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173 Cards in this Set
- Front
- Back
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Delegation + assumption of duty & delegatee's liability
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When contractual duties are delegated, the delegator remains liable on the K even if the delegatee assumes the duties. The liability of the delegatee turns on whether there has been a mere delegation or delegation plus an “assumption of duty.” If delegation plus assumption of duty, then the non-delegating party can sue for non-performance.
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Executory K and one party repudiates
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If a K is executory on both sides and one party has unequivocally notifies the other party that he will not perform when his duty is due, the nonrepudiating party has the option of treating the repudiation as an immediate and total breach and suing for damages. Although the repudiator can retract the repudiation, this must be dome before the nonrepudiating party relies on the repudiation.
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construction K and builder breaches
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In construction contract cases where the builder breaches, the proper measure of damages is the difference between the cost of obtaining substitute performance (i.e. the cost of completion) and the K price. Where owner agrees with someone else to complete work and signs a K with him, and the actual work costs more, breacher is only liable for the difference between the first and second K because owner has a duty to mitigate damages and paying more than he was actually obligated to pay breaches the duty to mitigate.
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RE K and buyer dies after K of sale entered into
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If a buyer dies after the K for sale was entered into but before it has been completed, his heirs or devisees can demand a conveyance of the land at the closing.
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offers calling for prompt acceptance v. firm offers
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If an offer calls for prompt acceptance it is not a firm offer. Firm offers must be kept open for a reasonable time, not to exceed three months. But if it calls for prompt acceptance, then it’s not a firm offer and must be accepted within a reasonable time.
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delegation and expectancy
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A contractual duty may not be delegated if performance by the delagatee will materially change the obligee’s expectancy under the contract.
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liquidated damages clause
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A liquidated damages clause will be enforced only if 1. damages in case of breach were difficult to ascertain at the time the contract was made and 2. the amount agreed upon was a reasonable approximation of what the damages would be. If it’s unreasonable, plaintiff can only collect actual damages.
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implied in fact K
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An implied in fact contract is a contract formed by manifestations of assent other than oral or written language, i.e. by conduct. Even if there is no subjective meeting of the minds, the parties will be bound if their conduct objectively appears to manifest a contractual intent. Where an offeree silently takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation, the offeree’s inaction may constitute an acceptance.
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impossibility of performance
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Impossibility of performance: impossibility must be “objective”; i.e., the duties could not be performed by anyone.
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condition precedent v. promise
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Condition precedent v. promise: A condition is the occurrence of an event that will create, limit, or extinguish the absolute duty to perform.
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unilateral mistake
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Unilateral Mistake: in most cases, does not prevent the formation of a contract. Only mutual mistake going to the heart of the bargain may prevent the formation of a contract.
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rescission
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Rescission of a contract is available when one party is mistaken about material facts relating to a contract, the mistake adversely affects that party, and the other party knows of the mistake.
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damages where builder breaches construction K
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Cost of completion minus installments is the correct measure of damages if facts say that breach of a construction K by builder during construction. If builder breaches after partially performing, the owner of land is entitled to the cost of completion plus reasonable compensation for any delay in performance. Courts generally allow the builder to offset or recover for work performed to date to avoid the unjust enrichment of the owner. So unpaid installments should be deducted.
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physical incapacity and impossibility of performance
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Discharge of contractual duties by impossibility must be objective, i.e., the duties could not be performed by anyone. Generally, physical incapacity of a person necessary to effectuate the contract only excuses performance where the services are deemed “unique.” Sickness does not constitute objective impossibility if duties are delegable, and failure to deliver will not be excused.
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moral consideration
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Modernly, courts will enforce promises made for “moral” consideration (e.g., promises based on consideration already received) to the extent of benefit received.
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payment conditioned on 3rd person approval
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Where a K specifies that performance (usually payment) is conditioned upon the satisfaction of a 3rd person, and a dispute arises over whether that 3rd person properly withheld her “satisfaction,” the test applied is a purely subjective one; that is, it is proper for the 3rd person to withhold approval if she is honestly dissatisfied with the work, even if others in her field or other reasonable persons in her circumstances would have approved the work.
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requirements Ks & disproportionate demand
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Requirements contracts: if a demand is disproportionate, the supplier can give a 10% increase based on previous demands.
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consideration in requirements Ks
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Each party to a requirements contract promises in good faith to buy or sell whatever amount is actually called for by the circumstances, and these mutual promises provide the consideration which makes the contract enforceable.
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assignee of requirements K
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An assignee of a requirements contract can demand as much as the assignor could have reasonably required had it not assigned, including increasing the demand if it is a demand in good faith, reasonable growth, and expansion.
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assignments & novation
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Where, following an assignment, the involved parties (especially the original party not involved in the assignment) agree that the assignee shall be substituted in the original K for the assignor, a novation has been formed.
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warrantless school searches
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NJ v. Tiello: the USSC upheld warrantless school searches by school authorities as long as there is a RS that a criminal law or school regulation has been violated. The police can’t be the ones to provide the info to the school official and be present when the search is conducted otherwise they will be considered an agent of the police and then police would first have to obtain a search warrant to search the personal belonging of the student.
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accomplice liability
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For accomplice liability, a person must have given aid, counsel, or encouragement with the intent that an offense be committed or, in some cases, with knowledge that he was contributing to the commission of a crime.
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mistake of fact and murder
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Murder requires a killing of a human being with malice aforethought. Ignorance or mistake as to a matter of fact (the substance you injected someone with is not deadly and you thought it was but it kills them anyway) will affect criminal guilt only if defendant did not have the state of mind required for the crime.
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PC to arrest and improperly arrest defendant in home w/o warrant & confession at police station
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While the exclusionary rule generally provides that evidence obtained or derived from exploitation of illegally obtained evidence must be excluded, the USSC has held that where the police have PC to arrest a defendant and improperly arrest him in his home without a warrant, a confession made by the defendant at the police station is admissible because it is not the fruit of the unlawful arrest, since according to NY v. Harris, the police could have lawfully arrested the defendant the moment he stepped outside of the house.
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Voluntary Intoxication and Malice Crimes
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VI is not a defense to crimes requiring malice, including murder based on malice aforethought. Malice aforethought includes acting with reckless indifference to an unjustifiably high risk to human life (i.e., an abandoned malignant heart).
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Manslaughter & Felony Murder
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Manslaughter will not serve as the underlying felony in a F-M prosecution. The felony murder rule can be applied only where the underlying felony is independent of the killing. With a felony such as manslaughter, there is ordinarily no intent to commit a felony independent of the killing itself, hence, felony murder does not apply.
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Testimony obtained by promise of immunity
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Testimony obtained by a promise of immunity is by definition coerced and therefore involuntary. Thus, immunized testimony may not be used for impeachment of the defendant’s testimony at trial.
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attempt to violate strict liability crime
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Attempt to violate a strict liability crime requires proof that the defendant acted with the intent to bring about the proscribed result.
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arson - common law
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Arson at common law consists of the malicious burning of the dwelling of another. All that malice requires is that defendant have acted with the intent or knowledge that the structure would burn, or with reckless disregard of an obvious risk that the structure would burn. If defendant causes the fire, he has a duty to take reasonable steps to try to prevent it from spreading. Failure to do anything when the fire was small enough to put out would suffice as reckless disregard of an obvious risk that the building would burn. Especially where it does, in fact, burn.
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Malice
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Malice has 4 alternative positive component elements: 1. intent to kill 2. intent to seriously injure 3. wanton and willful misconduct and 4. the felony-murder rule. If one of these is applicable, and none of the negative component elements are present (justification, excuse, or mitigation), then malice is present and the homicide is murder.
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choice of law & federal substantive matter
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IF the matter is about federal substantive law – like criminal cases brought by the US & private federal question cases, federal privilege law applies.
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documents & attorney client privilege
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Documents are not within the purview of the A-C privilege all because a client gave it to his attorney.
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confidential marital communications & crime or fraud
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Confidential marital communications privilege is inapplicable if the confidential communication is made to aid the commission or planning of a crime or fraud.
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pre-existing business records & self-incrimination
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The government may generally obtain pre-existing business records that were voluntarily prepared by or for the owner and this does not violate the privilege against self-incrimination.
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who can attack a witness' credibility?
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The credibility of a witness may be attacked by any party, including the party calling the witness
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Witness & crime of dishonesty or false statement
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The credibility of a witness may be attacked on cross-examination by evidence of his or her conviction of a crime if the crime involved dishonesty or false statements, whether the crime was a felony or a misdemeanor.
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prior consistent statement
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A prior consistent statement may be admitted when offered to rebut an express or implied charge of recent fabrication or improper influence or motive.
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statements admitting liability made in conjuction with offer to settle claim
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Statements admitting liability made in conjunction with an offer to settle a claim (also called an offer to compromise) are inadmissible as an admission made in connection with settlement negotiations.
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radio communication
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Radio communication: the listener need not be familiar with the voice of the speaker if there is self-identification plus circumstances of the transmission that sufficiently corroborate the self-identification.
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impeaching a witness w/ prior inconsistent statement
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For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. This may be done by first cross-examining the witness as to the prior inconsistent statement that he has made. If the witness denies having made the statement or fails to remember it, the making of the statement MAY be proved by extrinsic evidence. A proper foundation must be laid by giving the witness an opportunity to explain or deny the statement, and it must be relevant to some issue in the case.
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admissibility of prior inconsistent statment & exception to hearsay
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Prior inconsistent statements are generally hearsay, so they are often admissible only for the purposes of impeachment. However, it can be admissible as substantive evidence if it falls within an exception to the hearsay rule. Under Rule 803(3), a statement of a declarant’s then existing state of mind is admissible as a basis for a circumstantial inference that the declarant acted in accordance with his state of mind.
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family records
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A bible listing is admissible as a family record. FRE 803(1) provides a specific exception to the hearsay rule allowing admission of family records, such as family bibles, genealogies, engravings, etc.
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rule against impeachment on a collateral matter
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Where a witness makes a statement not directly relevant to the issues in the case, the rule against impeachment on a collateral matter applies to bar the other side from proving the statement untrue by extrinsic evidence or by a prior inconsistent statement.
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prior i.d. by a witness
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Prior identification by a witness: a statement of prior identification by the witness of another person is nonhearsay.
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opinion evidence
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If character evidence is allowed, opinion evidence is a proper form under FRE 405(a)
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character evidence
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In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On XEX, inquiry is allowable into relevant specific instances of conduct.
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habit & character evidence
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Rules of character evidence don’t apply when dealing with habit.
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evidence of the same type as the crime charged
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When the evidence is of the same type of crime as that charged, the prejudicial effect usually outweighs the probative value, and the other crimes evidence is excluded under FRE 403. Even if it’s a MIMIC reason.
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inter vivos transfer of property
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Inter vivos transfer of property: there must be a valid deed to subject property delivered to the grantee, who must accept it. A valid deed must contain the grantor’s signature, must evidence a present intent to transfer an interest in land, and must adequately describe the property being transferred.
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ouster
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Ouster: a co-tenant not in possession is ousted when the co-tenant in possession refuses a demand to share possession, attempts to convey sole ownership of the property to a third person (with notice to the other co-tenant), or otherwise asserts a “hostile” claim to sole ownership (with notice of the other co-tenant).
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doctine of part performance
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Although an agreement to transfer an interest in real property is required by the SOF to be evidenced by a writing, the doctrine of part performance provides that, in certain circumstances, acts by the grantee in an oral conveyance will substitute for the writing required by the SOF. Some jurisdictions say that the doctrine of part performance kicks in where there’s: payment of all or part of the purchase price, taking possession of the land, and the making of improvements on the land.
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doctrine of part performance 2
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Other jurisdictions use the doctrine to apply to situations where the purchaser of land under an oral K has been led by the seller’s representation (that there is a binding agreement) to change his circumstances for the worse (paying money, expending time and effort on improvements), the seller should not be permitted to rely on the SOF to prevent enforcement of the agreement.
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doctrine of merger
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Doctrine of Merger: any covenants relating to title contained in a contract of sale of real property “merge” with and are superseded by the covenants of title contained in the deed. The nature of the deed, rather than any express or implied promises in the K, controls the grantee’s rights and remedies against the grantor for defects in title which come to the grantee’s attention after the deed has been delivered and accepted.
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encumbrances that exist at the time K for sale of land is entered into
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When a K for the sale of land specifies that the land is to be conveyed “subject to easements, covenants, and restrictions of record,” unless there is a contrary provision, it is reasonable to imply that the parties are referring to such encumbrances as exist at the time the K is entered into. Any new encumbrances made after the K had been formed render the title unmarketable.
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time is of the essence
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Where a K fails to state that time is of the essence, one party may notify the other that timely performance will be demanded, but that notice must be given within a reasonable time prior to the K date or must set a new, later date for performance. Almost 2 months notice seems to be a sufficient notice period.
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equitable conversion
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The doctrine of equitable conversion also characterizes the various property interests of the parties to the K. Since the purchaser is treated as the owner of the land, the seller is treated as the owner of the proceeds of the sale. Where the seller dies before closing, equitable conversion thus characterizes the seller’s interest as personal property. When purchaser dies after formation but before closing, the doctrine of equitable conversion treats her interest as realty, which passes to her heirs or devisees. Said heirs or devisees are consequently entitled to compel the vendor to proceed with the transaction, via a judgment for specific performance if necessary.
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direct restraint of alienation of a fee
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A direct restraint on alienation of a fee, if limited to only one person, may not be subject to the general rule that restraints on alienation are void as applied to fee interests. It will be void under the rule if facts support the conclusion that the promise was intended to run with the land to bind remote grantees. One can seek contract damages but such a promise to never convey to a certain person does not affect the validity of a conveyance.
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when a T in possession continues in possession - L's options
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When a tenant continues in possession after the termination of her right to possession, the landlord has two choices: he may treat the hold-over tenant as a trespasser and evict her under an unlawful detainer statute, or he may, in his sole discretion, bind the tenant to a new periodic tenancy, in which case the terms and conditions of the expired tenancy apply to the new tenancy.
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When a leasehold interest is assigned
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When a leasehold interest is assigned, the assignor and the landlord are no longer in privity of estate; the assignee is now in privity of estate with the landlord. Hence, each is liable to the other on all covenants in the lease that “run with the land.” While the original tenant is no longer in privity of estate with the landlord after assignment, the tenant can still be held liable on its original contractual obligations in the lease, i.e. privity of contract. This allows the landlord to sue the original tenant where the assignee has disappeared, is judgment-proof, etc.
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A L's assignment of rents and reversion interest
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A landlord’s assignment of the rents and reversion interest, such as through a sale of the property, is subject to the same rules as a tenant’s assignment of the leasehold interest. The assignee is liable to the tenants for performance of all covenants made by the original landlord in the lease provided, that those covenants touch and concern the land. The burden of those covenants run with the landlord’s estate and become the burdens of the new landlord. The original landlord also remains liable (on privity of contract grounds) on all covenants that he made in the lease.
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Covenants in a lease
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Generally, covenants in a lease are independent of each other. Thus, if one party breaches a covenant, the other party can recover damages, but must still perform his promises under the lease.
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AP & marketable title
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If seller attempts to rely on adverse possession to show that defects have been cleared, courts traditionally do not favor such an argument, because proof of adverse possession normally rests on oral evidence, which might not be available to the buyer at a later time.
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foreclosure sale & mortgages
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A foreclosure sale wipes out all junior mortgages (those that came later in time than the mortgage that was foreclosed) but does not wipe out senior mortgages (those that came earlier).
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Marketable title
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Marketable title is one that is free from reasonable doubt in fact or in law.
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co-tenant in possession
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A cotenant in possession may exercise sole control over a parcel so long as he does not attempt to transfer any interest in the property which belongs to another co-tenant, or otherwise engage in any act “tortuous” with regard to the other cotenant. It is settled that establishing a boundary by agreement does not involve any transfer of interest in land, and there is no other reason to regard such an agreement by a content in possession as tortuous.
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Members of the clergy & public office
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Members of the clergy may hold public office without violating the establishment clause.
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A3 & Appellate jurisdiction of the USSC
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A3, Congress has the power to limit the appellate jurisdiction of USSC. Congress may expand or restrict the number and types of lower court decisions which the USSC may hear. Congress can’t preclude the USSC from reviewing, on appeal, a statute where individual constitutional rights are at issue or wholesale denial of USSC appellate review.
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Advisory Opinions
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Advisory Opinons: a federal statute can’t grant a federal court the power to render an advisory opinion because A3 § 2 limits the jurisdiction of the federal court to actual “cases and controversies”
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Gov't salary supplement to religious school teachers
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Lemon v. Kurtzman: A government salary supplement to religious school teachers would require excessive government monitoring to ensure that the funds were not used to advance religion. The Establishment Clause of the 1st Amendment prohibits government conduct which has a primary religious purpose, a primary effect which either advances or inhibits religion, or would foster excessive government entanglement with religion.
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Gov't financial assistance to colleges & universities for secular purpose
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Government financial assistance given to post secondary (colleges and universities) religious schools for secular use is constitutional. The USSC has upheld the grant of public funding for use by religious colleges and universities, when the funds are used for non-religious purposes. So long as the primary purpose and effect of the funding is non-religious, the USSC has held that risk of excessive government entanglement is minimal at the post-secondary level because the religious colleges and universities are primarily secular institutions as opposed to the primary and secondary religious schools where religion is stressed. Construction grants that are limited to buildings where religion is not taught is constitutional.
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minimum drinking age & purchase of alcohol
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Commerce power does NOT extend to the regulation of the minimum drinking age for purchase of alcohol.
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Commerce & Necessary & Proper
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Congress may regulate any activity which MIGHT have a significant impact on the national economy. To this end, Congress may use whatever means are necessary and proper to achieve that goal. Look to see if justification uses in the aggregate language.
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Property power v. interstate commerce justification
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Property power is stronger argument than interstate commerce argument.
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best support for a federal statute authorizing management or distribution of federal property
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When asked to select the best support for a federal statute authorizing the management or distribution of federal property, you should select A4 § 3 property power, which empowers Congress to regulate the property, both real and personal, of the federal government.
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Attorney General
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AG, as a principal officer of the Executive Branch, has the power to decide whether or not to prosecute. Congress can’t interfere with Executive functions under separation of powers. So the House of Representatives can’t control whether or not the AG prosecutes.
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Congress' Appointment Power & federal officers
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Congress can’t appoint federal officers who exercise Executive Branch functions which include the enforcement of laws and prosecution of violation of law.
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Must be appointed by President w/ Senate approval
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Principal federal officers, ambassadors, and USSC Justices have to be appointed by the President with Senate approval.
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Congress' delegation of investigative power
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Congress may delegate its investigative power to a commission whose members are appointed by Congress.
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What powers can Congress delegate?
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When Congress attempts to delegate power, the power must be one that Congress may delegate. Congress can’t delegate the power to declare war, ratify treaties, or to try cases of impeachment. The delegation must contain general guidelines such that a court could determine whether the delegate had exceeded the authority granted by Congress.
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Congressional action whose purpose and effect alters rights, duties, and relations of persons outside the legislative branch
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If Congress takes action which has the purpose and effect of altering the rights, duties, and relations of persons outside the legislative branch, such an action is legislation and must be performed according to the Constitutional mandate for enacting legislation, meaning that it be passed by both chambers and presented to the President for signature or veto.
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State legislators & fedearl regulation
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Slight chance that a court would find that state legislators are immune from federal regulation while acting in their official capacity.
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State tax levied against independent contractor hired by federal gov't
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A state tax levied against an independent contractor hired by the federal government is valid, so long as the tax does not discriminate against the federal government or its agents. While the state and local governments are forbidden by the Supremacy Clause from directly taxing or regulating the federal government, they are allowed to impose indirect, non-discriminatory taxes on the federal government. State taxes imposed upon federal employees, federal contractors and federal lessees have been upheld because the “legal incidence” of the taxes did not fall upon the federal government and the taxes were applied to all employees, contractors or lessees, not just the federal counterparts.
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State or local regulation & interstate commerce
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A state or local regulation may not discriminate against or unduly burden interstate commerce. State must show that no less restrictive means are available.
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Case & Controversy & federal jurisdiciton
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To invoke federal court jurisdiction, must be an actual case or controversy and that there is standing. Must suffer a direct injury to her own constitutional or federal law rights caused by State/defendant which the federal court can remedy.
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discrimination against interstate commerce or imposes undue burden on iterstate commerce
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Discrimination against interstate commerce or imposes an undue burden on interstate commerce: unconstitutional unless Congress has authorized the discrimination, or the regulation is the least restrictive means of achieving an important health or safety goal (police power), or the state or local government entity is acting as a “market participant” rather than a market regulator.
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state or local regulation that does not burden individual right
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A state or local regulation of interstate commerce which does not burden any individual rights is best challenged under the negative implications of the Commerce Clause prohibiting discrimination or undue burdens on interstate commerce.
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Minors & purchasing of contraceptives
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FR of minors to purchase contraceptives.
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Preemption
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If federal legislation does not address the issue of preemption, and a problem is uniquely local, the local government is permitted to enact rules more strict than the federal standards. The USSC has made it clear that for preemption, either the federal statute must expressly preempt state measures, or its preemptive force must be clear by either “occupying the field” or posing a conflict that makes compliance with both measures impossible.
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State tax levied against the property or operator of the federal gov't
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A state tax levied directly against the property or operator of the federal government without the consent of Congress is invalid. However, nondiscriminatory, indirect taxes on the federal government or its property are permissible if they do not unreasonably burden the federal government.
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Property interest in continued gov't employment
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To have a property interest in continued government employment, there must be a statute, regulation, contract right, or clear policy that the employee can be dismissed only for cause. Absent such a right to employment, the employee is an at will employee and may be terminated without a hearing.
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Oaths to support the Federal Constitution & State Constitution
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Requirements that public employees take an oath to “support the Constitution of the United States” and the state constitution and that state employees take an oath “to oppose the overthrow of the government… by force, violence, or by an illegal or unconstitutional method.” USSC held that such oaths merely required the takers “to commit themselves to live by the processes of our system.”
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State regulation that interferes w/ a person's religious practices
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States can prohibit or regulate conduct in general, and this is true even if the prohibition or regulation happens to interfere with a person’s religious practices. The Free Exercise Clause cannot be used to challenge a neutral law of general applicability (such as the law against cruelty to animals) unless it can be shown that the law was motivated by a desire to interfere with religion. A law that regulates the conduct of all persons can be applied to prohibit the conduct of a since person even if the person’s religious beliefs prohibit him from complying with the law.
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Sale and distribution of material that is inappropriate for children
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Government may not prohibit the sale or distribution of material to adults merely because it is inappropriate for children.
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Federal Abstention
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The federal courts may abstain from deciding cases which contain federal law issues that may be avoided by giving the state courts the opportunity to resolve ambiguous questions of state law first. By giving the state courts this opportunity, the federal law issues may become unnecessary to decide.
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storage of explosives
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non-natural use - strict liability if they result in harm to another, even if caused by "the unexpectable operation of a force of nature." Policy - they have for their own purposes created a risk that is not a usual incident of the ordinary life of the community.
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injury to pet
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Maximum recovery is IIED
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trespass to land
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If defendant intentionally enters onto the land of another, he is liable for trespass regardless of damage to land. Generally, trespass is intentinal on MBE. Mistake is no defense for intentional trespass.
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3rd party beneficiary's right to eforce K
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Intention to confer a benefit on a 3rd party is essential to the 3rd party's right to enforce the promise, applicable to both donee creditor and the creditor beneficiary. To determine necessary intention: to whom is performance to be rendered? If performance is to a 3rd party, he is a protected beneficiary and thus entitled to sue. But if the promised performance is to be rendered to the promisee, the k is for the benefit alone of the parties thereto, and any 3rd party is an incidental beneficiary.
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bilateral executory accord
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an agreement that an existing claim shall be discharged in the future by the rendition of a substituted performance. I.e. C writes to D and says: "I promise to discharge the debt you owe me upon delivery of your black mare if you promise to delever the horse to me within a reasonable time." D promises. Their agreement is a bilateral executory accord.
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additional terms & UCC 2-207
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Additional terms contained in an acceptance which are different from those offered or agreed upon do not become part of the K if they materially alter the terms of the K.
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UCC 2-713 measure of damages for non-delivery or repudiation by seller
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difference b/w the market price at the time when the buyer learned of the breach and the K price together with incidental and / or consequential damages as provided under Section 2-715.
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doctrine of estoppel by deed aka the "after-acquired title" doctrine
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Applies when a person executes a deed purporting to convey an estate in land which he does not have or which is larger than he has, and such person at a later date acquires such estate in such land, then the subsequently acquired estate will, by estoppel, pass to the grantee.
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Natural disaster and L-T liability at common law
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A tenant remains liable to pay rent even though because of fire, floods, or other unforseen action, the property is rendered totally uninhabitable. Note, it is possible for parties to provide in a lease for certian excuses for non-payment of rental.
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Liability of T who convenants to keep leased premises in good repair
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T is liable under such covenant for all defects (except normal wear and tear) regardless of their cause.
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Battery which results in unintended death
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involuntary manslaughter - an unintended homicide 1. where there is an unlawful killing in the commission of an unlawful act not amounting to a felony or 2. in the commission of a lawful act without due caution or circumspection (known as "criminal-negligence" manslaughter). Most jurisdictions require tha thte defendant's death-producing conduct involve a higher degree of negligence than ordinary (tort) negligence.
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false friend / government plant in prison
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Defendant's confession - totality of the circumstances. 1. nature of defendnat 2. nature of police conduct. Confessions obtained under conditions were the defendant's free choice is significantly impaired are likely to be found coercive. Where the police employ a false friend such as a jail cell plant, and by deception the defendant is unaware that the person with whom he is conversing is a police officer or agent, a confession thereby obtained will not necessarily be involuntary, even if the defendant mistakenly believed the person could be trusted. Where actual or threatened physical harm or brutality are involved, the USSC has found there to be coercion sufficient to negate the defendant's free will.
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grand jury & exclusionary rule
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USSC refused to extend exclusionary rule to grand jury proceedings b/c it "seriously impedes" them.
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race & peremptory challenges
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A private litigant in a civil case may not use peremptory challenges to exclude jurors on account of race. Race-based exclusions of potential jurors in a civil case violates the excluded person's equal protection rights.
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hearsay
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a statement, other than one made by the declarant whicle testifying at the trial or hearing, offered in evidence to porve the truth of the matter asserted.
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regulation of commercial speech
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must be narrowly tailored and should be no more extensive than is necessary.
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blowing smoke in a person's face
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this is a battery because it's an intent to cause a harmful OR OFFENSIVE contact with another's person.
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private necessity
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if you don't let someone take refuge on your private property to avoid harm, you can be liable for their physical and property injuries & damages.
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all unilateral mistake situations
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if the non-mistaken party (i.e., the acceptor) is aware of the other party's mistake, he will not be permitted to "snap up" the bargain.
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modification of oral SOG contracts for $500+
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must be in writing to be enforceable
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response to a first come first served advertisement
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acceptance creates a unilateral contract, one in which the offer requested performance rather than a promise to perform.
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easement by implication
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not express but look at circumstances surrounding the execution of the conveyance. Based upon parties' intent. 5 prerequisites: 1. there must be a quasi-easement 2. there must be a conveyance of one part of the property and a retention of another part of the property by the grantor 3. the quais-easement must be apparent at the time of the easement 4. the quasi-servient tenement must be permanently adapted to serve the quasi-dominant tenement 5. the quasi-easement must be a. reasonably necessary to the enjoyment of the quasi-dominant tenement if that tract is conveyed and b. strictly necessary if the quasi-dominant tenement is retained by the grantor.
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where deed makes no mention of a recorded mortgage
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for grantee to be personally liable, he must "assume the mortgage." Where the deed instrument makes no reference to the mortgage, the grantee does not assume the mortgage and is not liable to the mortgagee.
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it's not larceny when
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a person accepts delivery with an innocent intention (lost or misdelivered property, an intention to return the property to the owner, or with misdelivered property, a lack of knowledge of the mistake) does not commit a trespass and so cannot be guilty of larceny, even if later they succumb to the temptation of keeping the property for themselves.
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undercover police informant after defendant has been charged but ROR
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Once adversary proceedings have been commenced against an individual, he has a right to legal representation when the government interrogates him.
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President's authority to direct foreign affiars
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is not unfettered or absolute
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When Congress appoints officials to execute such investigative powers as it might delegate to one of its own committees
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it may not appoint members or an agency or commission with administrative powers. Such persons are deemed "officers of the US" and MUST be appointed pursuant to A2 Sec. 2.
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foreseeable plaintiffs
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a defendant owes a duty of care only to those plaintiffs who are foreseeably within the risk of harm created by defendant's conduct "zone of danger".
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bids create option contracts
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an offer which the offeror should reasonbly expect to induce action of forbearance of a substantoial character on the part of the offeree before accepatance and which does induce such action or forbearance is binding as an option contract to the extent necessary to avoid injustice.
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unilateral offer to perform several acts
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an option K is completed when the offeree has performed one of the requested acts. Becomes irrevocable as soon as the offeree has started to perform the act.
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common law right to lateral support
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right to the support of land in substantially its natural condition.
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common enemy rule
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owner of lower tract of land has the right to protect his lower tract from the common enemy or the flow of surface water by making improvements which are suitable for the purpose.
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airspace
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possessor of real property hsa the right to the exclusive possession of the surface of the ground, the airspace above and the soil underneath. Any use of the space above one's land whis is unreasonable, improper, or interferes with the use and enjoyment of the surface can constitute trespass.
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duress as a defense in criminal law
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arson, kidnapping, robbery, burglary. Even though duress is not a defense to murder, it may be a defense to F-M if it negates the underlying felony.
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insanity and burden
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defendant has the burden of production of proving his insanity at the time of the offense.
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overnight recess & judge tells defendant/testifying witness to not talk to anyone
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violates defendant's 6th amendment right to counsel.
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appeal to defendant's conscience
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not interrogation
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attorney represents 2 defendants who acted together in the crime
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violates 6th amendment rights
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defendant waives assistance of counsel
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defendant has a constitutional right to do this if he does so knowingly and intelligently.
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causal connection and crimes
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crime requires act, mental fault or guilty mind, concurrence (act+ mental state), harm, and causation. Defendant's conduct must be the legal or proximate cause of the result.
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offers to pay medical bills
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not admissible to prove liability for the injury (negligence)
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direct of adverse witness
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scope of cross can't exceed direct
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aliens and relaxed scrutiny
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rational basis test - Congress broad power over immigration and naturalization
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express promise to pay all or part of an indebtedness that is discharged or dischargeable in bankruptcy
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if bankruptcy proceeding began before the promise is made it is binding without consideration.
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exception to PER
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evidence to show existence of the K is admissible.
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deed absolute intended for security
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will in fact be construed as a mortgage.
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equitable right of redemption when a mortgage transaction is disguised as a conveyance
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a mortgagee can't circumscribe the mortgagor's right to redeem by disguising the transaction as an outright conveyance.
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when mortgagee under a deed absolute transfers to a BFP
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mortgagor has no right agaisnt the BFP, but he does have an action for redemption against the mortgagee for the value of the land, or at his election, the proceeds of the sale.
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Rule in Shelly's Case
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if a life estate is conveyed to A and in the same instrument a remainder is given to A's heirs, then A will take a remainder in fee simple. A's life estate merges with the remainder to his heirs thus giving A a FSA.
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Doctrine of Worthier Title
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a rule of construction where by the grantor presumes not to create a remainder in his hiers, but rather intends to retain a reversion himself.
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informer's identity
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USSC held that it may in the exercise of its power to formulate evidentiary rules for federal criminal cases decline to disclose an informer's identity.
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plaicng burden on defendant
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violates DPC
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if accused remains silent and prosecutor or judge refers to this
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The self-incrimination guaranty of the 5th Amendment, as applicable to the states under the 14th amendment, forbids either comment by the prosecution of an accused's silence or instructions by the court that such silence is evidence of guilt.
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state statute prohibiting picketing in front of a person's home
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USSC held that this is a proper serving of a proper state interest for a state or community to seek to protect the privacy and tranquility of the homes of its residents.
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an order or other offer to buy goods for prompt or current shipment
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normally invites acceptance either by a prompt promise to ship or by propmt or current shipment.
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Where buyer wrongfully rejects or revokes acceptance of goods on or before delivery
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With respect to undelivered balance seller can 1. withhold delivery of such goods 2. stop delivery by any bailee 3. resell (either public or private) and recover damages d. recover damages for non-acceptance or 5. cancel.
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eminent domain
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power of ED may be delegated directly or indirectly to a private person or enterprise subject to the requriements that the taking be for a public use and just compensation be given.
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lawful custodial arrest of defendant in car
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police can search passenger compartment.
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warrantless searches & automobiles
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a warrantless search & seizure of items from a car may be permitted where there is PC to beleive the vehicle contains contraband or where vehicle could be moved before there is time to obtain a warrant. Once PC exists, police can search entire can including closed containers.
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exignet circumstances
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only applies in emergency situations where the evidence may be lost or destroyed before a warrant can be obtained.
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burden when challenging constitutionality of a statute that terminates an individual's ability to engage in a profession
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This is a violation of a procedural DP right, under the 14th Am. Plaintiff has the burden of persuasion to show that the denial violates his right to DP. Then, the burden shifts to the state to prove that it has a compelling state interest in enacting such legislation.
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When a statute is challenged on Commerce Clause grounds
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Court will apply the "unreasonable burdens rule" / "least restrictive means test." State regulations, even in areas generally described as local, can't be accepted if the impose an unreasonable burden on interstate commerce. TO determine reasonableness of the burden, the Court will balance the nature and extent of the burden which the state regulation would impose on interstate commerce against the purposes of the state regulation. It will be invalidated if there are non-discriminatory reasonable alternatives available to serve legitimate local interests.
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Independent and adequate state ground
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The USSC may properly deny review of any matter which rests upon an adequate and independent state ground, since resolution of the "state" issue by the state court might preclude the need for federal review. Generally, the USSC, upon reviewing a decision of the state court, only reviews the FQs and not the state law questions. If a statute is found by a State to be unconstitutional under the state AND federal constitutions, the USSC would avoid review of the case on the merits because a separate and sufficient state law basis for unconstitutionality exists. USSC will refuse review altogether as long as any adequate state ground for state court review exists.
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Violation of a FR under 14th Am. DPC
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To be constitutional, legislation must have a rational relationship to a legitimate end of gov't. But if it's a FR, standard is SS.
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15th Amendment
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A limitation prohibiting the states and the FG crom denying any citizen the right to vote on account of race or color. It also has an "enabling" clause that allows Congress to enact legislation protecting against discrimination affecting the right to vote.
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Illegal Aliens
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Not a suspect class. USSC said that illegal alien children are entitled to free public education. USSC rejected the notion that illegal aliens be treated as a suspect class. Instead, the Court appled the "intermediate level" scrutiny based upon 1. the importance of public education and 2. the powerless nature of the group.
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A state economic regulation enacted so as to affect the health or safety of the citizenry
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Court will not strike down the state legislation if the benefit to the health and safety outweighs the burden imposed on interstate commerce. The challenged regulation must pass a CC test of "reasonableness" that is stricter than that used for DP & EP cases.
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When a state court holds a state law VALID under both state and feedral constitution
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USSC may review the law through the lens of the federal constitution. If it disagrees with the state, the USSC will hold that the law violates the federal constitution and thus, the state court decision will have to be reversed and so the doctrine of independent and adequate state grounds does not apply.
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Regulation of Commercial Speech
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Should be narrowly tailored and should be no more extensive than necessary.
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frustration of purpose
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excuses performance in situations where the purpose of the K is destroyed by a supervening event.
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merchant buyer's duties as to rightfully rejected goods
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after there has been a rightful rejection of goods, the buyer is under a duty to a. follow reasonable instructions received form the seller with respect to the goods, and, in the absence of such instructions, b. make reasonable efforts to sell them for the seller's account. When the buyer sells the goods, he is entitled to reimbursement out of the proceeds for reasonable expenses of caring for and selling them. This amount, however, should not exceed 10% on the gross proceeds.
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What must the buyer pay for goods he has accepted?
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the K rate. Acceptance of goods by the buyer precludes rejection of the goods accepted and if made with knowledge of a non-conformity cannot be revoked becayse of it unless the acceptance was on the reasonable assumption that non-conformity would be seasonably cured.
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rejection of an offer
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terminates the offer. Generally, rejection is the offeree's refusal to accept the offer as made, and communicated to the offeror. Whether expressed in words or implied from the offeree's conduct, if it is apparent to the offeror that the offeree declines to accpet, the offer is rejected.
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firm offer rule v. commmon law promise to keep offer open supported by consideration
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Offer in a signed writing which by its terms gives assurance that it will be held open is not revocable for lack of consideration. Common Law - a promise to keep an offer open, if supported by consideration, becomes legally binding even if the letter states that L got a dollar as consideration and T never gave L a dollar.
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auction where goods are put up "without reserve"
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Unless a contrary intention is maniested, when goods are put up without reserve, the actioneer makes an offer to sell at any price bid by the highest bidder, and after the auctioneer calls for bids, the goods can't be withheld.
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failure of seller to deliver goods on time = breach of K. What are buyer's remedies?
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Buyer can recover incidental damages resulting from the seller's breach: these damages include "expenses reasonably incurred in inspection, receipt, transportation, and care and custody of goods rightfully rejected, and commercially reasonable charges, expenses, or commissions in connection with effecting cover and any reasonable expense incident to the delay or other breach.
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when seller fails to make delivery on time & buyer's right to cancel
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Where the time set for performance has passed, the party awaiting performance may agree to a new commercially reasonable time for performance prior to cancellation. Where the seller fails to make delivery, the buyer may cancel and a. cover or b. recover damages for non-delivery.
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$1 consideration at common law
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An offer is always revocable up to the time of accpetance, even though it contains a promise not to revoke. Where, however, the promise to keep the offer open is supported by consideration (i.e., something of value bargained for and given in exchange for the promise) it becomes legally binding, since consideration is necessary to make an offer irrevocable and create an opiton contract. Overwhelming majority of cases hold that one dollar may be sufficient consideration for an option K as long as a bargained for exchange was so intended. The mere fact that the price exacted for the promise was one dollar (or less) will not defeat the K on the ground of lack of consideration.
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PER
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Once the parties have reduced their agreement to a writing, evidence of any prior oral or written, or contemporaneous oral ageeements is inadmissible to alter, vary, or contradict the terms of the writing. The PER has never prevented proof of an oral or written agreement which varies or contradicts the terms of a prior written K.
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