Section 1
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Harm - Contributory Negligence
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Last updated
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Date created
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Cards (170)
Section 1
(50 cards)
Harm - Contributory Negligence
{Torts} A negligent P (even 1% liable) is barred from recovery. - Minority Rule -Last Clear Chance Rule: a negligent P can still recover if they show the D had the last clear chance to avoid the injury and failed to do so
Minimum Contacts Test
1. Minimum Contacts: by either a. Purposeful availment: -D sought to derive benefits and protections from activity in the st. -D's activities were systematic and continuous. b. Foreseeability: Reasonably anticipate being hailed into ct in forum st. -Note: "minimum," not a lot. 2. Claim arises out of D's contacts, e.g. libel claim from paper being sold in st. 3. Fairness - Int'l Shoe Test: "Personal jurisdiction is constitutionally permissible when a D has minimum contacts with the st where a lawsuit is brought such that notions of fair play and substantial justice would not be offended."
Nuisance
[torts] interference w/ P's ability to use/enjoy own prop to an unreasonable degree.
Breach - in general
[torts] Act/omission that falls short of duty of care. In essay: "D did x. P will claim that this was unreasonable b/c ...[reason]" e.g. "D drank 10 beers. P will claim that this was unreasonable b/c beer impairs a driver's ability to control the vehicle"
Trespass to Chattels v. Conversion
[torts] Elements: D intentionally interferes with P's prop by 1) damaging or 2) stealing personal prop. Differentiated by degree: If interference is small/modest = trespass to chattels; if substantial = conversion. Remedies: Trespass to Chattels → cost of repair. Conversion → Costs of repair and full mkt value of the item. "A forced sale." Intent: if D mistakes ownership → still liable.
Trespass to Land (n=4)
[torts] Elements: An intentional act by the defendant that causes 1. a physical invasion 2. of P's real property. 3. Intent. 4. Cause. Two ways for D to commit physical invasion: 1. D enters P's land: -NO Req that D is aware that crossed boundary; so long as D purposefully walked there. -BUT intent still matters, e.g. heart attack and falls onto front lawn. 2. D throws something tangible onto P's land, BUT doesn't have to be harmful. -Sight, sound, smell, are not trespasses.
Removal (n=4)
{Civ Pro} 1) Fed Q and Supplimental Jur: Any claim that could have been filed in fed ct first, but was instead filed in st ct. 2) SMJ & Removal: A. All Ds must consent to removal. B. Timing: - Removal must occur within 30 days of when the grounds for removal become clear (normally begins when last D in suit is served). - If removed for diversity jur, the case must be removed within one year from the date the suit was filed.
Diversity Claims
{Civ Pro} 1) Citizenship: - Complete Diversity - At time of filing! - Natural persons: citizens of their domicile (residence + intent to remain). A natural person has only one domicile. - Corporations: Citizens of the st of Incorporation and Principal Place of Business. - Home Rule: no diversity if D being sued in home state. 2) Amount in Controversy (>$75,000) - Injunctive relief: the AIC is the larger of the D's cost of compliance, or the value of the injunction to the P. - Aggregation: only for P's claims against same defendant (i.e., plaintiff sues one defendant on two claims for $40,000 each).
Venue (n=4)
{Civ Pro} Venue is appropriate if: 1. if all Ds (or if only one D) resides in the SAME st --> any dist that any D is domiciled, OR 2. if a substantial event underlying the suit occurred in that district. Transfer of Venue: The judge can transfer the case to another venue if: A) All parties agree to the transfer; OR B) It would be substantially more convenient to litigate the case in another venue, e.g. location of witnesses and ptys
Duty - Standard of Care (n=5)
{Torts} General: "Reasonably prudent person" acting under similar circumstances (taking precaution against unreasonable risks of injury to others). Exceptions: (n=4) -Physical characteristics, if relevant. e.g. blindness. -Professional: req to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing in similar communities. -Children: Over 5: must exercise care of hypo child of similar age, experience, and intelligence acting under sim circs. -BUT treated as an adult for "Inherently dangerous"/"Adult" activities, e.g. driving a vehicle, blasting, crop dusting. -Superior Skills or Knowledge. e.g. if person knows intersection is unusually hazardous b/c they've lived there for so long
Harm - Doctrine of Avoidable Consequences
P cannot recover for losses that might have been prevented through reasonable efforts to avoid further injury. (similar to mitigation in Ks)
Personal Jurisdiction (n=6)
{Civ Pro} 1. Need PJ over EVERY D. 2. A Fed ct must make sure that it is permissible under both A. the law of the forum st (Long-arm stat) and B. the Fed Const. -Fed Constitutional bases ("Traditional Basis") for est PJ: 1) Domicile = residence + intent to remain. 2) Consent/Waiver: D consents to the jurisdiction of the forum state. -Express consent, i.e. forum selection clause in written K. -Implied consent, i.e. failure to object, car accident. 3) Service in the state (Unless fraud) 4) Minimum Contacts.
Assault (n=4)
[torts] Elements: 1. D must place P in reasonable apprehension 2. of imminent battery. 3. Intent. 4. Cause. - apprehension (awareness/knowledge) - (conduct, not words)
Fed Cts Jurisdiction Reqs
{Civ Pro} Both: o Subject Matter Jurisdiction: power to hear the kind of case a lawsuit involves. "Can you even file in fed ct?" o Personal Jurisdiction: power over the parties involved in the lawsuit. "Can you file for a fed ct in a particular st?"
Intentional Infliction of Emotional Distress (n=4)
[torts] Elements: 1. D must engage in an outrageous conduct. 2. P must suffer severe emotional distress. 3. Intent. 4. Cause. -Mere insults are not actionable. -Outrageous Hallmarks: 1. Repetition 2. Common carrier/innkeeper 3. P is a member of a fragile class of persons: child, old, pregnant. 4. If D has prior knowledge of a psychological/ emotional weakness and they deliberately exploit that weakness.
Duty - to Entrants onto the Land (n=4)
{Torts} 1) Trespasser a) Unknown Trespasser --> No Duty (Unless Wanton Conduct, e.g. land mines) b) Known Trespasser: once owner knows that trespassers are on land --> Duty to warn of known, hidden, artificial dangers that can cause serious injury or death." --> NO duty to warn for natural dangers. 2) Licensee: (Friend) --> Duty to warn of known, hidden dangers. 3) Invitee: Customer/business purpose --> Duty to 1) Inspect, 2) take reasonable measures to make safe. Exceptions: i) Firefighters and Police Officers → no duty. ii) Trespassing children: → must exercise reasonable care to protect from any artificial hazards. → How likely kids will come on land? Proximity, attractive nuisance.
Affirmative Defenses to Intentional Torts (n=3)
[torts] 1. Consent (n=2) -a. express and a. implied. Must have legal capacity to give consent. i.e. often not mentally handicapped, drunk, child 2. Protective Privilege: (n=2) D must be responding to a threat emanating from P that is: - a. In progress/imminent. - b. D must have a reasonable belief that the threat is genuine. (mistakes okay if reasonable) -Degree of force: D may only respond w/ necessary force. Never proportional to use deadly force to protect property. 3. Necessity Defenses: (n=2) - a. Public Nec: D commits a prop tort in an emergency to protect the community as a whole. - b. Pvt Nec: D commits a prop tort to protect their own prop/themselves in an emergency. *D still has priv to enter prop during emergency. - 3 legal consequences: -i. D remains liable for compensatory damages. -ii. No nominal nor punitive damages -iii. Prop owner must tolerate trespasser; can't kick D out in an emergency
Duty - who is duty owed to? (n=5)
{Torts} 1) foreseeable Ps (incl rescuers) 2) common law (Ks, Family, Common carriers, Innkeepers, School) 3) Entrants onto the Land: 4) Landlord-Tenant: -(patent defect --> NO duty; latent defect --> duty to warn) -liability for dangerous conditions --> based on occupation and control 5) Negligence Per Se (Safety statute designed to a. Prevent this type of injury AND b. protect this class of P; UNLESS impossible/dangerous to comply w/ stat)
Duty - who is duty NOT owed to? (n=2)
{Torts} 1) NO duty to rescue, UNLESS (...then must act as a reasonably prudent person): -a) Special relationship, e.g. parent-child -b) Gratuitous Rescuer is liable for any harm they cause (grossly neg) -c) D creates peril: rescuer can sue if injured while rescuing; D drives car onto sidewalk and hits pedestrian → should call 911. 2) Generally NO duty to control 3rd Party, UNLESS: a) D had ability to prevent injury, AND b) control of/authority over: -Parent/Child -EE/ER -Doctor/Patient -Teacher/Student
3 Reqs for Attachment for a Sec Intr by Security Agreement (n=6)
[Secured Transactions] 1. Security Agreement: (written) - a. intent - b. authenticated - c. description of collateral 2. Value 3. Debtor has rights in the collateral.
Harm - Damages
{Torts} Usually "Actual Damages"
Attractive Nuisance
[Torts - Duty - entrants onto land] P must show that: 1. the owner was or should have been aware of the dangerous condition, 2. that it was likely to cause injury because of the child's inability to appreciate the risk, and 3. that the expense of eliminating the danger is slight compared with the magnitude of the risk.
Purchase Money Security Interest (PMSI)
[Secured Transactions] 1) lender loans money to the borrower specifically for the buyer to purchase certain goods, and 2) the lender takes a security interest in those goods.
Harm - Joint Tortfeasors
{Torts} 1. Joint and Several Liability: Where the combined negligent acts of two or more tortfeasors cause an indivisible injury (incapable of apportionment), each tortfeasor is held "jointly and severally liable." 2. Imputing Liability - Respondeat Superior: BUT not liable for Superseding Causes; e.g. if EE hits someone (would be battery, not negligence) 3. Vicariously Liability: - a. ER-EE (Respondeat Superior) --> liable if EE acting w/in scope of duties. if EE commits Intentional tort, depends on circs, e.g. bouncer, barista, protecting delivery truck) - b. Independent contractor --> principal NOT vicariously liable IC's torts. UNLESS: i. Abnormally dangerous activity (e.g. blasting), ii. Non-delegable duties, such as 'premises open to public' (e.g. window washers, scaffolding) - c. Owner of Car-Driver of Car → no vicarious liability. Unless, owner tells driver to pick something up for them, then liable. (principal-agent) - d. Parents-Children → No vicarious liability. i. Negligent entrustment: this is neg, not vicarious liability. e.g. parent gives child a gun.
Strict Liability (n=4)
[torts] 1. Injuries caused by animals: (domesticated v. wild) 2. Abnormally dangerous activities: 3. Defective Products: (commercial suppliers) - i. manufacturing defect - ii. design defect - iii. information defect 4. Affirmative Defense: Comparative responsibility (same as 'comparative negligence.')
Negligent Infliction of Emotional Distress
1. Neg under another standard of care? e.g. reasonably prud person, entrant to land, neg per se. 2. Types of cases: a. "Near-miss": i. zone of danger; ii. subsequent sympton of distress. b. "Bystander": i. victim is a close family member (spouse, parent, or child); ii. P is a contemporary wit. c. Business Relationship: i. pre-existing bus relationship; ii. nature of bus is that where neg would cause emotional distress. e.g. false medical diagnosis by lab, or funeral parlor carelessness. Not If dry cleaner wrecks favorite shirt.
Harm - "Eggshell"/"Thin Skull" Plaintiff Rule
{Torts} "the tortfeasor takes his victim as he finds them," despite how particularly vulnerable/fragile the victim is. --> D compensates for ALL damages he caused.
False Imprisonment (n=4)
[torts] Elements: 1. D must commit an act of restraint. 2. P must be confined in a bounded area. 3. Intent. 4. Cause. Notes: -Threats are sufficient -Omission constitutes restraint -P must know about restraint or be harmed by restraint. -An area is not "bounded" if there's a reasonable means of escape that P can reasonably discover. i.e. not if way out is dangerous, hidden, disgusting, or humiliating Shopkeeper's privilege: no liability if reasonably believes P committed a theft: 1. Conduct the detention in a reasonable manner, and 2. detain the suspect for only a reasonable time. -Not req to call police! Citizen's arrest: A private citizen may make a felony arrest without a warrant only if: 1. a felony has in fact been committed, and 2. the citizen has reasonable grounds for believing that the person arrested has committed it.
Spousal Immunity
[crim - privilege not to testify] 1) Applies in criminal cases only 2) Privilege belongs to witness-spouse under Federal Rules 3) Matters at issue may have occurred PRIOR to the marriage 4) Can only be asserted during marriage/Doesn't survive divorce
Abnormally dangerous activities
[torts - strict liability] a. Activity creates a foreseeable risk of serious harm, even when reasonable care is being exercised. b. Activity is uncommon in the area where it's being conducted. e.g.: blasting, handling/transportation of toxic/hazardous materials, use of high-dose radiation. *Affirmative Defense to Strict Liability: → Comparative responsibility: same as 'comparative negligence.'
Categories of Collateral (n=10)
[Secured Transactions] Goods: "tangible, moveable, personal prop." 1. Consumer goods - goods used or bought for personal or household purposes. 2. Equipment - any physical goods other than consumer goods, inventory, or farm products 3. Farm Products - crops, livestock or farm supplies. (debtor must be a farmer) 4. Inventory - goods held for sale or lease and supplies. (Also: materials quickly used up in business, e.g. raw materials; disposable office supplies) Semi-tangible and Intangible Property 1. Accounts - a right to payment for prop sold or for services rendered (accounts receivable). 2. Deposit accounts - a bank account 3. Instruments - checks, drafts, promissory notes. 4. Investment prop - e.g. stocks, bonds 5. Commercial tort claims. 6. General intangibles - intellectual prop, e.g. patents, copyrights.
Supplemental Jurisdiction
{Civ Pro} Ct hears claims that are not Fed Qs or diversity claims, but relate to such claims (arise out of a "common nucleus of operative facts") Supp JD is generally a related case from a 2nd P, NOT a second case by the same P.
"MY LEGS"
[K] Statute of Frauds - Certain Ks must 1. be in writing, 2. signed by D "MY LEGS": 1. Marriage 2. Year 3. Land 4. Executors/administrator 5. Goods ($500+) 6. Sureties
Defective Products (n=4)
[torts - strict liability] must involve: a. Merchant/Commercial supplier b. Product defects: (n=3) - 1. Manufacturing (product differs from others off of assembly line, and it's more dangerous than what consumers expect.) - 2. Design (alt design is safer, cost-effective, practical/same use) - 3. Information: if - i. product has hidden risks and - ii. lacks adequate warnings (prominent, in understandable language/pictures, doesn't tell you how to mitigate risk) c. Product hasn't been altered since leaving D's control: presumption that product is not altered if transported in normal chain of commerce. d. P is making a Foreseeable Use of product at time of injury: "foreseeable use" not nec an appropriate use. *Affirmative Defense to Strict Liability: → Comparative responsibility: same as 'comparative negligence.'
Fed Q Claims (n=4)
{Civ Pro} 1. A claim arises under fed law if the fed law provides P with a right to relief. "Well-Pleaded Complaint" Rule: Judge considers only the true nature of P's claim. NOT issues that arise under st law: 2. state-created claims which req interpretation of federal law, e.g. breach of K in patent or copyright case. 3. Anticipated fed defenses, e.g. Motley's stat-revoked train passes. 4. St laws that incorporated fed law (motion to suppress) Four original jurisdictional categories: 1. copyright/trademark/patented, 2. admiralty law, 3. SEC stock cases, 4. Bankruptcy Cases
Subject Matter Jurisdiction
{Civ Pro} 1. Fed Q Claims 2. Diversity Claims (incl Amt in Controversy >$75,000) 3. Supplemental jurisdiction (4. Removal)
Loss of Consortium (n=3)
[torts] Uninjured Spouse gets dams from D: 1. Loss of services: meals, mowing lawn etc. 2. Loss of Society: companionship. 3. Loss of Sex.
Confidential Marital Communications Privilege
[crim - privilege not to testify] 1) Applies in both civil and criminal cases 2) Privilege belongs to BOTH spouses 3) Communications (not observations, etc.) must have been made during a valid marriage 4) Survives divorce
Intentional Torts (n=7)
[torts] -all req specific intent 1. Battery 2. Assault 3. False Imprisonment 4. Intentional Infliction of Emotional Distress 5. Trespass to Land 6. Trespass to Property 7. Conversion
Breach - Res Ipsa Loquitur (n=2)
{Torts} 1) The accident does not normally occur absent negligence on the part of D, AND 2) The Instrumentality causing the accident was w/in D's exclusive control. Note: Gets case to jury, NOT that P nec wins.
Cause - Proximate/Legal Cause (n=3)
{Torts} 1. Whether D should have REASONABLY FORESEEN that their conduct could create the type of harm suffered by P. - Factors: Time, Space, Scope -4 common cases --> P: 1. Intervening medical negligence 2. Intervening neg rescue 3. Intervening protection or reaction forces. e.g. D runs red light and breaks P's leg. Other wits run away and one steps on P's face. 4. Subsequent disease or accident. e.g. Next day P falls down injuring hand b/c he hasn't used crutches before.
Injuries caused by animals
[torts - strict liability] - Domesticated animals (house pets and farm animals) → no strict liability, unless known vicious propensities. - Keeping wild animals → strict liability, even if have safety precautions. *Affirmative Defense to Strict Liability: → Comparative responsibility: same as 'comparative negligence.'
Causation - Actual Cause/Cause In Fact (n=3)
{Torts} 1) "But for" Test: would injury have occurred but for that aspect of D's conduct which was negligent? 2) "Substantial Factor" Test: when two or more causes concur to cause an event but either alone would have been sufficient to cause injury, each is a cause-in-fact if it is a substantial factor in cause the injury. 3) Unascertainable Cause w/ Mult Ds --> Joint and Several Liability. 4) Alternative causes approach: 2-acts, but don't know which caused injury → burden shifts to D.
Battery (n=4)
[torts] Elements: 1. harmful/offensive contact; 2. w/ P's person. 3. Intent. 4. Cause. includes things connected to the person
Priority in Sec Intrs
[Secured Transactions] 1. Perfected > unperf 2. both perf --> first to perf or file (a financing statement) 3. two unperf --> first to attach 4. PMSIs > non-PMSIs 5. PMSIs in non-inventory goods --> priority if debtor received possession of the collateral w/in 20 days thereafter. 6. PMSIs in inventory --> priority if before debtor receives possession the sec pty 1) perfects, 2) sends an authenticated notification w/in 5 yrs. 7. Lien holders > unperfected sec ptys. 8. Prior perfected sec interest > judicial lien. -Garage Sale Rule: new buyer takes free of the sec intr if buys w/o knowledge of the sec intr, for value, and for his own personal use.
Harm - Comparative Negligence (n=2)
{Torts} 1) "Pure" Comparative Negligence/Fault: can recover even if P's neg > Def's neg. -Majority Rule 2) "Modified"/"Partial" Comparative Negligence: can recover only if P's neg > Def's neg.
Harm - Assumption of the Risk (n=2)
{Torts} Express Assumption of Risk --> Complete bar to recovery. e.g. K or overt lang agreeing to waive liability. Implied Assumption of Risk --> Reduction to P's recovery. e.g. P voluntarily agrees to encounter a known risk (shark tank).
"MIMIC"
[Char evid] Permitted: a. Reputation and Opinion testimony b. Specific acts usually not permitted, UNLESS (MIMIC) 1) Motive 2) Intent 3) Mistake (absence of) 4) Identity 5) Common plan or scheme
5 Methods of Perfection of Sec Intr
[Secured Transactions] 1. Automatic perfection (PMSI in consumer goods) 2. Possession 3. Control (Only way to perfect Nonconsumer) 4. Lien 5. Files a Financing Statement a. Contents of financing statement: debtor's name, descrip of collateral, sec pty's name, debtor must sign) b. Filed w/ Secr of State (unless land --> county) c. Effective for 5 years (may file 'continuation statement' exactly b/t 4.5 and 5 yrs)
Negligence Elements (n=4)
{Torts} 1. Duty, 2. Breach, 3. Causation (a. actual cause, b. proximate/legal cause), 4. Damages, (5. Defenses)
Section 2
(50 cards)
Parol Evidence Rule
[K] When parties intend that a writing is the final expression of their bargain, no prior (oral or written) or contemporaneous (oral) expressions are admissible to vary the terms of the writing. -Exceps: 1. to show a mistake in integration. 2. to show a condition precedent 3. to show defense (fraud) 4. if adding to a written deal. 5. to show "collateral" term Merger clause = states agreement is complete on its face --> is evidence of full integration
Accord and Satisfaction in K
[K] "Accord" = agreement by pty to an already existing obligation to accept a different performance in satisfaction of the existing obligation. "Satisfaction" = completion of the different performance. Effect: upon Satisfaction → excuses original K. If Accord is not performed, then the other pty can sue on either the orig obligation or on the accord, but not both.
Liquidated damages
[K] Liquidated damages if: 1. Actual damages difficult to calculate at the time of contracting 2. Amount is a reasonable forecast of the likely damages; - not punitive (look for if liq dams clause doesn't vary, e.g. $10,000/per day of delay→ penalty clause → invalid. -Still may be entitled other dams (expectation etc.) -No actual money damages have been suffered!
HS Exceps - Unavailable Wits
[Evid] HS only allowed if wit is unavailable: 1. Former testimony (under oath) 2. Statement against interest (known; crim, must be corroborated) 3. Dying declarations (Homicide and civil cases only)
Will Contests (n=4)
[Wills] 1. Testamentary Capacity 2. Undue Influence: - Reqs (burden on contestant; but-for test): a. Influence exerted on testator, b. Overpowered the mind and free will of testator, and c. Product was will that would not have been made but for the influence - Presumption if: a. confidential relationship (e.g. attorney-client, priest-parishioner, doctor-patient); and b. Benv participated in a sig activity related to execution of the will 3. Fraud 4. Mistake & Ambiguity
Satisfy funerary and admin expenses, and creditors' claims.
[Wills] Order in which gifts are sacrificed to satisfy funerary and admin expenses, and creditors' claims: 1. Intestate property: possible partial intestacy. 2. Residuary bequest: 3. Demonstrative legacy: hybrid; a specified pecuniary amt w/ instructions re where funding is to come from. 4. General legacy: specified pecuniary amt 5. Specific devise or bequest: "my car"
Delivery Terms and Risk of Loss in K
[K] Noncarrier cases 1) Merchant seller: risk passes to buyer upon taking physical possession 2) Nonmerchant seller: risk passes upon tender of delivery Carrier cases 1) Shipment Ks: risk passes on delivery to carrier 2) Destination Ks: risk passes on tender at destination 3) F.O.B.: risk passes on delivery to F.O.B. location (tells you whether shipment or destination Ks)
Assignment of Rights in K
[K] Transfer of Rights under K 1. Elements: K b/t only 2 ptys; One of the pty's later transfers rights under that K to a third pty; Language of present assignment (e.g. "I assign my rights; X assigns") Consideration not req!
Spending Power of Congress
[Con Law] Congress may regulate beyond enumerated powers by attaching conditions to a grant as long as the strings are: (i) clearly stated, (ii) related to the purpose of the grant, and (iii) not unduly coercive.
Will Substitutes in Trusts
[Trusts] Revocable Trusts 1. Interest passes during life but becomes possessory at death. 2. Pour-over from will to revocable trust: a. Trust may be established before, after, or concurrently with will b. Trust may be amendable and revocable c. Gift is valid even if trust unfunded during settlor's lifetime Totten Trust Bank Accounts 1. Trustee-depositor has full rights during lifetime 2. Revoked by withdrawals, any other lifetime act indicating intent to revoke, or by will 3. Subject to depositor's creditors' claims
Privileges and Immunities
[Con Law] Article IV P&I: 1. Prohibits states from discriminating against citizens of other states with respect to "fundamental" rights, e.g. substantially unequal treatment regarding commercial activities - UNLESS: "Substantial justification exception" if nonresidents are part of problem and there are no less restrictive means to solve problem. - Note: Corps and aliens are not citizens! 14th Amendment P&I: Prohibits states from denying their own citizens rights of national citizenship (corporations are not citizens)
Privileges relating to Marriage
[evid] Spousal Immunity 1) Applies in criminal cases only 2) Privilege belongs to witness-spouse 3) Matters at issue may have occurred during or PRIOR to the marriage 4) Can only be asserted during marriage/Doesn't survive divorce Confidential Marital Communications Privilege 1) Applies in Both civil and criminal cases 2) Privilege belongs to Both spouses 3) Communications (not observations, etc.) made DURING a valid marriage 4) Survives divorce
Confrontation Clause
[Evid] - in Crim Cases Prohibits use of "testimonial" hearsay that may come in under another exception. - "testimonial" = sworn testimony and any statements/docs gathered for eventual prosecution of D; includes forensic analysis reports. - "non-testimonial" = statements given to police during an emergency.
Delegation of Duties in K
[K] Transfer of Duties under K A transfer of duties, not a transfer of rights/benefits. Often a pty makes both an assignment of rights and a delegation of duties. 1. Duties that cannot be delegated: a. Those restricted by K b. K calls for very special skills or reputation. 2. Liability for Non-Performance: a. Delegator always remains liable. Must look first to the delegate for performance of the duties, but if he fails to perform, then may look to the delegator as a surety for the delegate's performance b. Delegatee liable only if they receive consideration from the delegating pty.
Powers of Appointment in Trusts
[Trusts] General Power of Appointment: can be exercised in favor of donee Special Power of Appointment: cannot be exercised in favor of donee
Estates
[Wills] "Probate Estate" = estate that could have been controlled by a will had T executed one. Doesn't incl life insurance, prop held in trust, right of survivorship prop, securities or bank accounts registered in payable on death. Elective Estate = includes "Net testamentary estate" = probate estate less exempt prop, family allowance, funeral expenses, expenses of admin and allowable creditor's claims.
Ademption
[Wills] Property no longer in estate → 'gift fails' (decedent leaves "My car to my niece", but owns no car at the time of death.)
Substantive Due Process
[Con Law] a. Fundamental right → strict scrutiny. (Government must prove action is necessary to achieve a compelling government interest.) e.g. voting, interstate travel, privacy, 1st Amendment rights. b. All other interests → rational basis. (Challenger must prove action not rationally related to any legitimate government interest.)
Uniform Simultaneous Death Act
[Wills] Property of each person passes as though he survived the other person
Division of Prop if No Spouse
[Wills] 1. 'Per Capita with Representation' Distribution (Maj): prop is divided into equal shares at the first generational level at which there are living takers, with the shares of each deceased person at that level passing to his issue by right of representation. 2. 'Per Capita at each Generational Level' Distribution (Min): the initial division of shares is made at the first generational level at which there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level. 3. 'Strict Per Stirpes" Distribution (ComLaw): one share passes to each child of the decedent, regardless of whether there are any living takers a that level. If the child is deceased, that child's share passes to his descendants by representation.
Strict Scrutiny
[Con Law] Gov't must prove action is necessary to achieve a compelling government interest.
Interp a K term (n=3)
[K] When looking at how to interp a K term, look to (In order of weight): 1. Course of Performance: same ppl, same K. 2. Course of Dealing: same ppl, diff but sim K 3. Custom: diff but sim ppl, dif but sim K
Warranties in sales of Goods (UCC)
1) Express Warranty: looks for words that promise, describe or state facts; or look for a sample or model. 2) Implied warranty of merchantability implied in every contract by merchant of goods of kind sold. 3) Implied warranty of fitness for particular purpose implied whenever a) any seller has reason to know particular purpose for which goods to be used, and b) that buyer is relying on seller's skill and judgment to select goods, and c) buyer does in fact rely. Disclaimers: must be conspicuous ("there are not warranties"), or use terms "as is" or "with all faults" Express warranties can't be disclaimed. Implied warranties can be disclaimed
Charitable Trusts (n=3)
[Trusts] 1. Purpose must benefit the public. 2. Indefinite beneficiaries. 3. May be perpetual (no RAP) Cy pres: if settlor's intended purpose is impracticable, unlawful, or wasteful, ct substitutes new charitable purpose as close as possible to the original. -Ct examines 'General Charitable Intent'
Third Party Beneficiary
[K] Vesting of Third Party's rights if they: 1. Knew (ascend to K), 2. Relied on, and 3. Brings suit to enforce promise. → no modification/ cancelation w/o Third Pty's consent after vesting.
Precatory expressions
[Trusts] e.g. "it's my hope/wish/suggestion that A..." permissive lang alone → inference that no trust was intended, but inference may be overcome by 'ceal and convincing' evid.
Modification of K Terms
[K] Common law: Additional consideration needed UCC, Art 2: No consideration needed so long as in good faith. SoF applies.
Supremacy Clause - Preemption
[Con Law] Preemption: 1) Express preemption: narrowly construed 2) Field (implied) preemption: if federal law comprehensive or a federal agency oversees area, preemption may be found 3) Presumption that historic state police powers not intended to be preempted unless that is the clear and manifest purpose of Congress
Oral Trusts
[Trusts] Oral promise to hold in trust. --> valid if terms can be shown est by 'Clear and Convincing' evid. -Exception: NOT for land/real estate. (SoF) → creates a Constructive Trust: Action in Equity: beneficiary could still sue in equity
Reqs for All Wills
[Wills] 1. Testator age 18 and of sound mind (testamentary capacity) 2. Testamentary intent: present intent to make a will 3. Writing 4. Signature of testator Formal Attested Wills --> plus 2 attesting wits - if intersted, OK is either supernumerary or would have inhereted intestate anyway Holographic Wills --> plus in T's handwritting (no wits req)
Dormant/Negative Commerce Clause
[Con Law] States may not intentionally discriminate against interstate commerce, UNLESS: 1) Nec to achieve an important state interest, and No reasonable alternatives available. 2) State is acting as a Market Participant 3) Traditional st government function Non-discriminatory state law: may not be unduly burdensome → balancing test
Pretermitted Spouse
[Wills] Maj: marriage after a will has no effect on the will UPC (min): may sue for inheritance, UNLESS omission appears intentional. Pretermitted children:
Dams for Sale of goods Ks (UCC Art 2)
[K] 1. Seller Breaches, Buyer Keeps the Goods → FMV if perfect - FMV as delivered 2. Seller Breaches, Seller Keeps the Goods → Mkt price at time of disc of breach - K price; or replacement price - K price. 3. Buyer Breaches, Buyer Keeps the Goods → S gets K price (ignore any second number) 4. Buyer Breaches, Seller Keeps the Goods → K price - mkt price at time and place of delivery or (K price - (resale price and provable lost profits)) NOTE: Buyer's damages are measured as of the time he learns of the breach, while the seller's damages are measured as of the time for delivery. Incidental Dams: costs incurred in dealing w/ breach are always recoverable (e.g. costs of advertising to find another painter) Consequential damages available only if reasonably foreseeable (breaching pty would have known about dams at formation of K)
Case or Controversy
[Con Law] No Advisory Opinions Case must be: 1. Ripen: harm must actually be threatened 2. (not) Moot: must be real, live controversy at all stages. 3. Standing: P must have a concrete stake in the outcome at all stages of litigation a. Injury in fact b. Remediable by court decision 4. (no) Adequate and Independent State Grounds
Commerce Power of Congress
[Con Law] Congress may regulate: 1. Channels and 2. Instrumentalities of interstate commerce, and 3. Activities having a substantial economic effect on interstate commerce.
"Non-hearsay" Statements
[Evid] 1. Statement by an opposing party; inlc adoptive and vicarious admissions 2. Prior inconsistent statement (under oath) 3. Prior consistent statement (used to rehabilitate wit) 4. Prior ID
"COAH"
[Prop] Adverse Possession - Possessor must show: "COAH": 1. Continuous. uninterrupted for statutory period 2. Open and notorious 3. Actual entry and exclusive possession 4. Hostile/adverse: lacking the owner's permission
Trust Property/"Res" Requirement
[Trusts] Trust must have "certain and identifiable" trust prop. "Empty trusts" are valid, if names person as the direct beneficiary of a life insurance policy a pension plan death benefit direct beneficiary of the settlor's will
Trust Beneficiaries
[Trusts] Must be definite/ascertainable
"Armadillos From Texas Play Rap Eating Tacos"
[k] Applicable Law Formation Terms Performance Remedies Excuses Third parties
Contracts Clause
[Con Law] Applies only to states. Prevents only substantial impairment of a party's rights under an existing contract. - UNLESS: (law valid if) 1) Serves an important interest of st govt; and 2) Is narrowly tailored to promote that interest b. Public contracts --> stricter scrutiny 1) State cannot be obligated to refrain from exercising its police power 2) Law should not broadly repudiate government contractual obligations
Lapse
[Wills] "lapsed gift" is a gift given to a person who then dies before T (called a predeceasing beneficiary) → gift fails, and will be treated as intestate. Ansti-Lapse Stat: lapsed gift is saved by stat if predeceasing beneficiary is a close relative of T; in lineal descent of T's grandparents; not a spouse, friend, or distant relative. --> lapsed share passes to the other residuary beneficiaries in proportion to their interests in the residue.
Codicil
[Wills] 1. Must be executed with same formalities as a will - Testator age 18 and of sound mind (testamentary capacity) - Testamentary intent: present intent to make a will - Writing - Signature of testator 2. "Republishes" will
Compensatory Dams in K
[K] a. Expectation damages ("benefit of the bargain"): Put P in same economic position as if K had been performed. b. Reliance Interest: Put P in same economic position as if K had never happened. c. Restitution Interest: Put D in same economic position as if K had never happened (prevent Unjust Enrichment) → for the "value of the benefit conferred" (e.g. value of a partially painted house is not the cost of the paint).
Honorary Trusts
[Trusts] e.g., trusts for pets, graves non-charitable purpose, but no private beneficiaries who can enforce trust
Takings
[Con Law] Taking for public purpose must be justly compensated. Use restrictions: a. Denial of all economic value → taking b. Decrease in economic value → generally not a taking if economically viable use remains
Alienable of Beneficiary's Equitable Interest in Trust
[Trusts] 1. Spendthrift Trust - beneficiary may not voluntarily or involuntarily transfer his interest (i.e., cannot sell or give away interest, and creditors cannot reach it). Unless, settlor is also ben. 2. Discretionary Trusts - Trustee Has Discretion to Pay or Withhold Income or Principal.
Constructive & Resulting Trusts
[Trusts] -Court created Constructive Trusts: when person acquires title to prop wrongfully → equitable remedy to prevent unjust enrichment Resulting Trusts: May arise upon failure of express trust or when express trust purposes accomplished and corpus not exhausted.
Reqs of a Trust
[Trusts] Creator... Delivers... Legal title of trustee assets (the res)... ... To Trustee... For the benefit of beneficiaries... With intent to create trust... For a valid purpose.
Procedural Due Process
[Con Law] For intentional deprivation of "Life, Liberty, or Property" Balancing test for "fair process": 1. Importance of individual right 2. Value of specific procedural safeguard involved 3. Governmental interest in fiscal and administrative efficiency "Fair Process" = usually, prior notice and hearing, w/ neutral fact-finder OR subsequent notice and a meaningful op to contest in hearing.
Section 3
(50 cards)
Assault
[Crim] 1) Intent to commit battery; OR 2) Intentional creation (other than by mere words) of a reasonable apprehension in the mind of the victim of imminent bodily harm
Actual Authority - Agency
[Agency & Partnership] Based on P's manifestations and how they affect the reasonable agent. 1. Express Actual Authority: auth conveyed by the principal in words (oral or written) 2. Implied Actual Authority: auth the agent reasonably believes she has as a result of the principal's actions.
Larceny
[Crim] 1) Taking; 2) And carrying away; 3) Of tangible personal property; 4) Of another with possession; 5) By trespass; 6) With intent to permanently deprive that person of her interest in the Property Not title
Rational Basis Review
[Con Law] Challenger must prove action not rationally related to any legitimate government interest.
Robbery
[Crim] 1) A taking; 2) Of personal property of another; 3) From the other's person or presence; 4) By force or threats of immediate death or physical injury to the victim, a member of his family, or some person in the victim's presence; 5) With the intent to permanently deprive him of it
Harmless error test applies to violations
[Crim] Conviction will be upheld if conviction would have resulted despite the improper evid.
Remainders
[Prop] "polite" 1. Contingent Remainders: if Either/both: - a. it's created in an unascertained or unknown person - b. it's subject to an unmet 'Condition Precedent' 2. Vested Remainders: - a. Indefeasibly vested remainder: ("To A for life, remainder to B") - b. Vested remainder subject to complete defeasance: ("To A for life, then to B, provided however, that if B dies under the age of 25, to C")
Full Faith and Credit Clause
[Conflicts of Law] Full faith and credit must be given if: 1. the judgment is final and "on the merits," and 2. if the court rendering judgment had sufficient jurisdiction (PJ and SMJ).
Solicitation
[Crim] a. Asking someone to commit a crime b. With the intent that the crime be committed
Intermediate Scrutiny
[Con Law] -Gov't must show discrimination is substantially related to an important government interest. -Quasi-suspect classification (sex and legitimacy) -Sex discrimination --> exceedingly persuasive justification required. Interest must be genuine and not hypothesized
Defamation - Constitutional
[Torts/Con Law] If Matter of Public Concern, P must prove that D's statement was: 1. defamatory; 2. "of or concerning" the P; 3. published to third pty. 4. Falsity 5. Fault a. if public official/figure --> Actual Malice - knowledge of falsity or reckless disregard as to truth; - if actual malice shown, dams presumed b. if pvt person --> Negligence and actual injury Privacy torts: media defendant cannot be sued for publishing a true fact about a public record lawfully obtained
Landlord's Duties
[Prop] Duty to Deliver Possession: Implied Covenant of Quiet Enjoyment Implied Warranty of Habitability:
Kidnapping
[Crim] 1) Some movement or concealment of a victim in a "secret" place
Revised Uniform Partnership Act ("R.U.P.A.")
[Agency & Partnership] provides a default set of rules for general partnerships
Rule Against Perpetuities
[Prop] Any future interest that is not certain to vest or fail within a 'life in being' plus 21 years is void. Method: 1. Find measuring life: whose life and/or death is relevant to what has to happen for the future interest holder to take? 2. Will we know w/in 21 years of the death of that measuring life whether there will be someone eligible to take?
Marketable title
Free from an unreasonable risk of litigation at closing (i.e., when purchase price and deed exchanged) 3 circs render title unmarketable: 1. Adverse possession 2. Encumbrances 3. Zoning violations Buyer cannot rescind prior to closing on grounds that the seller's title is unmarketable.
Choice of law approaches (n=3)
[Conflicts of Law] 1. Vested Rights 2. Interest 3. Most Significant Relationship
Fruit of the Poisonous Tree Doctrine
[Crim] All evid derived from excluded evid will also be excluded. Exceptions 1) Independent source: 2) Attenuation (intervening act or circumstance) 3) Inevitable Discovery 4) Live witness testimony 5) In-court identification 6) Violations of no-knock entry rule 7) Good faith reliance on a defective search warrant - UNLESS: a. Affidavit clearly lacks PC b. Warrant is lacking particularity c. Police lied to/misled magistrate d. Magistrate is biases 8) Use of evidence to impeach
Commercial Speech - 1st Amd
[Con Law] Speech regarding lawful activity and not false or misleading → regulation valid if it: 1) Serves a substantial government interest 2) Directly advances that interest 3) Is narrowly tailored to serve that interest
False pretenses
[Crim] 1) Convey title; 2) To personal property of another; 3) By an intentional false statement of a past or existing fact; 4) With intent to defraud the other - If title is not obtained, the crime is larceny by trick
Unprotected Speech - 1st Amd
[Con Law] 1. Clear and present danger of imminent lawless action. (req intent, and likeliness of occurrence) 2. Fighting words (statutes often overbroad or vague) 3. Obscenity: a) Appeals to the prurient interest in sex; b) Portrays sex in a patently offensive way; and c) Does not have serious literary, political, or scientific value judged from a national standard
Indefeasible interests
[Prop] 1. Fee simple absolute 2. Life estate (incl 'life estate pur autre vie')
Attempt
[Crim] a. Specific intent b. Overt act: a substantial step in the direction of the commission of the crime (mere preparation not enough) Defenses: a. Legal impossibility: if D sets out to do a legal act that he believes is illegal b. NO defense for Factual impossibility: if D sets out to do an illegal act, but cannot complete the act due to some unknown reason. c. NO defense for Abandonment:
Exceptions to Warrant Req (n=12)
[Crim] 1. Search incident to lawful arrest 2. Automobile exception 3. Plain View 4. Consent 5. Stop and Frisk 6. Hot pursuit 7. Evanescent Evid 8. Emergency 9. Inventory Searches 10. Public school searches (reasonable/not excessively intrusive) 11. Mandatory drug testing (pub students; gov't EEs) 12. Border searches
Equal Protection
[Con Law] Discriminatory Intent, Suspect Class, or Fundamental right Discrim Intent: 1) Law discriminatory on its face 2) Discriminatory in application 3) Discriminatory motive Suspect classification (race and national origin) → strict scrutiny -Quasi-suspect classification (sex and legitimacy) → intermediate scrutiny Fundamental right → strict scrutiny
Arson
[Crim] 1) The malicious; 2) Burning; Charring is sufficient (Q will tell you which one) Scorching is insufficient 3) Of the dwelling; Not a barn or commercial property 4) Of another
Manslaughter
[Crim] Voluntary manslaughter: 1) Adequate provocation; 2) Gave rise to heat of passion; and "Passion" is a reasonable person standard. 3) No adequate cooling-off period Involuntary manslaughter a. Types: 1) Killing resulting from criminal negligence; or 2) Misdemeanor manslaughter
Restrictive/Real Covenants
[Prop] Reqs for BURDEN to run to later grantees: written, intent, notice, both horizontal and vertical privity, touch and concern. Reqs for BENEFIT to run: intent, vert privity, touch and concern from B1 → B2. NOT: (not written; no notice; no horizontal privity → thus easier for benefits to run)
Rape
[Crim] 1) Any penetration of the female sex organ by the male sex organ 2) Without the victim's effective consent; 3) In the absence of a marital relationship between the woman and the man [Maj: null]
False imprisonment
[Crim] 1) Unlawful; 2) Confinement of a person; 3) Without his valid consent
Traditional defenses - Crim
[Crim] a. Insanity; b. Intoxication; c. Infancy; d. Self-defense; e. Duress or necessity; f. Mistake of fact; g. Consent (rare); and h. Entrapment (rare)
Conveyance
[Prop] 1) Land Contract; 2) Closing (legal title), deed.
Warrant Reqs
[Crim] 1. PC and 2. Particularity Informants: - Totality of circs - Credibility and basis of knowledge. Execution: Must generally knock and announce authority, UNLESS reasonable suspicion that would be dangerous or would inhibit investigation. - BUT evid isn't excluded based on violation of this
Battery
[Crim] 1) Unlawful application of force to another; 2) Resulting in bodily injury or offensive touching
Defeasible interests
[Prop] 1. Fee Simple Determinable ("for so long as," "until," "while," "during"): - Grantor has 'Fee Simple Determinable Possibility of Reverter' 2. Fee Simple Subject to Condition Subsequent ("but if," "upon condition that," "provided that"): → grantor MAY then exercise 'right of entry'/'power of termination' (not automatic reverter) 3. Fee Simple Subject to an Executory Interest ("to A for so long as . . . , and if not . . . , to B," "to A, but if . . . , to B"): → Automatically forfeited in favor of a third party (not grantor)
Elems of crimes generally
[Crim] Act, mental state, concurrence (at the time), causation (conduct + specified result), and harmful result.
Waste
[Prop] Life tenant must not commit waste; otherwise life tenant is entitled to all ordinary uses and profits from the land. 1. Voluntary waste = is diminished value of land 2. Permissive waste = negligence. Life tenant must maintain prop, i.e. pay taxes, make repairs. 3. Ameliorative Waste = if adds value to land
Executory Interests
[Prop] "Rude". Cut short the prior estate. 1. Shifting Executory Interests: cuts short an interest in another person. ("To A, but if B returns from Canada, to B and his heirs") 2. Springing Executory Interests: cuts short an interest in grantor or grantor's heirs. ("To A, if and when she becomes a lawyer." A is in high school.)
Establishment Clause (Lemon Test)
[Con Law] gov't action/law respecting the establishment of religion valid if the action/law: a. Has a secular purpose b. Has a primary effect that neither advances nor prohibits religion c. Does not cause excessive entanglement between government and religion
Embezzlement
[Crim] 1) The fraudulent; 2) Conversion; 3) Of personal property; 4) Of another; 5) By a person in lawful possession of that prop - Embezzler doesn't have to get the benefit (e.g. can give $ to charity)
Murder
[Crim] 1. Common Law Murder: a. Unlawful; b. Killing of another human being; and c. With malice aforethought Malice = a) Intent to kill; b) Intent to do serious bodily harm; c) Reckless indifference to unjustifiably high risk to human life (depraved heart murder); or d) Felony murder
Apparent Authority
[Agency & Partnership] When the P "holds out" (words/conduct) lead a reasonable third pty to believe that A has authority to act of P's behalf. (based on P's manifestations and how they affect the reasonable 3rd pty) 1. Power of Position: may be est via A's title or position, unless P tells A otherwise → no actual, but likely still apparent auth. 2. Unilateral Agent Representations: NO apparent authority by mere representations by the A/non-P. 3. Lingering Apparent Auth: auth may exist after actual auth ends. Ratification: 1. P must have knowledge of all mat Fs regarding the K. 2. P must accept the entire transaction, not merely a portion. 3. Ratification cannot be used to alter the rights of intervening ptys.
Assignment of Lease
[Prop] Assignment = transfer all/remaining time in lease. Sublet = transfer some time in lease. Privity of K = if shared the original K. - LL may sue T1, if assignee/T2/T3 doesn't pay rent → Both T1 and T2 jointly and severally liable. Privity of Estate = Assignee in possession of prop. - LL may proceed against T3, not T2 - A second assignee/T3 makes first assignee/T2 no longer liable for T3 not paying rent. → both T1 and T3 are jointly and severally liable.
Insanity - Defense - Crim
[Crim] 1. M'Naghten test (right-wrong test): disease of the mind caused a defect of reason so defendant lacked the ability at time of his actions to know wrongfulness or understand nature and quality of actions 2. Irresistible impulse test (self-control test): unable to control actions or conform conduct to law 3. [rare] Durham test (products test): crime was product of mental disease or defect 4. M.P.C. test: D lacked ability to conform his conduct to reqs of law - combination of M'Naghten and irresistible impulse tests
Class Gifts
[Prop] remainders in a class are: 1. "Contingent" if no member of the class yet exists, 2. "Vested" if all possible members exist, and 3. "Vested Remainder subject to open" if more members might come to exist
Easements
[Prop] 1. Easement Appurtenant: involves two tracts of land (Dominant and Servient parcels) --> Automatically passes w/ dominant tenement land 2. Easement In Gross: involves one tract of land. Servient land is burdened, but there's no dominant land. --> Not transferable, unless commercial Creation of easements ("PING") - Prescription (COAH) - Implication (previous use) - Necessity - Grant (SoF applies) Termination of easements ("END CRAMP") - Estoppel: reasonable reliance on holder's assurances - Necessity - Destruction of servient prop - Condemnation of servient prop - Release - Abandonment - Merger - Prescription
Burglary
[Crim] 1) A breaking; 2) And entry; 3) Of a dwelling; 4) Of another; 5) At nighttime; 6) With the intent to commit a felony in the structure - Underlying felonies will also be charged.
Fixtures & Waste
Fixtures generally pass w/ ownership of land. 1. Residential: - if installed by tenant → look to lease (express agreement controls) - if not in K, T may remove what they installed if removal won't cause substantial harm to premises. 2. Commercial - Trade Fixtures Doc: Tenant may remove all trade fixtures. - Exception: accessions can't be removed (structural addition to real prop)
Conspiracy
[Crim] a. An agreement; b. An intent to agree (may be inferred from conduct); c. An intent to achieve the objective of the agreement; and d. An overt act (maj) ComLaw/Wharton Rule - Bilateral Approach MPC - Unilateral approach Liability: each conspirator is liable for all crimes of other conspirators if foreseeable and in furtherance of the conspiracy Defenses: a. Maj: No withdrawal; MPC: yes b. NO Defense for factual impossibility No merger: can be convicted of both conspiracy and substantive offense
Equitable Servitudes
[Prop] Covenants with equitable remedies (i.e., injunction, specific performance) "Implied Equitable Servitude" from a common scheme for development if notice exists. - Reqs for BURDEN to run: writing, intent, notice, touch and concern - Reqs for BENEFIT to run: writing, intent, touch and concern "Changed neighborhood conditions" is a Equitable Defense
Section 4
(20 cards)