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333 Cards in this Set
- Front
- Back
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What distinguishes between a bilateral and unilateral contract?
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Unilateral contracts will expressly require performance as the only possible method of acceptance
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When does UCC article 2 apply to a contract?
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If the contract is primarily for the sale of tangible, personal property. NEVER real estate
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Does an offer have to contain all material terms?
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No, unless for real estate in which case it must have price and description of property
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Is an advertisement a valid offer?
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No
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When is revocation by mail effective?
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when received
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When is an offer for the sale of goods irrevocable?
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UCC firm offer rule - cannot revoke for up to 3 months if signed written promise to keep offer open and done so by a merchant (note - 3 months regardless of actual timeframe)
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When is an option to keep an offer available irrevocable?
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when supported by payment or other consideration
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Can a conditional acceptance be used to accept a common law offer? Can a counteroffer be used to accept a common law offer?
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No, both conditional and counteroffer are treated as new offers that reject the original offer.
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When is a response to an offer that adds new terms treated as an acceptance? When it is a rejection/new offer?
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at common law, rejection+new offer. If UCC and both parties merchants, term is automatically added if offering party doesn't object in 10 days
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When is a mailed acceptance considered valid? What is the exception to this rule?
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when it is placed in mail, UNLESS rejection sent first (valid when received) or trying to meet an option deadline
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Are modifications to an existing contract acceptable?
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common law - must be new consideration, while UCC does not require it. Also OK to change if unforeseen difficulties or a third party makes the payment
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What is the term for detrimental reliance and what does it require?
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promissory estoppel - requires a promise, reliance that is reasonable, detrimental, and foreseeable, and enforcement is necessary to avoid injustice
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A says he will pay B back even though B can no longer legally recover the debt. Enforceable contract?
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Yes, if it is a written promise
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When will D lack capacity to enter a contract and what are the consequences?
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lacks if under 18, mentally incompetent or intoxicated (and other party should have known); consequently may back out of contract. However, implied affirmation of contract if they regain capacity and continue to accept its benefits
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What contracts fall within the Statute of Frauds?
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surety agreements (including executors), prenups, service contract that can't possibly be performed in under one year, real estate transfers, leases over one year or $1,000 total, sale of goods greater or equal to $500
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What can satisfy the statute of frauds requirements if it is a service contract?
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full performance by either party
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What can satisfy the statute of frauds requirements if it is a sale of goods contract?
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ordinary goods - performance satisfies to the extent it has been completed. Specialty goods - as soon as seller makes a substantial beginning on the goods.
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What is required to be in a writing in order for it to satisfy the statute of frauds?
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name the parties, list goods or services, and must be signed by the party who claims it isn't enforceable. Exception to signature - both parties are merchants, one receives signed writing and doesn’t respond within 10 days
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What effect does a requirement that all modifications to a contract must be in writing actually have?
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common law - ignore. UCC - effective unless waived
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What are the requirements to find a contract unenforceable due to ambiguity?
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material term open to multiple interpretations, each party attaches different meaning and neither knew it was open to multiple interpretations
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What is parol evidence?
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oral or written statements by the parties prior to forming a written contract that is the final agreement
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When can parol evidence be used to contradict terms in a writing?
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for showing clerical errors in reducing the agreement to writing
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When can parol evidence be used to add terms to a contract?
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if the writing wasn’t complete or normally a separate document would be used to detail those terms
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When can conduct be used to define terms in a contract?
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if it is the same people doing the same thing under a similar contract prior custom and usage
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In a UCC contract, when are the delivery obligations of the seller met?
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if shipment contract, done when taken to common carrier and notifies buyer. If destination contract, done only when goods arrive at buyer (usually FOB in a city not located with seller)
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Who bears the risk of loss between buyer and seller in a UCC sale of goods contract?
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if seller is merchant, risk shifts upon physical receipt by buyer. If they aren't, risk shifts when item is merely made available.
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What implied warranty comes with all goods that are bought from a merchant?
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implied warranty of merchantibility - goods should be fit for the ordinary purpose for which such goods are intended. However, goods must be of the type normally sold by that merchant
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Can merchant warranties for goods be disclaimed and how?
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yes, sell as is or with all faults
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For a merchant selling UCC goods, can he limit damage remedies for breach of warranty?
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Yes, so long as limit is not unconscionable. Usually limited to replacing defective parts. NEVER available to limit personal injury.
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Seller ships goods that do not match what the buyer orders - what are the buyers options?
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reject - perfect tender rule allows rejection by buyer if not exact; accept - cannot later reject; do nothing - implied acceptance (however, not implied if payment made with no opportunity to inspect)
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Can a seller fix an imperfect tender of goods to a buyer with an alternative?
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yes, but must have reasonable grounds for believing an improper tender would be acceptable and there must be time remaining for performance
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Seller ships installment 1 of 2 to buyer but it is imperfect. Can buyer reject?
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no, unless it is a substantial impairment that cannot be later cured
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When can acceptance of a delivery be revoked?
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noncomformity substantially impairs value of the goods OR revocation within a reasonable time after discovery of noncomformity
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When is common law performance satisfied?
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after the party substantially performs
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When is specific performance not available as a contractual remedy?
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sale of land where land has been sold to a third party OR anything involving service (dislikes servitude)
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When does a seller have a right to get back goods from a buyer that were not paid for? What is it called? When is this waived?
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right of reclamation - buyer must have been insolvent at time of receipt, still have goods, seller must demand within 10 days of receipt. HOWEVER, 10 day rule waived if buyer misrepresented his solvency in writing within 3 months.
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Person A leaves goods with a shop B who sells them in the ordinary course of business. Can A reclaim?
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No, rights are cut off. Could only reclaim if they were stolen.
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What are expection, reliance, and restitution damages?
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expectation - amount to get perfomed elsewhere; reliance - amount spent in reliance on contract; restitution - D gives back monetary value of what they received
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In a UCC contract, what damages are owed if the seller breaches but the buyer still keeps the goods?
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seller owes value difference between what the buyer received and what the value would have been if item was perfect
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In a UCC contract, what damages are owed if the seller breaches and the seller still has the goods?
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seller owes the buyer the FMV of goods at the time of breach
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In a UCC contract, what damages are owed if the buyer breaches and keeps the goods?
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buyer owes whatever was due in the original contract
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In a UCC contract, what damages are owed if buyer breaches but seller keeps the goods?
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buyer must pay whatever seller lost through selling elsewhere, or the market price
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If a UCC seller is a volume seller, what can they recover?
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They can recover the lost profit they were unable to earn by making that sale. Does not matter if they sold to another at a different price.
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When are foreseeable consequential contractual damages recoverable?
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if they resulted from circumstances unique to the contract that D had a reason to know would likely result
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If a condition was in the writing of a contract and that condition doesn't happen, is the obligation to perform excused?
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yes, unless the person enforcing it gave up the right to do so (waiver if after condition, estoppel if before) or they prevented the condition from occuring
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What can a party do if there has been an unambiguous statement or conduct that the other party will not perform a contract?
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their nonperformance is excused. However, the other party can retract their repudiation so long as it has not resulted in a material change. At this point, party can await adequate reassurance.
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What can a party do if there is uncertainty as to whether the other party will perform their end of a contract?
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if they have reasonable grounds for the uncertainty, they may make a written demand for adequate performance. While waiting for that reassurance, they may suspend performance IF it is commercially reasonable to do so.
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When do the rights of a third party to a contract vest and what result?
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rights vest if the third party knows of and has relied on or assented to contract. If so, contract cannot be canceled or modified without consent (unless contract otherwise provides)
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Can a third party beneficiary to a contract recover from the person who obtained the promise for their benefit? Can they recover from the person who was supposed to perform the promise?
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can't recover from person who set up the promise, but can recover from the person who was supposed to perform it. However, there is an exception if the person who set up the promise had a pre-existing debt owed to the third party
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What is the difference between a third party beneficiary and an assignment?
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assignment is a later transfer of rights. Third party beneficiary is someone that is named in the contract
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What is the difference between a contract that says rights are not assignable and all assignments of rights are void?
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if not assignable, the assignor has breached but the third party can still sue to enforce provided they didn’t know of the limitation. If void, the assignment is invalid and assignor has breached.
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In what way does the common law automatically restrict contractual assignments?
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assignments are barred if they substantially change the duty of the obligor. Note - right to payment is never substantial, but having someone else perform usually is
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When can an assignment to a third party be revoked?
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if it is gratuitous (no consideration)
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If an assignment is for value, what rights does the assignee get?
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implied warranty of assignor that the right to assign existed, was not subject to defenses, assignor won't impair the value of it
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When is a gratuitous assignment of a contract to a third party irrevocable?
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if the assignee has received some sort of indicia of ownership or the assignee has relied on the assignment in a detrimental way
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Who wins if there are multiple assignments that were gratuitous? Who wins if there was consideration?
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gratuitous - last assignee wins; gratiutious - first for consideration wins
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What is required in order to mutually cancel a contract between two parties? What is required?
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recission - parties may agree to cancel the contract ONLY IF there is still performance remaining to be completed
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A and B make a contract. They later make a new agreement for B to do a different performance to satisfy it. B doesn't perform the new agreement. What obligations exist?
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original agreement is NOT excused. A may sue based on either the original or the later contract.
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A and B make a contract. They later make a new agreement for B to do a different performance to satisfy it. B performs the new agreement. What obligations exist?
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original agreement is excused. A may no longer sue or enforce it.
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What is the difference between accord and satisfaction and a modification?
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accord and satisfaction is substituting performance, modification is a new agreement
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A and B make a contract. They later make a new agreement that is intended to replace the earlier contract. What obligations exist? What is it called?
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original agreement is extinguished. No obligations.
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What is the difference between a novation and a delegation?
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Novation requires agreement of both parties and excuses the replaced person from any obligation. Delegation is one-sided and does not excuse.
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When does a later, unforeseen event excuse contractual performance obligations?
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if it makes performance impossible or commercial impracticable. Examples that DO qualify - specific objects destroyed that are not fungible, laws passed making it illegal, special person unavailable; examples that don’t - death
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When is a third party delegatee liable for nonperformance?
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if consideration was received
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When is delegation of contractual obligations to a third party usually not allowed?
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if the contract calls for very special skills or the person to perform the contract has a very special reputation
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What jurisdiction if a crime is committed in multiple states?
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Court has jurisdiction in every state where a significant portion of the crime occurred.
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When can two crimes be merged and what effect?
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A lesser offense is merge with a greater offense; D charged for both crimes but can only be punished for one. Can't do it if there are two separate victims.
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Are unconscious acts criminally punishable?
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No, because they fail to have Actus Reus
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Is there a duty to help others?
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NO affirmative obligation, unless spouse/child, contractual, or if you already started helping you can't stop
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What are the specific intent crimes? (list)
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Inchoate offenses of solicitation/attempt/conspiracy, first degree murder, larceny, false pretenses, embezzlement, robbery and burglary, and attempted assault
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What crimes involve Malice?
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arson and general murder
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What crimes involve general intent?
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rape, battery, kidnapping
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What special defenses are available for specific intent crimes?
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voluntary intoxication and mistake of fact
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Can intent be transferred to a mistaken criminal target?
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Yes, and can also apply in a defense too
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When must criminal intent be shown? Before/after/during the crime?
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before or during ONLY
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What effect if you kill someone accidentally after assuming they were already dead from your other actions?
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Legal solution is that the law treats it as if the person was dead when you thought they were
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When can a person be charged with assisting in a crime?
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If the provided assistance to others in committing the crime and did so intentionally.
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What are the elements of solicitation?
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Asking or encouraging another to commit a crime. Cannot withdraw statement after it is made and impossibility is no defense.
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What are the elements of conspiracy?
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Two or more people have a meeting of the minds to commit a crime and the intent to enter into the agreement. Some act must be done in furtherance of the plan (but not in VA). D is liable for all foreseeable crimes in futherance of the conspiracy.
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What are the elements of attempt?
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A substantial step taken towards completion of a crime (VA distinction - direct act toward completion with intent). Factual impossibility is never a defense.
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What are the four standards for insanity criminal defenses?
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M'Naughten - D did not know actions were illegal due to mental defect; Irresistible impulse - irresistible urge to commit crime; Product rule - product of mental illness; model Penal code - inability to appreciate wrongfulness of act or conform conduct to law
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When is intoxication a criminal defense?
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involuntary - defense to all crimes if done without the person's will or knowledge. Voluntary - only specific intent crimes. VA only allows voluntary for first degree murder.
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When is mistake of fact a criminal defense?
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Specific intent crimes can use it. Any kind of mistake (genuine) can be used for larceny, but everything else must be geniune and reasonable.
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When can a police officer use deadly force to stop a fleeing felon?
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probable cause to believe person committed crime, reasonably necessary to use deadly force, and they posed a risk of danger to others
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When can a criminal defense of necessity not be raised?
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when it involves the intentional killing of another
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What must the government prove to show overcome a defense of Entrapment?
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that beyond a reasonable doubt, D was predisposed to commit the crime prior to government contact. Gov. may use prior crimes in evidence (exception to hearsay)
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How long must it take for a victim to die from injuries before murder is no longer applicable?
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No time limit - may die anytime after injury
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What does common law murder require and how can it be shown?
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killing of another human with malice; malice can be shown through gross recklessness (depraved heart), intent to kill, intent to inflict great bodily harm, a felony murder
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What is required for felony murder?
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A violent felony (or in VA - arson, rape, robbery, kidnapping or burglary) AND someone dies, where their death was foreseeable AND caused by anyone (common law; VA says must be a D)
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What is manslaughter?
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killing without malice; voluntary is in heat of passion, involuntary is in connection with a lawful act done recklessly OR in connection with some unlawful act
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What is statutory rape?
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sexual contact by an adult with a minor. Consent and mistake as to age do NOT MATTER.
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What are the elements of larceny?
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Taking and carrying away, against the owner's will, personal property, with intent to permanently deprive
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What is the VA larceny presumption?
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one in unexplained and exclusive possession of recently stolen property can be rebuttably presumed guilty
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What are the elements of embezzlement?
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person in possession steals something and title does not pass
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What are the elements of false pretenses?
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personal property taken and title DOEs pass
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What are the elements of Receiving stolen Property?
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person must actually receive, personal property of another with knowledge that it has been stolen and have an intent to permanently deprive the owner
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What are the elements of robbery?
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taking personal property with intent to deprive owner, by force, from another's presence
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What can be presumed about criminal possession if the object is within the reach of multiple persons?
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all people can be charged with the crime
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What are the elements of burglary
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breaking and entering (any degree of force) the DWELLING of another at NIGHT with intent to commit a felony inside (modern law says anytime in any building)
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What are the elements of arson?
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Malicious (intent or foreseeable) burning of the dwelling of another (burning requires at least a flickering flame that does some damage)
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What criminal procedure rights of D are non-waivable?
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right to appear for trial and failure to state all elements of the charged offense
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What three rights are waivable only by affirmative action in a criminal proceding by the D?
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right to counsel, miranda, right to jury trial
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What are the first 8 amendments applicable to the states concerning criminal procedure?
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the 14th amendment due process clause incorporates them
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When is an arrest warrant needed?
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when person is in their home
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If D is arrested at a friend's house with a valid arrest warrant, what effect as to evidence found at the friends house?
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evidence not usable unless police had a search warrant for friend's house
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How can a government affidavit be challenged if it presents probable cause on its face?
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That there was an intentional lie relating to a material fact.
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What protection is afforded a police officer acting on a warrant in good faith?
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If reasonably believed an invalid warrant was valid, evidence will not be excluded.
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What must an officer do upon entry to a building to execute a warrant?
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knock an announce, however, failure will not exclude evidence
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When can a police officer search a car without a warrant?
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if probable cause to believe car on open road contains evidence, or if doing an inventory at the police station. Can search any container in car if they are performing a valid search of the car in the first place.
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Can a third party consent to a search of a premise?
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Yes if they reasonably appear to be in authority to consent. However, NO hotel operators, landlords, or spouses if over objection of other spouse
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When can a terry stop and frisk be performed?
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Need reasonable suspicion that crime may take place. Can ask questions and open-handed pat outside. Can only reach in to take obvious weapons or drugs.
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What two major doctrines should be analyzed in confession situations?
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Due process clause concerns of coercion or forced confession, followed by Miranda analysis
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When is a miranda warning necessary?
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Statements are required when there is custodial interrogation. (custodial can be less than arrest - not free to go, and interrogation is by a government agent)
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Can questioning resume without redoing a miranda warning?
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Yes, if there is only a very brief break in the questioning (e.g., lunch), otherwise need to give a new one. Cannot resume if counsel is requested.
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When can an excluded miranda confession be used as evidence?
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for the limited purpose of impeachment
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When is an illegal pretrial identification followed by a legal in-court identification admissible?
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If the identification in-court was independent of the pretrial identification.
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When does the 6th amendment right to counsel apply to witness identifications?
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d's lawyer must be allowed IF AFTER D has been formally charged.. And only entitled if D is personally confronted by witnesses against him
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What standing is required to challenege the admissibility of evidence?
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Must show a sufficient privacy interest that was invaded by the search. E.g., being at a friends house not enough while being a dinner guest would be
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When does the fruit of the poisonous tree doctrine NEVER apply to a remotely linked piece of evidence?
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When there has been an intervening voluntary statement by a third party
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When can the right to a fair and speedy trial be brought up? What are the statute of limitations on bringing prosecution?
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AFTER the person has been both arrested and formally charged. 5 month limit to formal charge if D in custody, while 9 month limit if D not in custody.
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How does sentencing law affect right to jury trial?
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If no statutory max, entiteld to jury trial if sentence greater than 6 months imposed. If it does have a max, entitled to jury if the max is greater than 6 months.
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What happens if a prosecutor promises a sentence but it the promise is breached?
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D can withdraw plea and go to trial. However, if prosecutor merely 'recommends', nothing they can do about it.
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When does double jeopardy trigger?
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multiple trials for same offense by same jurisdiction. Fed and state are different jurisdictions and both offenses must have some unique element that the other does not
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D causes mistrial or requests mistrial. Double jeopardy to prosecute again?
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No - no double jeopardy if it was not the government's fault
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D gets charged with manslaughter and convincted. Appeals and gets reversed. Can D be charged with murder on same facts?
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No - limited to previously charged severity, otherwise double jeopardy
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Valid terry stop. Officer asks for Id. Can he compel?
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Yes, so long as terry stop is valid
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What does NOT qualify as protected by privilege against self-incrimination
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lineup and indentification, and anything AFTER D has been granted immunity
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When is a grand jury required?
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Must have for indictment if there is a felony, unless D waives
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Is evidence of a Plaintiff's accident history admissible?
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No, tends to merely show P is accident prone, BUT admissible if cause of injury is at issue
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Is evidence of a similar accident caused by similar cicumstances admissible?
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Yes, if used to show existence of a dangerous condition, causation of the accident, or prior notice to the D.
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Is evidence of prior conduct admissible to infer intent?
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Yes, if intent is at issue
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Is evidence of prior sales admissible to determine value?
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Yes, if it concerns the selling price of property of a similar type, in a similar general location, and close in time to the period at issue.
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Is habit admissible? Distinguish from character
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Yes, requires a Repetive Response to a Particular set of Circumstances; far more specific than character evidence
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My past industry acts be used to show a standard of care?
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Yes, evidence of others in the same trade or industry may be used to show an appropriate standard of care.
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When is evidence of liability insurance allowed or not allowed?
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INADMISSIBLE to prove fault or absence of fault, but may be used to show ownership, for impeachment, or if insurance is at issue
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Are subsequent remedial measures admissible as evidence?
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No, unless used to show ownership or feasibility of a condition (and one of those is disputed)
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Are settlements of a disputed civil claim admissible as evidence?
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No, unless used to impeach to show bias. Statements of fact made in course of settlement ALWAYS inadmissible, unless gov. doing it in civil claim.
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Is plea bargaining in a criminal case admissible as evidence?
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No. Includes offers to make plea and nolo contendere. BUT plea can be used as party admission if it was a guilty plea.
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Is an offer to pay hospital or medical expenses admissible?
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No
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What can character evidence be introduced?
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To prove conduct in conformity with character at the time of the litigated event OR to show bad character for truthfulness when impeaching.
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How may character be proven?
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Reputation or opinion only, no specific acts
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What are the rules for using character evidence in a criminal case?
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Prosecution can't open with it, but D can open the door thereby allowing prosecution to ask questions about specific acts or bring in their own character witnesses.
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What are the rules for using character evidence concerning whether a victim acted in self-defense?
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D may use evidence to show victim had violent character, but then prosecution may rebut showing peacefulness. NOTE: even minor mention of victim as aggressor in murder case opens the door in this way
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What are the rules for character evidence regarding a victim's sexual acts?
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Inadmissible, unless to show someone other than D did the sexual act, showing specific sexual acts with D to show consent, OR where exclusion would violate D's right of due process (e.g., love triangle defense)
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What are the rules for character evidence in a civil suit?
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Only admissible when character is an essential element of a claim, which arises in negligent hiring tort actions, defamation, and child custody disputes
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When are D's other crimes admissible to show something specific about the crime currently charged?
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MIMIC - Motive, Intent, Mistake, Identity, Common scheme or plan
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What is the special rule concerning prior crimes admitted in Sex Crimes cases?
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Can offer any of D's prior sexual misconduct--limitation on prior crimes is totally removed
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How may a writing be authenticated for admission into evidence?
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by showing witness personal knowledge, proof of handwriting, ancient document rule (20 yrs old, free of facial probs, in natural custody), or solicited reply (author response)
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What documents are self-authenticating?
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offical publications, certified copies of public records, newspapers/periodicals, trade inscriptions and labels, notary witnessed documents, commercial paper
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Can photographs be authenticated?
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Yes, by witness testimony that it is a fair and accurate representation of person or object portrayed
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When is the best evidence rule applied and what does it require?
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A party proving the contents of a writing must show the original or explain why it is unavailable. Important if document is legally operative or witness testify SOLELY from reading about that writing.
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When is failing to produce the original document for the best evidence rule excusable?
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cannot be found with due diligence, destroyed without bad faith, or exists outside reach of legal process
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When may alternatives to the original document be offered under the Best Evidence Rule?
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voluminous records presented via summary, certified copies of public records, and for collateral (of secondary importance) documents
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What is the general requirement for a competent witness?
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Must make oath or affirmation and have personal knowledge
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When are leading questions allowed on Direct exam? When on Cross-exam?
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NOT ALLOWED for direct unless getting things started, hostile/adverse witness, or forgetful witness. ALLOWED ALWAYS on cross.
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Can a writing be used to refresh a witness's memory?
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Yes. May not read from it but can use to refresh. Adversary may see it, use it on cross, or introduce into evidence.
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What can be done if showing a writing fails to refresh a witnesses memory?
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Witness may vouch for accuracy of the writing if the witness made or adopted the writing when the event was still fresh in their memory.
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When may lay persons give their opinion as a witness?
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If rationally based on their perception and helpful to the jury in deciding a fact
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What is the standard for Expert Witness testimony?
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TRAP - Testing of principles or methods, Rate of error, Acceptance by other experts in same field, Peer review and publication
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When can Treaties or Periodicals be admitted during an Expert Witness's testimony?
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If they establish the documents as reliable, they may be read in as substantive evidence, and on cross-exam, those may be used to impeach and contradict experts. May not introduce merely as exhibit.
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Can witnesses testify as to the ultimate issue of the case?
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Yes, but it won't be considered helpful (and thus admissible) if it is a statement of legal conclusion or legal jargon. Also, can never given opinion on mental state if that is in issue.
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When can a party bolster the credibility of their own witness?
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Never, unless the witness's credibility has first been attacked. Also, witness cannot testify as to prior consistent statements (unless it was an identification).
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When can a party impeach their own witness?
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Anytime, without limitation
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When impeaching, what methods are available?
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Prior inconsistent statements, Bias/motive/interest, sensory deficiencies, bad reputation, criminal convictions, bad acts without conviction reflecting on truthfulness, contradiction
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When can prior criminal convictions be used for impeachment?
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Must have been a false statement as element of previous crime or felony (if probative value outweighs), must be within last 10 years unless very significant. May ask witness to admit or offer extrinsic evidence.
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What impeachment methods cannot use extrinsic evidence?
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Prior bad acts without conviction and Contradiction (if collateral)
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How can a witness be rehabilitated after impeachement?
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Bring out character witness (after an attack) that shows good character. OR may offer prior consistent statements to rebut charge of recent fabrication.
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When does the attorney-client privilege apply?
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confidential communication between attorney and client (or potential client) during a professional legal consultation
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What are some attorney-client privileged communications that are not privileged?
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third party listens or told, client waives, future crime or fraud discussions, if legal advice is at issue, or if an attorney-client dispute
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What effect if a client partially waives attorney-client privilege to some communications but not others?
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If the other communications concern the same meatter, fairness requires it, and the waiver was intentional, then the waiver may extend to the other communications
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When does the physician-patient privilege apply?
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Confidential communication acquired for purpose of diagnoses or treatment of medical condition. In federal actions, only available for psychotherapy.
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What is the husband-wife privilege and when does it apply to testimony?
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In criminal cases, a spouse can refuse to make testimony if they are still married. If concerning confidential communication during the marriage, in any type of case either spouse is not required to disclose the information (also lasts after divorce - but not applicable if concerning crime or domestic abuse)
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What is hearsay?
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an out-of-court statement by a person offered to prove the truth of the matter asserted.
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What are the principal categories of non-hearsay purposes?
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Verbal statements (ie legally operative language like an offer for contract), to show effect on person who heard or read statement, or to show circumstantial evidence of speakers state of mind
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Is a witnesses own prior statement admissible?
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No. Hearsay, unless identification of a person, prior inconsistent statement made under oath during formal proceeding, or if being used to rebut recent fabrication charges
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What is a party admission? Is it admissible as evidence?
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Any statement made by a party is admissible if offered against them. Vicarious admissions by employees/agents also ok if statement concerns matters within scope of employment made during employment.
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What are the hearsay exceptions available when a witness is not available?
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former testimony, statements against interest, dying declarations, excited utterances, present sense impression, present state of mind, statement for medical treatment or diagnosis, present physical condition, declarations of intent, business/public records, or impeachment of hearsay declarants
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When is a criminal D shielded from hearsay used by prosecution?
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If statement is testimonial (police interrogation, grand jury, NOT 911 calls), declarant is unavailable, AND D has no opportunity for cross-exam (or didn't back on a prior occasion)
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To A and his heirs - type and future interests
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fee simple absolute, freely devisable/descendible, alienable, NO future interest
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To A and the heirs of his body - type and future interests
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fee tail; virtually abolished. Grantor has reversion and third party has a remainder
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To A until… - type and future interests
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FSDPR Fee Simple Determinable with Possibility of Reverter, devisable/descendible/alienable but ALWAYS subject to the condition
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To A, but if X event occurs, grantor reserves right to reenter and retake - type and future interests
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Fee simple subject to Condition Subsequent; grantor uses durational language and carves out the a future interest with ability to terminate
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To A, but if X event occurs, then to B - type and future interests
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Fee Simple subject to Executory Limitation; there is a shifting executory interest to B; if condition broken, automatically forfeited
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To A so long as she never attempts to sell or other restriction that is not linked to a reasonable time-limited purpose
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Absolute restraints on alienations are void
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to A with the hope that he will someday become a lawyer
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Words of mere hope, desire, or intent are INSUFFICIENT to create a defeasible fee
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to A for life
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life estate; A is the life tenant, grantor has a reversion (remainder if it goes to a third party)
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A life tenant must not commit Waste that will hurt the future interest holders. Types of waste
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Voluntary (deliberate action), permissive (maintain premises on reasonably good repair, pay taxes on land), ameliorative (must not do acts that will ehance the property value w/out future interest holders consent)
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A life tenant must not consume natural resources UNLESS
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PURGE - Prior use of land for exploitations exists (except can't start new mines), Reasonable maintenance, Grant exists allowing it, Exploitation is the only use for the land
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to A for Life, then B what does B have?
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vested remainder
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remainder to B, provided B lives to age 21, otherwise to C What does B have?
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vested remainder subject to complete defeasance
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When does a class close when determining a possession of an estate?
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rule of convenience - class closes when any one member can demand possession (NOTE - children in the womb do get counted)
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What happens if someone creates an interest to A, and upon A's death, to A's heirs
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rule in shelley's case - interest gets merged into a fee simple
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What happens if A creates a future interest in his own heirs?
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Automatically voided by the Doctrine of Worthier Title, unless you specify otherwise
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What is a future interest in a third party that takes effect by cutting short a third party's interest?
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shifting executory interest
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What is a future interest in a third party that takes effect by cutting short a grantor's interest?
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springing executory interest
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What is the rule against perpetuities?
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future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life in being
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What does a gift to an open class conditioned on members living beyond age 21 have in common with an executory interest with no time limit on when it must vest?
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both are always void under the rule against perpetuities
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What is required to form a joint tenancy?
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TTIP - same Time, Title, Identical interests, and right to Possess the whole
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when is a joint tenancy severed?
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SPAM - Sale allowed but buyer becomes tenant in common, Partition and Mortgage (minority rule)
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When is a tenancy by the entirety created? What are benefits?
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to husband and wife with right of survivorship - joint tenancy between married couple. Protected from creditors and neither party may unilaterally convey it.
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What rights do members of a tenancy in common have?
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right to possess the whole. Each owns equal parts and can freely transfer. No right of survivorship.
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May co-tenants exclude other tenants?
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no, if so they have commited wrongful ouster
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Are co-tenants liable to the others for rent?
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not liable if other co-tenant is merely absent, however, if leasing to a third party then must pay a portion of the rental income to them
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What are co-tenants responsible for paying?
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their share of carrying costs such as taxes, mortgage interest payments, etc. Other tenants also have right to contribution for maintenance and repairs
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What happens if a co-tenant makes improvements to the property?
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no right to contribution, and will claim either the loss or gain to the value of the property when it is sold
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How much notice must be given to terminate a periodic tenancy? What is the limit?
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at least one full period, but if longer than a year, limit to six months
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What are the characteristics of a tenancy at will?
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must be express (so as not to find implied periodic tenancy), no fixed duration as long as T desires and may be terminated by either party at any time
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Does a Tenant normally have a duty to repair?
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yes. Must maintain premises and make ordinary repairs, unless lease states otherwise. Must not commit waste. Liable to third parties T invited who are injured.
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When can a tenant install something and later remove it? When can he not?
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any fixture - a movable chattel with an objective intento to permanently improve the realty - cannot be removed if doing so would cause substantial harm to the property
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What are a landlord's options for dealing with a tenant that is holding over without paying?
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Lanlord may evict through courts and sue for rent due until T leaves OR continue relationship and sue for rents due. May NOT engage in self-help
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What are a landlord's options if a tenant appears to have abandoned the property?
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May treat it as a surrender, ignore and hold T responsible for unpaid rent (minority rule), or re-let premise with T responsible for deficiency (majority rule)
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What is a landlord's duty to deliver possession?
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must delivery physical possession of premise - if holder there landlord has breached and tenant gets damages
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What is a tenant's right to quiet use called? When does a landlord breach it explicitly? Implicitly?
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implied covenant of quiet enjoyment; explicit - wrongful eviction; implicit - substantial interference thorugh L's actions OR Notice of a problem where L fails to act and T vacates within reasonable time thereafter
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What implied warranty comes with every residential lease?
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implied warranty of habitability - non-waivable requirement that the premise be fit for basic human habitation. May establish via local housing code, etc
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What is a tenant entitled to do if the landlord breaches the implied duty of habitibility for a residential lease?
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move out and end lease, repair and deduct cost from rent, release rent until court determines fair value, or remain in possession while paying and later seek money damages
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What is the difference between an assignment and a sublease in terms of the relationship between a landlord and a tenant who assigns?
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sublease is a partial interest so there is no privity of estate nor contract between L and the sublessee
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Can a landlord prohibit assignments of a lease?
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Yes, can prohibit without L's written approval. However, after one approval then all future transfers are OK
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What is a landlord's duty to maintain a safe premise at common law? What are the exceptions?
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no duty, exceptions for common areas, warn of hidden defects, and reasonable care if repairs undertaken. Also, L will be liable for any defects if T leases a public space (museum, convention hall) or a short term lease of a furnished dwelling.
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What are the four ways to create an affirmative easements?
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prescription - adverse possession; implication - existing use implies it; necessity - complete landlock; grant - but longer than one year must be in writing
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What are the four types of negative easements? What is the restriction on negative easements?
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can disallow light, air, support, or stream water from an artificial flow. MUST be expressly in writing signed by the grantor
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What determines if an easement will pass automatically with the land? What is the exception to this?
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if easement appurtenant (benefit is related to land), passes automatically. If easement in gross (not related to land), doesn't transfer. EXCEPTION - bona fide purchaser without notice does not take the easement of a servient estate (bad easement)
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How can an easement be terminated?
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END CRAMP - Estoppel (material change of position), Necessity (expires when need ends), Destruction of servient land, Condemnation of servient estate by eminent domain, Abandonment by physical action, Merger (holding both servient and dominant estates), Prescription (adverse possession)
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What is the legal effect of an oral easement?
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creates a freely revocable license. Not subject to statute of frauds if one year or less
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What is required for a covenant to run with the land?
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WITHN - Writing, Intent, Touch and concern land, Horizontal and vertical privity, Notice (HOWEVER, horizontal privity ONLY required for burdens to run)
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What is required for an equitable servitude to run with the land?
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WITHN - Writing, Intent, Touch and concern land, Notice. (note - Privity is NOT required)
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What is the different between a covenant and an equitable servitude?
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money vs injunctive relief
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when will a common development scheme result in an implied equitable servitude?
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if the subdivider had a general scheme of residential development including D's lot and D had notice (actual, inquiry, or record notice)
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What defense can be used to prevent enforcement of an implied equitable servitude resulting from finding that a common development scheme for a neighborhood exists?
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party must show that area has changed so pervasively that the original terms are no longer appropriate
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what are the elements of adverse possession?
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COAH, Continuous, Open and notorious, Actual, and Hostile
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How can disability of the owner affect a claim for adverse possession?
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If at the START of the adverse possession they were disabled, the statute of limitations will not run. If disability occurred after start, no effect.
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When is tacking allowed to satisfy the continuous element of an adverse possession claim? What defeats it?
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taking ok if nonhostile privity such as blood, contract, will, etc. Outster defeats tacking and breaks continuity.
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What are the requirements for a proper contract to convey land?
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must be in writing and signed by party to be bound. Must describe land and state some consideration.
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Who bears the risk of loss in a land conveyance between buyer and seller?
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after contract is signed, seller owns land even though closing is not yet complete
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When can an oral contract to convey land be enforceable?
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if buyer takes possession, remits even a part of the purchase price, or makes substantial improvements
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What promises are implied in all contracts to convey land, regardless of what the contract says or the type of land?
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implied promise to provide marketable title free from reasonable double (e.g., no adverse possession claims, no mortgages, no zoning violations, no servitudes). Seller also promises not to make false statements of material fact and to disclose material defects
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What is necessary for a proper closing in a land conveyance?
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lawful execution of a deed that is signed by grantor that gives a description that is at least definite to to discern with some research. Also must physically deliver (or via escrow). Note - express rejection can defeat delivery
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what is a quitclaim deed?
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no promises made, other than the implicit promise of marketable title that is included in every contract for land conveyance
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What is a general warranty deed?
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gives warranty against seisin (grantor owns estate), a right to convey, against encumbrances, quiet enjoyment, protection against claims by others, and that grantor will do whatever is reasonably necessary to perfect title in future
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What is a special warranty deed?
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grantor promises that he hasn't conveyed the land to anyone other than the grantee and the land is free from encumbrances made by grantor
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What is a bona fide purchaser when it comes to recording deeds?
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one who purchases for value without notice. Notice can be actual, inquiry, or record.
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What is the difference between a notice jurisdiction and a race-notice jurisdiction?
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in a notice jurisdiction, a bona fide purchaser wins over those who came earlier if they did not record. If a race-notice jurisdiction, the first to record wins.
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Transfer from O to A is not recorded. Later transfer A to B that is properly recorded. What effect?
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the wild deed - the later transfer cannot give record notice of its existence
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A deed is given with the understanding that it is to be collateral for a debt, but nothing is in writing, is it enforceable?
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yes - equitable mortgage is found to exist
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What is the difference between B assuming and taking subject to a mortgage?
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if assumed, B takes on personal liability for original debt in addition to the original debtor. If subject to the mortgage, B has no personal liability.
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What happens to senior mortgages when a foreclosure occurs? What happens to junior mortgages?
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buyer takes subject to any senior mortages. Junior mortagages disappear so those holders must get a deficiency judgment if they got no surplus or not enough surplus.
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What happens to surplus money from a foreclosure sale?
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it pays off attorneys expenses (and other fees), then junior liens, then any remainder goes to the debtor
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What are the rules for mortgage priority? What are the exceptions?
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first in time first in right, UNLESS purchase money security interest (PMSI) mortgage (money loaned to enable debtor to acquire land), which will have superpriority over the others
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When can a debtor redeem his land that is subject to a foreclosure?
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Can redeem land at any time prior to the foreclosure sale by paying off the missed payments plus interest and costs, unless there was an acceleration clause. Note - even if debtor wanted to, they cannot waive this right to redeem.
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A improves land and adjacent landowner B conducts some later excavation. This causes A's land to collapse. What must A do to attach strict liability to B's conduct?
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A must show that B's excavation would have caused his land to collapse even if he left his land in its natural state (no improvements)
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What usually determines a right to divert water?
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first in time gives priority of right
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How does property law treat surface water with respect to landowners?
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surface water is a common enemy, so landowner can combat the flow in any way short of unnecessary harm to land of others
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What can pose a nuisance on another's land? What is the definition of nuisance? Do hypersensitive P's matter?
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nuisance is substantial and unreasonable interference with another's use and enjoyment of land. Can be odors, noise, or physical object. Hypersensitive plaintiffs will lose.
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When is third party standing allowed?
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If there is a close relationship with P (e.g., doctor patient), P would unlikely be able to assert his own rights because he can't go to court, or if an organization sues on behalf of its members for a germane reason
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When does a citizen have standing to challenge a government expenditure?
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when it is challenged as violative of the establishment clause
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What are the three ways to have a case reach the supreme court?
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writ of certiorari, when a statute provides for it, and for suits between state governments
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If A is prohibited by both a state and a federal law, can supreme court review?
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No, because independent state law grounds would make success have no effect
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Can state governments be sued in federal court? When can they not?
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11th amendment bars suits against states in fed. Court, however, can if explicit consent by state, suing under federal statute, or bankruptcy proceedings
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Can congress create a cause of action for a private individual to sue a state government in a state court?
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No
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What does Congress have police power over?
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the military, indian reserves, federal lands, and washington DC
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What interstate commerce can be regulated by Congress?
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channels of commerce (highways, waterways, internet), people and things that cross state lines, and activities with a substantial effect on interestate commerce (but if non-economic, must show economic activity)
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What does the 10th amendment do?
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provides all powers not granted to federal government are reserved to people, so congress cannot compel state legislative activity
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how may congress induce states to act?
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may prohibit harmful state commercial activity or attach strings to grants that contain clear conditions related to the purpose of the underlying federal program
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Can congress delegate executive power?
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never to itself, only to agencies, and it must include intelligible principles
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If a treaty conflicts with a state law, the constitution, or a federal law, when does it win?
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state law - win, constitution - lose, federal law - last in time wins
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Who can the president NOT pardon from crimes?
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state crime convictions or anyone who is impeached (impeachment is not criminal)
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when does federal law preempt state law?
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if the federal law explicitly says so (or preempts entire field), both can't possibly enforced, or they have directly conflicting objectives
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Can states tax federal government agencies or federal employees?
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Can't tax agencies, but can tax federal employees so long as those taxes are non-discriminatory
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If a state discriminates against out-of-staters with respect to civil liberaties or the ability to earn a livelihood, what does it violate?
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the privileges and immunities clause of article IV
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If a state restricts a citizens right to travel, what has it violated?
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the 14th amendment privileges and immunities clause
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When can states discriminate against out of state interests?
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if handing out money it can restrict to in-state recipients, when it acts as a buyer or seller of goods, and can prohibit sale of alcohol (but not the transportation of)
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What is rational basis review?
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the law must be rationally related to a legitimate government purpose. Burden on claimant.
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What is intermediate scrutiny?
|
the law must be substantially related to an important government purpose. Burden of proof on government.
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What is strict scrutiny?
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the law must be necessary or narrowly tailored to achieve a compelling government purpose. Means must be the least restrictive alternative. Government has the burden of proof.
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What fundamental rights trigger strict scrutiny?
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marriage and divorce, custody and raising children, procreate and contraceptives, right to travel, free speech and association, exercise of religioin
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What rights trigger only rational basis review?
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right to trade, physician-assisted suicide, right to education
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What level of scrutiny does abortion receive?
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special undue burden test prior to viability, afterwards, gov. may regulate. Must contain exception to protect life and health of mother.
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What suspect classes receive strict scrutiny?
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race or ethnicity, alienage, right to travel, voting
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Is affirmative action constitutional? Why?
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yes, but must be more than a mere racial quota
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What suspect classes receive intermediate scrutiny?
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legitimacy classifications and gender
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What suspect classes are subject to rational basis review?
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all economic discrimination, age, handicap, wealth, foreign travel restrictions
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When is speech regulation subject to strict scrutiny? When is it subject to intermediate scrutiny?
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strict if content-based, intermediate if content-neutral
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When is content-based restriction allowable?
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incitement, hate speech, obscenity, defamation, commercial advertising
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What is the effect on the media reporting information if a source is lawfully or unlawfully obtained?
|
if lawfully obtained, no liability for truthfully reporting. If unlawfully obtained, only OK if the media did not participate in obtaining it and it involves matters of public concern
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What is the effect on speech regulation between free speech on public forums, non-public forums (closed off government property), and private property?
|
public form requires intermediate scrutiny, non-public forum must be reasonable and neutral, private areas raise no free speech concerns
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How are state governments restricted when it comes to interfering with private contracts?
|
may not interfere with private contracts without meeting intermediate scrutiny. If existing state or local contract, must meet strict scrutiny.
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What must the government do when implementing a regulatory taking of a person's private property? What is a regulatory taking?
|
regulatory taking is when regulation of use of property occurs without physical occupation. Gov. must leave an economically viable use of property and create a benefit to public that is proportional to the harm suffered
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Can children be liable for intentional torts?
|
yes
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What is the effect of a hypersensitive person when determining if an intentional tort occurred?
|
ignore the hypersensitivity
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What are the elements of battery?
|
harmful or offensive conduct upon P's person. Offensive means not permitted by person of ordinary sensitivity and contact must be more than something they are holding.
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D has intent to assault but accidentally hits P. P didn't notice attack. What crime?\
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D is guilty of battery - intent transfers from assault
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What are the elements of assault?
|
D places P in apprehension of immediate battery (awareness - not necessarily fear. Also, words of warning or future action are not enough)
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What are the elements of false imprisonment?
|
D confines or restrains P to a bounded area (Acts include threats, P must know of confinement, and bounded area means P's ability to move in ALL directions with no reasonable means of escape)
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What is the shopkeeper's privilege?
|
allows detention for a reasonable time after a reasonable suspicion of shoplifting to make an investigation
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What are the elements of intentional infliction of emotional distress?
|
outrageous conduct by D that causes P to suffer severe emotional distress (in VA there is NO requirement of showing physical injury) note - recklessness can satisfy
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What types of P will be likely to suffer severe emotional distress from D's outrageous conduct in an intentional infliction of emotional distress claim?
|
children, elderly, pregnant women or hypersensitive P (but in both of those cases, D must have known). Innkeepers and common carriers are also held to a higher standard
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When can a bystander recover for IEED?
|
must prove either prima facie case herself OR can prove she was either in close proximity or a close relative of injured person
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What are the elements of trespass to chattels? What is the measure of damages recoverable?
|
Act by D that interferes with P's right of possession of chattel. Can recover cost of repair. Usually minor acts such as damage or vandalism.
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What are the elements of conversion? What is the measure of damages recoverable?
|
Act by D that interferes with P's right of possession of chattel that is so serious as to warrant paying for full value of chattel. Can recover full market value of item (D gets to keep) OR can repossess (replevin). Usually major acts.
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Can consent be given to intentional torts? How?
|
yes, but must have legal capacity. Can be express or implied through custom and usage.
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|
What are the three requirements for a valid self-defense claim?
|
Must be in response to imminent threat, reasonable belief of threat, and must keep responding force to the minimum necessary
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What is the difference between a public necessity tort defense and a private necessity tort defense?
|
Public - absolute defense when invading property to protect group of people. Private - limited defense when D protects own interest, still liable for actual harm inflicted but not normal/punitive damages
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Can a force be used to capture chattels that have been stolen?
|
yes, recapture of chattels tort defense - may only use reasonable force to recapture. However, if possession of owner's chattel began lawfully then must use peaceful means.
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When may an officer or private citizen arrest without a warrant? What if a private citizen does so but no crime has actually been committed?
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either may do so to prevent a felony being committed in his presence. Private citizen will be liable if he makes a mistake.
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What is the classic test for forseeability on negligence claims?
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P must have been foreseeable because he was in the zone of danger
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What standard of care is owed by children?
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under 4, no duty, over 4 but under 18, based on hypothetical child of similar age and intelligence and maturity acting under similar circumstances. UNLESS engaged in adult activity (involves some kind of engine)
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What standard of care is owed by professionals?
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duty of care is that which average member of that profession practicing in a similar community. Can be large range if a specialist
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What standard of care is owed by land owners?
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undiscovered trespasser - none, discovered trespasser - warn of dangerous, concealed, man-made traps that are known, licensee (social guest) - duty to protect against known traps, invitee - known traps and duty to reasonably inspect
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What are the elements of defamation? How does whether the matter is a public or private concern affect proving it?
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defamatory statement that specifically identifies P and is published. Must be an allegation of fact that reflects negatively on a trait of character and must be published to multiple people (unless foreseeable it would be overheard). Public matters require P also show that statement was false and D did not make statement in good faith (intentionally or reckless disregard)
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What are the two forms of defamation? When are damages presumed for each?
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libel - written and damages always presumed; slander - oral, damages only presumed if statement related to business, crime of moral turpitude, imputing chastity of woman, or loathsome disease
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What defenses are available for defamation?
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consent, truth, absolute privilege (spouses, officers in official capacity), or qualified privilege (social interest in promoting candor such as talking to police or asking employer for reference)
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What is P doesn't know how the duty of care was breached? How can this be proven?
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res ipsa loquitur - accident of a type normally associated with negligence that would normally result from D being in control of a particular object. Creates inference of negligence and establishes duty plus breach.
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How is factual causation shown for negligence?
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may establish but for causation, substantial factor causation, or may shift burden to D if impossible to ascertain
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What are some intervening factors that do NOT break proximate causation?
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medical malpractice, negligence of rescuers, protection by third parties, subsequent disease or accident caused by weakened condition
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What are the elements for assumption of risk as a defense?
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P knew and fully appreciated the risk and voluntarily encountered it
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What is the difference between pure and partial negligence?
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pure - split recovery by amount at fault, partial - P only recovers if less than 51% at fault
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P uses D's name for a commercial purpose. What tort? What circumstances would produce no liability?
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appropriation - OK if mere mention of name in a newsworthy situation
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What are the elements of the tort of intrusion on seclusion?
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invasion of P's seclusion in a way that would be objectionable to a reasonable P. Must have a reasonable expectation of privacy.
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What are the elements of the tort of false light?
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widespread dissemination of a material falsehood about P that would be objectionalbe to the average person. Need not prove bad faith.
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Duty owed to firefighters and police for dangers on owner's land?
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not if normal danger inherent to job. Owner does have a duty if he knows of something and has an opportunity to warn
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Is there a special duty to warn children of dangers on landowner's property?
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yes if it is an attractive nuisance that a child would not be able to appreciate the risk of
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When can a statute satisfy the element of whether there was a duty of care?
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if P shows he is a member of the class of persons that the statute seeks to protect and was injured by the class of risk the statute was designed to prevent
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What is a defense to a claim that a duty of care was breached by violating a statute?
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complying with the statute would have been more dangerous or was impossible
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when is there a duty to rescue?
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close relation (family, common carrier, innkeeper), when D caused the peril, or if D begins rescue voluntarily must continue with it
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What are the elements of negligent infliction of emotional distress?
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D's conduct caused a threat of physical impact that leads to emotional distress with subsequent physical manifestations. P must be in a zone of danger unless closely related AND P was present and personally observed.
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What is the biggest difference between intentional and negligent infliction of emotional distress?
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must show physical injuries from negligent infliction, unless due to a mishandling of a corpse or misreporting a relative's death
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When is there strict liability for animal bites or incidental injuries caused by animals?
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if they are wild, strict liability so long as P did nothing to bring about injury voluntarily (BUT not imposed against undiscovered trespassers). If they are domesticated, only liable if D has knowledge of the animal's viscious propensities in the past (one bite rule)
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What is required to find an ultra-hazardous activity that imposes strict liability? What types of harm are recoverable?
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ultra-hazardous if it poses a severe risk of harm to persons or property even when reasonable care is exercised and is uncommon in the area where it is carried out. Damages must be of the kind to be anticipated from such activity and the P must be foreseeable.
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What are the elements to find strict liabililty for defective products?
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merchant who routinely deals in goods of the type that hurt P, manufacturing or design defect present, no alteration of product since it left D's hands (presumed if ordinary channels of distribution), must involve the foreseeable use of product by P at time of injury
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What is the difference between a manfacturing defect and a design defect when it comes to the tort of defective products?
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manufacturing - product departs from its intended design in a way that makes it more dangerous than expected. Design - alternative way product could have been built that is safer, not significantly more expensive, and practical OR no redesign but D failed to provide adequate warnings
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what are the elements of the tort of nuisance?
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substantial, unreasonable interference with the use of and enjoyment of property
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When can a principal be liable for the intentional torts of an agent?
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if the job generates tension (repo man), foreseeable aspect of job (bouncer), or misguided intent to serve employer's interest
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When can an independent contractor impose liability on the owner of land?
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if the owner hires the contractor and he hurts an invitee
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What special tort action is available to married couples? What can be recovered?
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loss of consortium - includes recovery for loss of services, society, and sex
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