Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
65 Cards in this Set
- Front
- Back
|
Can the police effect the arrest of an individual in his own home without an arrest warrant?
|
No, as a general rule, the police must have an arrest warrant to effect an arrest of D in his own home. There is no general "emergency exception to the warrant requirement, except for hot pursuit.
|
|
|
P contracts with T to design and build a custome house. If P breaches, can T compel her resume and complete the performance?
|
No, contracts for personal services are not subject to specific performance notwithstanding the fact that damages might be inadequate or difficult to assess or the services to be performed are unique. Ct. reasons that specific performance would be tantamount to involuntary servitude.
|
|
|
What are the requirements for a divisible K?
|
1. Performance of each party is divided into two or more parts under the K, (2) the number of parts due from each is the same, and (3) the performance of each part by one party is agreed upon as the corresponding part.
|
|
|
What is an advantage of a divisible K?
|
It allows a party who has performed one of the units of a divisible contract to claim the agreed upon fee for that unit even though he fails to perform the other units.
|
|
|
Can extrinsic evidence be admitted to impeach a witness?
|
Yes, extrinsic evidence is admissible as substantive evidence as well as for impeachment purposes. For the purposes of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with same material part of his present testimony.
|
|
|
When a tenant stays pass his lease, what are the remedies available to the landlord?
|
When a tenant continues in possession after the termination of his right to possession, the L can either treat the hold-over T as a trespasser and evict under an unlawful detainer statute, or bind the T to a new periodic tenancy. A periodic tenancy does not arise just because L accepted a check for the month that T held over.
|
|
|
A contracts with P, a car dealer to buy a car from his inventory. A breaches, but P is able to sell the car to another buyer. What can P recover for the breach?
|
P can collect his lost profits, i.e., the difference btw the K price and price of car from the Mfr. In a K for the sale of goods, a seller can collect his profits when A breaches if P cannot be made whole by a subsequent sale of the item contracted for. Occurs where S hs an unlimited supply of the goods and demand is limited (e.g., car dealership)
|
|
|
Where a witness of direct examination makes a statement no directly relevant to the issue in the case, can she be impeached on cross?
|
No, the rule against impeachment (other than by cross) on a collateral matter applies to bar the opponent from proving the statement untrue either by extrinsic contradictory facts or by prior inconsistent statements.
|
|
|
What are requirements for strict liability for products?
|
(1) strict duty owed by a commercial supplier, (2) breach of that duty, (3) actual and proximate cause; and (4) damages for a prima facie case.
|
|
|
Can the state indirectly tax the federal government?
|
Yes, a state levied tax against the property or operation of the federal govt. without consent of Congress is invalid. But, a nondiscriminatory, indirect taxes on the federal govt. or its property are permissible if they do not unreasonably burden the fed. govt.
|
|
|
Is a statement of absence from public record admissible at trial?
|
Yes, evidence in the form of a certification or testimony from the custodian of public records that she has diligently searched and failed to find a record is admissible to prove that a matter was not recorded, or, inferentially that a matter did no occur.
|
|
|
A contracts with B to Mfr. a custom designed table. A begins the process, but B breaches before it's done. What can A recover?
|
Under a K for specially Mfr. goods not suitable for resale in the ordinary course of seller's business & seller has made a substantial beginning, a writing is not required & the K is fully enforceable.
|
|
|
Does the 4th Amend. require the police to have a warrant to search the premises of a 3rd person for an arrestee?
|
Yes, but if an arrest did take place in a 3rd person's residence & the police did not have a warrant, it will not help the arrestee, becuase the warrant requirement is intended to protect the 3rd person's expectation of privacy & the arrestee does not have standing to raise a violation of the 4th amend.
|
|
|
A purchases a lot, which has a deed containing a restrictive covenant requiring that structures be set 30 feet back from the curb. If A gets a zoning variance from the city, can a neighbor enforce the covenant?
|
Yes, zoning regulations and restrictive covenants in a private deed are completely separate concepts. Both must be complied with, and neither provides any excuse for violating the other.
|
|
|
C's lawyer, on behalf of C, contracts with B to buy Whiteacre on May 1. On May 15, C's lawyer and B close the deal. A week later, B finds out that C died April 30. Is the sale valid?
|
No, a deed to a nonexistent person is void and coveys no title. Because C was dead when the deed was delivered, the deed passed nothing and was a nullity.
|
|
|
On direct A testifies that B's car ran the light and hit her, but B does not cross. A presents a witness who testifies that right after the accident A said "that guy ran the light and hit me." Can this statement that bolsters A's credibility come in, even if B has not attacked it on cross?
|
Yes, even though the statement bolsters credibility, it still qualifies as an exception to the hearsay rule, i.e., excited utterance, and is admissible as substantive evidence.
|
|
|
Is a police officer privileged to make an arrest without a warrant?
|
Yes, an officer is privileged to make an arrest without a warrant for a felony or breach of the peace committed in her presence, but not for a misdemeanor not involving a breach of peace.
|
|
|
If a preceding future interest is found to violate the RAP, what will happen to a subsequent future interest that follows it?
|
If a preceeding future interest is found to violate the RAP, any interest being conveyed subsequent in time will automatically violate the RAP.
|
|
|
A is arrested and charged with drunken driving. During the trial the prosecution wants to admit evidence from a police camera showing A unsteady and abusive. Is it admissible?
|
Yes, if after being properly authenticated, can come in as substantive evidence to show the intoxicated state of A. It's relevant because its probative value is not substantially outweighed by undue prejudice. Not hearsay, because it's not offered to prove what A said.
|
|
|
Does a land occupier have an affirmative duty to warn or protect children against dangerous artificial conditions on the land?
|
Yes, if it's known that the property has a propensity for attracting kids, the land owner must take precautionary steps to prevent any injury to children who were tempted to come on the premises to a reasonable degree.
|
|
|
What is the Lemon Test?
|
It's a supreme court case that has determined that supplements to salaries of teachers in religious schools raised excessive entanglment problems in violation of the Establishment Clause.
|
|
|
Is a Congressional grant of $$ to universities and colleges, including church-operated ones, for the purpose of construction constitutional, if Congress prohibits that the $$ be used for buildings in which instruction in religious matters is offered?
|
Yes, the USSC applies the Establishment Clause less strictly when the benefited institution is a religiously affiliated college or hospital rather than a grade or secondary schoo. It will uphold the grant as long as the aid be used only for nonreligious purposes and the recipient so agrees in good faith.
|
|
|
If an acceptance btw merchants for the sale of goods contains additional terms, does it void the K?
|
No, if both parties are merchants, the additional term is part of the K, unless (1) it materially changes the offer OR (2) the offeror objects to the change.
|
|
|
What are the common characteristics of a strict liability?
|
They do not require awareness of all the factors constituting the crime, i.e., no intent, and are generally part of a regulatory scheme. They alse generally invlove a low penalty, i.e., misdemeanors, and rarely penalize the violation as a felony.
|
|
|
An owner of an aparment complex objected to kids playing in a common area, but kids constantly played there anyways. If a kid is injured by a sprinkler head not reasonably discoverable, is the owner still liable?
|
Yes, the owner has a duty to exercise reasonable care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on his property. This duty continues, even if he objected to the kids presence, but took no reasonable precautions.
|
|
|
May a state require that those enrolled to vote be a bona fide resident of the community?
|
Yes, any law regulating te right of persons over age 18 to vote must pass strict scrutiby & the state does have a compelling interest in the integrity of the voting process that will support narrowly tailored restictions.
|
|
|
If A contracts to sell his house to B, but A dies before the closing, how does the doctrine of equitable conversion deal with the transaction?
|
Under the doctrine a deceased seller's interest generally passes a personal property. If the seller dies, "bare" legal title passes to the takers of his real property, but they must give up the title to the buyer when the contract closes.
|
|
|
C's lawyer, on C's behalf, contracts with B to buy Whiteacre on May 1. The closing is set for May 15. B finds out that C died May 10. Can B sell Whiteacre to another buyer?
|
No, since C was alive at the time the contract was formed, the contract is still valid and executory upon his death. If a buyer dies after the K for sale was entered into, but before it has been completed, his heir or devisees can demand conveyance of the land at closing.
|
|
|
If P can prove that a bike he purchased was so defective that it was unreasonably dangerous when it left the manufacturer, can P sue the distributor from whom he actually bought the bike under strict product's liability?
|
Yes, if the defect existed when the product left the factory, then P has a viable cause of action in strict liability against the distributor, a supplier in the distributive chain.
|
|
|
When is a delegation of duties under a K prohibited, if the K is silent on the issue?
|
If the K calls for very special skills or that the person to perform the taske has a very special reputation, i.e., if the performance by the delagatee will materially change the obligee's expectancy under the K (e.g., effecting his potential profits).
|
|
|
D testifies in front of a grand jury, under the promise of immunity, that he and G committed robbery. G is later arrested and offered a plea deal for his testimony against D. Is G's testimony admissible?
|
No, testimony obtained by a promise of immunity is by deifinition coerced and involuntary. Thus, immunized testimony may not be used for impeachment of the D's testimony at trial. G's testimony will also not be permitted to be used against D, because it resulted from D's immunized testimony in front of the Grand jury.
|
|
|
Seller and Buyer contract for the purchase of Blackacre. If a seller cannot give marketable title at the date of closing, can Buyer compel Seller to close the deal?
|
Yes, if Seller cannot give marketable title, but Buyer wishes to proceed with the transaction, the purchaser can usually obtain specific performance with an abatement of the purchase price in an amount representing the title defect.
|
|
|
Crunch contracts to buy a computer "YG" from Tech. Crunch refused delivery & Tech sued for breach. Crunch's CEO testifies that the party's agreed to "PG" computers, but wrote "YG" to keep competitors in the dark. Is his testimony admissible?
|
Yes, where there is a dispute as to the meaning a written agreement's term, Parol Evidence can be received to aid the fact finder in reaching the correct interpretation. The testimony explains, not contradicts the terms of the K.
|
|
|
Is there a family records exception under the FRE?
|
Yes, it's an exception to the hearsay rule allowing admissione of family records, such as family Bibles, genealogies, engravings, etc.
|
|
|
What is the requirement for a COA for Common Law Arson?
|
The malicious burning of the dwelling of another. It requires that D act with the intent or knowledge that the structure would burn, or with reckless disregard of the obvious risk. If D negligently caused the fire, he has a duty take reasonable steps to prevent it from spreading, his failure to do so is reckless disregard. "of another" pertains to possession rather than ownership.
|
|
|
What are the elements for Commona Law Robbery?
|
A taking, of personal property of another, from the other's presence or person, by force of intimidation, with the intent to permanently deprive him of it. The force must be used to gain or retain the property & the D need not have intended to use force. The fact the D did not intend to use force or hurt the victim is irrelevant.
|
|
|
An officer stood on top of a trash can and peered through a narrow opening eight feet above the pavement. He saw D inside smoking what looked like weed. If the officer enters the premises is this a violation of the 4th?
|
Yes, D had a reasonable expectation of privacy & such acts by the officer would be considered a violation of the 4th and not in "plain view."
|
|
|
If a builder breaches after partially performing, what can the owner of the land recover?
|
He is entitled to the cost of completion plus reasonable compensation for any delay in performance. Ct.s will allow the builder to offset or recover for work performed to date of the breach to avoid unjust enrichment.
|
|
|
The terms of a K require that F make monthly installment payments. S worked from April to Oct. and F made the payments, S stopped work from Nov.-Feb. and F did not pay. S did not object to the non-payment. What is the legal effect of S's failure to object?
|
When a condition or duty of performance (i.e., payment) is broken, beneficiary can either terminate his liability of continue under the K. If he continues under the K, it will be deemed that he waived the duty (i.e., the delay in payment)
|
|
|
In a K to build a house installment payments by F is conditioned on the reciept of a certificate that S must get to show proper construction. If F pays S 3 monthly installments without requiring the certificate, what is the legal effect?
|
The failure to require a certficated from S would be deemed a revocable waiver, because at any time F can insist on the certificate before making the monthly payment.
|
|
|
What is the modern "foreseeability" approach in regards to bystanders recovering for negligent infliction of emotional distress?
|
Under the modern apporach, bystanders could recover, even if outside the "zone of danger," however, she must be related to the person actually injured and present at the scene of the accident.
|
|
|
What is the intent requirement for felony murder?
|
It requires that the D have had the intent to commit the underlying felony. i.e., if D believed that the money she took actually belonged to her, she did not have the intent to permanently deprive P of "his" property & the element for robbery is not met.
|
|
|
What is marketable title?
|
It is title that is free from reasonable doubt in fact or in law. If there is confusion as to whether building restrictions by a city apply to the parcel in question, this will reduce the use of the parcel or its market value, thereby making it unmarketable.
|
|
|
is A liable to D for battery if she assisted a police officer in D's arrest?
|
No, if acting at the direction of a police officer, A has the same privilege of arrest if there are reasonable grounds for doing so.
|
|
|
Is an ordinance that requires solicitors to register with the city and prove that they are doing so for a charitable organization & not personal use Constitutional?
|
Probably no, because it violates free speech rights under the 1st amendment. USSC held that charitable appeals for funds a variety of protectable speech interests
|
|
|
If A contracts to sell B a car, but B later finds out that G owns a 1/2 interest in the car, is the K enforceable?
|
Yes, there is an enforceable K, created by an unconditional promise to sell. If A fails to perform, B may sue for breach, but only get damages & not the car, b-cuz of G's 1/2 interest
|
|
|
What are a party's remedies for an anticipatory repudiation?
|
the non-breaching party can (1) sue immediately if he hasn't yet performed, (2)suspending performance and sue at the date of performance, or (3) treat it as a rescission.
|
|
|
When defamatory statements involve a matter of public concern, does the P have to prove damages?
|
Yes, P must provide competent evidence of actual injury, presumed damages are not permitted absent a showing of actual malice, even if P is NOT a public figure.
|
|
|
Does the requirement that a witness testify from personal knowledge requirement apply to admissions (hearsay exception)?
|
No, the requirement does not apply to admissions, so if the admission is made without personal knowledge, it will be admissible.
|
|
|
A a lay witness give opinion testimony?
|
Yes, as long as it is helpful to the jury.
|
|
|
May defendant's ignorance of a building's status as a dwelling be a defense to common law burglary?
|
Yes, if D was unaware that the building was a dwelling, the ignorance or mistake may negate the mens reas for that element of the crime.
|
|
|
If one party makes a intentional misrepresentation as to the terms of a written K, can it be reformed?
|
No, reformation requires that the agreement not reflect the intention of the parties. If one party intentionally misrepresents, then there was never an intent on the party of that party to agree.
|
|
|
A contracts to sell B 100 widgets on Oct. 15. On Sept. 1, A delivers only 99 widgets. What are B's remedies, if any?
|
Under the UCC perfect tender rule, B may reject the entire shipment. But, he must allow A to cure becuase the date of performance has not yet passed, so he can't sue for breach or attempt to cover until Sept.2.
|
|
|
When can a witness testify as the contents of a writing, not just her refreshed memory?
|
Under best evidence rule, the original writing must be produced, unless the original is shown to be unavailable other than for the misconduct of the proponent, e.g., destruction without fault.
|
|
|
Can a police artist's sketched based on the idenitification of witness be admissible?
|
Yes, a sketched rendered according to a eye-witness is admissible as a prior identification, but the witness must be available at trial & subject to cross.
|
|
|
Does A have standing to challenge the constitutionality of an exclusive zoning practice by the city, alleging it made to too expensive to buy a home?
|
No, general financial inability to buy is no sufficient injury; A must show that absent the zoning, there would be a substantial probability that he could buy.
|
|
|
Can D be sentenced under two statutorily defined offenses which constitute the same crime?
|
Yes, double jeopady does not porhibit the imposition of cumalative sentences for two or more statutorily defined offenses specifically intended by Congress to carry separate punishments, even though constituting the "same crime," when imposed at a single trial
|
|
|
B swears out a criminal complaint against A for failure to pay his hotel bill. A sent payment, but is arrested before B notices police of payment. Is B liable for false imprisonment?
|
No, a swearing out of a complaint that was proper at the time may not serve as a basis for a false imprisonment action, despite B's failure to cancel the complaint, but may give rise to malicious prosecution.
|
|
|
Is a valid arrest warrant a defense to a charge against the police for false imprisonment?
|
Yes, if police acted under a valid arrest warrant, it serves as a complete defense. Statements by the D that he is innocent does not compel the police to follow D's suggestions.
|
|
|
Where a survey of the land, denoted by stakes in the ground, conflict with recorded plat survey, which one controls?
|
the actual survey, denoted by the stakes, prevails, because the plat is only intended to be a representation of the actual survey as made on the land itself by the stakes.
|
|
|
If state A enacted a sales tax on the purchase of BooBoo cars within its borders, can the state collect the sales tax fro a federal agency that purchased BooBoo cars in the state?
|
No, because t is a direct tax on the federal govt., and invalid unless Congress has consented to such a tax.
|
|
|
Can state employees sue a state to amend legislation that ends cost of living increases in their pension plans?
|
Yes, they can sue to reinstate the raise, because the Constitution prohibits impairment of contractual obligations by states in narrow circumstances & states must show a "emergency."
|
|
|
If O conveys to Clara and her heirs, as long as the premises is used as a school, then to Grant and his heirs, what does O have?
|
The RAP, would void Grants interest, and his executory interst would be stricken. Clara would have a fee simple determinable and O retains the possibility of reverter.
|
|
|
Can a leading question be asked on direct examination as to the witnesses name, address, occupation or age?
|
Yes, leading questions are allowed on direct regarding preliminary matters not in dispute.
|
|
|
Can a co-tenant bring an action for accounting against another co-tenant who is in possession of the whole property?
|
No, a con-tenant has the right to possess and enjoy the whole land, subject to the equal rights of other co-tenants. So long as there is not an ouster, the non-possessing co-tenant has no right to accounting.
|
