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47 Cards in this Set
- Front
- Back
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Property - Shelter Rule
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Permits a person who takes from a BFP to prevail over any interest the BFP would prevail against, even if the person has notice of the unrecorded deed.
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Property - Unmarketable Title exists under any of what three possessory conditions?
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Title is unmarketable where the title involves (1) adverse possession (unless physical evidence shows ownership as to provide defense to suit); (2) servitudes/mortgages; or (3) zoning violations
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Property - PMM vs non-PMM priority
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PMMs have priority over <span style="font-weight:600;">prior</span> non-PMMs, even if recorded first. However, <span style="font-weight:600;">subsequent </span>mortgages or liens may defeat PMM by operation of recording acts.
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Property - Security Interests in Real Estate - Foreclosure and priority
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Foreclosure does not destroy senior interests, but will destroy junior interests if joined in foreclosure action; proceeds of sale go first to attorneys fees/costs, then principal and interest on foreclosed loan, then junior interests, and finally the mortgagor.
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Property - Conveyancing - BFP notice prior to closing
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A buyer is presumed to have notice of prior records up until the date of closing, not the date of entering into the land-sale K, and as such, is not a bonafide purchaser if such notice exists.
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Constitutional Law - Rational review burden
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Under rational basis review, the plaintiff has the burden of showing that the state's law is not rationally related to a legitimate government interest.
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Property - Conveyancing - Risk of Loss damages
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Where buyer bears the risk of loss, and the property - by no fault of anyone - is destroyed, the buyer owes Seller the ENTIRE K price (i.e. specific performance), not just the difference in fair market value.
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Property - Easement Appurtenant
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An easement is appurtenant to the holder of the easement (owner of the dominant tenament) - think "opportunity"
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Property - Easement - Running with the Land
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An easement appurtenant runs with the land with a trasnfer of the dominant tenement (the benefitting tenement), even though it is an interest in the servient tenement. The easement is binding on all successive transferees so long as they have notice of it!
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Property - Easements - Does NOT run with the land
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An easement automatically binds successors of the servient estate (non-holder estate), except where the new owner is a BFP without any notice of the easement (not even an AIR of notice)...
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Property - Conveyancing - Sale of DEFECTIVE DEED to BFP
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Court will set aside a VOID deed, even if the property has passed to a BFP. A BFP has no title to a deed which the grantor had no title to, with the exception of Estoppel by Deed (where grantor later acquires the deed). A court will set aside a VOIDABLE deed, <span style="text-decoration: underline;">unless</span> the property has been passed to a BFP.
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Contracts - Vicarious Liability of principal to acts of agent if agent is an independent contractor
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Generally, a principal will not be liable for acts of its agent if the agent is an independent contractor (no control element); however, principal will be held liable for acts of agent IC where the agents duties are nondelegable on public policy grounds (e.g. business' duty to keep premises safe for customers, such as IC who cleans ice rink)
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Property - Remaindermens' rights in tax sale of estate
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A tax sale of an estate will cut off the rights of remainder, and as such, the remaindermen would be advised to pay the taxes, even though they are not in any way liable for the taxes.
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Contracts - Promissory Estoppel will enforce a promise without consideration where...
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...a party detrimentally relied on the promise and enforcing the promise is in the interest of justice
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Contracts - Third-Party Beneficiary's right's vest when...
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...they (1) manifest assent to a promise in a manner invited or requested by the parties; (2) sue to enforce their rights; or (3) materially change position in justifiable reliance on the promise
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Contracts - Consideration - Can a prior performance serve as consideration for a promise?
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No, prior performance cannot be consideration for a promise. E.g. a dog owner cannot be bound by a promise to pay $200 to the person who already found and delivered his dog for lack of consideration; the bargained-for-exchange must include a value not already satisfied.
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Contracts - UCC Art. 2 Damages - Repudiation of K, or failure to deliver on K
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Under the UCC, where a seller repudiates or fails to deliver, the buyer is entitled to the difference between the K price and the amount paid to "cover," in addition incidental + consequential damages. Cover K must be reasonable, in good faith, and without delay.
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Contracts - Damages - Incidental + Consequential (e.g. where buyer has to cover)
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Consequential damages are special to the plaintiff (not sellers!), and include those damages reasonably foreseeable to D as a result of the breach, which could not have been avoided by reasonable cover by the P. Incidental damages included reasonable expenses for inspection, receipt, transport, care, and custody of goods rightfully rejected.
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Contracts - Statute of Frauds - Suretyship (promise to answer for the debt of another) falls within statute, except for Main Purpose Rules:
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The Main Purpose Rules excludes a Suretyship from the SoF, such that where the guarantor's (provider of surety) main purpose is to secure a pecuniary benefit to him or herself.
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Contracts - When a unilateral K becomes an implied option K
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A unilateral contract is a promise to perform in exchange for a requested performance, as opposed to an option K, which is a promise to keep an offer open for a period of time in exchange for consideration. Note: a unilateral K can become irrevocable, and thus turn into an implied option K if the promisee begins performance.
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Contracts - TPB suit against Promisor
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Promisor can raise any defense against TPB that he would have against Promisee.
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Contracts - Doctrine of Reformation
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The doctrine of reformation allows either party to a K to ask a court in equity to modify its terms, if the writing - through mutual mistake or misrepresentation - does not incorporate the orally agreed-upon terms; this can be used as a defense in a suit by a TBP, as well.
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Contracts - Suretyship consideration
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A surety need not receive consideration separate from the consideration being received by the person whose debt they're guaranteeing.
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Contracts - UCC - Acceptance of Non-Conforming Goods
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A buyer may accept all, reject all, or accept any commercial unit and reject the rest; thus, if the buyer sells two computers of a dozen, she can reject the remaining 10.
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Contracts - UCC - Acceptance of Goods that Breach Seller's Warranties
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Buyer may recover damages for the units it accepts as: Value of Conforming Goods - Value of Defective Goods
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Contracts - UCC - Buyer's Rejection of Non-Conforming Goods...
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If a buyer rejects non-conforming goods, he is entitled to any prepayment (i.e. what he paid for the goods refunded to him), or, if the seller refuses to refund, he can resell the goods and apply the proceeds to what is owed to him by the seller ("resell them for the seller's account"). Note: if buyer accepts non-conforming goods, he is entitled to Value of Conforming Goods dreamed of - Value of Non-Conforming Goods actually sent
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Contracts - Consideration - Performance of an existing legal duty is not consideration, except...
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Consideration DOES exists where the pre-existing duty is owed to someone other than the promisor.
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Contracts - UCC - K Modification
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Under the UCC, an oral modification where the modification itself is less than $500, does not violate the SoF; furthermore, modification does not require consideration for ANY sale of goods (merchant or not) - so parties buying/selling car would not need consideration to modify.
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Contracts - UCC - Unilateral Rescission
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Unilateral Rescission (one party wants out, other party doesn't) <span style="text-decoration: underline;">will be granted where there's a mutual mistake</span> of material fact concerning a basic assumption on which the K was based. This remedy puts parties in original position prior to K, and restitution for the amount buyer paid to seller for the goods will be permitted once buyer returns the goods.
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Contracts - Unilateral K Rescission Promise
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An offeree's promise of rescission of a unilateral K (i.e. K where the offer has already been accepted through performance by offeree) must be supported by (i) an offer of new consideration; (ii) elements of promissory estoppel; or (iii) the offeree's manifestation of an intent to make a gift of the obligation owed to her.
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Contracts - UCC - Assignment of Requirements K
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The right to receive goods under a requirements K is not assignable <span style="text-decoration: underline;">unless</span> the assignee acts in good faith not to alter the terms of the K.
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Contracts - UCC - SoF signature requirement for a writing
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In a deal between merchants, a writing confirming the deal sent by one party will bind <span style="font-weight:600;">both</span> parties, unless the other party objects w/in 10 days.
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Contracts - Damages - Liquidated Damages clause
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Liquidated damages are enforceable (on land sale Ks, too) if (i) damages difficult to ascertain at time of entering K, and (ii) they're a reasonable forecast of compensation.
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Contracts - TPB - Intended Beneficiary
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An intended beneficiary exists where the third-party is <span style="text-decoration: underline;">expressly designated</span> in the K, whether written or oral, and vests such status in one of the three possible ways.
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Contracts - Delegation of K duties
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While contractual duties may usually be assigned or delegated, if the duties involve personal judgment and skill, they <span style="text-decoration: underline;">may not</span> be delegated, and as such, a delegee who fails to perform could have a defense (<span style="font-weight:600;">only</span> <span style="font-weight:600;">if he did not receive consideration</span>) that the K should never have been delegated to him in the first place!
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Contracts - Offer - Advertisement
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An advertisement in a publication is likely to be viewed as an invitation to submit offers, and not an offer itself, unless there's a quantity term.
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Contracts - UCC Specific Performance
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A buyer may obtain specific performance on a K if the breach involves goods that are either <span style="text-decoration: underline;">unique</span> or in <span style="text-decoration: underline;">short supply</span> (can't cover). Otherwise, the buyer must cover and recover damages for the difference between the Cost of Substitute Goods and the K price (100 for sub bears - 90 K price for sub bears = 10 damages)
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Contracts - Condition Precedent
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A condition precedent is one that must occur before an absolute duty of immediate performance arises in the other party (e.g. Doll seller will only pay manufacturer if it sells manufacturer's dolls on Christmas)
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Contracts - Part Performance Doctrine exception to SoF
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Where part performance or conduct unequivocally indicates that parties have entered into K, such K is removed from the SoF (i.e. land sale not in writing could be substantiated if part performance shows as much (any two of: possession; subst. improvements; payment(s))).
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Contracts - Condition Precedent and creation of a K
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Where seller preconditions sale of goods on buyer obtaining financing by a certain date, the seller cannot sue for breach if the condition precedent is not fulfilled by the buyer.
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Contracts - Condition Precedent - Parol Evidence rule
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Parol evidence may be used to attack a fully integrated agreement where a condition precedent to enforceability has not occured.
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Contracts - Implied Warranty of Merchantability
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Implied Warranty of Merchantability - unless expressly disclaimed during the offer/acceptance process - which applies to all merchant sellers - warrants goods will be fit for <span style="font-weight:600;">ordinary purpose</span> for which <span style="font-weight:600;">such goods are used. </span>Such a warranty may not be disclaimed boilerplate or without assent of both parties.<span style="font-weight:600;"> </span>(Contrast Express Warranty and Implied Warranty of Fitness for a Particular Purpose - seller need not be merchant)
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Constitutional Law - Fifth Amendment Right to Counsel vs. Sixth
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Fifth Amendment Right to Counsel is a <span style="font-style:italic;">Miranda</span> right requiring existence of custody+interrogation; no questioning regarding any offense. Sixth Amendment Right to Counsel is specific to the crime, and requires counsel at all critical points in proceeding; counsel not required for questioning regarding different crime.
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Torts - Can a person be found guilty of battery if they did not intend to cause the offensive harm?
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Yes. Battery is NOT a specific intent crime, but rather general intent, and as such, merely recklessness or substantial certainy of harm being caused will suffice. Also remember, an assault includes an attempted battery.
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Criminal Law - Murder - elements of malice aforethought
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Malice aforethought exists if D has any of the following states of mind: (i) intent to kill; (ii) intent to inflict great bodily injury; (iii) awareness of an injustifiably high risk to human life; or (iv) intent to commit a felony. Note that malice aforethought will not be negated because illegal police conduct caused the actual death.
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Criminal Law - Recklessly
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A person acts recklessly when he <span style="text-decoration: underline;">consciously disregards</span> a <span style="text-decoration: underline;">substantial or unjustifiable risk</span> that a <span style="text-decoration: underline;">prohibited results will follow</span> and this disregard constitutes a <span style="text-decoration: underline;">gross deviation from the standard of reasonable care</span>. Intoxication NO defense to reckless state of mind (only lack of purpose or knowledge)
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Criminal Law - MPC Knowingly
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A person acts "knowingly" with regard to the nature of his conduct when he is aware that his conduct is of that nature or that certain circumstances exist; he acts "knowingly" with respect to the result of his conduct when he knows that his conduct will <span style="text-decoration: underline;">necessarily</span> or <span style="text-decoration: underline;">very likely</span> cause such a result.<br /><br />Note: <span style="font-weight:600;">When a statute establishes a culpable state of mind without indicating to which material elements of the offense it applies, it will be interpreted as requiring that state of mind for </span><span style="font-weight:600; text-decoration: underline;">every material element of the offense</span><span style="font-weight:600;">.</span>
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