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85 Cards in this Set
- Front
- Back
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Third party beneficiary can prevent contracting parties from altering once rights have VESTED
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Vesting occurs when beneficiary : i) manifests assent to the promise in a manner invited or requested by the parties; ii) brings suit to enforce the promise; or iii) materially changes position position in justifiable reliance on the promise.
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Promissory Estoppel: Consideration not necessary to make an agreement at least partially enforceable
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Where the facts indicate that the promisor should be estopped...enforceable to the extent necessary to prevent injustice if the promisor should reasonably expect the promise to induce action of forbearance and such action or forbearance is in fact induced.
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Taxpayer standing:
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P must show: suffered injury in fact; caused by govt; can be remedied by a court decision. (Doctrine that taxpayer do not have standing applies to cases where the taxpayer is litigating the way her tax money is spent rather than whether she owes a particular tax).
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EP Clause prohibits govt discrimination absent a compelling interest (whether positive or negative discrimination)
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Remedying past discrimination against a minority-either by govt or by public-is compelling interest. Reg needs to be narrowly tailored to remedy however.
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Conversion
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Forced sale...FMV at time of conversion
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Negligence per se not the answer
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When compliance with the statute is beyond her control
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Enforceable contract requires consideration
Timing issues effect bargaining...something of value before promise is not enough for consideration as it wasn't bargained for in the promise. |
i) bargained for exchange between the parties (promise must induce the detriment below)
ii) an element of legal value to that which is bargained for (legal value if promisee incurred a detriment) |
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SOF
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i)promise by executor to pay the estate's debts out of own funds
ii) promise to answer for the debt of another iii) promise made in consideration of marriage iv)promise creating interest in land v)promise that cannot be performed in one year vi)promise for sale of goods > 500 |
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Sellers contract damages for partial payment
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Typically difference between contract price and market price, or between contract price and resale price. But, when resale possible, then lost profit - amount that buyer paid.
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Suretyship promises (collateral promise to answer for the debt of another)
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Usually applicable to SOF, unless the main purpose was for own benefit.
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PMMs generally take superiority, even if not first in line
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unless there are subsequent mortgages or liens subject to recording act (then they take precedence).
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Recklessness
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Consciously disregarding a substantial or unjustifiable risk that a porhibited result will follow and this conduct constitutes a gross deviation for the standard of reasonable care.
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Between contract and deed
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risk of loss typically on the buyer. if something happens that's not the fault of either party, full performance by buyer is required.
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Character evidence inadmissible in a civil case
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Unless litigant's character directly in issue (i.e. defamation)
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Surety promisor for debt
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Need not receive separate consideration to make promise enforceable. But must meet SOF.
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Witnesses recollection may be refreshed with anything. May not read from it however...other party may cross examine about
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If that applies, don't need to get to past recollection recorded. Applies only when witness still can't remember, and sufficient foundation laid for introduction of past recollection recorded.
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Solicitation (unlike conspiracy)
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Merges into the principal offense
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Acquittal of other party to a conspiracy, precludes conviction of the remaining defendant but only at CL
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Rule doesn't apply when the other party is charged with only a lesser offense or is no longer being prosecuted at all (bc pleading out for example)
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Junior mortgagee
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Has right to pay off the outstanding balance (redde it) to avoid being wiped out by its foreclosure. This right is not dependent on the statutory right of redemption. Redemption statutes generally help the mortgagor for a fixed period after foreclosure.
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Prior inconsistent statement (to impeach a witness)
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May be proved by either cross or extrinsic evidence.
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Accord
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An agreement in which one party agree to accept in lieu of performanc that he is supposed to receive some other different performance. Needs to be supported by consideration, but may be of lesser value (as long as it is of a different type).
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UCC accord for the sale of goods
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Contract mods need no consideration to be binding, as long as parties acting in good faith.
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Accords
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suspend the buyer's obligation on the original contract. Only satisfaction discharges however. Where accord breached by the creditor (by suing on the original contract), other party can seek enjoinment on this.
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Conspiracy
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Effective withdrawal of a conspiracy still means that there's conspiracy, although then isn't liable for the other foreseeable act.
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Humiliation
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Not an actionable tort itself. But is a recognized element of damages for any of the intentional torts.
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Judge v. Jury determinations
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Whether agency relationship in a contract existed is up to the jury because question of fact.
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Judge v. Jury
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All preliminary fact questions involving the standards of trustworthiness of exceptions to the hearsay rule must be determined by the court.
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Insanity
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Burden to prove can be placed on either party; can be clear & convincing, or preponderance.
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Strict product liability
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Misuse by P a defense only when misuse was not forseeable.
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Matthews v. Eldridge...balancing test on Procedural Due Process
(Think of prior judicial proceedings as being enough) |
Weigh i) the importance of the individual interest involved ii) the value of specific procedural safeguards to that interest and iii)governmental interest in fiscal and administrative efficiency.
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KNOW that right v. privilege distinction for procedural due process
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ELIMINATED
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Right to counsel (6th amendment)
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Applies to misdemanors only when a sentence of imprisonment is ACTUALLY imposed. The alt. fine may be imposed without counsel.
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Judge decides the applicability of privilege as that goes to the competence of the evidence
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Can consider any evidence to that end, but must abide by the rules of privilege in FRE
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Violation of Miranda confessions
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Confession in violation of Miranda, but otherwise voluntary, can be used for limited purposes like impeachment. (although not in case in chief as evidence of guilt)
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Chattel (fixture) annexation to real property
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Deals with intent, constructive annexation occurs when an article of personal property (the accession) becomes an integral part of the property even though it it is not physically annexed to property like a fixture would be.
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Trespasser anexation, in good faith (building building on someone else's property thinking it's yours)
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Lost to the tresspasser whether good faith or not.
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6th amendment provides Ds with right to counsel at any post-indictment interrogation. Waiver must be knowing and voluntary
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But statement obtained in violation of 6th may be used to impeach the D. (bailiff overhearing)
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Aiding and abetting
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Requires intent to commit the underlying crime
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Stuff captured on videotape (D's actions or words)
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Are an admission
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Property rights
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Tested on a rational basis standard. Burden of proof is on the plaintiff.
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Public employees
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Have no property right to continued employment, unless they can only be fired for cause.
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Procedural due process principals
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Government employee may not be fired for expressing his views regarding public issues, but can be fired for speech that dirsupts the employer's policies or undermines the employer's authority. Public issue.
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UCC, buyer's contract
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Must act in good faith
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Under UCC, assignment (sale of goods)
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A prohibition of assignment of the contract is to be construed as barring only the delegation of the assignor's performance. Right to receive performance may be assigned.
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Officer not entitled to use deadly force
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To arrest an unarmed escaping felon unless officer has PC to believe suspect poses significant threat of death or serious physical injury to the officer or others (or required to prevent fleeing escape)
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Habit
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Can testify as to your own habit.
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Mistake of fact affects criminal guilt
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only if it shows that the defendant did not have the state of mind required for the crime
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A promise to forebear suit on a claim that the promisor honestly and reasonably believes to be valid
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Is good consideration to support an agreement, even if the claim ultimately turns out not to be valid.
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Mutual mistake in contract
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Only relevant when the parties were mistaken as to the terms of the contract. If only mistaken as to the reason for entering the contract, it's still enforceable.
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Where trespassor is anticipated
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A duty to warn of or to make safe highly dangerous concealed artificial conditions know to the landowner, but not as to things that are discoverable.
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Generally contracts for sale of goods over $500 must be in a writing (Statute of Frauds) EXCEPT:
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(1) specially manufactured goods not suitable for resale in the seller's regular course of business, (2) contracts admitted in court by opposing party, or (3) contracts partially accepted (enforceable to the extent of the acceptance.
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Specially Manufactured goods exception to the Statute of Frauds
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A contract for the sale of goods over $500 not in writing will nonetheless satisfy Statute of Frauds if (1) the goods are specially manufactured for the buyer, (2) the seller has started work on the goods (substantial beginning), and (3) the goods are not sellable in the seller's ordinary course of business.
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For contracts for the sale of goods over $500, the Statute of Frauds applies to both
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the original contract (if over $500) and any oral modification involving the sale of goods over $500 (including one that increases the price so now over $500, when original contract was below $500)
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Strict Liability for animals kept on landowners premises
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Strict liability will apply if the animal is wild.
However, no strict liability for domestic animals (including farm animals) unless the owner has knowledge that the animal has abnormally dangerous propensities (e.g. knows it has bitten or gored before) |
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General warranty deed - warranty for title runs with the land
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Meaning the original conveyor can be liable to any subsequent purchasers down the road in the chain of title (not just the immediate purchaser)
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Search and Seizure: Consent to search
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Can be given by someone with actual or apparent authority over the premises or item sought to be searched. But co-tenants cannot consent over a *present* objecting co-tenant
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Duty of care in a medical malpractice case
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Did the doctor act in accord with prevailing medical procedure as practiced by a physician of ordinary care and skill in the community?
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When can government limit rights of speech in a public forum?
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Only when there is a serious and imminent threat to public order (e.g. can restrict speech of a speaker because of an unruly audience only when police are absolutely unable to control the crowd)
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False Imprisonment Elements
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an intentional act or omission that confines or restrains the plaintiff to a bounded area (e.g. no reasonably discoverable means of escape), causing plaintiff damages
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Party has a right to adequate cross-examination of a witness who has testified for an opposing party. What is the remedy if a witness cannot be cross-examined because he claims the 5th Amendment privilege during questioning?
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If adequate cross-examination cannot be obtained, the court will strike the witness's direct testimony.
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A Novation
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Substitutes a new party for an original party to the contract and requires mutual assent of all the parties. If valid, it completely releases the original party.
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Assumption of a mortgage
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The grantee expressly promises the grantor-mortgagor that he will pay the mortgage obligation as it becomes due. Mortgagee then becomes a third-party beneficiary of the grantee's promise to pay and can sue the grantee directly if the grantee fails to pay. The grantor-mortgagor remains secondarily liable as a surety. The mortgagee can therefore sue both, but can only collect once.
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Nuisance
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if D's activities are unreasonable or abnormally dangerous, and they substantially and unreasonably interfere with P's use and enjoyment of his land
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Transferred intent as between intended assault to battery
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Under the doctrine of transferred intent, the intent to assault is sufficient to establish a battery if a harmful or offensive touching results. Causation element satisfied if the D set in motion the force which brought about the intended assault (and subsequent battery)
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Public forums
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State may not limit access to a public forum on the sole basis that there are other time and places where the right of free speech can be exercised. The state must show a more substantial reason.
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Double Jeopardy
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Precludes retrial for a greater offense once jeopardy has attached for a less included offense, as well as the imposition of multiple punishments for the same offense. However, a state may continue to prosecute a charged offense, despite the D's guilty plea to a lesser included or "lallied" offense arising from the same incident. The acceptance of a guilty plea on the lesser included offenses while the charges on the greater offenses remain pending has none of the implications of an implied acquital that results from a guilty verdict on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses.
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Lien Theory
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Means no severance on Joint Tenancy with Right of Survivorship. Title theory means severance. Lien theory is majority rule. In Lien theory, if one tenant executes a lease unbeknownst to the other, upon the death of the former, the latter takes free and clear of the encumbrance.
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Reaching place of temporary safety
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Important in question involving killings committed during the course of a felony because it may cut of liability
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Double jeopardy
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It is possible to commit two separate crimes by the same criminal conduct, such as conspiracy and the substantive offense.
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SOF
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For sale of goods over 500, signature needed for agreement, and signature needed for any modification. Modification need not be supported by consideration.
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Owner of trespassing animal
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Strictly liable for harm done by the trespass of the animal as long as it was reasonably foreseeable.
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Sale to first person with general warranty deed, followed by the new purchaser selling to another with a quit claim deed
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The warrany of title to the first purchaser runs with the land and can be enforced by any subsequent purchaser, but only get the price that he himself paid for the house (not the potentially greater price that was the consideration between the grantor and first purchaser)
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Strict liability and abnormally dangerous activities
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Are torts based on unintentional injuries!
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Attempted murder
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Requires specific intent to kill. Recklessness or depraved heart as to the act that potentially may cause murder is not sufficient for attempt.
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RAP
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Note that with a contingent remainder subject to open, no one in that class needs to come into possession within the perpetuities period; the only requirement is that their interest VESTS in that period. Remember, key is rights VESTING, not possession.
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Unborn widow aspect of RAP
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Only relevant and only a problem when the children's gift is conditioned on their surviving the widow, in which case the takers would remain unascertained until that time. That would be a RAP problem, as neither the widow nor the children (at least assumedly in the fact pattern I'm addressing...number 32 in Simulated 100 MBE)...are in existence when the interest is created.
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Parent of an adult teen child (criminal procedure fact pattern)
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Does not have automatic authority to search teen's locked things (nor to consent to a police search especially if they don't have probable cause)
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In loco parentis
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Tort doctrine that does not apply to criminal procedure. Under doctrine, state is charged with a parent's responsibilities over a child in its care.
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Learned intermediary rule
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Would protect the pharmaceutical company from being sued for failure to warn the mother about risks (because it provided a warning to the prescribing physician as the learned intermediary)
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Typically a separate purchasing "at its option" provision in a contract is not enforcable without consideration.
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But if coupled with other consideration in other parts of a single contract, then the whole contract can stand, along with the at its option provision that lacks consideration.
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Battery (criminal)
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Requires general intent (which can include intentional, reckless, or criminally negligent conduct)
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Negligent infliction of emotional distress
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The bystander’s presence within the zone of danger from physical injury is no longer required for a bystander to recover for witnessing an injury to another.
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Negligent rescues
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Cause of action. However, where states have Good samaritan statutes, ordinary negligence on the part of the rescuer is ok and there gross negligence would be required to establish liability
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Exculpatory language in a consensual agreement between parties that is intended to insulate one of the parties from liability resulting from his own negligence is closely scrutinized but generally enforceable as long as it is not an adhesion contract
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An adhesion contract is a situation where one party essentially had no choice but to accept the terms set by the other party
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In comparative negligence jurisdictions (which are most)
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Express assumption of risk is a complete defense.
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