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121 Cards in this Set
- Front
- Back
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Adverse possession
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C- Continuous
O- Open and notorious A- Actual entry/not symbolic H- Hostile Possessor doesn't have consent |
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Exception to SOF for land Ks
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Doctrine of part performance. need 2 of 3.
1. B takes physical possession of the land 2. B pays all or part of purchase price 3. B makes substantial improvements to the land |
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NY property condition disclosure act
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sellers of 1-4 family dwellings must provide buyers with completed statutory disclosure form before K is signed. Doesn’t apply to co-ops, condos or new constructions.
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Test for deed delivery
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Test is solely of PRESENT INTENT. Did grantor have the present intent to be immediately bound irrespective of whether or not the deed itself was literally handed over? physically handing over can suffice
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If specific statement C statement of purpose and a K is ultra vires:
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1. ultra vires Ks are VALID(not voided) 2. SHs can seek an injunction 3. responsible Os and Ds are liable to C for ultra vires losses
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Information about capital structure required in C certificate
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1. authorized stock 2. # of shares/class 3. info on par value, rights, preferences and limitations of each class 4. info on any series of preferred shares
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De Facto C doctrine
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1. relevant incorporation statute 2. parties made GF, colorable attempt to comply with it AND 3. some exercise of C privileges. If applicable, treated as C for all purposes except in an action by the state
Essentially abolished in NY EXCEPT in limited circs like dept of state just forgetting to file |
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How does a foreign C qualify
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by applying to NY dept of state and designating sec of state as agent for SOP. Gotta give sec info from its cert & proof of good standing in its home state. Also has to pay fees to NY for privilege of doing biz here
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What is a subscription?
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It’s a written, signed offer to buy stock from the C. Impt to see if the subscription can be revoked
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Are subscriptions revocable pre-incorporation
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Irrevocable for 3 months unless they say otherwise or all subscribers agree
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Post-incorporation subscriptions
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revocable until acceptance
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If C accepts offer and subscriber defaults on payment:
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i. If S paid less than ½ of purchase price and fails to pay rest wi 30 days of written demand, C can keep $ paid and cancel shares. Shares become authorized and unissued
ii. If paid ½ or more and fails to pay rest wi 30 days of written demand, C must try to sell stock to someone else for cash(or a binding obligation to pay cash) iii. If nobody will pay remaining balance, defaulting subscriber forefeits what he has paid and shares are canceled iv. If someone will pay more than remaining balance due, defaulting subscriber recovers any excess over what he agreed to pay but deducts from that the Cs expenses in selling |
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Board role in selling no-par stock
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Board sets price at which to sell no par stock unless certificate allows SHs to do so.
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Acquiring property with par value stock
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1. gotta make sure property is enough consideration. Board ALWAYS values consideration in a par issuance. In no-par, board value consideration unless cert allows Shs to do so.
2. When board determines value of consideration for issues, the determination is conclusive UNLESS made with fraud |
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Consequences of issuing par stock for less than par value(watered stock)
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1. C or creditors can sue for the amount of water(amount below par)
2. Ds liable for water? Yes, if the y KNOWINGLY authorized the issuance 3. Guy who bought watered stock liable? Yes, charged with notice of par value 4. Third party transferee liable? NOT liable if acted in good faith(did not now about water). Doesn’t have to pay value either(can get stock as gift) |
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What are preemptive rights?
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Right of an existing Sh to maintain % of ownership by buying stock whenever there is a NEW ISSUANCE of common stock for MONEY
b. If certificate is silent, new issuance DOES NOT include sale of treasury stock NOR sales of shares authorized by original cert and sold wi 2 years of formation. c. For Cs formed BEFORE 2/22/98, if certificate of silent regarding these rights they still exist BUT FOR THOSE FORMED AFTER, the rights only exist if certificate allows for them |
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Removal of directors before expiration of term
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i. SHs can ALWAYS remove D for cause
ii. Board can remove D for cause ONLY IF permitted by cert or bylaws(so SH can change bylaws to allow for this) iii. Removing D WO cause: SHS only, and only if cert or bylaws allow. |
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Functions a C cmte cannot perform (FAV C)
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1. amend, repeal, or adopt by laws 2. submit a fundamental change to SHS 3. fill a board vacancy 4. set director compensation. CMT CAN recommend any of these things for full board action.
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BJR
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BJR means a ct will not second guess a biz decision if it was made in GOOD FAITH, WAS REASONABLY INFORMED AND HAD A RATIONAL BASIS
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Interested Director transaction
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Any deal b/w C and one of its Ds(or biz of which its D is also a D or officer or in which he has a substantial financial interest)
ii. State DOL std. interested D xactions will be set aside UNLESS D shows either 1. deal was fair and reasonable to the C when approved OR 2. material facts and her interest were disclosed or known AND the deal was approved by any of these 1. by the SHs 2. board approval by sufficient vote NOT counting the interested directors(the interested Ds count toward a quorum of the board and can participate in the meeting, but votes don’t count) OR 3. unanimous vote of disinterested Ds if disinterested Ds are insufficient to be an act of the board. The interested Ds are also counted in the calculation to see if the disinterested Ds are sufficient to be act of board.(9 present at meeting, would need 5 in favor. If only 4 disinterested need ALL of em) |
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C giving D or O or employee stock options as an incentive to service
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If stock is listed on a stock exchange, such use of options must be authorized under exchange policies. If not listed on exchange, this use of options must be approved by Shs.
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Improper loans of C funds
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Board votes to lend D C funds or to guarantee a Ds personal obligation. OK? Approval required depends on when C formed
1. if Formed on or before 2/22/98: SH vote(in which a quorum is a majority of disinterested shares), unless cert allows board to decide that a loan benefits the C 2. For Cs after 2/22/98: board’s conclusion that loan benefits C |
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Selection & removal of officers
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Ds select and remove officers UNLESS certificate allows SHs to elect em. If Shs elect em, only Shs can fire em. Even then, for cause, Ds can suspend an officers authority to act.
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Permissive reimbursement of directors/officers
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iii. PERMISSIVE: situation not satisfying 2 above, C may reimburse officer or D. He must show that he acted in GF AND for a purpose reasonably believed to be in Cs bests interests. In this category, reimbursement can include settlement amount, expenses and attorney’s fees(not any judgment though).
1. Board(with a quorum of directors being non-parties) determines eligibility OR if there is no such quorum 2. SH or a quorum of those Ds who are disinterested OR 3. the board pursuant to report from indep legal counsel |
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When can cert/bylaws not provide for indemnification of D/Os?
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D or officer acted in bad faith(not just lack of GF), was deliberate and dishonest in a way material to the case or wrongfully profited
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Certificate may provide for elimination of D liability to the C or SH for damages for breach of duty EXCEPT WHEN
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1. when D acted in bad faith(not just lack of GF) OR 2. with intentional misconduct 3. received an improper financial benefit to which D not legally entitled OR 4. approved an unlawful distribution or loan. Also violate statutory liabilities of Ds.
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A provision in the cert can restrict or transfer board power to SH or others. OK IF:
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i. All incorporators or Sh(voting and nonvoting) approve it
ii. It is conspiculously noted on front and back of all shares iii. All subsequent Sh have notice AND iv. Shares are not listed on an exchange or regularly quoted OTC |
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When is a SH demand on board to sue in context of a derivative suit futile?
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FUTILE if majority of board is interested or under control of interested Ds(most likely) OR board did not inform itself of the xaction to the extent reasonable under the circs OR the transaction is so egregious on its face that it could not be the result of sound biz judgment
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Proxy=
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Proxy = 1. writing(including fax or e-mail) 2. signed by record SH or authorized agent 3. directed to sec of C 4. authorizing another to vote the shares
b. Proxy good for 11 months unless it says OW c. Freely revocable even if it states it is irrevocable. EXCEPT when you have a proxy couple with an interest(totally irrevocable there. Like when S sells B shares after record date but then gives B irrevocable proxy. Must say its irrevocable though) |
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Voting trust
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1. written trust agreement controlling how shares will be voted 2. copy to C 3. transfer legal title of shares to voting trustee AND original SH receive voting trust certificates and retain all SH rights except voting
b. 10 year max on voting trusts but wi 6 months of expiration, can extend for another term of up to 10 years |
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voting/pooling agreement
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a. SH can freely enter these. Need to be in writing and signed.
b. NOT specifically enforceable c. A proxy given subject to a voting agreement IS IRREVOCABLE if it says so d. Two SHs can agree to vote to elect each other as Ds bc electing Ds is something SHs do. BUT if they then agree about what actions they will take once they are Ds that IS NO GOOD bc violates rule against voting agreements amongs Ds. Would be ok though if these are the only 2 SHS in the C bc nobody hurt. |
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Special SH meetings
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3. Special meeting(can be held anywhere)
a. Who can call:board OR anyone provided in cert b. Special meeting to elect Ds must be called by board if there is a failure to elect a sufficient # of Ds to conduct biz of the C. If board fails to call such a meeting, holders of 10% of the voting shares may demand in writing that C hold the meeting. Then C secretary must give notice of the meeting. If sec fails to do so, SHS may give the notice. |
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Notice reqs for SH meetings, both regular and special
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Notice req- must give written notice(e-mail OK) to every SH entitled to vote, for every meeting(annual or special) b/w 10 & 60 days before meeting
a. Contents: when and where meeting is. Whether proposed action would entitle SH to appraisal rights and why(and even include statute about appraisal rights) b. Notice of SPECIAL meeting must state who called it and purpose of the meeting. Purpose critical bc that is the ONLY biz that can be transacted at the meeting. Purpose must be a proper SH purpose so can’t be to remove officers. c. Failure to give proper notice to all SH means action at meeting is VOID unless those not rec’ng notice waive the defect either EXPRESS:in writing and signed anytime OR implied: if attending meeting wo objection |
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voting requirements for board/SHs in various situations
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Board: majority of people present unless voting on interested D xaction.
SHs: majority of those voting UNLESS it's for a Fundamental change. Then it's majority of all shares who can vote. |
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Organization may sue on behalf of members, IF:
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(a) Members would have standing to sue,
(b) Interests are germane to organization's purpose, AND (c) Neither claim nor relief requires participation of individual members |
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Describe a parter's interest in the partnership property
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Each partner owns an interest in specific pship property, such as the pship's bank accout. but each partner holds this interest as a tenant in partnership with all other partners. No partner may possess partnership property for other than the partnership purposes wo the consent of all the other partners. A partner's interest as a tenant in partnership is nontransferable.
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A partner gets a share of 3 interests. what are they?
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income(transferable), management(nontransferable), partnership property(nontransferable)
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General rule regarding a partner suing the partnership
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CANNOT be done.l sole remedy is an action for an accounting.
EXCEPTION: disputes over one fully completed, but unadjusted transaction. No complex accounting is necessary here to adjust the rights of the parties. Shows up when the Pship dealt with a now partner as though he were a third person(like bc he was not in the pship at the time). so that partner may sue pship there and collect judgment from pship and such partners as he serves personally. |
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suing a partnership
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A third party can sue the partnership entity or the partners individually. Can collect the full amount due from any partner whom is served personally or the entity(which I presume would call upon individual partners to pay as needed)
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Promoters fiduciary duties
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Promoters owe fiduciary duties to the C to be formed and to any contemplated outside investors. SO promosters must account to the C for profits from self-dealing before outsiders come in if sale to outsiders was contemplated, unless outsiders had notice of these profits. secret profit doctrine. look for notice of the outside investors!
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compensating promoters
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Stock may be issued as consideration for labor or services perfomred for the corporation, including forming the corporation. In absence of fraud in the xaction, the jdugement of the board or Shs as to the value of the consideration received for shares is conclusive.
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Can a nonwitness for the defendant raise a witness's immunity or violation of a W's constitutional rights as ground for suppression of testimony?
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To have standing, the claimnat must have suffered or must presently suffer a direct impairment of his own const rights. So the fruit of the poisonous tree doctrine doesn't afford people any ground for suppression unless the rights violated were personal to him(?)
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Can A D withddraw a plea upon learning that the prosecutor witheld favorable E from the D
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A D is not denied due process when the prosecutor fails to disclose during plea negotiations that he has received info that the principal W died.
Note that the supression by the prosecution of E favorable to an accused who has requested it violates due process where the E is material either to guilt or to punishment, irrespective of the GF or BF of the prosecution. |
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Can a person in NY be convicted based upon his admission along?
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NO. need additional proof that the offense was actually committed per the NYCPL.
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Lis pendens
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To be appropriate, the claim upon which it is based must affect title or possession to real property. Title is affected only where a successful suit by the P will create a lien or encumbrance upon the title. Examples in which it may be used are specific performance actions, mortgage foreclosures and actions to enforce a vendees' lien.
Can be filed before suit but service of suit must be accomplished wi 30 days of filing or the notice of pendency is VOID> Upon motion, the ct must cancel it when service has not been made wi this period. doesn't matter if its a foreclosure action for this! |
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Equitable mortgage?....
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deed conveying real property will be construed as a legal mortgage if there is any other written instrument whic makes it appear that thte deed was intended to create a mortgage
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Hospital records and HS
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Only entries related to diagnosis and treatment of the patient are considered to be wi the hospitals biz.
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Is a certified transcript of an acquittal from criminal charges admissible in a civil action arising from the same xaction as the criminal action?
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Transcript is generally admissible under HS exception for HS records. NEvertheless, a record of an acquittal is admissible bc a much stricter standard is used in criminal cases than in civil cases. so not relevant in the civil case
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2-207
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B/w merchants for a sale of goods, an acceptance can be expressed to an offer despite the fact that it contains terms different from those in the offer, unless acceptance is expressly made conditional on assent to the different terms. additional terms become part of the K unless: 1. the offer expressly limits acceptance to its terms 2. the additional terms materially alter the k or 3. objection has already been given or is given wi a reasonable time
warranty disclamer is NOT a material alteration if included on a form approved by the industry. |
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reasonable grounds for insecurity give rise to
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right to demand in writing adequate assurance of due performance. after receipt of this demand, the other party must provide adequate assurances wi 30 days. However, this time limit is not relevant where the aggrieved party has not canceled, materially changed his position, or ow considered the repudiation to be final. insted, the questioned party may retract the repudiation before performance is dues, if he makes known his intention to that effect and includes assurances. IOW, tendering a certified check after the 30 day deadline retracts the repudiation caused by not giving assurances
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Whether a party to a k with a particular individual has any rights against a thrid paryt who, in a second unrelated action with that individual, promised to make the individual a loan, but failed to do so
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only if there was a surety agreement, if he was a TPB to the other K, or if he held a negotiable instrument
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Surety agreement
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involves 3 parties: creditor, debtor, and surety. For there to have been a surety arrangement, the creditor must have extended credit to the debtor in consideration of the surety's promise.
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What are the major warranties?
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In a sale by a merchant who deals in gods of the kind sold, there is an implied warranty of merchantibaility. AKA fit for the purposes for which ordinarily used.
implied warranty of fitness for a particular purpose exists when a seller, merchant or not, has reason to know the particular purpose for which the goods are to be used and that the buyer is relying upon the seller's skill and judgment to select suitable goods. can also be express warranties made by promises/statements |
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How to disclaim a warranty
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All implied warranties may be discliamed in one of 3 ways: 1. by a conspicuous writing included in the K stating that the product is taken AS IS, "with all faults" or any other plain language indicating to the buyer that the seller is disclaiming his warranties (if no 'as is' langugage, gotta mention merchantability if disclaiming that one) 2. by inspection or refusing to inspect prior to the making of the K, in which case there is no implied warranty as to defects that would have been revelaed by a reasonable exam and 3. by course of dealing, course of performance or usage of trade
express warranties are extremely difficult to disclaim |
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K rights are assignable unless...
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there is a restriction in making such assignment. Restrictions on assignments include assignments prohibited by law or k terms, assingments of personal services Ks, or assignments that vary the obligor's risk.
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Case and controversy req
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standing, ripeness, mootness, no Poli Qs
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constitutional law standing
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injury has been or imminently will be incurred. direct and personal injury, economic loss is especially good. For injunctive/declaratory relief, must show likelihood of future harm
causation and redressability no 3rd party rship. exceptions for close relationships, if injured party can't assert own rights, and organizations no generalized grievances |
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Explain the no generalized grievances rule wrt standing in con law
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no standinb based solely on status as citizen or taxpayer interest in having gov follow low. grievance not generalize merely bc lots of people have a claim though
EXCEPTION: taxpayers have standing to challege gov expenditures as violating establishment clause BUT CANNOT stop grants of surplus property(only grants of $$-claim must be tied to spending power) |
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Poli Qs
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(1) Challenges based on "Republican Form of Government" clause
(2) Challenges to President's conduct of foreign policy (3) Challenges to impeachment and removal process (4) Challenges to partisan gerrymandering |
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Original and exclusive SCOTUS J
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suits b/w state govs
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mandatory SCOTUS review
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from fed ct 3 judge panels
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SCOTUS final judgment rule
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Sup. Ct. may hear cases only after final judgment of highest state court, federal court of appeals or three-judge federal district court (i.e., no interlocutory review)
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d) Adequate and Independent State Grounds
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—Sup. Ct. will NOT review state court decision if based on "adequate and independent" state law grounds
(1) Adequate if fully dispositive of case (i.e., if state and federal issues exist, Sup. Ct. will NOT hear case if reversal of federal grounds will not change the result) (2) Independent if decision is not based on federal case interpretations of identical federal provisions (3) state cts have finals say on purely state law matters |
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exceptions to state sovereignty
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i. waiver is permitted
ii. States maybe sued pursuant to fed laws adopted under §5 of the 14th amend. Congress cannot authorize suits against states under other const provisions iii. Fed gov may sue state govs |
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President along appoints...
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ambassadors, federal judges and federal officers, BUT subject to Senate confirmation
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b) Congress may VEST APPOINTMENT OF INFERIOR(can be fired by regular officers) officers
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in the President, heads of departments or the lower fed cts.
(1) BUT CANNOT give appointment power to itself or its officers—FREQUENT |
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Intergovernmental immunity - can states regulate fed gov?
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c) States CANNOT regulate or directly tax federal government activity(inter-governmental immunity)
(1) BUT, nondiscriminatory, indirect taxes are okay if they do not unreasonably burden federal government (e.g., state income tax on federal employees) (2) fed gov NEVER has to comply with state pollution control laws |
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14th amendment P & I clause
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(1) Principle—States may not deny their citizens the privileges or immunities of national citizenship
(2) Generally applies only to right to interstate travel (incredibly narrow interpretation) (3) Exam Tip—ALWAYS wrong answer, unless it applies to interstate travel |
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dormant CC discrimination(not mere burdening) std
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If law burdens interstate commerce, law is unconstitutional UNLESS it is necessary to achieve an important government purpose (i.e., state must prove no less discriminatory alternative)—difficult to prove.
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Aiv P&I clause
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If law discriminates against nonresidents with regard to their ability to earn a livelihood (or civil liberties), it violates Privileges and Immunities Clause of Article IV UNLESS it is necessary to achieve an important government purpose
no less discriminatory alt applies |
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Are there exceptions to the Aiv P&I clause
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NO! No market exception or congressional auth exception unlike with DCC
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How can const stds apply to private sector?
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13th amend(prohibit race discrim), commerce power, NOT section of 14th(only deals with regulating state govs), public function exception, entanglement exception
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Section 5 of the 14th
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Applies to state governments. Allows fed governments, per the courts' interpretations, to enact laws directly regulating the states but not private citizens. abrogates state immunity a bit.
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examples of entanglement and non-entanglement
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(1) Examples of Entanglement (i.e., sufficient state action)
(a) Courts cannot enforce racially restrictive covenants (b) G cannot lease premises to restaurant that racially discriminates (c) G cannot give free books to private schools that racially discriminate (d) Private entity regulates interscholastic sports for state (2) Examples of No Entanglement (i.e., insufficient state action) (a) 99% Government-subsidized private school fired teacher for free speech (b) NCAA ordered suspension of basketball coach at state university(diff than (d) bc was for all country, weak distinction) NCAA is private! (c) Private club holding state liquor license racially discriminates |
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Amendments not applying to the states under the 14th
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(1) 2nd Amend right to bear arms—states can adopt any gun control laws they want
(*) 3rd amendment right to not have soldiers quartered in a person’s home (2) 5th Amend right to grand jury indictment—states need not use grand juries (3) 7th Amend right to jury trial in civil cases—not applicable to states (4) 8th Amendment right against excessive fines, but c/u punishment DOES appy to states |
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deprivation of liberty under procedural due process
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loss of a significant freedom secured by Constitution or statute (harm to reputation alone not sufficient)
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deprivation of property under procedural due process
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an entitlement (reasonable expectation of continued receipt of benefit) not fulfilled
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Procedural due process applies to what kind of gov actions
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ONLY intentional or reckless deprivation of rights, NOT negligent. In emergency, gov liable only if action shocks conscience.
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takings and conditions on property development
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the benefit from the condition must be roughtly proportionate to the burden imposed, ow constitutes a taking
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Contracts clause
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Applies only to state interference with existing Ks. Does not apply to fed gov nor does it limit ability to regulate future Ks. INTERMEDIATE/RATIONAL hybrid scrutiny if a law substantially impairs party's rights under existing K, law must be reasonably and narrowly tailored to promote and important and legitimate public interest.
Strict scrutiny with government contracts. |
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retroactive civil liability and the ex post facto clause
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need only meet rational basis test.
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Fundamental right to privacy under due process
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strict scrutiny
(1) Right to marry (2) Right to procreate (3) Right to custody of children (a) Note—State may create irrebuttable presumption that H is father of child (4) Right to control upbringing of children (i.e., can keep grandparents away) (5) Right to keep family together (a) Includes extended family, but must actually be related (6) Right to purchase and use contraceptives (7) Right to refuse medical treatment – scrutiny level unknown (a) Competent adults have right to refuse, even if life-saving (b) State may require clear and convincing evidence that person wanted treatment terminated before terminating (c) State may prevent family members from terminating treatment for another c) Rights NOT Protected—rational basis applies (1) Physician-assisted suicide—no constitutional right d) Homosexual activity (even if consensual and in own bedroom) –scrutiny level unknown |
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abortion
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Protected under fundamental privacy of due process.
—"undue burden" test applies (1) Prior to Viability (a) States may not prohibit abortions (b) BUT, may regulate so long as they do no create an undue burden on ability to obtain abortions (c) Examples (i) 24-hour waiting period—okay (not an undue burden) (ii) Performed only by licensed physicians—okay (not an undue burden) (iii) Prohibition of "partial birth abortions"—NOT an undue burden (2) After Viability—States may prohibit abortions, UNLESS necessary to protect life or health of woman (3) Government has no duty to subsidize or perform in public hospitals—FAVORITE (4) Consent/Notification Laws— (a) Spousal consent/notification—not required (unconstitutional to require) (b) Parental consent/notification—State may require for unmarried minors, so long as it provides bypass procedure (i.e., minor can go before judge who can approve by finding in best interest or mature enough to decide for herself) |
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Equal Protection scrutiny levels
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Travel(except foreign), Alienage, voting, race, national origin(TAVRN) - strict
gender, undocumented alien children, illegitimate children(GUI) - intermediate Congressional regulation of aliens, alienage(self-gov/democratic process), wealth, economic regs, age, disability/handicap, sexual orientation(CA WEADS) - rational basis |
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(1) Government can require license for speech ONLY if:
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(a) Important reason for licensing,
(b) Clear criteria leaving almost no discretion to licensing authority, AND (c) Appropriate procedural safeguards (e.g., prompt determination of requests and opportunity for judicial review if denied) |
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liability of media & free speech
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b) Liability is not allowed if the media broadcasts a tape of an illegally intercepted call if the media did not participate in the illegality and it involves a matter of public importance
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regulation of speech in public forums
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Forums (e.g., sidewalks, parks, other places government holds open for speech)
a) Must be made available for free speech b) Regulations must be subject matter and viewpoint neutral. If not SS must be met c) Regulations must be a time, place or manner regulation that serves an important governmental purpose and leaves open adequate alternative for communication (1) Need not necessarily use least restrictive alternative (BUT still must be narrowly tailored)—FAVORITE (KINDA LIKE INTERMEDIATE) d) City officials cannot have discretion to set permit fees for public demonstrations |
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regulation of speech in non-public forums
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gov properties that gov constitutionally can and does close to speech.
a) Regulations must be viewpoint neutral (need not be subject matter neutral) and reasonably related to legitimate government purpose—rational basis b) Examples (1) Military bases (2) Areas outside of prisons and jails (3) Ad space on city buses (4) Sidewalks on post office property—FAVORITE (5) Airports (can prohibit solicitation of $$, but cannot prohibit distribution of literature) (6) Candidate debates sponsored by government-owned stations |
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to punish person affiliating with group must show
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(1) Actively affiliated with group,
(2) Knowing of its illegal activities, AND (3) With specific intent of furthering those illegal activities |
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Laws that require disclosure of group membership, where such disclosure would chill association
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subject to strict scrutiny
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3. Laws that prohibit group from discriminating are generally upheld, UNLESS
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they interfere with intimate association or expressive activity
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Offers to sell real estate
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MUST contain price under CL
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price quotations
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generally NOT an offer, UNLESS in response to specific inquiry
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(b) Merchant's Firm Offer under A2
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Irrevocable for up to three months(cut down to 3 if u attempt longer period), IF:
(i) K for sale of goods, (ii) Signed, written promise to keep offer open for certain period(reasonable time but not more than 3 months if no time stated), AND |
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(2) Accommodation Exception
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(a) Seller sends wrong goods, along with an explanatory memo saying its accommodation. Basically a counteroffer
(b) Buyer may: (i) Accept shipment and pay list price, OR (ii) Reject shipment (with no other remedy) |
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SOF requirements in lease of goods
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(2) Lease of goods: writing must state it’s a lease, include # of items leased, term and rental payments, and be signed by defendant.
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exceptions to SOF requirements
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Real Estate: part performance
(a)- get 2 of these 3: 1. some payment 2. possession 3. permanent improvements (2) one year service prong: full performance eliminates need for writing. Still have to prove oral agreement though. partial perf insufficient but can recover in quasi-k. (3) sale of goods: (a) goods the buyer accepted or paid for(but not the rest of goods). if goods have not been accepted yet, still need writing to sue on those. (b) Custom-made goods not suitable for sale to others- if item is not suitable for sale to someone else in ordinary COB(and the seller, before notice of repudiation is rec’d and under circs reasonably indicating that the goods are for the buyer, has made either a subst beginning of their manufacture or commitments for their procurement), no writing required. (c) Judicial admission in a pleading, in testimony or in response to discovery (d) Merchant’s confirmatory memo: a merchant can use its own writing to satisfy the SOF against the other party to the K if: 1. both parties are merchants 2. the writing claims there is a prior oral agreement; and 3. the recipient doesn’t object in writing wi 10 days. PP in allowing two merchants to agree over phone and follow up with written confirmation. |
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rules hierarchy for risk of loss
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b) Rules hierarchy
(1) Agreement—agreement of parties controls (2) Breach—breaching party liable for uninsured loss (any breach, even if unrelated to problem) (3) Delivery by Common Carrier—risk of loss shifts from seller to buyer at time seller completes its delivery obligations (see above) (4) If none of above(buyer will pick up for seller will deliver)—determining factor is whether seller is a merchant (a) If seller is a merchant—risk of loss shifts upon buyers taking possession of the goods (b) If seller is not a merchant—risk of loss shifts upon tender(makes em available) c) If a k gives the buyer the right to return the goods, the key is whether the buyer is buying primarily for resale or for his own use (1) Primarily for resale(sale or return): same rules apply as noted in the 4 rules hierarchy (2) For buyer’s own use(sale on approval): risk of loss remains on seller until buyer has accepted the goods(So none of the above rules apply here?) |
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) Article 2A Warranties on Leases (NY ESSAY)
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(1) Gen. Rule—Lessor of personal property makes same warranties as seller (i.e., express, merchantability and fitness)
(2) Finance Lease—Warranties made by supplier to lessor-bank are enforceable by lessee against supplier (but not against lessor-bank) |
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3. Reclamation Under A2
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—Unpaid seller has right to get its goods delivered to B back IF (three elements):
a) B was insolvent at time goods are received, b) S demands return of goods w/i 10 days of receipt by B, AND (1) Seller has right to reclaim at any time if buyer misrepresented its solvency to seller in writing wi 3 months before delivery c) B still has goods at time of demand(no right to reclaim goods transferred to 3rd party) |
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When there is a products liability question
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analyze using both negligence and SL approaches.
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key elements of a strict liability products liability claim
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1. D is a merchant
2. There is either a manufacturing(so defective as to be unreasonably dangerous) or design(when there is another way to build product and alternative design would be 1. safer, 2. cost neutral AND 3. practical) defect 3. Item hasn't changed since it left Ds hands 3. item being used in foreseeable way though not necessarily the intended way All of above = duty/breach of Also need but for & proximate causation and damages!!!!! |
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NIED in NY
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Generally ther eis a duty to avoid causing emotional distress to another, and this duty is breached when D creates a foreseeable risk of injury to the P through physical impact or threat thereof and the P suffers a physical injury from the distress. In NY, recovery is limited to a P who is an immediate family member, exposed to immediate harm, who suffers physical injury. NOTE: most cts do not require that the P actually be subjected to physical impact in order to recover, but P must have been wi the target zone or zone of danger of physcial injury from the Ds negligent conduct
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type of contrib/comparative negligence in NY
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NY is a pure comparative negligence state, in which each party is liable for the damage caused by his conduct, and a P may recover even if his conduct is more culpable that the Ds
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Assumption of risk in NY
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Generally a P may be denied recovery if he assumed the risk of any damage caused by the Ds act. The P must have 1. known of the risk and 2. voluntarily proceeded in the face of the risk. This IS NOT an absolute bar to recovery and falls wi the doctrine of comparative neg to reduce any damage award
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retailers liability with products
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can be strictly liable even if they didn't have an opportunity to inspect
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with all torts/ks questions
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LOOK AT ALL RELATIONSHIPS AND POSSIBLE CLAIMS IN EVERY PERMUTATION!
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What happens when P sues D1 & D2, and settles with D1 but there exists an indemnity cross claim by D1 against D2
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Case continues because the indemnity claim, unlike a contribution claim, would not be extinguished.
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Oral employment agreements are..
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terminable at will
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Is a perpetual contract enforceable without a writing?
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IN NY, a K, which by its terms continues indefintiely into the future and which cannot be terminated unless there is sa breach, must be in writing to be enforceable.
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sale or return K definition
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Under UCC, where delivered goods may be returned by the buyer evne though they conform to the K, the xaction is a sale or return K if the goods are delivered PRIMARILY for resale
a sale or return K is treated as an ordinary sale in regards to risk of loss, ie the risk of loss passes to the buyer after it takes delivery. If the goods are returned to the seller, the risk remains on the buyer while the goods are in transit. |
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proximate cause in negligence and superseding intervning causes
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If superseding intervening forces exist, the Ds conduct is not deemed the proximate cause of the Ps injury. gotta be really unforseen though(not in one of those 4 exceptions)
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republishing of defamatory works and the mental state of the republisher
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In NY, the republisher of a work may rely on the research of the original publisher, absent proof that the republisher had, or should have had, substantial reasons to question either the accuracy of the article or the good faith of the reporter. so if there were reasons, maybe malice existed
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If a C is strictly liable for a defective product, who is it liable to?
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ALL forseeable users. No privity of K requirement
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Whether the fact that one is attornye, executor and attesting W defeats the will or interferes with its admission to probatew
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Under the EPTL, there is no rule that prohibits the same person from acting as both atty and W of a will. Plus that the person is the atty, executor and W of a will will not affect the probate of the will. In NY, an attesting W who is also named as executor is a competent W to the wills' execution
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Does the term "beneficial disposition or appointment" apply to appointmnet as an executor?
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NO. applies to beneficial dispositions and appointments that bestow a financial benefits. Appointment as an executor is not considered a beneficial disposition, as the executor earns his commissions.
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By statute, if an atty drafts a will that names the atty as executor, he must disclose to the clt that ....
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1. any person, not just an atty, can be named executor 2. executors are entitled to statutory commisisons andf 3. the atty also will be entitled to atty's fees for any legal services redered to the estate. Clt must sign a written acknowledgment of the disclosure. Absent compliance w the statute, the ocmmision of an atty who serves as executor shall be one half of the statutory commission
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Diff b/w wrongful death and survival actions in terms of what distributees recover and how they recover
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wrongful death- recovery is based on pecuniary loss by the distributees for whose benefit the action has been brought, and any damages recovered are not included as part of the decedent's estate. The amount of recovery should be based on loss of support, medical and funeral expenses, voluntary assistance, and the possibility of the diminishment of an inheritance due to the premature death. The proceeds are distributed proportionately, BASED ON THE PECUNIARY LOSS TO THE BENEFICIARIES
Survival- damages recovered for the pain and suffering of decedent. divided per the will/intestacy |
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How do you revoke a will or part thereof
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physical destruction for WHOLE will
another will(implied revoc), writing of the testatory clearly indicating an intention to effect the revocation, or by an alteration executed with the formalities(codicil) |
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requirements for effective disclaiming
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1. file an irrevocable renunciation 2. which is notarized 3. wi 9 months of the death of T. Plus must file a separate affidavit that you received no consideration for the renunciation
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Any testamentarly limitation on gifts to charity?
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no, long abolished
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