Legal Studies Final Exam

Front 1

Contract

Back 1

a promise that the law will enforce

Front 2

Purpose of Contract

Back 2

exist to make business matters more predictable

Front 3

Judicial Restraint

Back 3

a court’s reluctance to interfere with the terms of a contract

Front 4

Judicial Activism

Back 4

: a court’s willingness to change or ignore a contract that it perceives as unjust; makes the law more flexible but less predictable

Front 5

Elements of Contract

Back 5

Agreement: one party must make a valid offer, and the other party must accept it
-Consideration: there has to be bargaining that leads to an exchange between the parties
-Legality: contract must be for a lawful purpose
-Capacity: two parties must be adults of sound mind

Front 6

Bilateral Contract

Back 6

-promise for a promise
-Can not get out of (breached if either do not follow through)
-I will pay to $10 to wash my care

Front 7

Unilateral Contract

Back 7

-promise for an act
-can get out of contract
-I will pay you $10 IF you wash my car

Front 8

Express Contract

Back 8

All terms of agreement are explicitly stated (oral or written)

Front 9

-Implied Contract

Back 9

-Implied Contract: the words and conduct of the parties indicate that they intended an agreement; usually arise in employment with at-will agreements (employees are free to quit at any time and company has the right to fire them at any time)
-It was implied Leo was going to cut the guys lawn

Front 11

Executory Contract

Back 11

: an agreement in which one or more parties has not yet fulfilled its obligations

Front 12

-Executed Contract

Back 12

an agreement in which all parties have fulfilled their obligations

Front 13

-Valid Contract

Back 13

one that satisfies all the law’s requirements and is enforceable in a court of law

Front 14

-Unenforceable Contract:

Back 14

-occurs when parties intend to form a valid agreement but a court declares that some rule of law prevents enforcing it
-ie if the contract must be in writing and it was done orally

Front 15

-Voidable Contract

Back 15

-agreement that may be terminated by one of the parties if a party lacked capacti (was drunk or underage) or if one person commits fraud or misrepresentation

Front 16

-Void Agreement

Back 16

-a contract that neither party can enforce because the bargain was illegal or one of the parties had no legal authority to make it

Front 17

Whats the difference between a voidable contracts and a void agreement?

Back 17

?as

Front 18

-Remedies Created by Judicial Activism

Back 18

created by judicial activism; sympathetic plaintiff can demonstrate an injury; there is no contract

-Promissory Estoppel
-Quasi-Contract
-Quantum Meruit:

Front 19

-Remedy created by judicial activism
- Promissory Estoppel/ detrimental reliance

Back 19

(created by judicial activism)= Courts don’t like to get involved in it. Even when there is no contract, a plaintiff may use promissory estoppel to enforce the defendant’s promise if he can show that:
o Promise made (no enforceable contract)
o Someone justifiably relies on it (detrimental reliance)
o Somewhat foreseeable that the person would rely on the promise
o Injustice; and the only way to avoid the injustice is to enforce the promise.
o (Damages)

-Example: aetna's insurance promise to the people whose house burnt down

Front 20

-Remedy created by judicial activism
-Quasi-Contract

Back 20

-Quasi-Contract: defendant did not make any promise, but did receive a benefit from the plaintiff;
- must show that the plaintiff gave some benefit to the defendant
- the plaintiff reasonably expected to be paid for the benefit
- the defendant would be unjustly enriched if he did not pay

-The farmer prepared the land for another year but then the real estate agent took it away

Front 21

-Remedy created by Judicial activism
-Quantum Meruit

Back 21

: “as much as he deserves”; damages awarded in a quasi-contract case; generally the value of the goods or services the plaintiff has conferred

Front 22

Criteria of a contract

Back 22

-Agreement
-Acceptance
-Consideration
-Capacity

Front 23

Agreement (Contract Criterion 1)
-Problems with intent

Back 23

two parties can form a contract only if they have had a meeting of the minds (parties understood each other and intended to reach an agreement)
-Offer: an act or statement that proposes definite terms and permits the other party to create a contract by accepting those terms;
-Offeror: person who makes an offer
-Offeree: person to whom an offer is made; great power to form a contract by accepting an offer

--Invitation to Bargain: an invitation to bargain is not an offer
-Letters of Intent: a letter that summarizes negotiating progress; letter can help summarize progress made during a negotiation and assist the parties in securing necessary financing, it is not a contract and a party can regard it as less than binding
-Advertisements: an advertisement is generally not an offer; merely a request for offers

Front 24

-Termination of Offers

Back 24

-Revocation: offeror may revoke the offer at any time before it has been accepted; effective as soon as the offeree receives it
-Rejection: if offeree rejects an offer
-Counteroffer: a rejection and parties have no contract at any price
-Expiration: when an offer specifies a time limit for acceptance, that period is binding; if the offer specifies no time limit the offeree has a reasonable period to accept
-Destruction of Subject Matter: terminates a contract

Front 25

-Acceptance (Contract Criterion 2)
-Bilateral Contract,
-Unilateral Contract
-Mirror Image Rule

Back 25

-offeree creates the contract by accepting; must do or say something to accept

-Bilateral Contract: when the offer is for a bilateral contract, the offeree generally must accept by making a promise
-Unilateral Contract: when the offer is for a unilateral contract, the offeree must accept by performing
-Mirror Image Rule: requires that acceptance be on precisely the same terms as the offer; if the acceptance contains terms that add or contradict the offer courts generally consider it a counteroffer

Front 26

Consideration (Contract Criterion 3)
-Illusory Promise

Back 26

-means that there must be bargaining that leads to an exchange between the parties
-the thing bargained for can be another promise or action
-the thing bargained for can be action rather than a promise
-the thing bargained for can be a promise to do something or a promise to refrain from doing something

-Illusory Promise: not consideration so there is no party and neither party can enforce the deal; one party keeps the power to get out of the agreement for any reason at all; one party is not committing himself to do anything

-Wanna buy my bike? if i like what i see maybe

Front 27

-Noncompetition Agreements

Back 27

to be valid, an agreement not to compete must be ancillary to a legitimate bargain (means the noncompeting agreement must be part of a larger agreement); legitimate noncompetition agreements occur in sale of a business and employment relationships

-Sale of a Business: when a noncompete agreement is ancillary to the sale of a business, it is enforceable if reasonable in time, geographic area, and scope of an activity; courts will not enforce a noncompete agreement that lasts an unreasonably long time, covers an unfairly large area, or prohibits the seller of the business from doing a type of work that she has never done before
-Employment: a noncompete clause in an employment contract is generally reasonable- and enforceable- only to the extent necessary to protect trade secrets, confidential information, or customer lists developed over an extended period

Front 28

Exculpatory clause

Back 28

An exculpatory clause is one that attempts to release you from liability in the event of injury to another party. Used by ski schools, landlords, daycare centers, etc. They hope to avoid large tort judgments by requiring their customers to give up on any right to recover. Courts often ignore exculpatory causes, finding that one party was forcing the other to give up on legal rights that no one should be forced to surrender. Unenforceable when:
o It attempts to exclude an intentional tort or gross negligence (carelessness far greater than ordinary negligence). You are liable for an intentional tort; having the person sign a waiver doesn’t protect you from that.
o The affected activity is in the public interest (medical care, public transportation).
o The parties have greatly unequal bargaining power. “Take it or leave it”; you couldn’t negotiate the contract so the clause is unenforceable.
o Unless the clause is clearly written and readily visible. The exculpatory clause must be in large enough writing and in a visible place to the reader or else it is unenforceable.
o Accident versus negligence (duty, breach of duty, foreseeable harm, harm itself, damages).

Front 29

Waiver issues

Back 29

Waivers are only enforceable to a certain extent; can’t waive negligence. You can sue the gym if a hoop falls on your head; can’t sue the gym if you trip and twist your ankle.

Front 30

Unconscionable Contracts

Back 30

-a court refuses to enforce because of fundamental unfairness; based on oppression and surprise
-Oppression: one party uses its superior power to force a contract on the weaker party
-Surprise: the weaker party did not fully understand the consequences of its agreements

Front 31

-Capacity (Contract Criterion 4)
-minors
-disaffirm
-restitution
-rescind
-misrepresentation

Back 31

-): legal ability to enter into a contract; minors and those with mental impairment lack legal capacity; an adult of sound mind has legal capacity to contract and deals she enters into will be enforced if the other criteria exist
-Minors: under age of 18; creates only voidable contracts (minor can cancel contract)
-Disaffirm: to give notice of refusal to be bound by an agreement
-Restitution: restoring an injured party to its original position (minor entitled to his money back even if they cannot return the consideration)
-Rescind: a court’s order to cancel a contract because when you signed the contract you did not truly consent because you lacked essential information
-Misrepresentation: occurs when a party to a contract says something that is factually wrong
-Innocent Misrepresentation: if the owner believes the statement to be true and has good reason for that belief
-Fraudulent Misrepresentation: if the owner knows that the statement is false

Front 32

• Misrepresentation and fraud (regard to consent):
-what must you show....

Back 32

• Misrepresentation and fraud (regard to consent): Occurs when a party to a contract says something that is factually wrong. EX: “This house has no termites. ”
o Innocent: If the owner believes the statement to be true and has good reason for that belief.
o Fraudulent: If the owner knows that it is false.
• Both make the contract voidable. Must show:
• 1- False statement of fact.
• 2- Statement was fraudulent or material.
• 3- Injured person justifiable relied on the statement.

Front 33

-Plaintiff's Remedy

Back 33

-Plaintiff’s Remedy: injured party who proves
-False statement of Fact
-Fraud or Materiality
-Justifiable reliance
will get her money back but also make restitution to the other party; can have choice to rescind the contract or suing for damages

Front 34

-Silence

Back 34

-Can also be misrepresentation when
-it is necessary to correct a previous statement
-it is necessary to correct an assumption the other party is relying on

Front 35

-Statute of Frauds

Back 35

-statute required that in several types of cases a contract would be enforced only if it was in writing; provide a court with the best possible evidence of whether the parties intended to make a contract; plaintiff cannot enforce any of the following agreements unless the agreement or some memorandum of it is in writing and signed by the defendant:

-Land: for any interest in land
-Time: that cannot be performed within one year, begins on the date the parties make an agreement
-Debt: to pay the debt of another, called an collateral promise
-Executor: made by an executor of an estate, executor’s promise to use her own funds to pay a debt of the deceased must be in writing to be enforceable
-Marriage: made in consideration of marriage, prenup or antenup
-Sale: for sale of goods worth over $500

Front 36

-Contracts for Land

Back 36

a contract for the sale of any interest in land must be in writing to be enforceable;
-Full Performance by the Seller: if seller completely performs her side of a contract for an interest in land, a court is likely to enforce the agreement even if it was oral

-Part Performance by the Buyer: buyer of land may be able to enforce an oral contract if she paid part of the purchase price and either entered upon the land or made improvements to it

Front 37

-Parol Evidence Rule

Back 37

- When a contract is signed, neither party can use parol evidence (anything that was said/done before the parties signed the agreement) to change the terms
-it must be written in the 4 corners of the agreement

Front 38

-Subsequent agreement

Back 38

- if original contract not fully correct, may make minor revisions

Front 39

-Types of contract Conclusions

Back 39

-Discharge: a party is discharged when she has no more duties under the contract; discharged by full performance
-Rescind: to terminate a contract; how parties discharge a contract by agreement

Front 40

-Strict/ Substantial Performance

Back 40

-Strict Performance:-one party must fulfill while other does not have to, disliked by courts because one party benefits and other gets nothing, usually does not happen unless contract demands it

-Substantial Performance: occurs when one party fulfills enough of its contract obligations to warrant payment; in a contract for services a party that substantially performs will receive the full contract price minus the value of any defects; a party that fails to perform substantially receives nothing on the contract itself and will only recover the value of the work if any

Front 41

-Time is of the essence

Back 41

generally makes contract dates strictly enforceable; reasonable in real estate agreements

Front 42

Good faith

Back 42

Parties to a contract have the duty to carry out their obligations in good faith.

Front 43

Material Breach

Back 43

when one party materially breaches a contract, the other party is discharged; material breach is one that substantially harms the innocent party; discharged party has no obligation to perform and can sue for damages

Front 44

-Statute of Limitations

Back 44

-Statute of Limitations: begins to run at the time of injury and will limit the time within which the injured party may file suit; failure to file suit within the time-limits discharges the breaching party

Front 45

Times you can't follow through with a contract

Back 45

Impossibility: court will discharge an agreement if performing a contract was truly impossible but not if honoring the deal merely imposed a financial burden
-Destruction: destruction of subject matter
-Death: death of promisor in a personal services contract; when the promisor agrees personally to render a service that cannot be transferred to someone else, her death discharges the contract
-Illegality: if the purpose of a contract becomes illegal, that change discharges the contract


• Embargo
• We go to war with a country and that’s the only place you can get your materials.
• Impractibility= Some new event has occurred that neither party anticipated and fulfilling the contract would now be extraordinarily difficult and unfair to one party.
• Frustration of purpose= some new event has occurred that neither party anticipated and the contract now has no value for one party.

Front 46

damages

Back 46

• Compensatory= Most common monetary awards; flow directly from the contract. Damages that inevitably result from the breach.
• Consequential= resulting from the unique circumstance of the injured plaintiff. The injured party may recover consequential damages only if the breaching party should have foreseen them when the two sides formed the contract.
• Incidental= relatively minor costs that the injured party suffers when responding to the breach.

Front 47

-Specific Performance

Back 47

forces both parties to complete the deal; only in cases involving the sale of land or something unique; when money damages would be inadequate to compensate the injured party
-Don't do this with personal services (doctor)

Front 48

-Injunction

Back 48

-court order that requires someone to do something or refrain from doing something; money damages will not suffice
-famer, smell of pigs disturbs you.. town zoning, no livestock in the town

Front 49

-Mitigation of damages

Back 49

-Mitigation: to keep damages as low as possible; a party injured by a breach of contract may not recover for damages that he could have avoided with reasonable efforts

Front 50

-Liquidated Damages Clause

Back 50

-Liquidated Damages Clause: Damages specified in contract, will be enforced if
1) at the time of creating the contract it was very difficult to estimate the actual damages and 2) the liquidated amount is reasonable.

ie construction to finish Tulane dorm by aug 10, estimate damages to school based on false information

Front 51

Accord and Satisfaction

Back 51

- ie sued insurance company, but they give you less money than agreed upon, if you deposit check without notifying them, it is considered an accepted payment SO you must inform them before check cashed (saying it only covers a portion of the actual sum…must receive more if the contract is to be fulfilled or they may sue)

Front 52

• Remedies

Back 52

method a court uses to compensate the injured party. The most common is money damages. They do this by deciding what interest (legal right) the remedy is trying to protect.

Front 53

o Types of interest

Front 54

-Criteria for Agency Relationship:

Back 54

1) principal
2) agent
3) agreement with consent
4) agent is subject to principle’s control
5) fiduciary relationship.

Front 55

Principal

Back 55

: the person for whom an agent is acting; have substantial liability for the actions of their agents

Front 56

Agent:

Back 56

Agent: the person who is acting on behalf of the principal

Front 57

Consent

Back 57

-Consent: principal must ask the agent to do something, and the agent must agree

Front 58

Control

Back 58

Agent is subject to the principals control. Therefore, the principal is lable for the acts of their agents.

Front 59

Fiduciary relationship

Back 59

Agents have a fiduciary duty to their principals (must act in good faith)

Front 60

Elements not required in an Agency relationship

Back 60

Written Agreement: agency agreement does not have to be in writing except in equal dignities rule
-Equal Dignity rule: : if an agent is enters into a contract that must be in writing, then the appointment of the agent must also be written
-Doesn’t require a formal agreement. As long as they act like an agent and principal, the law will treat them as such.
- Doesn’t require consideration. An agency agreement is valid even if the agent is not paid.

Front 61

Duties of agent

Back 61

-Duty of loyalty: Agent has a fiduciary duty to put the principal first
• Outside benefits: Agent cannot receive profits unless the principal knows and approves.
• Confidential information: Agents cannot disclose or use for their own benefit any confidential information they acquire during their agency.
• Competition with the principle: Agents cannot compete with their principal in any matter within the scope of the agency business.
• Conflicts of interest: Unless otherwise agreed, an agent may not act for two principals whose interests’ conflict.
• Secret dealings: The agent cannot arrange a transaction without the principal’s permission.
• Appropriate behavior: Agent may not engage in any inappropriate behavior that reflects badly on the principal.

-Duty to obey instructions: Agent must obey principal’s instructions unless principal directs her to do something illegal.

-Duty of Care: Agent has to act with reasonable care. An agent with special skills is held to a higher standard because she is expected to use those skills.

-Duty to Provide information: Agent must provide principal with all information in his possession that he has reason to believe the principal wants to know

Front 62

o Duties of principal

Back 62

• Duty to Reimburse: Principal must reimburse an agent for any expenses/ damages reasonably incurred in carrying out his agency responsibilities. ie priest helped buy a new church)
• Principle must reimburse an agent for tort claims brought by a third party if the principle authorized the agent’s behavior and the agent didn’t realize he was committing a tort-- liable for acts of their agents because they exercise control over the agent.
• Duty to cooperate: Principle must give the agent the opportunity to work, can’t unreasonably interfere with the agent’s ability to accomplish his task, and must perform his/her part of the contract.
• Give the agent all information s/he needs to do his/her job.

Front 63

How to hold employers liable

Back 63

(Person who broke the law is always liable, but sue the employer to get more money since they can be liable in these cases.)

1) Respondeat superior: Employer (principal) is liable for misbehavior by the employee (agent) if it is in the course and scope of their employment
o EX: UPS could be sued for their driver who gets in car accident. Tulane could be sued for Groome getting into an accident while driving students.
2) Vicarious/general liability: Dangerous situation created by employer. Not in course and scope of employment but the situation is created by the employer
o Ex guy working manual labor for 30 hours straight, the employer let him go, he goes and falls asleep at the wheel and gets in a car accident- employer is liable)
3) Aided in the agency of: Not in course and scope of employment but because of your job you were given something that let you do it. (Employer gave employee the means to do it.)
o Priest, if the guy wasn't a priest boys parents wouldn't let
the kid spend so much time with him

Front 64

How to hold employers liable

Back 64

(Person who broke the law is always liable, but sue the employer to get more money since they can be liable in these cases.)

1) Respondeat superior: Employer (principal) is liable for misbehavior by the employee (agent) if it is in the course and scope of their employment
o EX: UPS could be sued for their driver who gets in car accident. Tulane could be sued for Groome getting into an accident while driving students.
2) Vicarious/general liability: Dangerous situation created by employer. Not in course and scope of employment but the situation is created by the employer
o Ex guy working manual labor for 30 hours straight, the employer let him go, he goes and falls asleep at the wheel and gets in a car accident- employer is liable)
3) Aided in the agency of: Not in course and scope of employment but because of your job you were given something that let you do it. (Employer gave employee the means to do it.)
o Priest, if the guy wasn't a priest boys parents wouldn't let
the kid spend so much time with him

Front 65

• Employment security:

Back 65

1) Family and medical leave act: Guarantees both men and women up to 12 weeks of unpaid leave each year for childbirth, adoption, or medical emergencies for themselves or a family member. Applies only to companies with at least 50 workers and to employees who have been with the company full-time for at least a year
2) Cobra:
• Statute that provides that former employees must be allowed to continue their health insurance for 18 months after being terminated from their job.
• But they must pay for it themselves; up to 102% of the cost
• Applies to companies with 20 or more workers
• covers employees and their families

Front 66

• Wrongful discharge

Back 66

(even if you are an at will employee you can still have wrongful discharge): Prohibits an employer from firing a worker for a bad reason. A bad reason is one that violates public policy- social rights, duties, or responsibilities.
o Refusing to violate the law: Employees may not be discharged for refusing to break the law.
o Exercising a legal right: Employer may not discharge a worker for exercising a legal right if that right supports public policy.
o Performing a legal duty: An employee may not be fired for missing work to serve jury duty.

Front 67

Employee contract law

Back 67

-Employee handbook creates a contract

Front 68

Employee tort law

Back 68

o Defamation: Employers may be liable for defamation when they give false and unfavorable references about a former employee.
• Qualified priviledge: Employers are liable only for false statements that they know to be false or that are primarily motivated by ill will when they give references
• Employers do not have a legal obligation to disclose information about former employees.
• When a former worker is potentially dangerous, employers do have an obligation to disclose this information.

Front 69

Whistle blowing

Back 69

• Whistle blowing: Whistle blowers are employees who disclose illegal behavior on the part of their company. Whistle blowers are protected (from being sued) in the following situations:
o False Claims Act= permits anyone to bring suit against a person (including a company) who defrauds the government.
o Government employees= Government cannot retaliate against public employees who blow the whistle as long as the employee is speaking out on a matter of public concern.
o Publicly traded companies= protects employees of publicly traded companies who provide evidence of fraud to investigators.
o State statutes= all 50 states have statutes that protect whistle blowers from retaliation by their employers; this varies greatly from state to state.
o Common law= Most court prohibit the discharge of employees who report illegal activity that relates to their own jobs.

Front 70

Workplace safety

Front 71

Employee privacy

Back 71

o Employee privacy= Employers are entitled under common law to “reasonable expectation of privacy”.

• Off-Duty Conduct: some states have passed laws that protect the right of employees to engage in any lawful activity when off-duty; in absence of this statute an employer does have the right to fire an employee for off-duty conduct
• Alcohol and drug testing= government employees can be tested for drug and alcohol use only if they show signs of use or if they are in a job where this type of abuse endangers the public. Most states permit private employers to administer alcohol and drug tests.
• Lie detector tests= employers cannot require or suggest that an employee submit to a lie detector test
• Electronic monitoring= Employers can monitor workers’ telephone and emails if 1) the employee consents, 2) the monitoring occurs in the ordinary course of business or 3) in the case of email, the employer provides the email system.

Front 72

• Worker’s compensation

Back 72

-Worker’s compensation statutes ensure that employees receive payment for injuries incurred at work.
-There is a fixed, certain recovery to the injured employee no matter who was at fault for the accident
-In return the employee cannot sue their employers for negligence.
-The amounts allowed for workers’ compensation statutes are less than a worker might receive in court, but the injured employee trades the certainty of some recovery for the higher risk of rolling the dice at trial.
o EX: you get 2/3 of your average weekly wages for the previous month.

Front 73

Employment discrimination
-Gender

Back 73

Equal Pay Act 1963: An employee may not be paid at a lesser rate than employees of the opposite sex for equal work

Front 74

Employment discrimination
-Title VII

Back 74

o Title VII= Illegal for employers to discriminate on basis of race, color, religion, sex or national origin (not yet sexual orientation). Prohibit sexual harassment in the workplace and pregnancy descrimination. Proof of discrimination-
• Disparate treatment= on it’s face discriminatory “I do not hire women”. Plaintiff must show she was treated differently because of her race, sex, etc.
• Disparate impact= If the employer has a rule that on its face is not discriminatory but in practice it excludes too many people in a protected group.

Front 75

Employment discrimination
Religion

Back 75

employers must make a reasonable accommodation for a worker’s religious beliefs unless the request would cause undue hardship for the business.

Front 76

Employment discrimination
-Sexual Harassment

Back 76

• Quid pro quo= If any aspect of the job is made contingent upon sexual activity. “one thing in return for another”
• Hostile work environment= Intentional infliction of emotional distress claim. Hard to prove; what upsets one person may not upset another person. Valid claim of sexual harassment if sexual talk are so pervasive that they interfere with her ability to do work.

Front 77

Employment discrimination
-Age

Back 77

prohibits age discrimination against employees or job applicants who are 40 years old or older

Front 78

Employment discrimination
-Pregnancy

Back 78

can’t fire, refuse to hire, or fail to promote a woman because she’s pregnant.

Front 79

Affirmative Action

Back 79

-Not required or prohibited by Title VII
-Litigation: courts have power under Title VII to order affirmative action
-Voluntary Action: Employers can voluntarily introduce affirmative action to have more minorities

Front 80

American disabilities act

Back 80

-Prohibits employers from discriminating on the basis of disability (as well as recovered drug addicts/alcoholics) as long as they can do the job

Front 81

Types of ownership

Back 81

-Individual ownership
-Owning with someone else
-Joint tenants: When 2 or more people own property and someone dies, the other owners receive the property
-Tenants in common: The dead owner can pass the property on to whoever heir they choose
-Community Property

Front 82

Real property

Back 82

-Land: most common and important form of real property
-Buildings: houses, buildings, factories
-Mineral Rights: owner of the land also owns anything under the surface; subsurface rights may be worth more than the surface land if there is oil or gold; landowner can sell the land and retain ownership of the surface land
-Air Rights: owner of land owns air space above the land
-Plant Life: naturally occurring plants or cultivated crops
-Fixtures: goods that have become attached to real property; furnace and heating ducts if they are attached to the house; piano not a fixture because it is not attached
-General Rule: an object is a fixture if a reasonable person would consider the item to be a permanent part of the property

Front 83

Easement

Back 83

allowing someone to go on your property to cross (from their property, etc.) IE to get to a road.. but not taking anything from the property.

Front 84

o Community property

Back 84

o Community property= When you are married, 50% of the money you make and 50% of everything you buy belongs to you and the other 50% belongs to your spouse.
• This is the case in LA, TX, IL, CA... etc.
• Property you had before you got married is yours.
• Inheritance is separate property.
• Innocent spouse rule= If you decide you want to get a divorce on Monday and you use the week to spend lots of money and then file on Friday, most courts don’t make the “innocent spouse” pay for it.

Front 86

Adverse possession

Back 86

o Adverse possession= if you are in good faith and you really think the property is yours, after 10 years it’s yours; bad faith after 30 years it’s yours).
• Treating it as your property. If you know people are on your property, it could become theirs.

Front 87

• Duties of a landlord (list)

Back 87

o Duty to deliver possession:
o Quiet enjoyment=
o Eviction
• Actual
• Constructive
o Duty to maintain premises (habitability)
o Duty to return

Front 88

• Duties of a landlord

Back 88

o Duty to Deliver Possession: Lanlord's first duty is to deliver possession of the premises at the beginning of the tenancy , making the space available to the tenant.
o Quiety Enjoyment: all tenants are entitled to the right to use the property without the interference of the landlord
o Eviction: most common interference with quiet enjoyment- some act that forces a tenant to abandon the property
-Actual: if a landlord prevents the tenant from possessing the premises by actually changing the locks
-Constructive: if a landlord substantially interferes with the tenant's use and enjoyment of the premises; tenant must vacate the premises and prove that the interference was sufficiently serious and lasted long enough that she was forced to move out
o Duty to Maintain Premises: Landlord has a duty to deliver the premises in a habitable condition and a continuing duty to maintain the habitable condition
o Duty to return Security Deposit: a landlord must either return the security deposit soon after the tenant moves out or notify the tenant of the damage and the cost of repairs.

Front 89

• Duties of a tenant

Back 89

• Duties of a tenant:
o Pay rent: if the tenant does not pay the rent, the landlord and use the security deposit, sue the tenant or evict the tenant
o Duty to use the Premises Properly= tenant is liable to the landlord for any significant damage he causes to the property.

Front 90

o Tenant’s liability

Back 90

Tenant is liable for injuries occurring within the premises he is leasing.

Front 91

o Landlord’s liability

Back 91

must use reasonable care to maintain safe premises and is liable for foreseeable harm.

Front 92

• Gifts

Back 92

Voluntary transfer of property without any consideration
o Personal property= removable.
o Real property= land, trees, minerals, etc.

Front 93

o Elements of a gift

Back 93

• Intent
• Acceptance
• Delivery
• Actual (physical)= handing it to someone.
• Constructive= give them documentation saying they own the house, because you can’t pick up a house.

Front 95

• Intentional tort
-Requirements
-Examples

Back 95

o Requirements
• Intent
• Actual intent= Person was singled out for harm.
• Implied intent= No specific person was singed out to be harmed but intended to harm someone, just didn’t care who.
• Transferred intent= Harm was intended for one person but another was harmed instead.
• Intent of action vs intent to harm= intended to perform action but did not intend to harm person to such a serious extent.
• Proof of injury
• Voluntary action
• Causation
• Harm itself
o Examples
• Battery, intentional infliction of emotional distress, defamation, false imprisonment, assault

Front 96

4th Amendment

Back 96

protects you from illegal search and seizure. Need a warrant, get an affidavit signed, warrant must state where going to search
• Exclusionary rule= if the search was illegal, they can’t use the findings as evidence.

Front 97

5th Amendment

Back 97

o 5th= Ensures due process (fundamental fairness at all stages of the case). Also protects from double jepordy. Self incrimination= can’t be forced to testify against yourself.
• Miranda rights= Before Miranda they did tell you your rights but they didn’t have the card. After Miranda they made it very official what to do and when. If you aren’t told your rights and you confess, your confession can’t be held against you.
• Right to remain silent
• Anything he says can be used against him in trial
• Has the right to a lawyer
• If he cannot afford a lawyer, the court will appoint one

Front 98

6th Amendment

Back 98

Demands fair treatment for defendants in criminal prosecution
• Demands right to a lawyer (criminal trial). Can only pick one of you pay for one. If you pass the bar exam, you are technically a qualified lawyer. They’ll give you whoever they have, you don’t get to pick.
• Right to a fair and speedy trial

Front 99

8th Amendment

Back 99

Prohibits cruel and unusual punishment.

Front 100

Things to know about Groome

Back 100

- Favorite band= 9 inch nails
- Kitchen is painted green apple/fresh grass
-hates orange