Test for Reasonableness: comparison b/w amt of damages prospectively probably at time of K formation and liquidated damages figure
Gov't Regulation of Commercial Speech
Although protected by 1st Am, it is subject to significant regulation.

State MAY regulate commercial speech that proposes an unlawful transax or that is misleading or fraudulent

If speech concerns LAWFUL activity and is NOT misleading or fraudulent:
-reg must directly advance a subst govt interest and be no more extensive than necessary to serve that interest
-reg must be narrowly drawn and must be reas fit b/w legislation's end and means chosen
Written K provides that chef would pay contractor $60k in cash when construction commenced, scheduled for 4/15 after the spring thaw. On completion of restaurant on 9/20, C would be pd remaining $100k. Region had a late spring, and on 4/30 C had not yet commenced construction. C has:
NOT breached the K, and chef need not make initial $60k payment

C promised to build by 9/30, NOT to begin on 4/15

The contractual term as to Cs beginning construction is a CP to making first payment - it is a condition relating to chef's perf, NOT Cs perf. Nothing in facts indicates that C promised to begin on 4/15.

Ks are construed as a WHOLE and words given their ordinary meaning. Purpose of K is to build restaurant by 9/20. Construction can't start before spring thaw. Thus, BEST interp is that lang regarding start of construction was merely a cond of chef's 1st payment, inserted to insure that C was motivated to start and that chef would not be out of pocket if C failed to start.

Thus, term regarding beginning of construction of rest on 4/15 merely fixes tentative time of start of perf, and does not involve an abs promise by C to start perf on 4/15.
What if city council increases bus fares during rush hour to combat budget deficit, and the effect of the increase was hardest on the poor and minorities?
Constitutional.

Although increase has disproportionate impact on minorities b/c they rely more heavily on bus, there is no evidence that increase motivated by any other purpose than to combat budget deficit. Thus, increase will be held not to involve a suspect class based on race.

Also creates disproportionate impact on poor. BUT wealth alone NOT suspect classification. Since the increase doesn't deprive poor of any fund right, it will be judged under RB review.
Even though a fare increase could be challenged on ground that a suspect classification (race) is involved, there mere fact that the govt action has a discriminatory EFFECT is NOT sufficient to trigger SS.
SS = effect and INTENT to discriminate on part of govt

When law doesn't discriminate on face and not applied in disc manner, a suspect class will be found ONLY if lawmaking body enacted or maintained law for discriminatory purpose.

Statistical evidence is admissible that law has a disproportionate IMPACT on a class, it will almost NEVER be sufficient itself to prove that govt had disc PURPOSE in passing a law.
Limited or Nonpublic Forums - when will gov't regs designed to reserve the forum for its intended use be upheld?
if they are:
(i) viewpoint neutral
(ii) reasonably related to the intended purpose of the nonpublic forum (which must be a legit gov't purpose)
Ex: A library room is not a traditional public forum, and if the library board has not designated it as a public forum (i.e., its use has been limited to library groups for library purposes), it would most likely be characterized as a limited public or nonpublic forum.

OK to restrict speech based on content (i.e. subject matter) as long as restriction is not based on viewpoint of the speech
AND
rationally related to legitimate objective of alleviating staff's scheduling burden
THUS
probably upheld by ct
content-neutral restrictions on speech
the content of the expression is utterly irrelevant to whether the speech is restricted

content of speech doesn't matter to whether restriction applies - everyone treated exactly alike

we don't even need to know what the speech is in order to know if banned - restriction applies no matter what speaker wants to say
Ex: Gov't bans all speech on billboards
viewpoint-based restrictions on speech
gov't makes the point of view of the speaker central to its decision to impose, or not to impose, some penalty

gov't trying to protect a preferred side in a debate and to ban side it dislikes

distinctive in sense that it comes into effect only when a particular viewpoint is expressed

applies if and only if govt has silenced one side in a debate.
Ex: Gov't bans anyone from criticizing a war, or from favoring homosexuality, or from speaking against President, or from arguing on behalf of aff action programs
viewpoint-neutral but content-based restrictions on speech
content of speech is critical - we need to know what speech is in order to know whether it is regulated

but viewpt of speaker not crucial, or even relevant, to the restriction - does not depend on what side speaker takes

applies regardless of who speakers are - in this sense, such restriction has a degree of neutrality
Ex: gov't bans all political speech in certain place, or says that ppl can't discuss racial issues
Is a RECORD of an arrest a week prior for embezzlement admissible to impeach the credibility of a witness?
NO - a record for an arrest cannot be used to impeach credibility of a W.

Since there was NO criminal conviction, this would be classified as evidence of a prior bad act that demonstrates dishonesty. Although 608 would allow inquiry into such a prior bad act during CROSS of W being impeached, extrinsic evidence (i.e., a record) of such acts NOT allowed, even if W denies the act on cross.
What may be admissible to impeach?
-prior FELONY CONVICTIONS for crimes NOT involving dishonesty if judge determines prob value not subst outweighed by prejudice or other 403 consid
-prior inconsistent stmts can be intro to show that W is not always truthful (ex: testimony of Ws friend that W told him something contrary to what W testified)
-W may be interrogated on cross w/respect to ANY act of misconduct that is probative of truthfulness (i.e., demonstrates dishonesty) (ex: lying on an expense report would be such an act)
Confidential Marital Communications Privilege
CRIMINAL OR CIVIL

Holder of Privilege:
-both spouses
-does not matter which one is party to a case

Rights of Holder:
-either spouse can refuse to disclose, or
-prevent spouse from disclosing

Confidential Communication:
-goal is to promote comm and trust b/w spouses
-must be made during a VALID marriage
-communication must be made in reliance upon the intimate nature of marital relationship
-presumption that comm b/w spouses privately made are generally intended to be confidential
-includes acts intended as communications

Termination:
-unlike testimony privilege, divorce/death does NOT terminate the privilege
-BUT future communications b/w former H&W not privileged

Exceptions:
-communications made in presence of stranger who is known to parties
-any actions b/w spouses or cases where crime committed against a testifying spouse
-cases involving their children
Is expert testimony based on knowledge gained by him at trial admissible?
YES - facts or data upon which expert opinions are based may be derived from presentation at trial.

Once acceptable way of doing this is to have the expert attend the trial and hear testimony establishing the facts/
Under FRE, a hypo question is NOT required to elicit an expert's opinion.

An expert may also base his opinion on facts supplied to him outside the ctrm, including types not admissible into evidence, as long as they are reasonably relied on by experts in the field.
Partial Condemnation Cases - LL-Tenant
LL-T relationship continues, as does Ts obligation to pay entire rent for remaining period of lease BUT T is entitled to share in condemnation award to extent that condemnation affected T's rights under the lease .
Declarations Against Interest distinguished from Admissions of Party-Opponents
Stmt against interest :

- Declarant : must be unavailable

- Offered against anyone

- Personal knowledge required

- Must be "against interest" (pecuniary, proprietary, penal)
Party admission :

- Declarant : the opposing party or his agent

- Offered against that party

- Personal knowledge NOT required
Prosecution's Burden
must prove each element of crime beyond a reasonable doubt

putting BOP to show innocent intent on D would deprive him of DP of law, since it would relive prosecution of its burden to show the required intent for robbery, for example
Doctrine of merger
all covenants collateral to the land sale K are "merged" into the deed

thus, acceptance by B of deed discharges seller of all liability under the K

unless deed contained covenants of seisin, right to convey, or right to quiet enjoyment, S prevails
In a private nuisance suit, is Ps ownership and use of her property relevant?
YES - relevant but NOT controlling - the fact that one type of land use was entered into before another is relevant but not conclusive evidence of the reasonableness of the used in a private nuisance action
Liquidated Damages Clauses
if you see the word "penalty," it operates the same

parties may stipulate damages to be pd in event of breach if
(i) damages diff to ascertain at time K formed, and
(ii) amt agreed is reas forecast of compensatory damages in the case of a breach

it's irrelevant if nonbreaching party was not harmed by breach
Contract - Implied Condition
in construing K, ct will attempt to give effect to reasonable expectations of parties
ex: a clause providing that appraiser would receive 5% of all gate receipts to be paid as a bonus at the end of the K which ran for 1 year

thus, even though they did not expressly so provide, parties probably intended bonus to be incentive for appraiser to stay and be pd only if he completed the term of the K
Common Law Conspiracy vs. Modern Trend
CL: did NOT require an overt act

Modern: most require overt act BUT it need not be in itself criminal
Congress's authority to restrict jurisdiction of the federal courts
unlike original jdx, appellate jdx may be altered and set by congress under Article III
Is parol evidence admissible to attack a K on grounds of fraud?
YES - evidence of words which are a fraudulent representation are admissible b/c P is not trying to prove meaning of K, but rather is alleging fraud

PER does not bar admission of PE to show that what appears to be a contractual obligation is, in fact, no obligation at all.
also, the statement would NOT be hearsay if it is not offered to prove that the stmt is true, but rather as evidence of words which are a fraudulent rep, and hence themselves actionable

alternatively, if the stmt is an admission by the party-opponent it also is not hearsay
Defamation: "Actual Malice" Requirement for Public Officials
requires showing that publication was known to be false or that it was published w/reckless disregard as to its truth or falsity

so, for ex, if reporter believed her report was true, and confirmed rumor by talking to an apparently reliable source, she wasn't reckless as to truth or falsity of report

** "actual malice" in this context has a distinct meaning from traditional malice or ill will (e.g., getting revenge)
Contracts - Unilateral Mistake
where only one of the parties is mistaken about facts relating to the agreement, such a uni mistake will NOT prevent formation of a K

BUT if nonmistaken party knows or had reason to know of mistake made by other party, he is NOT permitted to take advantage of the offer and thus NO K