Section 1
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Incitement of Illegal Activity
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Last updated
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Date created
Mar 1, 2020
Cards (383)
Section 1
(50 cards)
Incitement of Illegal Activity
Incitement of illegal activity is unprotected by the 1st Amndmt *Modern Test - the gov't may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality*
Elements of Obscene Language (3)
-material must appeal to the prurient interest, or a "shameful or morbid interest in sex" -material must be patently offensive under the law prohibiting obscenity -material must lack serious redeeming artistic, literally, political, or scientific value as determined by a national standard
Privileges and Immunities Clause of Article IV
No state or municipality may deny citizens of other states the privileges and immunities it affords its own citizens without substantial justification
Congress can act under the Commerce Clause in any of the following three situations
-Congress may regulate the channels of interstate commerce -Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce - Congress may regulate economic activities that have a substantial effect on interstate commerce
Commercial Speech
Advertising for illegal activity, and false and deceptive ads are not protected by the 1st Amndmt. Even true commercial speech that inherently risks deception can be prohibited.
Procedural Due Process
the procedures a government must follow to take away someone's life, liberty, or property
Can gov't speech be challenged as violating the 1st Amndmt?
Speech by the gov't cannot be challenged as violating the 1st Amndment; generally gov't speech and gov't funding of speech will be upheld as long as it is rationally related to a legitimate state interest. BUT, spending programs may not impose conditions that limit 1st Amdnmt activities of fund recipients outside the scope of the spending program itself.
Racial Classifications Benefitting Minorities
Numerical set-asides require clear proof that it will remedy past discrimination
Public Forums
gov't properties that the gov't is is constitutionally required to make available for speech (parks and sidewalks). *Regulations must be subject matter and viewpoint neutral, and if not, strict scrutiny must be met* *Regulations must be a time, place, or manner regulation that serves an important gov't purpose and leaves open adequate alternative places for communication* -does not need to use least restrictive alternative
Strict Scrutiny
A law will be upheld if the law is necessary to achieve a compelling government purpose.
Defamation
Public Official - can only recover with clear and convincing evidence the falsity of the statement and actual malice, meaning that the D knew the statement was false or acted with reckless disregard of the truth Public Figure - needs to prove falsity of the statement and actual malice Matters of Public Concern - can recover compensatory damages for defamation by proving falsity of the statement and negligence by the D, that is that the speaker was not as careful as a reasonable speaker should have been. However, the plaintiff may recover presumed or punitive damages only by showing actual malice. Matters not of Public Concern - can recover presumed or punitive damages without proving actual malice
Dormant Commerce Clause Exceptions
-Congress approves it - Market Participant Exception. A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government owned businesses
Treaties
- State laws that conflict with treaties are invalid - If a treaty conflicts with a federal statute, the one adopted last in time controls - If a treaty conflicts with the United States Constitution, that treaty is invalid.
Takings
(1) Has there been a deprivation of life, liberty, or property? (2) If there has been a deprivation (and only if) then awe ask: What procedures are required? (3-part balancing test) -importance of interest to the individual - ability of additional procedures ot increase the accuracy of the fact-finding - government's interests are usually administrative efficiency and saving money for the government
Ex Post Facto Laws
Const. says that neither the federal or state gov't can adopt ex post facto laws (e.g.,. law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed). Only applies in criminal cases.
Right to marry
law prohibiting a class of people from being married is invalid unless the gov't can demonstrate the law is narrowly tailored to promote a compelling or at least important interest
Dormant Commerce Clause
state or local laws are unconstitutional if they place an excessive burden on interstate commerce
Fundamental Rights
Lecture Book - Pg. 37
Where Congress has a police power
-Military -Indian Reservation -Lands, federal -District of Columbia
2 ways of finding a law is content-based
Subject Matter Restriction - application of the law depends on the topic of the message Viewpoint Restriction - Application of the law depends on the ideology of the message
Speech by Gov't Employees
Speech by gov't employees on the job in the performance of their duties is not protected by the 1st Amndmt.
Article VI of the Constitution
Supremacy Clause - the Const. and the laws and treaties made pursuant to it are the supreme law of the land. Valid federal law overrides or preempts inconsistent state law.
Executive Agreements
- Can be used for any purpose - Prevail over conflicting state laws, but never over conflicting federal laws or the Constitution
Right to Privacy
Fundamental right protected under substantive due process and therefore strict scrutiny is the standard used when the government interferes with privacy rights
Designated public Forums
gov't properties that the gov't could close off to speech, but chooses voluntarily to open to speech (public school facilities on evenings and weekends) *Same rules as public forum*
Existence of a racial classification
- the classification exists on the face of the law -if the law is race-neutral on its face, then proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent
Content-neutral laws
content-neutral laws burdening speech generally need only meet intermediate scrutiny
Three Steps of an Equal Protection Question
-What is the classification? -What level of scrutiny should be applied? - Does the law meet the level of scrutiny?
Prior Restraints
A prior restraint stops speech before it occurs. Court orders suppressing speech must meet strict scrutiny. -Procedural proper court orders must be complied with until they are vacated or overturned -A person who violates a court order is barred from later challenging it.
Gender Classification Benefitting Women
Intermediate scrutiny is used. Gender classifications benefitting women that are based on role stereotypes will not be allowed. -gender classifications benefiting women that are designed to remedy past discrimination or indifferences in opportunity will be allowed
Limited Public Forum
gov't properties that are limited to certain groups or dedicated to the discussion of only some messages. Gov't can regulate speech in limited public forums so long as the regulation is reasonable and viewpoint neutral. (public school that holds religious school classes on Sundays decides to host a candidate forum during election time, city-owned theatre, municipal auditorium)
Overbreadth
A law is unconstitutionally overbroad if it regulated substantially more speech than the constitution allows to be regulated.
Vagueness
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.
Elements of Standing
1. Injury in fact - (i) requires both a particularized injury that affects the plaintiff in a personal and individual way and (ii) a concrete injury - one that exists in fact 2. Causation and Redressability - Plaintiff must allege and prove that the defendant caused the injury so that a favorable court decision is likely to remedy the harm 3. No Third party Standing - Cannot assert claims of others, of third parties, who are not before the court because plaintiffs must present personally suffered injuries 4. No generalized grievances - Plaintiff must not be suing solely as a citizen or as a taxpayer interested in having the gov't follow the law
Gender Classifications
Intermediate scrutiny is used for sex-based discrimination and discrimination based on gender can only be allowed only if there is an exceedingly persuasive justification. *if the law is facially gender-netural, proving a gender classification requires demonstrating both discriminatory impact and intent*
Exceptions to Mootness Requirement
(i) the wrong is capable of repetition but evades review because of its inherently limited time duration (ii) voluntary cessation (iii) class action suits
11th Amndmt
Bars suits against state governments in federal court. That is, state governments generally cannot be named as defendants in federal court cases whether the citizen is from the state or a different state and whether the lawsuit is for money or an injunction. Exceptions: Waiver, Section 5 of the 14th Amendment, Federal Gov't can sue state governments, bankruptcy proceedings
Ripeness
Question of whether a federal court may grant pre-enforcement review of a statute or regulation. Courts consider two factors: (i) Hardship - greater the hardship that will be suffered without pre-enforcement review, the more likely it is the court will hear the matter (ii) Fitness of the Issues and the Record - Does the federal court have before it all the issues it needs to decide the matter? Is there any reason the federal court would be better served by waiting?
Rational Basis Test
A law is upheld if it is rationally related to a legitimate interest government purpose.
Symbolic Speech
The gov't may regulate conduct that communicates if it has an important interest unrelated to the suppression of the message and if the impact on communication is no greater than necessary to achieve the government's goal. NUDE DANCING IS NOT PROTECTED
Non-public forum
Gov't properties that the gov't constitutionally can and does close off to speech. (military bases, areas outside prisons, schools, signs on public property, sidewalks, airports, shopping centers) *Regulation must be reasonable (rational basis test and viewpoint neutral)*
Privileges and Immunities Clause of the Fourteenth Amendment
Used to preserve a person's right to travel from one state to another. Analysis: Analysis if the law does not discriminate against out-of-staters: -then the privileges and immunities clause of Article IV does not apply because this is a provision that only applies if there is discrimination. -If the law burdens interstate commerce, it violates the dormant commerce clause if its burden on interstate commerce outweighs the benefits of the law. Analysis if the law discriminates against out-of-staters -if the law burden interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve an important government purpose -if the law discriminates against out-of-staters with regard to their ability to earn a living, it violates the privileges and immunities clause of Article IV unless it is necessary to achieve an important government purpose. Discrimination must be with regard to fundamental rights or important economic activities.
Takings (2 types)
Possessory Taking - government confiscation or physical occupation of property is always a taking. Also includes gov't action that significantly damages property or impairs its use Regulatory Taking - Gov't regulation is a taking if it leaves no reasonable economically viable use of the property *gov't conditions on the development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking*
Bills of Attainder
Neither state nor federal gov't may pass legislation that designates particular individuals (by name or description) for punishment without judicial trial. *Punishment - traditional sanctions (e.g., death, prison, fines, confiscation) and punitive measures (e.g., exclusion from employment and benefits).
discrimination against non-marital children
intermediate scrutiny is used when so-called "legitimate classifications" are involved.
Intermediate Scrutiny
A law will be upheld if it is substantially related to an important government purpose.
Article 1, Section 8
Necessary and Proper Clause - Congress can adopt all laws that are necessary and proper to exercise its authority
Licensing Speech
Gov't can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. In addition, there must be procedural safeguards such as prompt determination of requests for licenses and judicial review of license denials.
10th Amendment
All powers not granted to the US, nor prohibited to the States, are reserved to the states. Three principles: -Congress cannot compel state regulatory or legislative action -Congress may prohibit harmful commercial activity by state governments -The Fifteenth Amendment is a limitation on both the states and the federal government by prohibiting them from denying any citizen the right to vote based on race or color.
Contract Clause
"No state shall ... pass any ... law impairing the obligation of contracts" (applies only to state and local laws) Private K - Substantial impairment of existing rights invalid unless; important gov't purpose reasonably related means Public K - Heightened scrutiny (intermediate or strict scrutiny)
Section 2
(50 cards)
Missing Price Term in K problem
Sale of Real Estate (Common Law) - price and land description required in order for a communication to be an offer to buy or sell land Sale of Goods (Art. 2) - a communication can be offer to buy or sell goods without a price term IF PARTIES SO INTEND
What is Consideration?
Bargain for a legal detriment
What is a risk of loss problem?
Risk of loss issues arise where (i) after the contract has been formed, but before the buyer receives the goods, (ii) the goods are damages or destroyed, and (iii) neither the buyer nor the seller is to blame.
Four things to know about rejection of goods
1. a less than perfect tender generally gives the buyer the option to reject the goods so long as the buyer acts in good faith 2. the rejecting buyer must take reasonable care of the goods and cannot continue to use the goods 3. the rejecting buyer can sue for damages, and 4. the option of rejection because of a less than perfect tender is limited by the concepts of cure, installment Ks and acceptance.
Difference between misrepresentation and mistake
-party arguing misrepresentation is seeking relief because what the OTHER party said was incorrect (relief is available) -party arguing mistake is seeking relief because of what HE DETERMINED ON HIS OWN was incorrect (relief not available unless mutual mistake of both parties about existing facts)
Seven General Questions of Contracts
1. What law is applicable? 2.Has a contract been formed? 3. What are the terms of the K? 4. Are there problems with seller's performance of Article 2 K? 5. What are possible effects of K on third parties? 6. How do courts enforce Ks? 7. What can happen after K that excuses performance? "Armadillos from Texas play tennis, riding elephants"
Installment K Obligation
An installment K REQUIRES or AUTHORIZES (i) delivery of the goods in separate lots (ii) to be separately accepted. The buyer has the right to reject an installment only where there is a substantial impairment in that installment that can't be cured.
Requirement K/ Output K
A K for the sale of goods can state the quantity of goods to be delivered under the K in terms of the buyer's requirements or seller's output (terms such as all, only, exclusively, solely) Requirements or output Ks are not vague or ambiguous and are valid.
Consideration Substitutes
A written promise to satisfy an obligation for which there is a legal defense is enforceable without consideration Promissory Estoppel (Detrimental Reliance) Elements: -promise -reliance that is reasonable, detrimental, and foreseeable, and -enforcement necessary to avoid injustice
When can buyers increase requirements in a K?
Buyer can increase requirements so long as the increase is in line with prior demands. No unreasonable disproportionate limitation on increases.
When does Article 2 apply? What are the factors to consider?
Article 2 only applies to contracts that are primarily for sales of goods. The factors that determine whether Article 2 applies are -type of transaction -- sale -subject matter of transaction - goods, ie.., tangible, personal property
Nondisclosure
Generally, a person making a K has no duty to disclose what she knows. Look for fiduciary-like relationship or concealment as exceptions to this general rule.
When does a "cure opportunity" exist in K?
1. Time for performance has not yet expired 2. Seller has reasonable ground to believe tender would be acceptable, perhaps with a money allowance
What effect do additional terms to a common law K have on a K? (Mirror Image Rule)
Under the mirror image rule, a response to an offer that adds new terms is treated like a counteroffer rather than an acceptance. *Additional or Different Terms not Rejection Under UCC Art. 2 (2-207)* Seasonable Expression of Acceptance: A fact pattern in which there is (i) offer to buy or sell goods and (ii) a response with additional or different terms raises two separate questions: 1. Is there a K? -Under UCC, a response to an offer that adds additional or different terms, but does not make the new terms a condition of acceptance, is generally treated as an acceptance. 2. Is the additional Term a Part of the K? -Additional terms are not part of the K unless both parties are merchants. However, even if both parties are merchants, the additional term is not a part of the K if the additional term is "material" or if the additional term is objected to by the original offeror.
Definition of K
K is an agreement that is legally enforceable. In looking for an agreement, look for (i) initial communication ("offer") and (ii) what happens after the initial communication ("termination of the offer"), and (iii) who responds and how she responds ("acceptance")
Termination of Offers (4 methods)
Lapse of Time, Time Stated or Reasonable Time Death of a Party Prior to Acceptance - Death or incapacity of either party after the offer, but before acceptance, terminates offer. *Exception - irrevocable offers* Words or Conduct of Offeror, I.E., Revocation of an Offer Words or Conduct of the Offeree - Rejection
Statute of Limitations on Warranty Liability
4-year - starts running on possible warranty actions when the "tender of delivery is made," not when the buyer learns that the product is defective
Vague or Ambiguous MATERIAL Terms
Not an Offer Under Either Common Law or UCC *terms such as appropriate, fair, reasonable*
What are the Risk of Loss Rules?
1. Agreement: agreement of the parties control. 2. Breach: breaching party is liable for any uninsured loss even though breach is unrelated to problem 3. Common carrier delivery: risk of loss shifts from seller to buyer at the time the seller completes its delivery obligation. 4. "Catch-all": the determining factor is whether the seller is a merchant. Risk of loss shifts from a merchant-seller to the buyer on the buyer's "receipt" of the goods: risk of loss shifts from a nonmerchant seller when he or she "tenders" the goods.
How is SoF Satisfied?
1. Part Performance - (1) Part performance and Transfer of Real Estate; (2) Part Performance and Services Ks; (3) Part Performance of a Services K Does Not Satisfy the SoF; (4) Part Performance and Sale of Goods Ks; (5) Seller's Part Performance - Specially Manufactured Goods 2. Writing 3. Delay in Responding by Merchant 4. Judicial Admission 5. Estoppel
Misrepresentation
Look for (1) a statement of "fact" before the K (2) by one of the contracting parties or her agent (3) that is false (4) that is fraudulent or material, and (5) induces the contract *No wrongdoing is required for material misrepresentation*
Implied Warranty of Merchantability
When any person buys any goods from any merchant, a term is automatically added to the K by operation of law - that the goods are fit for the ordinary purpose for which such goods are used. *triggering fact - seller is a merchant WHICH HERE MEANS IT DEALS IN GOODS OF THAT KIND*
Distance and Delay in Communications Rules (2)
-All communications OTHER THAN ACCEPTANCE are effective only when received. -Acceptance is GENERALLY effective when mailed (i.e., the "mailbox" rule)
Religious Speech
Gov't cannot discriminate against religious speech or among religions unless strict scrutiny is met
Establishment Clause (3-part test (SEX))
-There must be a secular purpose for the law -The primary effect must be neither to advance nor inhibit religion -There must not be excessive gov't entanglement w/ religion
How is an offer revoked?
-Later unambiguous statement by offeror to offeree of unwillingness or inability to contract, or -Later unambiguous conduct by offeror indicating an unwillingness or inability to contract that offeree is aware of -Multiple offers not revocation
What is the unconscionability doctrine?
This doctrine, originally applicable only to sales of goods but (1) now a part of Ks law generally, (2) empowers a court to refuse to enforce all or part of an agreement. The two basic tests, (i) unfair surprise (procedural) and oppressive terms (substantive) are, (ii) tested as of the time the agreement was made (iii) by the court.
Consequences of Incapacity
-Right to disaffirm by person without capacity -Quasi-K Liability for Necessaries: A person who does not have capacity is legally obligated to pay for things that are necessary such as food, clothing, medical care or shelter, but that liability is based on quasi-K law, not K law.
Definition of Offer
An offer is one person's (the offeror) manifestation of willingness to contract. *Basic test is whether a reasonable person in the position of the offeree would believe that his or her assent creates a K*
Who can accept an offer?
Generally, an offer can be accepted only by the person to whom it was made. Offers cannot be assigned; options can be assigned unless the option otherwise provides.
When does a seller complete its delivery obligation?
(i) gets the goods to a common carrier, (ii) makes reasonable arrangements for delivery (iii) notifies the buyer *contrast with destination K, where seller does not complete its obligation until the goods arrive at the destination*
Which Offers are Irrevocable? (4 situations)
1. Option - an offer cannot be revoked if the offeror has not only made an offer but also (i) promised to not revoke (or promised to keep the offer "open") AND (ii) this promise is supported by payment or other consideration ("option") 2. UCC "Firm Offer Rule" - An offer cannot be revoked for up to three months if: (i) offer to buy or sell goods, (ii) signed, written promise to keep the offer open, and (iii) party is a merchant 3. Reliance - An offer cannot be revoked if there has been: (i) reliance that is (ii) reasonably foreseeable and (iii) detrimental. 4. Unilateral K Offer Start of Performance - The start of performance pursuant to an offer that can only be accepted by performance ("unilateral K offer") makes that offer irrevocable for a reasonable time to complete performance. Mere preparation is not enough to make offer irrevocable.
Who lacks capacity to K?
- Infants - under 18 - Mental Incompetents - lacks ability to understand agreement, or - Intoxicated persons if other party has reason to know.
To punish membership in a group it must be proven that the person: (3 parts)
-Is actively affiliated with the group -Has knowledge of the group's illegal activities; and -Has the specific intent of furthering those illegal activities or objectives
Implied Warranty of Fitness for a Particular Purpose
Triggering Facts - buyer has particular purpose; buyer is relying on seller to select suitable goods; seller has reason to know of purpose and reliance
What does "bargained for" mean?
Asked for by the promisor IN EXCHANGE for her promise. Consideration fact patterns have people doing stuff that they were asked to do.
Parochial Schools
The gov't may give assistance to parochial schools, so long as it isn't used for religious instruction.
Effect of Acceptance
When an offer has been accepted, it is no longer possible for offeror to revoke or for offeree to reject. The caterpillar has become a butterfly
What effect does conditional acceptance have on an offer?
A conditional acceptance terminates the offer. Common law - rejection AND a counteroffer that can be accepted by conduct UCC - rejection but not a counteroffer that can be accepted by conduct
Four K within Statute of Frauds
1. Promises to Answer for the Debts of Another (Suretyship) 2. Service K Not "Capable" of Being Performed Within a Year From the Time of the K (i.e., more than 1 year) 3. Transfers of Interest in Real Estate (with Exception for Leases of Year or Less) 4. Sale of Goods for $500 or More
How does start of performance affect acceptance?
Starting to perform is treated as an implied promise to perform. *Exception - Unilateral K Offer: Start of performance is not acceptance of an offer that requires performance as acceptance (i.e., unilateral K offers). Completion of performance is required. Again, start of performance is an implied promise to perform. Offers to enter into unilateral Ks cannot be accepted by a promise. If offer requires "performance" for acceptance, then "performance" for purposes of acceptance of that offer means completion of performance.
Requirements for revocation of acceptance (3)
(i) nonconformity substantially impairs the value of the goods, and (ii) excusable ignorance of grounds for revocation of reasonable reliance on seller's assurance of satisfaction, and (iii) revocation within a reasonable time after discovery of nonconformity
Two most Likely Consideration Issues?
"Past Consideration" - generally not consideration "Pre-Existing Contractual or Statutory duty Rule" (Common Law Different From Article 2) - General Rule: Doing what you are already legally obligated to do is not new consideration for a new promise to pay you more to do merely that. And, under common law, K modification generally requires new consideration. *Exceptions: (1) addition to or change in performance; (2) third-party promise to pay; (3) a Restatement exception favored by MBE for modifications that are fair and equitable because of something unexpected that happened after the K* Article 2 does not have a pre-existing legal duty rule. New consideration is not required to modify a sale of goods K. Good faith is the test for changes to an existing sale of good K
What are the three indirect rejection methods of a K offer?
(1) Counteroffer - applies to all K (2) Conditional acceptance - applies to all K (3) Additional terms - Common law only
What are the Possible Consequences in a Risk of Loss Problem?
If the risk of loss is on the buyer, he has to pay for the full K price for the lost or damaged goods. If the seller has the risk of loss, no obligation on the buyer and possible liability on the seller for nondelivery.
K Provisions Requiring Written Modification
Common Law - K provisions requiring that all modifications be in writing are not effective - ignore K language UCC - K provisions requiring written modifications are effective unless waived
Perfect Tender Rule
1. Perfect Tender rule only applies to sale of goods 2. Perfect Tender Rule means that the good and delivery must completely comply with the K terms 3. The seller's failure to make a perfect tender gives the buyer the option of either (i) keeping the goods and suing for damages or (ii) sending the goods back, recovering payments made and possibly also suing for damages, unless the K is an installment K.
Can an advertisement or price quotation be an offer?
An advertisement or price quote is generally not an offer. However, an advertisement can be a unilateral offer if it is in the nature of a reward. For example, if Evan's Mom promises $100 reward to anyone who catches herpes from playing with her product, Evan. An ad can be an offer if it specifies quantity and expressly indicates who can accept. Price quote can be an offer if sent in response to an inquiry
What effect does a counteroffer have?
Counteroffers generally terminate the offer and create new offers. Bargaining does not terminate the offer, and counteroffers do not terminate options.
Duress of Undue Influence as a Reason for not Enforcing a K
-Physical Duress -Economic Duress - "Bad guy" - "improper threat" which is usually threat to breach existing K, AND -"vulnerable guy" - no reasonable alternative -Undue Influence - look for (i) special relationship between the parties and (2) improper persuasion of the weaker by the stronger.
Section 3
(50 cards)
the rights of assignee
-can recover from obligor -assignor for consideration cannot recover from obligor -obligor has same defense against assignee as it would have against assignor -payment by obligor to assignor is effective until obligor knows of assignment -assignor makes implied warranties in an assignment for consideration
Consequences of Delegation
1. Delegating party always remain liable 2. Delegatee liable only if she receives consideration from delegating party
Limitation of Remedies in a Sale of Goods K Provision
Test is "unconscionability" and generally the K provision "passes" that test and is valid. * Need to look out for situation in which the P sustains personal injury from consumer goods* Also, look for a K provision limiting the buyer's remedies to repair. The test is "fail of its essential purpose" and, on the bar exam, such a K provision generally fails the test.
Accord and Satisfaction
1. On bar exam, accord questions will have an agreement by the parties to an already existing obligation to accept a different performance in satisfaction of the existing obligation. 2. Effect of Accord and Satisfaction - If the new agreement ("the accord") is performed (satisfaction), then performance of the original obligation is excused 3. Effect of Accord then No Satisfaction - If the accord is not performed, then the other party can recover on either the original obligation or the accord.
Who can sue whom when dealing with third-party beneficiaries?
1. Beneficiary can recover from promisor 2. Promisee can recover from promisor 3. Beneficiary cannot recover from promisee 4. Limited Exception: Creditor beneficiary can recover from promisee BUT ONLY on pre-existing debt
Malice Crimes
1. Murder 2. Arson *Hypothetical - If Tara MURDERED Evan and Courtney subsequently burned his house down, they would both be guilty of MALICE INTENT crimes*
What constitutes a physical act?
Any bodily movement, but the act must be a voluntary act.
Parties to a Crime - Modern Statutes
Principal: one who, with the requisite mental state, actually engages in the act or omission that causes the criminal result. Accomplice: one who aids, advises, or encourages the principal in the commission of the crime charged. Accessory after the fact: one who receives, comforts or assists another knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction.
Involuntary Manslaughter
(1) A killing of criminal negligence or (2) Misdemeanor manslaughter - killing someone while committing a misdemeanor or an un-enumerated felony.
Overt Act Requirement
Majority rule is that in order to ground liability for conspiracy there must be an agreement plus some overt act in furtherance of the conspiracy. The minority rule and the CL rule grounded liability for conspiracy with the agreement itself. (1) if you are operating under the majority rule that requires an agreement plus an overt act, any little act will do to be an overt act in furtherance of conspiracy, even an act of mere preparation (2) Notes on the MBE regarding majority and minority rules: Always apply the majority rule UNLESS specifically told otherwise
Damages for Seller's Breach
1.Seller breaches, buyer keeps the goods: [fair market value if perfect - fair market value as delivered] or [cost of repair] 2. Seller Breaches, Seller Has the Goods: [market price at time of discovery of the breach - contract price] or [reasonable replacement price - contract price] whichever is greater
Second Degree Murder
A depraved heart killing - a killing done with reckless indifference to an unjustifiably high risk to human life; or murders that are not classified as first degree murders
the requirements for assignments
General rule is that consideration is not required, but gratuitous assignments (and only gratuitous assignments) can be revoked.
Measure of Damages
General Approach - Protection of Expectation: expectation simply means that people who contract expect that the other person will not breach. Expectation damages protect that expectation. Accordingly, (1) look to facts for dollar value of performance without breach, (2) look to facts for dollar value of performance with breach, and (3) compare the two to determine the amount of damages.
When does a legal duty to act arise? (5)
1. By statute 2. By contract 3. Because of the relationship between the parties 4. Because you voluntarily assume a duty of care and fail to adequately perform it 5. Where your conduct created the peril
Elements of Crimes Generally
-Act -Mental State -Concurrence: the physical act and mental act existed at the same time -Harmful result and causation: A harmful result caused by the defendant's act
the limitations on assignment
If there is a K provision regarding assignment: determine whether the K (a) prohibits assignments or (b) invalidates assignments Language of prohibition takes away the right to assign but not the power to assign, which means that the assignor is liable for breach of K, but an assignee who does not know of the prohibition can still enforce the assignment. Language of invalidation takes away both the right to assign and the power to assign so that there is a breach by the assignor and no rights in the assignee IF ANY DOUBT IN YOUR MIND BETWEEN PROHIBITION OR INVALIDATION, THEN PROHIBITION Even if a K does not in any way limit the right to assign, common law bars an assignment that substantially changes the duties of the obligor.
Battery (crim)
Unlawful application of force to the person resulting in either bodily injury or offensive touching. -need not be intentional -force need not be applied directly -battery is a GENERAL INTENT crime
Conspiracy
An agreement, with an intent to agree, and an intent to pursue an unlawful objective. -agreement need not be expressed; intent can be inferred from conduct Common law approach (bilateral approach) requires 2 guilty parties Modern trend approach (unilateral approach) requires that only one person have a genuine criminal intent
how to deal with multiple assignments
1. All gratuitous assignments -general rule: last assignee generally wins 2. Multiple Assignments for Consideration - general rule: first assignee for consideration wins very limited exception: a subsequent assignee takes priority over an earlier assignee for value only if he both (1) does not know of the earlier assignment and (2) is the first to obtain (i) payment, (ii) a judgment, (iii) a novation, OR (iv) indicia of ownership (four horsemen rule).
First Degree Murder
(1) Premeditated killing -victim must be human -D must have acted with intent or knowledge that his conduct would cause death (2) Felony murder (3) Homicide of a Police Officer -the D must know the victim is a law enforcement officer, and -the victim must be acting in the line of duty
What is a delegation?
K party's "transferring" work under that K to third party. For example, P Ks to paint O's house for $1k. P (delegating party) and X (delegatee) agree that X will paint O's (obligee) house.
Four Things to Know about Material Breach for the Bar Exam
1. damages can be recovered for any breach 2. only a material breach by one guy excuses the other guy from performing a K governed by common law 3. whether a breach is material is a fact question (and so whether a breach is material is not likely to be a bar exam question 4. if there is substantial performance then the breach is not material. If the breach is material, then the performance was not substantial.
Imperfect Self Defense
If D has an honest but unreasonable belief that his life was in imminent danger, this defense will reduce a murder to manslaughter.
Voluntary Manslaughter
(1) Killing in the heat of passion resulting from an adequate provocation by the victim (2) The provocation must be one that would arouse sudden and intense passion in the mind of an ordinary person such to cause him to lose self-control (3) There must not have been a sufficient time between the provocation and the killing for the passions of a reasonable person to cool; and (4) The defendant in fact did not cool off between the provocation and the killing
Common Law Mental States
1. specific intent crimes 2. malice crimes 3. general intent crimes 4. strict liability crimes
Requirements for JDX (criminal proceedings)
A state acquires JDX over a crime if either the conduct or the result happened in that state.
Additions and Limitations
1. Plus INCIDENTAL Damages -costs incurred in dealing with the breach such as costs of storing rejected goods ina sale of goods or finding a replacement in a services K - always recoverable 2. Plus Foreseeable CONSEQUENTIAL (Special) Damages -not general damages -limited to damages arising from P's special circumstances and recovery of consequential damages is limited to situations in which D had reason to know of these special circumstances at the time of the K 3. Less AVOIDABLE damages -no recovery for damages that could have been avoided without undue burden on plaintiff. Burdens of pleading and proof on defendant 4. Less damages that Cannot be Established With Reasonable Certainty -look for fact pattern involving a services K and P engaged in new business or a new business activity. Consider reliance recovery as an alternative to expectation.
Damages for Buyer's Breach
1. Buyer Breaches, Buyer Keeps the Goods: [contract price] 2. Buyer Breaches, Seller Has the Goods: [contract price - resale unless seller cannot resell in which case the seller can recover the contract price and in some situations provable lost profits]
Solicitation
Solicitation is asking someone to commit a crime.
Murder
Unlawful killing of another human being with malice aforethought. Such a state of mind exists if there is: -intent to kill; or -intent to commit a felony; or -intent to inflict great bodily harm; or -reckless indifference to an unjustifiably high risk to human life
Defenses in third-party beneficiary situation
if the third-party beneficiary sues the promisor, the promisor can assert any defense that he would have had if sued by the promisee.
Tests for whether liquidated damages are allowed in K provision
1. damages were difficult to forecast at time contract was made 2. provision is a reasonable forecast
Concurrence and Causation
Concurrence requirement: The defendant must have had the intent necessary for the crimes at the time he committed the act constituting the crime. Causation: Some crimes (e.g., homicide) require a harmful result and causation. Thus, when a crime is defined to require not merely conduct, but also a specified result (e.g., death), the defendant's conduct must be both the cause-in-fact and the proximate cause of the specified result.
What is an express condition?
Language in a K, that limits obligations created by other K language. The nonoccurrence of a condition results in excuse, not breach. Strict compliance is required for "satisfaction" of a condition. *Exception - if the condition is approval of a K party, such as "if I am satisfied," the condition is satisfied if a reasonable person would be satisfied*
What is an assignment
A transfer of rights under a K. Involves 2 steps: (i) K between only two parties (ii) one of the parties later transfers rights under that K to a third party
Vocabulary of assignment
assignor - party to the K who later transfers rights under the K to another assignee - not a party to the K. Able to enforce the K because of the assignment obligor - other party to the K
How can an Express Condition be Excused?
1. Action by Courts -some courts refuse to require strict compliance with express conditions 2. Action by Person Protected by Condition -focus on person protected by condition. that person can waive the condition
Mental States of the Model Penal Code
1. Purposely - One acts purposely when it is his conscious objective to engage in certain conduct or cause a certain result. 2. Knowingly - One acts knowingly when he is aware that his conduct will very likely cause the result. 3. Recklessly - One acts recklessly when he consciously disregards a substantial and unjustifiable risk. 4. Negligently - One acts negligently when he fails to be aware of a substantial and unjustifiable risk.
Assault (crim)
An attempt to commit a battery, or the intentional creation - other than by mere words - o fa reasonable apprehension of imminent bodily harm.
Specific Intent Crimes
-Solicitation -Conspiracy -Attempt -First-degree murder -Assault -Larceny -Embezzlement -False pretenses -Robbery -Burglary -Forgery Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts
Which Duties are Delegatable? (K law)
Generally, contractual duties are delegable. The limitations on delegation are very limited. Dlegations are permitted unless either (1) K prohibits delegations or prohibits assignments or (2) "personal services contract" that calls for VERY SPECIAl skills
Accomplices and Withdrawal
If the person encouraged the crime, the person must repudiate the encouragement. If the person aided by providing assistance to the principal (such as giving material), he must do everything possible to neutralize this assistance (such as attempting to retrieve the materials). An alternate means of withdrawing is to contact the police. (e.g., if Evan conspired with Marty to burglarize Timothy Treadwell's grave, and Marty subsequently called the police on Evan, Marty would have WITHDRAWN his assistance to Evan, and Evan would go to prison for 24 years).
What is anticipatory repudiation
Anticipatory repudiation is an unambiguous statement or conduct (i) that the repudiating party will not perform (ii) made prior to the time that performance was due. Anticipatory repudiation by one party excuses the other party's duty to perform. Generally gives rise to an immediate claim for damages for breach unless the claimant has already finished her performance. Can be withdrawn (retracted) so long as there has not been a material change in position by the other party. If the repudiation is timely retracted, the duty to perform is reimposed but performance can be delayed until adequate assurance is provided.
Merger
1. Generally, there is no merger of crimes in American law. 2. BUT: solicitation and attempt do merge into the substantive offense. 3. Conspiracy does NOT merge into substantive offenses. Thus, you can be convicted of conspiring to do something and doing it.
Felony Murder
Any killing - even an accidental killing - committed during the course of a felony.
Attempt
(1) Specific intent plus (2) overt act in furtherance of the crime. *the overt act must be a substantial step in furtherance of the commission of the crime; thus, mere preparation cannot ground liability for attempt* Legal impossibility is a defense to attempt; but factual impossibility is not a defense
Damages Rules for Sales of Goods
Part 7 of Article 2 reflects the general contract damages policy of putting the innocent party where it would have been had the contract been performed, i.e., expectation. Three relevant facts: 1. who breached 2. who has the goods 3. was there a later "replacement" deal, which result in four possible fact patterns
What mental state is required for accomplice liability?
In order to be convicted of a substantive crime as an accomplice, the accomplice must have: (1) the intent to assist the principal in the commission of the crime, and (2) the intent that the principal commit the crime. *only liable for crimes she committed or aided/advised/encouraged and for any other crimes committed in the course of committing the crime, as long as crimes were probable and foreseeable*
Novation
1. A novation is an agreement between BOTH parties to an existing K to the substitution of a new party, i.e., same performance, different party. 2. Who is liable after a novation? - novation excuses the contracted for performance of the party who is substituted for or replaced. 3. How is Delegation Different from Novation? - Novation requires the agreement of BOTH parties to the original contract, and excuses the person replaced from any liability for nonperformance. Delegation does not require the agreement of both parties and does not excuse.
Section 4
(50 cards)
Plaint View Seizure
To constitute a valid plain view seizure the police officer must be legitimately present at the location where he or she does the viewing of the item seized. It must be IMMEDIATELY apparent that the item is contraband or a fruit of a crime.
Mistake of Fact
-only a defense when the mistake negates intention -has to be reasonable -always a defense to a specific intent crime on the bar exam -never a defense to strict liability crime
Intoxication
Voluntary Intoxication: Self-Induced Intoxication - only a defense to specific intent crimes
Automobile Stops
Police may stop a car if they have at least reasonable suspicious that the law has been violated
Larceny (crim)
-wrongful taking -carrying away of property of another by trespass -w/ intent to permanently deprive
When does probable cause exist?
Probable cause exits when a reasonably prudent person would believe that a suspect has committed or is committing a crime. Any arrest must be based on probable cause
Terry Stops
-police can detain a person even if they lack probable cause to arrest -must have reasonable suspicion supported by articulable facts of criminal activity *when reasonable suspicious is based on an informant's tip, there must be an indicia of reliability to be sufficient*
Original Aggressor and Self-Defense
To get back the defense of self-defense, the original aggressor must: (1) withdraw, and (2) communicate that withdrawal
What is the public safety exception?
If police interrogation is reasonably prompted by concern for public safety, responses to the questions may be used in court, even though a suspect is in custody and Miranda warnings are not given.
What is the remedy for an unconstitutional pre-trial ID?
-Exclude the in-court ID ... unless the State can show that it had an adequate independent source for that in-court ID (independent of the bad lineup) *most common independent source is that the victim or witness had an adequate opportunity to observe the D at the time of the crime*
burglary
breaking and entering of a dwelling of another at night with the intent to commit a felony therein -breaking - can be actual (involving some force, however slight) or constructive (1) Actual breakings: It is not an actual breaking for someone to come uninvited through a wide open door or window. If wide open - there is no breaking. BUT if someone pushes open an interior door to the bedroom or living room then a breaking exists. (2) Constructive breakings: a breaking by fraud or threat. (3) entering - occurs when any part of the body crosses into the house
Defense of a Dwelling
Can't slay a thug to defend your property (e.g., CANNOT pop a cap in his ass, cannot lay him down, cannot "merk" him, etc.).
14 Day Rule
The prohibition against questioning a detainee after he requests counsel lasts the entire time the detainee is in custody, plus 14 more days after the detainee is out of custody. After that point, the detainee can be questioned regarding the same master upon receiving a fresh set of Miranda warnings.
Two Requirements for a Facially Valid Warrant
1. Probable Cause - a fair probability that contraband or evidence of a crime will be found in the area searched 2. Particularity - The warrant must state with particularity the place to be searched and things to be seized.
Duress
Duress is a defense to a criminal act if: (1) the person acts under the threat of imminent infliction of death or great bodily harm, and (2) that belief is reasonable. *Not a defense to homicide*
Kidnapping (crim)
Confinement of a person w/ some movement or concealment in a secret place.
What is an interrogation?
Under the 5th Amend. Miranda doctrine, interrogation is defined as any conduct where the police knew or should have known that they might elicit an incriminating response.
Good faith exception
The general rule is that an officer's good faith reliance on a valid arrest or search warrant overcomes defects with the probable cause or particularity requirements *Exceptions* 1. the affidavit underlying that warrant is so lacking in probable cause taht no reasonable police officer would have relied on it 2. The affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it. 3. The police officer or prosecutor lied to or misled the magistrate when seeking the warrant. 4. If the magistrate is biased, and therefore has wholly abandoned his or her neutrality
Aggravated Assault
Assault + -the use of a deadly or dangerous weapon; or -with the intent to rape, maim, or murder
Ineffective Assistance of Counsel
There must be deficient performance by counsel and, but for such deficiency, there is a reasonable probability that the result of the proceeding would have been different
What is the remedy for violation of D's 6th Amendment Right to Counsel?
If D was entitled to a lawyer at trial, the failure to provide counsel will result in an automatic reversal of the conviction. However, at non-trial proceedings (such as post-charge lineups), the harmless error test will apply
"The Fruit of the Poisonous Tree" Doctrine
-will not only exclude illegally seized evidence, but will also exclude all evidence obtained or derived form police illegality -does not apply to Miranda violations, unless the police act in bad faith in obtaining such information
Seizure of all Occupants
An automobile stop constitutes a seizure of all occupants
Arson
The malicious burning of the dwelling of another. As for the "malice" requirement, no specific intent is required. Acting with a reckless disregard of an obvious risk that the structure would burn will suffice for arson culpability. -only applies to burning - not to smoke damage. -has to be a dwelling -has to be the dwelling OF ANOTHER
Exceptions to Exclusion and Fruit of the Poisonous Tree
1. Gov't can show that it had an independent source for that evidence, independent of that original police illegality 2. Inevitable discovery: the police would have inevitably discovered this evidence anyway 3. Intervening acts of freewill on the part of the D
forgery
the making or altering of a false writing with intent to defraud
When are Miranda warnings required?
When a suspect is in CUSTODIAL INTERROGATION. *Does not apply where interrogation is by an informant whom the D does not know is working for the police*
Robbery
The taking of personal property of another form the other person's presence, by force or threat with the intent to permanently deprive him of it. -presence requirement is very broadly drawn, and would even cover a farmer tied up in his barn and taking things from his house -as for taking either by force or threat, things such as ripping a necklace from a person's neck is sufficient -the threat must be a threat of imminent harm
What are a detainee's options after receiving Miranda warnings?
1. Do nothing 2. Waive his Miranda rights - must be knowing and voluntary 3. Assert the right to remain silent - must be unambiguous; police may reinitiate questioning after the D has invoked the right to silence if they SCRUPULOUSLY HONOR the detainee's request. (Only SCOTUS decision on point - Person was re-Mirandized, and the questions were limited to a crime that was not the subject of the earlier questioning.) 4. Assert the right to counsel - unambiguous. If asserted, all questions must cease until: (1)the accused is given an attorney or (2) the accused initiates further questioning.
Necessity
if, as a result of pressure form natural forces, the D reasonably believes that his conduct was necessary to avoid a greater societal harm
False Imprisonment (crim)
Unlawful confinement of a person without his valid consent.
What is the effect of a Miranda violation?
Evidence obtained in violation of Miranda is inadmissible at trial generally. *Exception - as an exception to the exclusionary rule, a confession obtained in violation of Miranda may be used to impeach the credibility of defendant's testimony if he takes the stand at trial*
Public School Searches
Public school children engaged in extracurricular activities can be randomly drug tested. Warrantless searches of public school children's effects, such as purses and/or backpacks is permissible to investigate violations of school rules. School search reasonable if: (1) if offers a moderate chance of finding evidence of wrongdoing; and (2) the measures adopted to carry out the search are reasonably related to the objectives of the search; and (3) the search is not excessively intrusive.
Exclusionary Rule
A remedy of American constitutional procedure whereby someone who has bene the victim of an illegal search or a coerced confession can have the product of that illegal search or that coerced statement excluded from any subsequent criminal prosecution -does not apply to grand jury proceedings -not available in civil proceedings -not available in parole revocation proceedings -does not apply for impeachment purposes -not available for violations of the knock and announce rule
Effect of an Unlawful Arrest
An unlawful arrest, by itself, has no impact on any subsequent criminal prosecution
Wiretapping and Eavesdropping
All wiretapping and eavesdropping requires a warrant
False Pretenses
The D persuades the owner of property to convey title by false pretense (false representation) -it is the conveyance of title that is the center of false pretenses -this false representation could be as to a present or past fact -a false promise to do something in the future cannot ground liability for false pretenses *Larceny by trick distinguished: If only possession of the property is obtained, the offense is larceny by trick. If title is obtained, the offense is false pretenses*
Search incident to arrest
The arrest must be lawful. The arrest and search must be contemporaneous in time and place. Automobiles: The police may search the interior of the auto incident to arrest ONLY IF: (1) the arrestee is unsecured and still may gain access to the interior of the vehicle; or (2) The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.
Inventory Searches
Before incarceration of an arrestee, the police may search (1) the arrestee's personal belongings and/or (2) the arrestee's entire vehicle.
Harmless Error Test
A conviction will not necessarily be overturned because improperly obtained evidence was admitted at trial. On appeal, a court will apply the harmless error test. Under the test, a conviction will be upheld if the conviction would have resulted despite the improper evidence. On appeal, the gov't bears the burden of showing beyond a reasonable doubt that the admission was harmless.
Involuntary Intoxication
(1) Unknowingly being intoxicated, or (2) becoming intoxicated under duress
Automobile Exception
In order for the police to search anything or anybody and fall under the automobile exception they must have probable cause. If -- BUT only if -- before searching anything or anybody the police have probable cause, then they can search the entire car. This includes the entire interior compartment, and the trunk. Moreover, if there is probable cause, the police may open (without a warrant) any package, luggage, or other container which could REASONABLY CONTAIN THE ITEM they had probable cause to look for whether that package, luggage, or other container is owned by the passenger or the driver. *The probable cause necessary to justify the warrantless search of an auto under the automobile exception can arise after the car is stopped. BUT the probable cause must arise before anything or anybody is searched*
Extortion
Knowingly seeking to obtain property or services by means of a future threat Differences between robbery and extortion -don't have to take anything from the person or his presence to be extortion -the threats are of future harm - not imminent harm
Seizure
Any exercise of control by a gov't agent over a person or thing
Embezzlement
The fraudulent conversion of property of another -embezzler always has lawful possession, followed by an illegal conversion -a trustee is often the MBE embezzler -you don't have to carry away to be an embezzler - just the lawful possesion -the embezzler doesn't have to get the benefit
What is the legal standard for custody?
The legal standard for custody: you are in custody if, at the time of the interrogation, a reasonable person would not feel free to leave. courts will determine whether the situation presents the same inherently coercive pressures as a station house interrogation
6th Amendment Right to Counsel
D is entitled to an attorney during all critical stages of a prosecution after formal proceedings have begun. Where applicable: -post-indictment interrogation -prelim hearings to determine probable cause to prosecute -arraignment -post-charge lineups -sentencing -felony trials NOT APPLICABLE: -taking of blood samples -taking of handwriting samples -pre-charge lineups -brief recess during D's testimony at trial -parole and probation revocation proceedings -the taking of fingerprints -photo ID *offense-specific*
What must a person have in order to have standing to object to a governmental search?
A reasonable expectation of privacy int he item or area searched.
Insanity
1. M'Naghten Rule: At the time of his conduct, D lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his actions 2. Irresistible Impulse: D lacked the capacity for self-control and free choice 3. Durham Rule: D's conduct was a product of mental illness 4. Model Penal Code: D lacked the ability to conform his conduct to the requirements of law.
Automatic categories of standing to object to a gov't search
1. Own the premises 2. live on the premises 3. Overnight guests *Sometimes category - own the property seized; only have standing if you have a reasonable expectation of privacy in the item or area searched*
Section 5
(50 cards)
(PP) What is personal property?
All property that is not real property.
Vested Remainder Subject to Open
Vested remainder created in a class of persons (e.g., "children") that is certain to become possessory, but is subject to dimunition - e.g., by the birth of additional persons who will share in the remainder as a class.
(PP) When is personal property abandoned?
Personal property is abandoned if the owner has voluntarily given up possession with the intent to give up title and control.
(FL) May a court divide marital property if it doe snot have JDX over both spouses?
Generally, a court cannot determine property rights or rights to support unless it has JDX over both parties. *Exception - if the state has sufficient minimum contacts with the D and the property, it can adjudicate the parties' rights to that marital property*
Fee Simple Subject to an Executory Interest
If a fee simple estate terminates upon the happening of a stated event and then passes to a third party rather than reverting to the grantor or giving the grantor a right to terminate, the third party has an executory interest.
(SS) What is a commercial or compensated surety? A gratuitous surety?
A commercial or compensated surety gets PAID; a gratuitous surety does it for NOTHING
Reversion
The estate left in a grantor who conveys less than she owns (e.g., O conveys "to A for life"; O has a reversion). It arises by operation of law, it does not have to be expressly reserved. A reversion is alienable, devisable, and inheritable. Its holder can sue for waste and for tortious damage to the reversionary interest. *Reversionary interests (PoR, RoE, and Reversion are VESTED, and not subject to rule against perpetuities*
(SS) What are the three ways a surety K can arise?
1. The pure surety - if the exam question says the third person is the surety it means that the third person is directly liable to the creditor for the debt, and the creditor can sue the surety without even going to the debtor for payment. 2. The guarantor - they are liable only if the creditor first goes to the debtor and that person does not pay. 3. The guarantor of collectibility - they are liable only after the creditor sues the debtor and fails to collect.
(SS) Key rules for suretyship Ks:
A compensated surety is bound whether the promise to pay comes before or after the debt is entered into. A gratuitous surety is not bound when the debt comes before the promise of the surety.
(PP) Two points to remember about the donative intent requirements for inter-vivos gifts:
1. donative intent is much easier to find when the donor and donee are closely related 2. donative intent means the intent to pass title NOW, not possession, but TITLE
(PP) Three possible standards of care for bailee:
1. the sole benefit of the bailor situation, where bailee will be held liable only for gross negligence 2. the sole benefit of the bailee situation, where bailee will be held liable for even slight negligence 3. the mutual benefit situation, where the standard is ordinary care. *Modern trend is to forget these 3 situations and apply the ordinary care standard to ALL bailments*
Executory Interests
Future interests in third parties that either divest a tranferee's preceding freehold estate ("shifting interests"), or follow a gap in possession or cut short a grantor's estate ("springing interest") *Are not considered vested and thus are subject to the Rule Against Perpetuities* 3087285364
Remainders
A remainder is a future interest in a third person that can become possessory on the natural expiration of the preceding estate. It cannot divest a prior estate, and it cannot follow a time gap after the preceding estate. Must be expressly created in the instrument creating the preceding possessory estate. *Example: O conveys "to A for life, then to B and his heirs"; B has a remainder
(PP) Who gets mislaid property?
If property is mislaid, the owner or occupier of the premises on which the property is found will prevail over the finder.
(PP) 2 Things to consider for gifts causa mortis:
1. To have a valid gift causa mortis the peril the donor faces must be a fair degree of certainty or likelihood of death that is imminent and likely to occur 2. 3 ways to revoke gift causa mortis: -donor can, at any time, simply revoke. -donee predeceases donor -donor recovers
(PP) Bailments and Bankruptcy
Items on cosignment are BAILED. Bailed items cannot be included in a bankruptcy estate of the bailee and remain the property of the bailor.
Present Possessory Estates
Fee Simple Absolute - can be sold, divided, devised, or inherited and has an indefinite or potentially infinite duration; presumed in absence of express contrary intent Defeasible Fees Fee Tail - estate where inheritability is limited to lineal heirs Life Estate - measured by the life or lives of one or more persons Estate for Years, Periodic Estate, Estate at Will, Tenancy at Sufferance
What if the conveyance contains both duration language AND a power of termination?
Courts will likely construe as creating a fee simple subject to a condition subsequent, because the forfeiture is optional at the grantor's election rather than automatic
Vested Remainder Subject to Total Divestment
Vested remainder subject to a condition subsequent.
Ameliorative Waste
A change that benefits the property economically (e.g., adding an attraction that lets children throw rocks at Evan, as he's tied up to a basketball hoop). A life tenant may alter or even demolish existing buildings if: (i) the market value of the future interests is not diminished; and EITHER (ii) the remaindermen do not object; or (iii) a substantial and permanent change in the neighborhood conditions (e..g, change from residential to 90% industrial) has deprived the property in its current form of reasonable productivity or usefulness)
(PP) What are the three categories of found property?
1. abandoned property 2. lost property 3. mislaid property
Permissive Waste
A life tenant is obliged to: (i) preserve the land and structures in a reasonable state of repair; (ii) pay interest on mortgages (not principal); (iii) pay ordinary taxes on the land; and (iv) pay special assessments for public improvements of short duration (improvements of long duration are apportioned between the life tenant and future interest holder). Failure to do the above results in permissive waste
(PP) Is it a bailment?
1. You have a bailment when the alleged bailee has taken over custody of a chattel with intent to serve as a bailee. * 2 special bailment situations* 1. Safety deposit boxes are generally regarded as a bailment, even though the bank usually has no idea of what is in the box. So the banks are bailees even if the bank does not know they are there. 2. For parking lots or garages, the way to determine if the car is bailed is to see whether the person parking the car gave up the keys.
(SS) Proper Exam Approach for Suretyship
1. Determine which of the three kinds of suretyship Ks you have in the problem, thus telling you when the creditor can go after the person who promises to be responsible for the debt of another. 2. Consider that person a surety for all other purposes.
(EQU) When will IL grant specific performance of a noncompete clause?
(i) serves a legitimate interest of the employer; (ii) doe snot impose undue hardship on the employee, and (iii) is not injurious to the public. Totality of circumstances used -whether the employer is seeking to protect long-term relations with customers -whether the employee has received confidential info through employment -the geographic scope of the covenenat -its duration
(FL) What must be shown for a "no-fault" divorce?
(i) marriage is irretrievably broken and (ii) the parties have been living separate and apart for a specified period of time *One party's belief that the marriage can be saved does not matter in this analysis*
(PP) What are exculpatory clauses?
These clauses are where the bailee tries to limit liability for damage to the chattel. A bailee can limit liability for bailee's ordinary negligence so long as bailor received effective notice of the limitation. *Remember that the limitation of liability can be good only against the bailee's ordinary negligence; it will not serve to hold bailee harmless if the bailee engages in some higher level of culpability, such as gross negligence, recklessness, or intentionally tortious conduct.*
Rule in Shelley's Case (Rule Against Remainders in Grantee's Heirs)
At common law, if the same instrument created a life estate in A and gave the remainder only to A's heirs, the remainder was not recognized, and A took the life estate AND the remainder. *Abolished in most states*
(SS) Are SS Ks subject to the Statute of Frauds?
Suretyship Ks of all kinds are subject to the SoF, meaning that the K must be in writing signed by the surety. *Exception: If the surety has some financial interest to be gained from entering into the suretyship agreement, and that is the main purpose behind entering into the promise, then those facts will take the agreement out from under the SoF and the oral agreement can be enforced in equity*
(PP) What is mislaid property?
Found property where the owner has taken some voluntary or affirmative act in placing it down, and the owner leaves it behind.
Doctrine of Worthier Title
A remainder in the grantor's heirs is invalid and becomes a reversion in the grantor.
(RP) What is real property?
All land and everything affixed to the land with the intent that it be a part of the land, that is, the land and its fixtures.
(EQU) What must the moving party for a preliminary injunction show?
(i) he will likely suffer irreparable harm before the full trial can be held; (ii) it is probable that he will succeed on the merits of his claim
(PP) What is the only way to show there was not valid acceptance for a inter-vivos gift?
Explicit rejection, by words or deeds.
(PP) What are the three requirements for a gift inter-vivos?
1. Donative intent 2. Valid delivery 3. Valid acceptance
(PP) Nit-picky situations on delivery:
1. Donor makes out a check to donee or a promissory note to donee and gives it to donee. Here, no delivery until the check is cashed or until the note is paid. 2. Donor hands donee a check or note made out to donor by a third-party. This is a valid delivery even if donor has not endorsed the check or note to the donee. 3. Donor hands donee a stock certificate, representing shares in a corporation. This is a valid delivery even if the donor has not endorsed the stock over to the donee not has told the corporation of the transfer. 4. When the donor uses a middle person to get the gift to the donee. -if the middle person is donee's agent, then there is a valid delivery when donor hands the item to that middle person. -if the middle person is donor's agent, then the delivery will not be good until the middle person hands it over to the donee. -WHEN IN DOUBT, CONSTRUE THE MIDDLE PERSON TO BE THE DONOR'S AGENT, WHICH OF COURSE MEANS THAT THE DELIVERY REQUIREMENT IS NOT VALID UNTIL THE MIDDLE PERSON HANDS IT OVER TO THE DONEE. *EXCEPTION: if the donee is a minor then, when i doubt, construe the middle person to be the minor's agent*
When does double jeopardy attach in a jury trial?
-when the jury is sworn. * In a bench trial, it's when the first witness is sworn in* Exceptions permitting re-trial 1. Jury is unable to agree upon a verdict. 2. Mistrials for manifest necessity 3. A retrial after a successful appeal is not double jeopardy 4. Breach of an agreed-upon plea bargain by the defendant
Indefeasibly Vested Remainder
A vested remainder is one created in an existing and ascertained person, and not subject to a condition precedent. The remainderman has a right to immediate possession upon normal termination of the preceding estate. An indefeasibly vested remainder is a vested remainder that is not subject o to divestment or dimunition.
(PP) What are the two situations where a bailee will be held strictly liable?
1. The unauthorized use situation: bailee will be strictly liable if anything happens during any unauthorized use. 2. The misdelivery situation: if bailee misdelivers the chattel, even to someone using a forged instrument, then bailee is strictly liable.
Fee Simple Determinable (and possibility of reverter)
terminates upon teh appening of a stated event and automatically reverts to the grantor. Created by duration language, such as "for so long as," "while," "during," or "until". A fee simple determinable can be conveyed, but the grantee takes subject to the estate's being terminated by the specified event. *Grantor automatically retains a possibility of reverter, which is a reversionary future interest. POR is transferable, descendible, and devisable*
(PP) Two questions to ask in bailment situations
1. is it a bailment? 2. if it is a bailment, what is the liability of the bailee if the chattel is damaged, destroyed or missing?
(SS) How are suretyship Ks construed?
If the suretyship K is gratuitous then the K will be strictly construed against the creditor. If the suretyship K is compensated then the K is construed just like any other K.
(PP) When does a finder acquire rights in abandoned property?
A finder acquires rights in the abandoned property if the finder has possession with the intent to assert title and control.
Co-Defendant's Confession
A confession implicating a co-defendant is prohibited and inadmissible at their trial. Under the Confrontation Clause, prior testimonial evidence may not be admitted unless: (1) the declarant is unavailable, and (2) the D had an opportunity to cross-examine the declarant at the time the statement was made.
(PP) What is lost property?
Found property where the owner took no voluntary or affirmative act in placing the property where it is found, that is, the owner's parting with the property was accidental and non-voluntary.
Fee Simple Subject to Condition Subsequent (and right of entry)
estate in which the grantor reserves the right to terminate the estate upon the happening of a stated event; i.e., the estate does not automatically terminate - the grantor must take some action. the estate is created by use of conditional words, such as "upon condition that," "provided that," "but if," and "if it happens that." *the right to terminate is the right of entry. Must be expressly reserved; in contrast w/ a possibility of reverter, it does not arise automatically.*
(PP) Who gets lost property? What are the three exceptions to this rule?
If property is lost, the general rule is that the finder wins and the owner or occupier of the land loses. * 3 Key Exceptions* 1.if the finder of lost property is a TRESPASSER the owner of occupier of the premises will prevail 2. the MASTER prevails over the SERVANT who finds 3. if lost property is found in a HIGHLY PRIVATE LOCUS, a place not open to the public, the owner or occupier of the property will prevail over the finder. - usually a home or a private office.
Contingent Remainder
Remainders created in unborn or unascertained persons, or subject to a condition precedent. Subject to Condition Precedent: a condition is precedent if it must be satisfied before the remainderman has a right to possession Unborn or unascertained persons: a remainder created in unborn or unascertained persons is contingent because until the remainderman is ascertained, no one is ready to take possession if the preceding estate ends. Destructibility of Contingent Remainders: at COMMON LAW, a contingent remainder was destroyed if it failed to vest before or upon the termination of the preceding freehold estate.
When may the death penalty be imposed on a felony murderer?
He participated in a major way in a felony that resulted in a murder and he acted with reckless indifference to the value of human life.
Related Doctrine of Merger
When one person acquires all of the present and future interests in land except a contingent remainder, under the common law, the contingent remainder is destroyed. *when considering whether estates merge to destroy a contingent remainder, remember that if the life estate and the next vested interest were created by the same instrument, there is no merger. Merger ONLY occurs when one person later acquires immediately successive estates*
Section 6
(50 cards)
(EV) Methods of Authentication
Direct evidence in the form of: -Admission -Eyewitness Testimony -Handwriting Proof -lay witness: but the lay witness cannot become familiar with the handwriting merely for the purposes of testifying - expert witness - jury comparison
(SS) What is the effect of a creditor releasing a debtor from the debt?
If creditor releases the debtor from the debt, the surety is discharged. *BUT, if creditor gives debtor a covenant not to sue, the surety is NOT DISCHARGED* *BUT #2, even if creditor releases the debtor the surety is NOT released IF the surety is holding security that covers the debt*
(EV) If evidence goes to one of these, it is Pretty Darn Clear it's relevant
1. Pleadings 2. Defenses 3. Credibility
(EV) When is evidence relevant?
Evidence is relevant if it has any tendency to prove or disprove a material fact of consequence. *General Rule: All relevant evidence may be admissible, all irrelevant evidence is inadmissible*
(EV) Offers to pay medical expenses
Evidence that a party furnished or offered to pay hospital, medical, or similar expenses is inadmissible. *Limitation: If a party makes an admission of fault during an offer to pay medical expenses, it's admissible as an admission/opposing party statement*
(SS) Is the incapacity or bankruptcy of the debtor any defense to enforcement of SS agreement?
No.
(SS) What are the rights of sureties?
Sureties can have rights against all others in the K: rights against the creditor, rights against the debtor and rights against any other sureties.
Life Estate
measured by the life or lives of one or more persons. May be created by operation of law or by conveyance *Remember, life estates can also be defeasible, just like fee estates*
(SS) Can sureties change the rules in the SS K?
Sureties can change the rules in the suretyship K, such as: 1. can decide contractually how much each surety will be liable for 2. can agree on the priority of liability, that is, which surety would get hit first.
(EV) Evidence of Settlements in Civil Cases
If there is a disputed claim, then evidence of -offers to settle -actual settlements -admissions of fault are INADMISSIBLE if offer to -prove fault or amount of damages -impeach witness with prior inconsistent statement or contradiction Disputed claim = a dispute as to either FAULT or DAMAGES If not disputed, admissible as an admission/opposing-party statement.
(SS) Rights against other sureties:
-Sureties are jointly and severally liable, meaning each surety is available for ALL the debt. -If one surety winds up paying all the debt that surety can compel contribution from the others; each pays a pro rata share. -If a surety wants to avoid paying more than the pro rata share in the first place, then any surety can sue to force the others to pay (this is called a suit in EXONERATION, a suit to compel payment).
(SS) What if security held by creditor is lost, damaged, destroyed, or given back by the creditor?
Creditor has to take care of the security, and surety will be discharged to the extent that creditor does not take care. *Examples of discharge: 1.release of the security by creditor 2. physical loss of the security by creditor 3. failure of creditor to perfect the security under the law*
(EV) Character Evidence - General Rule
Evidence of a person's character is inadmissible to prove conforming conduct, unless it meets recognized exceptions. *Exceptions: 1. a person's character is directly in issue - character is essential element of claim 2. character evidence as circumstantial evidence - character in conformity 3. character of testifying witness - character for truthfulness offered to impeach or rehabilitate witness
(EV) Are business practices admissible?
The established/ routine practice of an organization is admissible just like habit.
(SS) What is the effect of changing the K between creditor and debtor?
If the K between the debtor and creditor changes the surety's risk, the effect depends on whether the surety is gratuitous or compensated. 1. If the surety is gratuitous, then any change of any kind in the K between debtor and creditor discharges the surety, even if the change lowers the debt. 2. If the surety is compensated, than ANY change in the underlying debt will also discharge the surety IF that change prejudices the surety, that is, raises the risk to the surety. *Even if there is prejudice the compensated surety is discharged only to the extent of the prejudice, not discharged entirely*
(EV) When evidence of defendant's character is allowed
-the criminal D may introduce evidence of his own pertinent character trait -if the D does so, the prosecution may rebut with evidence of THE D'S BAD CHARACTER FOR THE SAME PERTINENT CHARACTER TRAIT
(EV) Self-Authenticating Documents
Documents are not self-authenticating *Exceptions: -certified copies of business records, provided that (1) the record is certified by a custodian, or other qualified person to meet the requirements of the business records hearsay exception; and (2) the offering party gives the adverse party reasonable written notice and makes the record and certification available for inspection so adverse party has a fair opportunity to challenge. -certified copies of public records -official publications -newspapers or periodicals -trade inscriptions or labels -acknowledged documents -signature on certain commercial documents
(EV) Requirements for Witnesses
All witnesses are required to: Have personal knowledge -perception -memory -communication Take Oath or Affirmation -Demonstrate an appreciation of the obligation to tell the truth, and -Take an oath or affirmation to tell the truth
(EV) General Rule of Authentication
Any writing offered into evidence must first be authenticated. A foundation must be laid to show that the writing is authentic (genuine): that it is what it appears to be. The proponent must produce sufficient evidence to support a finding that the writing is what the proponent claims it is.
(EV) Is character evidence admissible?
Character evidence is usually not admissible to prove conduct on a particular occasion (e.g., evidence that Del is a careless driver is not admissible to suggest he ran a red light on the date in question).
(EV) Excuses for Non-Production of Original Document
-lost or cannot be found with due diligence -destroyed without bad faith -cannot be obtained with legal process *Court must find by a preponderance of the evidence that an excuse has been established; secondary evidence (e.g., oral testimony) is then admissible*
(SS) Rights against the creditor (3):
Three rights: 1. The surety can compel the creditor to sue the debtor, and if that does not happen the surety is released. 2. The surety can compel the creditor to apply the value of any security the creditor holds to the debt. *BUT, for the surety to force the creditor to sell the security and apply the proceeds to any debt, the surety has to show that debtor is bankrupt or insolvent and could not reimburse the surety* 3. The surety can compel the creditor to apply any funds paid by the debtor to the creditor to the debt, PROVIDED that the payment was specifically marked for the debt.
(EV) Methods of proving Character
-Reputation in the community -Opinion Testimony -Specific Acts relevant to the character trait
(EV) Subsequent Remedial Measures
Evidence of a post-accident measure is inadmissible to prove defendant was negligent or at fault, or a product is defective. The rule applies to product liability cases. *Exception: Evidence of a post-accident measure IS admissible if offered for some purpose other than to show the defendant was negligent or at fault. Inadmissible to show negligence. Evidence of subsequent remedial measures can be admitted to show: -ownership or control, if disputed -to impeach or to show feasibility of safety measures -to show destruction of evidence (e.g., fixed a car dent to cover up accident*
(EV) Best Evidence Rule
A party seeking to introduce the contents of a writing (including films, photos, X-rays, and recordings) must either: (1) produce the original document, or (2) account for the absence of the original. *If the explanation for the absence of the original is reasonable, then a foundation has been laid for secondary evidence. Then either a copy or oral testimony may be admitted to prove the content of the original* -Applies to (1) legally operative documents (documents that by their existence create or destroy a legal relationship that is in dispute (e.g.., deed, will, lease, contract, divorce decree) and (2) witness's sole knowledge comes from a document.
(EV) Before admitting any writing, consider "OPRAH"
-Original writing rule -Privilege -Relevance -Authenticity -Hearsay
Life Estate Pur Autre Vie (Life of Another)
Life estate measured by a life other than the grantee's. Results when the life tenant conveys his life estate to another (e.g., if A, the holder of a life estate, conveys his interest to B, B has a life estate for the life of A).
(EV) Authentication of Photographs
Witness must testify on the basis of personal knowledge that the photograph "fairly and accurately represents" the persons or objects portrayed.
(SS) Rights against the debtor (3):
1. The right of EXONERATION: surety can sue the debtor to force debtor to pay creditor 2. The right of SUBROGATION: once the surety pays the creditor the surety is subrogated to any rights that creditor had against debtor. Surety has rights to pledged security and any bankruptcy rights creditor might have had. 3. The right of REIMBURSEMENT, also called the right of INDEMNIFICATION.
(EV) Defendant's Character Offered by the Prosecution to Rebut
If the D has opened the door by calling character witnesses, the prosecution may rebut in two ways: 1. Calling its own witnesses to testify to the D's relevant bad character (reputation or opinion) 2. Cross-examining D's character witnesses by questioning their knowledge of specific acts the D has engaged in that are relevant to the character trait in issue (good faith requirement)
(EV) Other Crimes for Non-Character Purpose
A D's other crimes or specific bad acts are inadmissible during the prosecution's case-in-chief if the only purpose is to prove propensity, i.e., because of D's bad character he is more likely to have committed the crime currently charged. *General Exception: But, if the D's other crimes or specific bad acts are offered for some purpose other than propensity, then the evidence will not be barred by the rule against character evidence. D's other crimes or bad acts may be admissible if offered to show something aside from propensity (something apart from propensity to commit the crime): -either in civil or criminal case -can be offered by EITHER side
(EV) Burden of Proof - The Sufficiency Standard (OKIAPIMP evidence)
The prosecution must produce sufficient evidence for a reasonable jury to conclude that the D committed the prior act by a preponderance of the evidence.
(EV) Exam Tip: Bottom Line for allowing subsequent remedial measures
-Feasibility -Destruction of evidence -Impeachment if D makes assertion contradicted by subsequent remedial measure -Control, where D disputes control or ownership
(EV) Modifications to Best Evidence Rule
-Public Records (certified copies admissible in place of originals) -Voluminous Documents (if originals are too voluminous to be produced in court, summaries, charts, or calculations are admissible in place of originals so long as: (1) originals would be admissible if offered, and (2) originals are made available to opposing party -Duplicates in Place of Originals (copy produced by any technique that avoids casual errors and accurately reproduces the original. Admissible to the same extent as the original unless: (1) genuine question raised about authenticity of the original, OR (2) it would be unfair to admit the duplicate in place of the original
(EV) OKIAPIMP - if satisfied, the prosecution may use other-crimes evidence as part of its case-in-chief; OKIAPIMP evidence is not dependent on D's introduction of favorable character evidence
-Opportunity -Knowledge -Intent -Absent mistake or accident -Preparation -Identity (Modus Operandi) -Motive -Plan *Ways to prove OKIAPIMP evidence: -by conviction -by evidence that tends to show the act occurred
(EV) Are a Plaintiff's prior accidents admissible to show P is negligent or accident prone?
No. *Exception: to prove the cause of plaintiff's injuries (or a common plan or scheme)* However, other accidents involving the same instrumentality are inadmissible to show defendant was negligent. If substantially similar circumstances, admisisble to show: -notice to or knowledge of the D -that instrumentality is defective or inherently dangerous
(EV) Special Rule for D's Knowledge of Victim's Character for Violence
The D may offer evidence of his own knowledge of the victim's character for violence for the purpose of showing D's or victim's state of mind. (ANY form is allowed).
Affirmative (Voluntary) Waste - Natural Resources
Exploitation of natural resources (e.g., minerals, human slaves already found on the land, love, etc.) by a life tenant is generally limited to situations when: (i) necessary for repair or maintenance of the land; (ii) the land is suitable only for such use; or (iii) it is expressly or impliedly permitted by the grantor.
(SS) What is the effect of extending the time debtor has to pay the debt?
If the creditor extends the time debtor has to pay the debt, the effect depends on whether the surety is gratuitous or compensated. 1. If the surety is gratuitous, then gratuitous sureties are discharged by ANY extension given by creditor to debtor. 2. If the surety is compensated, two situations arise: a. if the debt is a matter NOT covered by the UCC, then an extension of time will discharge a surety ONLY if the extension is a legally binding one, and not just an extension extended by courtesy. b. if the debt is under the UCC, then ANY extension of time discharges the surety.
(EV) Liability Insurance
Evidence that a person was or was not insured against liability is not admissible to prove the person was negligent or not at fault *Redaction Rule: if a party makes a statement of fault in a statement mentioning insurance, the statement of fault is admissible as an admission; but the statement of insurance is inadmissible - it's redacted* Liability insurance is admissible: -ownership or control -bias of witness
(EV) How much evidence is necessary to lay a proper foundation?
Sufficient evidence to justify a reasonable jury finding the document to be genuine.
(EV) Pleas and plea discussions in criminal cases
The following are inadmissible in CIVIL or CRIMINAL cases against a D who made the plea or participated in discussions: -a plea of guilty that is later withdrawn -a nolo contendere plea -a statement made during plea negotiations 1. If D pleads nolo contendere, the plea is inadmissible in a subsequent civil case to prove an element of the civil case. 2. If D pleads guilty in a criminal case, the plea may be admissible as an admission in a subsequent civil case.
Doctrine of Waste
A life tenant is entitled to any ordinary uses and profits of the land but cannot do anything that injures the interests of a remainderman or reversioner. A future interest holder may sue for damages or to enjoin such acts, and if she spends money to perform the life tenant's obligations, she is entitled to reimbursement.
(EV) Character Evidence in Civil Cases
Character is generally inadmissible to prove conforming conduct ("propensity") in civil cases. *Exception: Evidence of person's character is admissible in civil actions where such character is an essential element of a claim or defense. Only in a few situation: -defamation -negligent entrustment/negligent hiring -child custody
(EV) What is the general rule for determining whether evidence is relevant?
To be relevant, the evidence must relate to some time, event, or person in the present lawsuit. If not, it's inadmissible *Exception: In limited circumstances, other similar occurrences may be admitted*
(EV) Victim's Character in Self-Defense Case
A criminal D may offer evidence of the victim's violent character to prove that the victim was the first aggressor (reputation or opinion) *Prosecution's Rebuttal: prosecution may rebut in 2 different ways: 1. by evidence of the victim's good character for the pertinent trait 2. by attacking the victim's character for violence, the accused opens the door to his/her character for that same trait*
(EV) Relevant evidence may be excluded by the court if the probative value is substantially outweighed by the danger of six trial/ pragmatic concerns:
-Unfair prejudice -Confusion of the issues -Mislead the jury -Waste of time -Undue Delay -Unduly cumulative
(EV) What does the BER not apply to?
- Facts Independent of the Writing ( where the witness has personal knowledge of events or items described in the writing, independent of the writing) -Collateral Documents (documents of minor importance)
(EV) The Form of Character Evidence
When character evidence is admissible to show propensity, the only proper methods are reputation or opinion. NO SPECIFIC ACTS The character evidence must be as to a pertinent trait.
(EV) Habit Evidence
Propensity evidence is generally inadmissible to prove conduct in conformity. *Exception: Habit of a person or a routine practice of organization is admissible as some evidence of how the person or organization acted on the date in question* Habit describes one's regular response to a specific set of circumstances and is relevant to show that the person acted in the same way on the occasion in question. CAUTION: Character evidence is different. Character refers to a person's general disposition or propensity.
Section 7
(50 cards)
(EV) Foundation to Show It is a Learned Treatise
-judicial notice -expert on stand says it's a learned treatise -your own expert -stipulation
(EV) Excited Utterance
-startling event -causes declarant to be excited or shocked, and -statement relates to the event -and is made while the declarant is under the stress of the event
(EV) Rules for Silence as an Adoptive Statement/ Admission:
-party heard the statement -party understood the statement -reasonable person under the circumstances would have taken exception *A party cannot get HURT by silence as an adoptive admission unless: H: heard the statement U: understood the statement R: reasonable person would T: take exception *
(EV) Basis of Opinion for Expert Witness
Expert must have opinion to reasonable degree of probability or certainty with three bases: -personal knowledge -other evidence made known to expert at or before the hearing -facts outside the record (including inadmissible hearsay) if of a type reasonably relied upon by experts in the field
(EV) Refereshing Recollection
The witness cannot read from prepared memorandum; must testify based on current recollection. But if witness can't recall, you can use anything to jog the witness's memory *If the witness's memory is refreshed with a writing during the testimony, the opponent is entitled to inspect the writing and offer it into evidence. If the refreshing happens before the testimony, the judge decides whether the opponent can do these things*
(EV) Bad Reputation or Opinion About Witness's Character for Truthfulness
Any witness may be impeached by this method. -extrinsic evidence permitted? YES (THAT'S HOW IT'S DONE: CALLING ANOTHER WITNESS TO TESTIFY) -Must the witness be confronted with the bad character evidence to introduce extrinsic evidence? - No.
(EV) Prior Inconsistent Statements
Any witness can be impeached by showing that, on some prior occasion, the witness made a material statement (oral or written) that is inconsistent with the witness's trial testimony Admissibility - Impeachment v. Substantive Evidence: Limited use to impeach the witness, not for truth of the matter asserted. But certain prior inconsistent statements can be used both to impeach and for the truth of the matter asserted: witness's prior inconsistent statement given orally under oath at a prior proceeding
(EV) Impeaching a hearsay declarant
When a hearsay statement is admitted, the declarant can be impeached by evidence that could be used if the declarant took the stand.
(EV) Prior Statement of Identification
Prior identification is not hearsay, as long as declarant (1) testifies, and (2) is subject to cross-examination about the statement. *Two important rules: -Declarant must testify. If declarant does not testify or refuses to answer questions on cross-examination, 3rd party witness cannot testify about a statement of identification -If declarant does testify at trial and cannot recall, makes wrong ID or recants prior statement ("flipper witness"), 3rd party witness can testify as to a prior statement of ID. Prior statement of ID is admissible even if witness identifies the wrong person at trial as long as the witness testified and was subject to cross. Prior ID may include: -lineups -show-ups -photo array -sketch by police arrest -in-court ID at prior proceeding
(EV) Then-Existing Mental, Emotional, or Physical Condition
Statement of declarant's then-existing: -state of mind -emotion or sensation -physical condition *Wills exception**
(EV) Two Questions About Any Impeachment
(1) Extrinsic Proof Permitted? (2) Foundation Requirement?
(EV) Criminal Convictions
Impeachment suggests that a person who has been convicted of a crime is more likely to lie under oath than a person with a clean record. -Crimes involving dishonesty or false statement (any crime (felony or misdemeanor) may be used to impeach if it involves lying, deceit, or false statement. COURT HAS NO DISCRETION to keep these convictions out of evidence (unless it's too old)) -Felonies That do NOT Involve Dishonesty or False Statement (If a conviction does not involve dishonesty or false statement, it must be a felony. The court does have discretion to exclude these convictions). -Timing (Conviction cannot be too remote. General rule is 10 years from conviction or release from prison, whichever is later). -Extrinsic Evidence Permitted? - YES -Must the witness be confronted with the conviction to introduce extrinsic evidence? NO
(EV) Past Recorded Recollection Foundation Requirements
(1) witness once had personal knowledge of the facts in the writing (2) witness now cannot recall well enough to testify fully and accurately (3) writing was either made by witness or adopted by witness (4) making or adoption occurred when event was fresh in witness's memory (5) witness can vouch for accuracy of writing when made or adopted
(EV) Form of Examination
Cross-Examination - party has absolute right to cross-examine a witness who testifies live. If a witness refuses to answer questions on cross, the direct examination must be stricken.
(EV) Bias, Interest, or Motive to Lie
Procedural Issues: (1) Can you show bias with extrinsic evidence? - YES (2) Must witness first be confronted with alleged bias while on the stand? COURT'S DISCRETION - UP TO THE JUDGE
(EV) Present Sense Impression
-statement (oral or written) that describes or explains an event of condition -made while declarant is perceiving the event or immediately thereafter
(EV) Bad Acts (Not Convictions) Relating to Witness's Character for Truthfulness
Confrontation on cross-examination is the ONLY means. NO EXTRINSIC PROOF PERMITTED. Cross-examiner must have good-faith basis, and within the court's discretion to permit inquiry. Examiner must accept the witness's answer.
(EV) Prior Consistent Statement
Prior consistent statements cannot be used for any purpose (either rehabilitative or substantive). *2 Exceptions: -to rebut a charge of fabrication based on improper motive -when witness impeached on other non-character ground (e.g., faulty memory) and prior consistent statement can be used to rehabilitate Rebutting a Charge of Improper Motive: -Triggering event: Cross-examination raises express or implied charge against the declarant of recent fabrication or improper influence or motive -Timing Requirement: Prior consistent statement must have been made before the alleged undue influence Prior Consistent Statement Need Not Be Sworn
Out-of-Court Statements Excluded from Hearsay Definition (COPPP)
C: Co-conspirator statement O: Opposing party statements P: Prior inconsistent statements P: Prior consistent statements P: Prior statements of identification
(EV) Foundation Requirement for Extrinsic Evidence (Prior Inconsistent Statement)
Do you need to show the witness the prior inconsistent statement BEFORE using extrinsic evidence? No - but fairness requires the witness to get some opportunity to explain or deny at some point during the proceeding (can be after the extrinsic evidence is introduced) *Exception: No foundation requirement where the witness is a party-opponent, or if it is a hearsay declarant being impeached*
(EV) Rehabilitation
Generally a witness may not be rehabilitated until after impeachment. Introducing evidence to support witness's credibility before credibility is attacked is called bolstering and IS NOT ALLOWED. *Exception: the prior statement of identification of a person* Rehab must meet the attack (e.g., if impeached for inconsistent statement, can rehab by providing reason why inconsistent; if impeached for poor reputation for honestly, can rehabilitate through witnesses for good character for honesty)
(EV) PPP = Prior Statements by Testifying Witness
P: Prior inconsistent statement P: Prior consistent statement P: Prior statement of identification These last three exclusions from the hearsay rule are certain statements by testifying witnesses. There are two requirements that apply to all 3 of these exclusions: -the declarant must testify -the declarant must be subject to cross-examination about the prior statement
(EV) What is the scope of cross-examination?
Cross-exam should not exceed the scope of direct. May cross-examine on: -issues raised on direct -issues of credibility
(EV) Recorded Recollection (Past Recollection Recorded)
Witness cannot recall - even if you try to refresh recollection -writing (report) of an event, and the writing -relates to facts witness cannot presently remember but did know earlier -written or adopted by witness -when facts were fresh in witness's memory -but contents can only be read into evidence; the jury will not receive the writing as an exhibit -adverse party may introduce the writing
(EV) Statement Against Interest
statement of non-party declarant is admissible hearsay if: -statement was against declarant's interest when made -reasonable person would not have made the statement unless he believed it true when she made it; AND -declarant is unavailable *Special Rule for Criminal Cases: if statement tends to incriminate the declarant, the rule requires corroboration circumstances to indicate trustworthiness*
(EV) Spokesperson Statements/ Admissions
Statements by a person authorized to speak on behalf of party - president of company, attorney for client.
(EV) Sensory Defects
Anything that could affect witness's perception or memory. Poor eyesight, mental defects, alcohol or drug use at time of the event or while on the witness stand. -Extrinsic evidence permitted? - YES -Must the witness be confronted with the sensory defect to introduce extrinsic evidence? - NO
(EV) Opposing party statement
Opposing party statement/admission is admissible because it is not hearsay
(EV) Common Nonhearsay Purposes - NOT Offered for Truth of Matter Asserted
-Impeachment (prior statement offered to show declarant not credible) -Verbal Acts (out of court words) (out-of-court words that have independent legal significance. The words themselves create, alter, modify, or terminate legal rights of a person. Generally tortious or transactional language.
(EV) Records of Regularly Conducted Activity (Business Records)
-Authenticated - custodian or otherwise qualified witness (familiar with records) or FRE 902(1) certificate filed. - Record made contemporaneously with business transaction (at or near the time) -Record made by person with knowledge of facts (sales, clerk, bookkeeper). -made and kept in the normal course of business (customary to keep records of this type; business duty to report) -admissible hearsay to prove the contents of the record unless opponent shows suspicious or unreliable
Co-Conspirator Statements
Statements by a co-conspirator are admissible against a party-opponent for the truth of the matter; not hear-say. *Requirements: Trial court must find by preponderance of the evidence that: -a conspiracy existed -declarant was a member of the conspiracy -offered against a member of conspiracy (party-opponent) -statement made during the course of conspiracy -statement made in furtherance of conspiracy*
(EV) Agent/Employee Statements/Admissions
Statements by employee are admissible against her employer as admission if: -made within scope of the employment (job-related) -made while declarant was employed by party-opponent (employee need not be authorized to speak by the company) *To prove the employment relationship, the statement itself is some evidence. Need additional independent evidence (same for proof of conspiracy in co-conspirator statements).
(EV) Three questions in a hearsay analysis
(1) Where was the statement made? (2) What is being said? (3) What is the statement being offered to prove?
(EV) Public Records and Reports
Records, reports, statements, data compilations of a gov't agency that describes one of three areas, unless the opponent shows that the sources appear untrustworthy: -the activities of the agency -any matter observed by a public official with a duty to observe and report -investigative reports in civil cases, and against the gov't in criminal cases, including "factual findings" and opinions and conclusions *INADMISSIBLE: Law enforcement reports against a D in a criminal trial (e.g., police reports)
(EV) Regularly Tested 803 Exceptions
-present sense impression -excited utterance -then-existing state of mind -statement for purposes of medical treatment -recorded recollection -business records/absence of business records -public records/absence of public records -prior felony judgments -learned treatises
(EV) Rule 804 Hearsay Exceptions: Declarant Must be Unavailable
Declarant is unavailable in 5 instances (PRISM): -P: Privilege -R: Refusal to testify in face of contempt -I: Illness -S: Service or subpoena won't work -M: Memory (lack thereof)
(EV) Impeachment Methods
-prior inconsistent statements -bias, interest, or motive to lie -sensory defects (ability to perceive) -bad reputation or opinion testimony about a witness's character for truthfulness -criminal convictions -prior bad acts (no conviction) involving witness's character for truthfulness -contradiction
(EV) Prior Inconsistent Statement
Inconsistent = contradiction/ omission Prior inconsistent statement by a testifying witness, given under oath at a prior proceeding (e.g., before grand jury, or at prior trial or proceeding or deposition) is not hearsay Admissible for the truth of the matter asserted, and to impeach.
(EV) Absence of Business Records
-transactions recorded per business records exception - same time, person with knowledge, regular course of business -all transactions of this type recorded -custodian or person familiar with records authenticates -diligent search of records fails to show transaction occurred
(EV) When are Leading Questions Allowed?
-Generally not allowed on direct examination -Generally allowed on cross-exam -BUT allowed on direct: (1) to establish preliminary matters (2) where the witness has some challenge (3) hostile witness
(EV) When is lay witness testimony admissible?
-rationally based on witness's perception (personal knowledge) -assists the jury in deciding the facts, AND -not based on scientific, technical, or otherwise specialized knowledge (that's for experts)
(EV) Learned Treatise in Examination of Expert Witness
A learned treatise may be relied on by an expert during direct examination or used to impeach an expert on cross-examination. Once established as reliable authority, it can also be admitted as substantive evidence "for the truth of the matter asserted," meaning, to prove what the treatise says. *But the learned treatise may not be offered in as an exhibit; it's only read into the record*
(EV) Statements for Purpose of Medical Diagnosis or Treatment
-statement made by patient, family member, good Samaritan to medical person, doctor, ambulance attendant, etc. -For purpose of diagnosis or treatment -Describes medical history, symptoms, pain or sensation, the cause (but not fault!) of injury -if reasonably pertinent to diagnosis or treatment
(EV) To be admitted, an expert's testimony must be GRREAT:
G: Trial court acts as gatekeeper to determine if expert is used R: Reliable method is used by expert (tested, peer review, error rate, etc.) R: Relevant E: Evidence that will A: Assist the T: Trier of fact (the evidence "fits" the facts of the case)
(EV) Collateral Matters Doctrine
Impeachment by contradiction is limited. The cross-examiner is bound by answers given as to collateral matters (must "take" the answer). NO EXTRINSIC EVIDENCE (calling other witnesses, introducing exhibits) is permitted to impeach on a collateral matter. *Collateral matter = something that is not essential to the case*
(EV) Daubert Factors for determining reliability of expert opinion
-whether the theory or scientific technique has been tested -whether subject to peer review and publication -the known or potential error rate -whether it is generally accepted in the scientific community
(EV) Prior consistent statements
A witness's prior consistent statement may be used if it: (1) rebuts a charge of recent fabrication (statement must have been made before motive to fabricate existed), or (2) tends to rehabilitate a witness who has been impeached on some other ground (e.g., sensory defect or prior inconsistent statement). *These are considered nonhearsay and may be admitted for the truth of the matter asserted*
(EV) Former Testimony
-statement made under oath at prior trial, proceeding, or deposition -statement now being offered against a party to the prior proceeding (or in civil cases, her predecessor in interest) -the party against whom statement offered had a prior opportunity to examine the declarant at the prior proceeding -the prior proceeding must have been conducted essentially for the same reason as the examination at present trial, i.e., the reason or motive for both examinations is similar -declarant is unavailable
(EV) Dying Declarations (CUBA)
C: Cause of death U: Unavailable B: Belief that death was imminent A: All civil or if criminal, has to be homicide * (1) personal knowledge is required (2) statement must relate to the cause of the apparently impending death (3) admissible for or against defendant in criminal case (only homicides)
(EV) Ultimate Issue Testimony
An expert may testify as to the ultimate issue. *Exception: in a criminal case, an expert may not state an opinion as to whether the accused had a mental state at issue (e.g., intent or duress)*
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(FL) Tenancy by the Entirety
-in most states, if spouses take title to real estate in their joint names, a tenancy by the entirety is presumptively created -includes a right of survivorship and prohibits the conveyance or encumbrance of the property by one spouse -upon dissolution, tenants by the entirety become tenants in common *Whereas marital property is distributed by the court upon dissolution of marriage*
(EV) Commonly Test Privileges
-attorney/client -spousal immunity and marital communications -psychotherapist/social worker-client
(IL-EV) Business Records and Public Records
Fed Rule: Medical records and police reports are often admitted under these exceptions (although police reports are usually inadmissible against the D in a criminal case) IL Rule: With certain exceptions, medical records are not admissible in criminal cases, and police reports are not admissible in any type of case.
(EQ) Restitution
-designed to avoid unjust enrichment of the D at the P's expense. Restitution damages may be awarded to a P who has failed to render substantial performance, with the damages typically consisting of the value of the benefit conferred on the D, minus an offset for damages caused by the P's breach
(EV) Preliminary Issues of Admissibility
The judge decides: -whether a witness is qualified to testify -existence of privilege -admissibility of evidence In doing so, the judge is not bound by the rules of evidence - except privileges.
(EV) Hearsay within Hearsay
Multiple hearsay is admissible if each statement meets some hearsay exception, or is not hearsay. Most common situation is written business or public records that contain hearsay entries.
(EQ) What must a P show to obtain specific performance?
1. a K exists 2. the P has performed or is ready, willing, and able to perform 3. the legal remedy is inadequate 4. enforcement is feasible 5. there are no defenses available to the D
(IL-EV) Prior Inconsistent Statement
Fed Rule: The impeaching attorney can prove a prior inconsistent statement by extrinsic evidence as long as the witness is given an opportunity to explain or deny at some point (can be after the extrinsic evidence is introduced). IL Rule: The witness must be given an opportunity to explain or deny before extrinsic evidence of the prior inconsistent statement is introduced. THIS IS A TIMING RULE. (As under the FRE, no foundation is required if the witness is an opposing party).
(CoL) First Restatement - Corporate Affairs
Matters of internal corporate affairs are governed by the law of the state of incorporation
(IL-EV) Victim's Character in Self-Defense Case
Method of Proof Fed Rule: Generally, the D may only introduce reputation or opinion evidence of the victim's violent character. Evidence of the victim's specific acts is not allowed. IL Rule: The D may introduce specific instances of the victim's violent conduct when: (1) the D claims self-defense, AND (2) there is conflicting evidence as to whether the victim was the first aggressor Prosecution Rebuttal Fed Rule: When a D introduces evidence of the victim's bad character, the prosecution can rebut with evidence of the victim's good character for the trait, and/or the D's bad character for the trait. IL Rule: The prosecution may rebut with evidence of the victim's good character ONLY. The prosecution is NOT allowed to rebut with evidence of the D's bad character.
(IL-EV) Dying Declarations
Fed Rule: The exception applies in (1) criminal homicide prosecutions and (2) all civil cases. IL Rule: The exception applies in homicide prosecution only. It does not apply in civil cases.
(IL-EV) Learned Treatises in Examination of Expert Witness
Fed Rule: There is a hearsay exception for learned treatises used on examination of an expert. Thus, such documents are admissible as substantive evidence as well as for impeachment. IL Rule: There is no hearsay exception for learned treatises
(FL) Premarital Ks
Under Uniform Premarital Agreement Act ("UUPAA"), parties to the agreement may contract with respect to: 1.the parties' rights and obligations in property of either or both of them; 2. the right to buy, sell, lease, assigng, dispose of, or control property 3. disposition of property upon separation, dissolution, death, or any other event; 4. modification or elimination of spousal support 5. the making of a will, trust, or other arrangement to carry out the provisions of the agreement 6. choice of law governing construction of the agreement; and 7. any other matter not in violation of public policy or criminal statute *Child custody provisions NEVER bind a court*
(EV) Confidential Marital Communications Privilege
Spouse is not required, and is not allowed without other spouse's consent, to disclose a confidential communication made by one to the other during the marriage. BOTH spouses hold the privilege. -spouses must be married at the time of the communication, not the trial -protects only confidences, not the spouse's own observations, physical evidence, etc. -holder of privilege is either spouse -privilege applies in all cases, civil and criminal
(IL-EV) Prior Inconsistent Statements
Fed Rule: To be considered nonhearsay, a testifying witness's prior inconsistent statement must have been made under oath at a prior legal proceeding or deposition. IL Rule: Broader than the federal version - provides an additional route to admissibility. If not made under oath, the inconsistent statement is still considered nonhearsay if it explains an event or condition about which the declarant has personal knowledge, and one of the following applies: (1) the statement was written or signed by the witness; or (2) the witness has acknowledged under oath the making of the statement, whether during her current testimony or at a prior proceeding; or (3) the statement is proved to have been accurately recorded by an electronic sound recording device
(FL) Limitations on who may marry
1. be a minimum age (usually 19, although frequently younger with parental or judicial approval) 2. not be too closely related 3. have capacity to consent (the ability to comprehend and voluntarily agree 4. not have a prior undissolved marriage to a living spouse
(EV) Exceptions to Both Spousal Privileges
-Communications or acts in furtherance of future crime or fraud (no Bonnie and Clyde) -Communications or acts destructive of family (e.g, spousal or child abuse) -One spouse suing the other
(EQ) Time of the Essence Clause
The court will be likely to avoid the effect of the clause if: (1) the loss to the other party is small (2) the forfeiting party woulds suffer undue hardship (3) the tardiness is "de minimis", or (4) the seller has performed acts giving rise to a waiver situation
(FL) Choice of Law for premarital K
-governed by the law of the state in which it was executed or the state with the most significant relationship to the parties
(FL) Enforcement by Courts of Premarital K
1. the agreement must be entered into voluntarily 2. the K must be in writing and signed by the party to be charged 3. both parties must make a full and fair disclosure of their financial worth; and 4. the economic provisions must be fair and reasonable
(CoL) Second Restatement - Corporate Affairs
The 2nd Restatement focuses on the state having the most significant relationship tot eh transaction, considering factors such as the place of (i) contracting, (ii) negotiation, (iii) performance, (iv) location of the subject matter, (v) incorporation, and (vi) principal location of the business.
(IL-EV) Recorded Recollections
Fed Rule: The recorded recollection may be read into evidence, but may not be received by the jury as an exhibit unless offered by the adverse party IL Rule: There is not restriction on introducing the recorded recollection as an exhibit
(IL-EV) Prior Statements by Testifying Witnesses
Generally Fed Rule: Certain prior inconsistent statements, prior statements of ID, and prior consistent statements by a testifying witness are considered non-hearsay in all types of cases. IL Rule: The hearsay exclusions for prior inconsistent statements and prior statements of ID apply in CRIMINAL CASES ONLY. Additionally, there is no hearsay exclusion for prior consistent statements. Thus, although prior consistent statements may be admissible for rehabilitation, they are not admissible as substantive evidence of the fact asserted unless they fall within some hearsay exception.
(FL) Common Law Marriage
1. exchange of consents between two people w/ capacity 2. cohabitation; and 3. a holding out publicly of living together as spouses
(EV) Spousal Immunity
One spouse cannot be forced to give adverse testimony against the other in a criminal case -only applies in criminal cases -privilege belongs to the testifying spouse -spouses must be married at the time of the trial/proceeding, but privilege applies to matters that pre-date the marriage -protects against all adverse testimony
(IL-EV) Physician-Patient Privilege
Fed Rule: There is no such general physician-patient privilege under federal law, but the state law of privilege applies in diversity cases. IL Rule: There is a physician-patient privilege. However, it does not apply in homicide cases when the disclosure relates directly to the fact or immediate circumstances of the homicide.
(EV) Judicial Notice
Judicial notice is the recognition of a fact as true without formal presentation of evidence. Conclusiveness -In a civil case, the court must instruct the jury to accept the judicially noticed fact as conclusive. -In a criminal case, the court must instruct the jury that it may or may not accept the judicially noticed fact as conclusive.
(IL-EV) Pleas and Plea Discussions in Crim Cases
Federal Rule: Withdrawn guilty pleas, nolo contendere pleas, and statements made in plea negotiations are generally not admissible in a subsequent criminal or civil case. IL Rule: This policy exclusion applies in criminal cases only. The D's pleas and statements may be admitted in a subsequent civil case.
(EV) Defendant's Insurance Coverage
Without waiting for a discovery request, a party must provide to the other parties copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.
(IL-EV) Illinois "Dead Man" Statute
Some states, including Illinois, have "Dead Man" statutes, which, in a civil case, typically prevent an interested witness from testifying against a decedent's estate concerning a communication or transaction with the decedent. (There is no federal Dead Man statute). -applies to civl actions by or against a representative of a deceased or legally disabled person. -prohibits adverse parties or persons directly interested in the case from testifying on their own behalf to: (1) a conversation with the decedent or disabled person; or (2) an event that occurred in the presence of the decedent or disabled person *Exception: if the rep of the deceased or disabled person calls a witness to testify to the conversation or event, the interested party/witness is also allowed to testify*
(EV) Prior Felony Judgments
-Evidence of a final judgment of conviction (after guilty plea or trial). -Must be a felony -The evidence is admitted to prove any fact essential to the judgment -Civil and Criminal. But, if offered by the prosecutor in a criminal case, it must be a judgment against the D
(EV) Psychotherapist/ Social Worker-Client Privilege
The client has a privilege against disclosure of confidential info acquired by the psychotherapist/ social worker in a professional relationship entered into for the purpose of getting treatment. -patient must be seeking treatment -info acquired must be confidential and necessary to facilitate treatment *Waiver - privilege is waived if patient sues the psychotherapist, or if the patient puts his own condition at issue (e.g., pleads insanity in criminal case).
(EQ) If personal property is involved, see whether it is:
1. Unique in kind 2. Of personal significance to the buyer 3. in short supply *If not, money damages are adequate*
(IL-EV) D's Character Offered by the Prosecution to Rebut
Fed Rule: The prosecution can cross-examine the D's character witness about the D's specific acts relevant to the character trait ("Did you know ...?" or "Have you heard...?") IL Rule: Cross-examination of the character witness about the D's specific acts is not allowed.
(EV) What Facts May Be Judicially Noticed?
A court may judicially notice a fact that is not subject to reasonable dispute because: -the fact is generally known within the trial court's JDX, or -the fact can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
(IL-EV) Spousal Privileges
Fed Rule: Federal courts recognize both (1) the doctrine of spousal immunity and (2) the confidential marital communications privilege. IL Rule: Does not recognize the doctrine of spousal immunity, but does recognize the confidential marital communications privilege.
(EV) Exceptions to Attorney/Client
-future crime or fraud -client makes an issue of legal advice -dispute between attorney and client
(IL-EV) Statement for Purposes of Medical Diagnosis or Treatment
Fed Rule: A statement about physical symptoms, medical history, cause of the condition, etc., is admissible as a hearsay exception if made for the purpose of medical diagnosis or treatment and reasonably pertinent to diagnosis or treatment. IL Rule: The IL exception specifically precludes admissibility of statements made to a health care provider who was consulted solely for purpose of the litigation.
(IL-EV) Present Sense Impressions
Fed Rule: A statement is admissible as a hearsay exception if it describes or explains an event or condition, and was made while or immediately after the declarant perceived the event or condition. IL Rule: There is NO hearsay exception for present sense impressions.
(EV) Crawford Rule (6th Amendment and Hearsay)
In criminal cases, prosecution cannot offer in: -testimonial hearsay (even when it falls within a hearsay exception), unless -Defendant has opportunity to cross declarant at trial, OR -Declarant is unavailable and defendant had a prior opportunity to cross declarant *Defining testimonial 911 Calls and Other Statements to Law Enforcement (1) Determine the primary purpose -Calls for HELP by unavailable declarant = nontestimonial -911 call or other statements providing information to help police with their case = testimonial WHEN EMERGENCY TURNS INTO INFORMATION (911 to 411), IT'S TESTIMONIAL Forensic Analysis Reports -Report that has the effect of accusing a targeted person of criminal conduct is testimonial. If analyst who drafted the report is unavailable to testify, there may be a Confrontation Clause violation
(EQ) Noncompetion covenants expressly included in Ks for the sale of business will be enforceable if the covenant:
-is reasonably necessary to protect the buyer -reasonable in geograpahical scope and duration
(IL-EV) Expert Testimony/ Reliability
Fed Rule: When an expert will testify as to an opinion based on a new or novel scientific theory or technique, the court considers various reliability factors (Daubert) IL Rule: IL adheres to the Frye standard rather than the Daubert standard. Under Frye, the proponent must show that the methodology or principle is GENERALLY ACCEPTED in the field.
(EQ) If money damages will make the P whole, equity will not act. Money damages might be INADEQUATE if:
1. damages are speculative 2. defendant is insolvent 3. the injury is irreparable 4. a multiplicity of actions might be necessary; or 5. P has no right to damages (e.g., the tort is only prospective)
(EV) Absence of Public Records or Vital Stats
-Evidence that a diligent search failed to reveal public record or vital statistic -Testimony by qualified witness or certification from the custodian or public records
(CoL) Interest Analysis Approach - Essay Q
If the forum determines that it has a legitimate interest in applying its own law, it generally will do so
(EQ) Interlocutory Injunction
-used to preserve the status quo between parties until a full trial on the merits can be held. -P must show that she is likely to prevail on the merits but will suffer irreparable injury before the trial can be held unless the interlocutory injunction is granted
(IL-EV) Criminal Convictions - Court's Discretion to Exclude
Fed Rule: The court has no discretion to exclude convictions for crimes involving dishonesty or false statement, but mauy exclude convictions for felonies not involving dishonesty or false statement (Rule 403 balancing test for most witnesses; stricter balancing test if the witness is the accused in a criminal case). IL Rule: The court has discretion to exclude any conviction, and uses the Rule 403 balancing test for all witnesses.
(IL-EV) Bad Acts Relating to Witness's Character for Untruthfulness
Fed Rule: A witness may be impeached on cross-examination with prior bad acts involving untruthfulness IL Rule: This method of impeachment is not allowed
(EQ) What can a P obtain injunctive relief against tortious conduct?
1. legal remedy is inadequate 2. enforcement of an equitable decree would be feasible, practicable, and effective to vindicate the P's rights 3. the hardship to the D, where relevant, does not greatly outweigh the benefit that the P may get from relief sought 4. no defenses available *PJDX required;
(EQ) Although an employment K will not specifically enforced, a covenant not to compete may be if:
(1) the services are unique (2) the covenant is reasonably necessary to protect the employer's interests, AND (3)the covenant is reasonable as to both geographical scope and duration. *even if all 3 are present, courts will not enforce a covenant that will harm the public*
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(TX) When can an employee achievements award be excluded?
If the award is: 1. tangible personal property generally worth less than 400 (1600 if part of a qualified plan award) 2. is for the length of service or safety achievement 3. is presented as part of a meaningful presentation AND 4. is not presented under circumstances suggesting disguised compensation
(RP) While land sale contracts must be memorialized in writing and signed by the party to be charged to be enforceable under the Statute of Frauds, courts in most states will enforce an oral contract in equity under the doctrine of part performance if the buyer has performed at least two of the following acts:
1. Taken possession of the land; 2. Made substantial improvements to the land; and/or 3. Paid all or part of the purchase price.
(RP) Requirements for Burden to Run (equitable servitude)
1. covenanting parties intended that the servitude be uneforceable by and against assignees 2. the successor of the promisor had actual, inquiry, or record notice of the servitude; and 3. the covenant touches and concerns the land Requirements for benefits to run 1.intention 2.touches and concerns
(RP) Cumulative Zoning
creates a hierarchy of uses of land (e.g., a single family home is a higher use than an apt building).
(IL-RP) Fee Tail
Under IL law, an attempted fee tail creates a LIFE ESTATE in the grantee with a remainder in fee simple passing to the heirs of his body
(CoL) Second Restatement
1. what ar ehte needs of the interestate or international systesm? 2. what are the relevant policies and interests of the forum? 3. what are the policies and interests of the other interested jdxs 4. are the justified expectations of the parties to be protected? 5. what are the basic policies underlying the particular substantive field of law? 6. will application of a given law aid certainty, predictability, and uniformity of results? 7. may the determination and application of a specific law be made with ease?
(AG) Agent's Compensation
If agency agreement is silent regarding compensation, the agent is entitled to REASONABLE compensation
(AG) Creation of Agency Elements
-Capacity (principal must have full contractual capacity; agent must have at least minimal capacity) -Consent (of both parties) -Writing, if required (by Statute of Frauds (equal dignities rule))
(RP) Adverse Possesion
1. actual entry giving exclusive possession that is 2. open and notorious 3. adverse (hostile) 4. and continuous throughout the statutory period
(AG) Subagent
a person appointed by an agent to perform functions that the agent has consented to perform on behalf of the agent's principal *agent has absolute liability to the P for breaches by subagent*
(RP) Vested Remainder Subject to Open
This is a vested remainder created in a class of persons that is certain to become possessory, but is subject to diminution by the bird of additional person who will share in the remainder as a class.
(IL-RP) Life Estates by Marital Rights
Neither dower nor curtesy is recognized in IL bu ta surviving spouse does have the right ot renounce the will and take a statutory share of the deceased spouse's estate
(CoL) Choice of Law - Torts
1. 1st Restatement - look to the place of the wrong 2. 2nd Restatement - look to the place of the injury; the place where the conduct causing the injury occurred; the domicile, residency, nationality, place of incorporaiton, and place of business of the parties; and the place where the relationship, if any, betweeen the parties is centered. 3. interest analysis approach - same as with all substantive areas of law
(RP) Affirmative (voluntary) waste
Exploitation of natureal resources by a life tenant is generally limited to situations when: 1. necessary for repair or maintenance of the land 2. the land is suitable only for such use 3. it is expressly or impliedly permitted by the grantor
(CoL) Do default judgments and consent judgments give rise to collateral estoppel?
No, because no issues have been ACTUALLY LITIGATED. Recall, however, that default and consent judgments are deemed to be on the merits for the full faith and credit purposes of recognition of the judgment.
(RP) What is an equitable servitude?
A covenant that, regardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have NOTICE of the covenant. The usual remedy is an injunction. *If money damages are sough, real covenant analysis. If party seeks an injunction, equitable servitude*
(RP) Vested Remainder Subject to Total Divestment
This is a vested remainder that is subject to a condition subsequent.
(RP) Requirements for Benefit to Run
Intent - the covenanting parties must have intended that the successors in interest to the covenantee be able to enforce the covenant Vertical Privity - the benefits of a covenant run to the assignees of the original estate or any lesser estate touch and concern - the benefit of a covenant touches and concerns the land if the promised performance benefits the covenantee and her successors in their use and enjoyment of the benefited land
(IL-RP) Tranferability of Possibility of Reverter and Right of Re-Entry
In IL, possibilities of reverter and rights of entry are not alienable or devisable
(RP) Notice of a covenant not in deed
a grantee must have had notice of the covenants in the deeds of others in the subdivision. Notice may be actual (direct knowledge of covenants), inquiry (neighborhood appears to conform to common restrictions), or record( prior deed with covenant in grantee's chain of title).
(RP) Indefeasibly Vested Remainder
A vested remainder is one created in an existing and ascertained person, and not subject to a a condition precedent.
(CoL) Interest Analysis (Gov't Interest) Approach
start from the assumption that the forum will apply its own law then, consider if forum has any interest in litigation, if not - false conflict situationa nd the forum will apply the law of the second state
(RP) Permissive Waste
A life tenant is obligated to: 1. preserve the land and structure sin a reasonable state of repair 2. pay interest on mortgages (not principal) 3. pay ordinary taxes on the land 4. pay special assessments for public improvements of short duration (improvements of long duration are apportioned between the life tenant and future interest holder) *Failure to do these results in permissive waste*
(CP) 5th Amendment Right to Silence
Does NOT include the right to protect others from incrimination
(RP) The essential terms of a land sale contract under the Statute of Frauds are:
1. A description of the property; 2. An identification of the parties to the contract; and 3. A price and manner of payment, if agreed upon.
(RP) Reversions
A reversion is the estate left in a grantor who conveys less than she owns. *All reversionary interests are VESTED and, thus, not subject to the Rule Against Perpetuities*
(AG) Agency
Refers to the legal relationship whereby one person (the principal) manifests assent that another person (the agent) shall act on her behalf and under her control, and the agent consents to so act.
(TX) Accrual Method
An item of income is includible in income when -all events have occurred that fix the right to receive it (at some time, not necessarily in the current year) -the amount can be determined with reasonable accuracy
(RP) When Perpetuities Begins to Run
Will: runs from date of testator's death Deed: date of delivery irrevocable trust: date of creation revocable trust: date it becomes irrevocable
(CoL) Defenses to Full Faith and Credit
1. the judgment is a penal judgment (i.e., a judgment punishing an "offense against the public") 2. the judgment is subject to an equitable defense in the rendering state (judgment was obtained by extrinsic, but not intrinsic, fraud) *Insufficient Defenses* 1. the judgment is a tax judgment 2. the judgment is contrary to the public policy of the enforcing state 4. the rendering court made a mistake of law or fact
(RP) Easement by Prescription
To acquire a prescriptive easement, the use must be: 1. open and notorious (ie.., discoverable upon inspection) 2. adverse (ie.., without the owner's permission) 3. continuous and uninterrupted 4. for the statutory period *Cannot be acquired in public land*
(IL-RP) Limitations on Possibilities of Reverter and Rights of Entry
IL law limits the permisisble duration of possibilities of reverter and rights of entry to 40 years
(RP) Requirements for Burden to Run
Intent - parties must have intended that successors in interest to the covenant or be bound by the terms of the covenant Notice - a subsequent purchaser must have had actual, inquiry, or record notice of the arrangmenent Horizontal Privity - two two must have shared some interest in the land independent of the covenant (e.g., grantor-grantee, landlord-tenant, mortgagee,mortgagor) Vertical Privity - the successor in interest to the covenanting party must hold the entire durational interest held by the covenantor at the time he made the covenant Touch and Concern - negative convenants touch and concern the land if they restrict the holder of the servient estate in his use of that parcel of land
(TX) Basis of property acquired by bequest or inheritnace
fair market value at the date of the decedent's death or, if elected by the executor, -its fair market value six months from the date of death, or -its value at the time of disposition if disposed of within six months after the decedent's death
(CP) Determination of whether D right to speedy trial was violated
1. length of delay 2. reason for delay 3. whether D asserted his right 4. prejudice to the D
(CoL) What are the Full Faith and Credit Requirements?
(i) there must have been proper jdx in the rendering court (ii) the judgment must be on the merits (iii) the judgment must be final
(TX) When can Recognition awards be excluded from gross income?
1. the award was made in recognition of religious, charitable, scientific, educational, artistic, literary ,or civic achievement 2. the recipient was selected without any action on his part 3. the recipient is not required to render substantial future services 4. the award is turned over by the payor, at the recipient's direction, to a governmental or charitable organization
(RP) Elements of a joint tenancy
time title interest possession The interest of joint tenants must be equal in every way. They must take identical interests, at the same time, by the same instrument, with the same right to possession.
(TX) Tax Liability Equation
Gross Income - "Above the Line" Deductions - (Either Standard Deduction OR Itemized ("Below the Line") Deduction) X Applicable Tax Rate - Tax Credits.
(RP) Quasi -Easement
An easement may be implied if: 1. prior to the division of a single tract; 2. an apparent and continuous use exists on the "servient" part; 3. that is reasonable necessary for the enjoyment of the "dominant" part; and 4. the court determines that the parties intended the use to continue after division of the land
(AG) Agent's Duties
In addition to express contractual duties, the agent owes the P -fiduciary duties of loyalty -obedience to lawful instructions -reasonable care under the circumstances (including duty to disclose all relevant info)
(RP) Remainder
A remainder is a future interest in a third person that can become possessory on the natural expiration of the preceding estate. It cannot divest a prior estate, and it cannot follow a time gap after the preceding estate. A remainder must be EXPRESSLY created in the instrument creating the preceding possessory estate. *Can never follow a fee simple estate*
(RP) Amerliorative Waste
A life tenant may now alter or even demolish existing buildings if: 1. the market value of the future interests is not diminished; and EITHER 2. the remaindermen do not object; OR 3. a substantial and permanent change in the neighborhood conditions (e.g., change from residential to 90% industrial) has deprived the proper in its current form of reasonable productivity or usefulness
(TX) Alimony or Separate Maintenance payments
-Before 2019, alimony or spousal maintenance payments are deductible by the payor and income to the recipient unless the instrument is modified to follow the rule for instruments executed in 2019 or thereafter -Under TCJA, alimony and maintenance are NOT deductible by the payor and therefor are not income to the recipient
(CoL) Vested Rights Approach to Choice of Law
1. characterize the area of substantive law 2. determine the particular choice of law rule 3. localize the rule to be applied *the forum will generally apply its own law in characterizing an issue, even if the state where the issue arose would apply a different characterization*
(RP) Rule Against Perpetuities Applies To:
-contingent remainders -executory interests -vested remainders subject to open -options to purchase -rights of first refusal -powers of appointment *Does not apply to: -vested interests
(RP) A deed of trust
A security interest in land by which the debtor (i.e., the trustor) transfers title to the land to a third party (i.e., the trustee), such as the lender's lawyer or a title insurance company, acting on behalf of the lender (i.e., the beneficiary).
(CoL) 2-part test for domicile by choice
1. physical presence 2. intention to be domiciled
(CoL) In exercising comity, courts look to:
1. the foreign court had jdx 2. fair procedures were used in adjudicating the case
(CoL) People estopped from attacking the validity of a divorce decree:
1. parties to prior proceedings, 2. privies of parties (e.g., daughter in privity with father) 3. persons who accept a foreign divorce and remarry in reliance thereon
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(AG) Apparent Authority - Vicarious Liability
A P is vicariously liable where an agent appears to deal or communicate on behalf of the P and the agent's apparent authority enables the agent to 1. commit a tort or 2. conceal its commission
(AG) Apparent Authority
Arises from reasonable beliefs of third parties. If a P directly or indirectly holds out another as possessing certain authority, thereby inducing reasonable reliance by others on that authority, the person so held out has apparent authority, even though as between himself and the principal such authority has not been granted
(AG) Actual Authority
authority that the agent reasonably believes she possesses based on the principal's dealings with her. It may be express or implied.
(AG) Real Estate Broker K
Nonexclusive K - entitle agent to compensation upon his production of a ready, willing, and able buyer, even though the sale is not consummated Exclusive K - enable the broker to get his commission if ANYONE produces a ready, willing, and able buyer
(WIL) Dependent Relative Revocation
1. First will was revoked when second will executed 2. Second will was revoked by physical act 3. No revival of revoked wills (first will is legally dead and cannot be revived simply by destroying the later, unless (1) the will was re executed or (2) the doctrine of "republication by codicil" applies) 4. DRR permits a revocation to be disregarded when the act of revocation was premised upon, conditioned upon, DEPNDENT upon, a mistake of law or facts as to teh validity of another disposition Effect of DRR is to disregard the revocation of the will that was revoked based on a mistake of law and permit its probate DRR ONLY applies if distribution that results from disregarding the revocation IS the second best solution, and comes closer to giving effect to what T tried to do
(WIL) Requirements for Valid WILL
1. signed by testator (or by someone at T's direction and in her presence "proxy signature") 2. Two attesting witnesses 3. Each witness must sign in T's presence
(WIL) Valid disclaimer
1. must be in writing, signed and delivered to decedent's personal rep or trustee, or person in possession of the property 2. unlike most states, in IL there is no time limit on when a disclaimer must be made (for tax purposes, must be within 9 months after decedent's death)
(AG) Liability for Acts of Borrowed Employees
The original employer will normally be liable for the tortious acts of a loaned employee. For example, if I am Evan's employer, and loan him to Matt so that Evan can pick plunge all of Matt's toilets, I would be responsible for any torts Evan commits during the toilet-plunging, assuming I have the primary right to control his actions.
(TRT) Abuse of Process
1. wrongful use of process for an ulterior purpose 2. definite act or threat against P in order to accomplish an ulterior purpose
(TRT) Privacy Torts
1.Appropriation of P's Picture of Name - Necessary to show unauthorized use of plaintiff's picture or name for D's COMMERCIAL ADVANTAGE 2. Intrusion on P's Affairs or Seclusion - Act of prying or intruding must be highly offensive to a reasonable person. - must be private 3. Publication of Facts Placing P in False Light - exists where one attributes to P views he does not hold or action he did not take. Must be highly offensive to a reasonable person under the circumstances - must be publicity 4. Public Disclosure of Private Facts About P - involves public disclosure of private info about P. Must be highly offensive to a reasonable person of ordinary sensibilities. Liability can attach even if statement is true
(WIL) Execution of a joint will will be found contractual if:
1. Will labeled "Joint and Mutual" 2. Will leaves entire estate to surviving spouse 3. Will disposes of all of their property in a unified disposition 4. There is a common dispositive scheme on the death of the survivor *Reciprocal wills are NEVER presumed to be contractual unless clear and convincing evidence of a K*
(AG) Prior Act of Agent that Exceeded his authority
Where the P previously permitted the A to exceed his authority and knows that the third party is aware of this, the P is bound by the A's unauthorized act.
(TRT) Interference w/ Business Relations
1. existence of a valid contractual relationship between P and a third party or valid business expectancy of P 2. D's knowledge of the relationship or expectancy 3. intentional interference by D inducing a breach or termination of the relationship or expectancy 4. damages
(WIL) Are holographic wills valid?
UPC: Yes IL: No, all wills must be signed by two attesting witnesses
(WIL) Lifetime gift
Majority Rule (and IL): Lifetime gift to an heir is not an advancement unless (1) declared as such in writing by the donor or (2) acknowledged as such in writing by the donee.
(WIL) Anti-Lapse Statute
UPC: applies when predeceasing beneficiary was a descendant of testator's grandparent IL: applies only when the predeceasing beneficiary was a child, grandchild of the T 2 Elements needed 1. predeceasing beneficiary must have been in the prescribed degree of relationship to the T AND 2. must have left descendants who survived the T
(AG) Independent Contractor or Employee?
As a general rule, a P is liable only for torts committed by agents who are employees, not for torts of agents acting as independent contractors. A P has NO right to control the manner and method in which the an independent contractor does his job.
(TRT) Intentional Misrepresentation
1. misrepresentation of a material past or present fact 2. scienter (when D made the statement, she knew or believed it was false or that there was no basis for the statement 3. intent to induce P to act or refrain from acting in reliance upon the misrep 4. Causation (actual reliance) 5. Justifiable reliance 6. Damages (P must suffer actual pecuniary loss)
(WIL) Residurary Estate
estate of a testator that remains after all debts, taxes, and administration expenses have bene paid, and after all specific gifts and cash legacies made by the will have been satisfied
(TRT) Malicious Prosecution
1. institution of criminal proceedings against plaintiff 2. termination in plaintiff's favor 3. absence of probable cause for prior proceedings 4. improper purpose 5. damages
(AG) Prerequisites for Ratification
P must know (or have reason to know) all material facts, accept the entire transaction, and have capacity (be competent and of legal age). Requires no consideration
(WIL) What is needed to revoke a will?
1. later testamentary instrument, executed with proper formalities, OR 2. physical act (burning, tearing, canceling, obliterating, other act of destruction).
(WIl) Probate
1. it is judicially determined that decedent left a validly executed will (or that decedent died without a will and his intestate heirs are determined AND 2. a personal rep (executor if named in will, adminstrator if appointed by the court) is appointed to administer the decedent's estate *Does not include non-probate transfer - interests hat pass by right of survivorship (e.g., a joint and survivor bank account) or under the terms of a K (e.g., life insurance proceeds or employee death benefits)
(AG) Ratification
An agency relationship is created by ratification when an "agent" purports to act on behalf of a "principal" without any authority at all, but the "principal" subsequently validates the act and becomes bound
(WIL) Incorporation by Reference Doctrine
An extrinsic document, not present when the will was executed and thus not part of the duly executed will, can be incorporated by reference into the will.....IF: 1. document must be in existence when will was executed 2. will must refer to document as being in existence, AND 3. will must describe the document sufficiently to permit its identification. ("So there can be no mistake as to the identity of the document referred to") *Statutory exception rule: will may refer to a written statement or list that disposes of tangible personal property not specifically disposed of by the will. *
(WIL) Abatement of Legacies to Pay Claim
Absent a contrary will provision, debts and administration expenses are first paid out of: 1. intestate property 2. then residuary assets 4. then general legacies 4. specific bequests
(TRT) Shoplifting Detentions
1. there must be a reasonable belief as to the fact of theft 2. the detention must be conducted in a reasonable manner and only nondeadly force can be used 3. the detention must be only for a reasonable period of time and only for the purpose of making an investigation
(TRT) Duty owed to Trespassers
1. Undiscovered Trespassers - NONE 2. Discovered or Anticipated Trespassers: -warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm -use reasonable care in the exercise of "active operations" on the property
(TRT) Duty of Care to Third Party
1. Cardozo View (Majority) - Foreseeable Zone of Danger 2. Andrews View (Minority) - Everyone is Foreseeable
(WIL) Proof of Lost Wills Statute
1. Proof of due execution (testimony of attesting witnesses) as in any case. 2. Cause of will's nonproduction must be proved (must overcome presumptions as to revocation set out below) 3. Contents must be substantially proved by copy of will or by testimony of witnesses who have read it or heard it read.
(TRT) Necessity (2 types)
1. public - when the act is for the public good; 2. private - when the act is solely to benefit a limited number of people (the actor must pay for any injury he cases unless the act was to benefit the property owner) *ONLY A DEFENSE TO PROPERTY TORTS*
(TRT) Duty owned to Licensees (Social Guests)
1. warn of or make safe dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover 2. exercise reasonable care in the conduct of "active operations" on the property *NO DUTY TO INSPECT OR REPAIR*
(AG) Lingering Apparent Authority
Where an agent's actual authority has terminated, he will have apparent authority to act on the P's behalf as to all third parties with whom the P knows he dealt unless and until the third parties receive either actual or construct notice of the termination Also, where an agent's actual authority has been terminated but third parties rely on a written authority of the agent, the agent's apparent authority is not considered to be terminated Death of the P does NOT automatically terminate the agent's apparent authority
(AG) When does a principal incur liability for the acts of an independent contractor?
A P will incur liability for the acts of an independent contractor where: 1. inherently dangerous activities are involved 2. nondelegable duties have been delegated or 3. the P knowingly selected an incompetent independent contractor (if the P was merely negligent in selecting the independent contractor, the P is liable only for her own negligence in selection, not for the contractor's negligence)
(TRT) Defamation
1. Defamtory language 2. "of or concerning" the plaintiff 3. publication thereof by D to a third person; and 4. damage to P's reputation *Matter of Public Concern, Const. requires two additional elements** 5. falsity of D's language 6. Fault on the part of D
(WIL) What constitutes signing "in the testator's presence"?
UPC and majority rule: It is not necessary that testator should actually see the witnesses when they sign. They are in his presence if he is so near to them that he is conscious of where they are and what they are doing IL: Witnesses must be IN LINE OF SIGHT. T does not have to see witnesses sign, but Ws must be within the uninterrupted scope of testator's vision when they sign, so that T could have seen them sign IF HE HAD LOOKED.
(AG) Termination of Actual Authority
Termination of Actual Authority occurs by: 1. lapse of a specified or reasonable time 2. the happening of a specified event 3. a change in circumstances, including destruction of the subject matter of the authority, insolvency of the agent or principal, and a change in the law or business conditions 4. agent's breach of fiduciary duty 5. either party's unilateral termination (although such termination may constitute a breach of K) 6. operation of law (e.g., death of loss of capacity of either party except where a durable power of attorney - written authority that says it will not terminate on the principal's disability - is present) *Irrevocable Agencies - Neither an agency coupled w/ an interest nor a power given as security may be unilaterally terminated by the P if the agency was given to protect the agent's (or a third party's) rights and it is supported by consideration. Neither will such agencies be terminated by operation of law*
(AG) Vicarious Liability of Principal
A P may be vicariously liable for the torts of her agent under 2 theories: 1. respondeat superior 2. apparent authority *may also be directly liable for her own negligence in hiring, retaining or supervising the agent. A P may also be directly liable for an agent's tort if she gave the agent actual authority to commit the tort or ratified the tort, or in other circumstances involving independent contractors*
(TRT) Actual Malic
1. Knowledge that the statement was false, or 2. Reckless disregard as to whether it was false
(TRT) Causation in Bystander Cases
Plaintiff may recover by showing EITHER 1. prima facie case elements of emotional distress OR 2. she was present when the injury occurred, she is a close relative of the injured person, and the D knew of facts 1 and 2
(TRT) Negligent Misrep
1. misrep by D in a business or professional capacity 2. breach of duty 4. causation 4. justifiable reliance 5. damages
(AG) What May be Ratified and by Whom
A P may ratify anything unless 1. performance was illegal at the time of ratification 2. the third party has withdrawn OR 3. there has been a material change in circumstances Under 2nd Rest. which is followed by most states, only a disclosed or unidentified "principal" may ratify (because the 2nd Rest. requires that the agent purport to be acting on behalf of the P) However, the modern view of the 3rd Rest. does not require the agent to purport to be acting on behalf of a P, therefore, under the 3rd Rest, any P may ratify
(AG) Disclosed Principal in a K
A disclosed P (existence and identity known to the third party) is always liable on the K, and the agent generally is not liable *Exceptions: an agent is liable if the parties to the K intended the agent to be liable, and an agent may be liable to the third party under his implied warranty that a principal with contractual capacity exits, and that he, the agent, had authority to K for the principal*
(WIL) What is needed for proxy revocation?
1. At T's direction 2. In T's presence
(AG) Inherent Authority
Inherent authority is derived solely from the agency relationship and results in the P being bound even though the agent had no actual or apparent authority to perform the particular act. Examples: Respondeat Superior: the P is held liable for the torts of her employee committed within the scope of employment Conduct Similar to that Authorized: Where an agent exceeds his actual authority (e.g., violates order) but the conduct is similar to acts authorized, the P will be held liable.
(AG) Third-Party Liability to P+A
Disclosed Principal Situation - when the P is disclosed, only the P, not the agent, may enforce the K and hold the third party liable Unidentified and Undisclosed Principal Situations - when the P is unidentified or undisclosed, either the P or A may enforce the K and hold the third party liable. Note that if the agent enforces the K against the third party, the P is entitled to all of the rights and benefits thereunder *When P may NOT enforce K - if there has been an affirmative fraudulent misrepresentation of the principal's identity or if there is an unforeseen increased burden to the 3rd party due to the fact that performance is due to the P and not the A*
(TRT) Slander per Se
1. adversely reflect on one's conduct in a business or profession 2. one has a loathsome disease 3. one is or was guilty of a crime involving moral turpitude (most common law crimes); or 4. a woman is unchaste
(AG) Unidentified and Undisclosed Principals in K
An unidentified P (one whose existence is known but whose identity is withheld) or an undisclosed P (neither identity nor existence is disclosed) results in liability for both the P and the A.
(TRT) Attractive Nuisance Doctrine
1. dangerous condition on the land that the owner is or should be aware of 2. the owner knows or should know children frequent the vicinity of the condition 3. the condition is likely to cause injury (ie.., it is dangerous because of the child's inability to appreciate the risk) 4. the expense of remedying the situation is slight compared with the magnitude of the risk
(WIL) Can attorney be held liable for negligent preparation of will?
Minority Rule: No, because no privity of K IL (majority): Yes, because privity rejected as a defense. Under Il rule, attorney duty also runs to intended beneficiary.
Section 11
(44 cards)