Shared Flashcard Set


Bar Prep Spring 2021 2020
Widener 4L Evening Bar Prep Lofts Spring 2021

Additional Law Flashcards




Key Negligence Elements
  • Duty-Zone of foreseeable peeps, including rescue by citizen (not for professional rescuers)
  • Breach
  • Causation - legal and proximate
  • Damages/Harm
  • DO this in order, make sure there was all elements. 



Duty Rules for Standard of Care
  • Duty-Zone of foreseeable peeps, including rescue by citizen (not for professional rescuers)
  • ORPP standard of care; blind person excp; low IQ no exception; voluntary drunk no excuse; kids of similar age, intel and experience
  • Custom as SOC-Dr/pro vs other-diff rule
  • NegPerSe-statues for class of person and harm
  • Trespassers-no willful/wanton/reckless acts; business invitees highest standard - biz cannot delegate duty; known trespassers duty to warn of hidden dangers. 
  • Biz invitees exceeding scope of invitation=trespasser
Key elements to intentional torts
  1. Act - voluntary
  2. Intent - transferred and children can have intent
    1. No transferred intent for IIED and conversion
  3. Causation
  1. Intent to cause
  2. Harmful offensive contact - ordinary sensibilities
  3. Lack of consent
  4. No damages required, eggshell plaintiff, punitive if with malice
  1. Intent to cause
  2. Reasonable apprehension (toy gun counts)
  3. Imminent, present ability to do 
    1. Mere words do not count
  4. Damages not needed, punitive, eggshell plaintiff
  1. Intent to cause
  2. Extreme outrageous conduct
    1. authority and children are heightened issues
    2. if def knew of hypersensitivities
  3. Causation - factual cause
  4. Damages - physical manifestation of emotional distress
False Imprisonment
  1. Intnet to cause
  2. Confine or restrain
  3. boundries fixed by def - no reasonable escape
  4. actual confinement
    1. Shopkeeper ok if reasonable duration/manner
    2. can happen if def does not unlock when locked in
  5. aware or harmed by confinement
  6. No damages needed, punitive
Defenses to intentional torts
  1. Express consent - not by fraud, mistake or duress
  2. Implied consent - mutual fight (but not illegal actions), emergency, sports are all implied consent
    1. lack of capacity - youth, intoxication can negate consent
  3. Self defense - reasonable force, reasonable belief, reasonable mistake OK - no obligation to retreat
    1. no transferred intent to bystanders for self defense - accidents OK
  4. Defense of others - when defended party can use self defense
  5. Defense of property - no deadly force
  6. Recapture of chattel/land after request, peaceful means
Trespass to chattels
  1. Intentional
  2. disposition or use/intermeddling of (not destruction)
  3. Plaintiffs chattel
  4. Actual harm and loss of use
    1. reduction of value
    2. repair for damages
  1. Intent
  2. Deprive plaintiff of possession -dominion/control
  3. Damages = full value of property
  4. Look at duration and extent of interference, lack of good faith, expenses and incovienence to plaintiff, extent of harm to chattel
TAresspass to Land
  1. Intent
  2. to enter land or physical invasion above, below or on surface
  3. without consent
  4. mistake not a defense (even if there is a survey)
  5. necessity is a defense - private or public
    1. Private necessity owner recovers actual damage
    2. Public necessity privlidge is absolute - no damage
Private Nuisance
  1. Intentional
  2. substantial and unreasonable (offensive, inconvenient, annoying to reasonable person)
  3. Interference (not physical invasion) - includes sunlight
  4. Use or enjoyment of land

Coming to nuisance not a defense but can be considered

Compliance with regulatory can be considered


Plaintiff can come on land to abate private nuisance if owner is given notice and def does not act


Public Nuisance

air pollution, river pollution, parks, highways


Plaintiff for public nuisance must have harm that is different than general public


public authorities can get injunction and criminal prosecution

Negligence Elements
  1. Duty - to those in zone of foreseeable harm, foreseeable plaintiff - generally no affirmative duty to act unless they have assumed the duty
    1. No liability for unforeseeable plaintiff
    2. Hightened care for innkeeper
  2. Breach
  3. Causation - prox and legal
  4. Damages
Negligence Standard of Care

Objective standard of ordinary reasonable prudent person - average intelligence

blind person under modified standard

Voluntary intox does not remove reasonable care


Children of similar age, intellegence and experience except when doing adult activities (driving)








Special situations for negligence standard of care

Common carriers and innkeepers - utmost


Automobile drivers - still reasonable standard of care - guest in car not grossly negligent


Bailors and bailees - if bailor recieves the benefit, lesser duty to bailee - if bailee recieves benefit, he has higher duty of care. 

Standard of care for property owners
  • Duty to refrain from willful, wanton intentional or reckless activities - spring gun -No duty to undiscovered trespassers
  • Anticipated trespassers - must warn of hidden dangers
  • Attractive nuisance - artificial condition, reason to know of children, risk of death or serious injury, child cannot appreciate danger, risk/benefit is high
  • Licensees - warn of concealed dangers
  • Business invitees - reasonable and inspection
  • Not duty re natural conditions except urban trees
Breach for Negligence

Violation of the standard of care


Risk Cost benefit analysis


Professional customs are standard of care


General customs are admissible but not dispositive


Physician - same or similar locality/national rule - explain unknown common risks unless patient waives information



Negligence Per se
  1. Statue imposes a specific duty (speed limit)
  2. Def violates statue
  3. Plaintiff is a class of people intented to be protected
  4. Type of harm that statue intended to protect
  5. Harm caused by violation of statue




Defenese if def shows compliance with statue was more dangerous in thier situation

Res Ipsa Loquiter

When no negligence can be found


  1. accident does not normally occur outside of neg
  2. caused by an element or agen within exclusive control of the plantiff
  3. accident was not due to any action of plaintiff - can be loosely applied

Jointly and severably

Negligence Cause in Fact  - Problematic Situations
  1. Multiple tortfeasors throw piano- joint and severable
  2. Multiple possible causes two fires- substantial factor test
  3. Loss of chance - misdiagnosed
  4. Alternative causation - two gunshots to same plaintiff
  5. C
proximate/legal cause for Negligence

person is liable for the risks that make thier conduct negligent


speeding trail is hit by falling tree - no negligence for damage by the tree cause speed did not cause tree to fall - fence around mine shaft 


No liability for unforseeabe type of harm


Interveining (do not break causation) vs superceding causes (does break causation.  

Negligence damages

Actual damages – and physical emotional pain and suffering

Plaintiff must mitigate damages.

Property damage – difference in market value

Collateral source/insurance can be considered to avoid double recovery

Punitive for wanton, willful and malice – cannot be over 10X actual damages (9X ok)

Generally cannot recover for PURE economic damages unless other (property, actual) damages are also shown.  


Eggshell plaintiff

Negligent infliction of emotional distress
  • If in zone of danger and threat of physical danger – like apprehension of assault
  • Bystander can recover only if closely related, personally observe (not in zone of danger)
  • Proximity of relationship, location and temporal proximity
  • Likely will need physical manifestation of Emotional distress.’
  • Remember also wrongful life (by child) and wrongful birth (for parents with failed contraceptive)


Vicarious liabilities
  • Joint and severable liability for employer
  • Vicarious party can get indemnification from employee who is negligent.
  • Must act within scope of employment – frolic (major) or detour (minor)
  • Not liable for independent contractors – except for dangerous activities, construction sites and shopkeeper must keep premise safe


Negligence defenses
  • Contributory negligence – bars recovery EXCEPT for strict liability
  • Comparative Fault – majority rule
    • Pure comparative – limits the recovery by your portion of fault – even if you are 90% at faults, still can recover 10%
    • Modified comparative – if you are more at fault, you are barred from recovery, if equal, also barred. 


Strict liability – 3 ways
  • Animals – species or class, domesticated if known to be dangerous (one bite rule)
  • Inherently dangerous activities
  • Defective products (Manufacturing, Design or Failure to warn)


Defective products strict liability
  • Anyone who is in the business of selling such items
  • Manufacturing defect – when product deviates from intended design
  • Design defect 
    • Consumer expectation test – less safe than ordinary consumer would EXPECT
    • Risk utility for more complex – risk outweighs benefits – must have reasonable alternative design
    • Failure to warn – only for risks that are not obvious 


Strict products liability damages
  • Comparative fault can influence damages if plaintiff is also negligent
  • Assumption of risk can apply to strict products liability
  • If expected modification/alteration is foreseeable, then maker of product can still be liable but plaintiff modifications may reduce damages
  • STATE OF THE ART DEFENSE – with warning can limit recovery


Fee Simple / Absolute

And his heirs - magic words, but not necessary


Default estate


FSA is not defesible



Fee Simple Determinative

Durational language - so long as...while … during

Until it is not longer used as a farm...


Possibility of reverter - vests immediately

Fee Simple Subject to Condition Subsequent

Language - but if....Provided that... On the condition...


Possibility of reverter - interest vests immediately upon the condition - this must be reclaimed, not automatic

Fee SImple Subject to Executory Interest

Language - but if ...


And will state that original owner has a 

Right of re entry

Life Estate

To XXX for life...


then, to whomever (REMAINDER), or back to grantor (REVERSION)



Waste in Real Property - 3 Types

Affirmative waste - active damage to property


permissive waste - from neglect


Ameliorative Waste - improvements to property


Think of waste with life estates then to, landlord/tenant, and mortgager situations

Contingent Remainders vs Vested Remainder

Contingent remainder - applies to RAP situations - where the future interest is not ASCERTAINABLE OR the future interest is CONTINGENT (if...)


Vested Remainder - to someone who is ascertainable AND not subject to a contingency

Vested Open or Closed

Vested open when full class membership is unknown - must have at least one known member for it to be vested subject to open - if none are current, then remainder is CONTIGENT


RAP applies to vested subject to open


In property law, anyone alive may still have children

Rule of Convivence

A class closing mechanism to avoid application of RAP


If someone is entitled to immediate possession, class can be closed


to anna for life then to bens children.  Ben has 1 child. Class closes when Ben dies.  

Rule in Shellys case

If life estate also indicates to her hiers, then grantee has FSA


To anna for life then to her heirs results in a FSA

Executory Interest - 2 types and if subject to RAP

Are subject to RAP - 


Springing exec interest when there are only two players - grantor and grantee


if 3 parties, then likely a shifting exec interest

Rap Applies to what situations

Contingent remainders


Exec Interest - 


Class gifts


stopped on page 12 of the handout


Every defeasible estate can be devisable upon death (life estates are not defeasible).


If conveyance language is unclear, courts favor fee simple subject to condition subsequent.


To my husband and then to my children who survive (children who survive are contingent on their life if they survive).  


Only vested interest can be devisable at death - Vested interest must be 1) Alive, 2) ascertainable and 3) with no pre exiting contingencies - 

Violations of SOF what happens

lease or contract that violates the SOF is voidable  until the tenant takes possession and the landlord accepts the rent.  Once these two items happen, the contract is valid. 


Most states do not like a restrain on alienation of property rights - even if leases - public policy issues  






When RAP Interests are created 

Rap Applies to What 3 interests


Inter vivos transfers OR when testator dies (not when will is drafted)


RAP applies to 1) contingent remainders, 2) Exec interests 3) Class gifts, Vested remainders subject to open

Validating vs Relevant Life in RAP

Relevant life in RAP is person who affect vesting - mentioned or implied in the grant - prior life tenant such as a parent to a child


Validating Life - the person measured to the 21 years - must be alive when interest was created.   If no validating life, then strike that part of the devise language



Special Class Gifts and RAP

All or nothing, if gift is invalid to any single person in class, then gift if void to all members in a class



RAP Decision Process
  1. Is there a future interest
  2. Is there a contingent remainder (to A for life, then B if xyz) or executory interest (so long as, while, but if, on condition that...)
  3. No time restriction for future interest --> RAP violated
  4. Can interest vests 21 years after death--> violatio
Fee Simple Subject to Condition Subsequent

Most unique of all defeasible fee interest

provided, but if, on condition that... (not time based - not "so long as" or "while")

Right of re-entry must be acted upon - not automatic (all others are automatic or not applicable)

Future interest cannot transfer intervivos (this is unique for FSSCS) (but current interest can transfer)


These have potential to violate RAP


Reversion vs Remainder

Reversion goes back to original grantor


Remainder goes to a different party than the grantor or grantee


Contingent remainder if not ascertainable or if future interest is subject to condition precedent

Three types of Waste

Affirmative - active damage to land, loss of value

Permissive - loss in value due to neglect

Ameliorative - improvement increases value 


Be looking for future interests that are affected by current possessor wasteful activities



Class Gifts in Property

Subject to open when not all class members are ascertainable (to annas children who reach 21)


Class is closed if all members are ascertainable - 

Rule in Shellys case -
To anna for life then to anna's heirs creates a FSA
Rule of convenience in RAP

A Class subject to open can close as soon as one member of the class is entitled to immediate possession (To A for life, then to A's grandchild where A is dead and Ben is a grandchild)


RAP generally does not apply to One charity to another charity


Cy Pres - court reforms a transfer to avoid RAP



Types of Concurrent Estates
  1. Tenants in common - default - equal right to posses
  2. Joint tenancy - right of survivorship - must be CLEAR and specifically indicate "right of survivorship
    1. PITT unities required -possess, interest, time, title
    2. Intervivos destroys right of survivor, 
    3. Lein (majority- does not destroy) vs title theory
    4. Leases may or may not destroy based on locallaw
  1. Tenancy by entirety - spouses, right of survivor, must consent to alienate or encumber/mortgage property
Ouster in co tenancy

Co tenant in possession denies access - change locks, throw out co tenant stuff or violence)

 Can get injunction

recover rent as damages


But must first ask for access to property, must be attempting to enter property

Rent and expenses with co tenancy

Rent minus operating expenses shared based on % owner

Necessary expenses - mortgage, tax - based on % owner


No right for reimbursement for improvements or even necessary repairs (if in partition, can get reimbursement)


Partition - by physical division or sale - courts prefer physical division

Discrimination Summary Housing/Property

Covers multi family units (>4 units)

Only when broker is involved

Race, color, religion, national origin, sex, disability, family (FRROCS DC) but not sexual orientation

Disability requires reasonable accomodations

Ad Discrimination can be subtle - "ideal for bachelors, hot tub and bars" --> advertising for males only


Conflict of property law tips

Look for different state issues - controlling law is based on location of property EXCEPT if contract says specific state for controlling law




Look for foreclosure issues on test



FOur types of landlord/tenant tenacies
  1. Tenancy of years (can be months/weeks.. but FIXED, automatic terminated, no notice, )
  2. periodic tenancy-month to month, automaticall renews, can be implied, notice required 1 period/term+
  3. Tenancy at will (general short term hotel, no notice required, )
  4. Tenancy at sufferance - required to pay value of daily use and foreseeable damages
Tenant Duties
  • Ray rent, avoid waste
  • Can suspend payment of rent when, 1) eviction (full or partial), 2) landlord breach
  • Covenant of quiet enjoyment for commercial and residential (cannot be unusable for intended purpose)
  • IMPLIED war of habitatably - for residential only, healthy and safety, tenant CANNOT waive protection
  • Constructive eviction=1) unusable, 2) Notice, 3) no fix 4) tenant vacates
  • landlord has duty to repair in residential, not always in commerce


Landlord duties

Mitigate damages REASONABLY from default renter, for commercial lease, minority rule says they do not need to mitigate


Can increase rent if notice in time, not retaliatory


Must maintain common areas, quiet enjoyment, try to control nuisance behavior rom other tenants


Does not/cannot control off premise 3rd parties

Must provide habitat able residential accommodations





Landlord tort liabilities

Landlord had duty of REASONABLE care to renters, invitees, licensees

responsible for hidden/latent defects, faulty repairs, injuries in common areas

Assingment and Subleases for Landlord/Tenant

Assignment is complete transfer of remainder term (landlord can pursues original and new renter for rent)

Sub lease is not - can only pursue original renter (only in privity of K with original renter)


Silent lease, renter can freely assign/sublease. 

If permissive in the lease to transfer, the LL can deny transfer only for commercially reasonable reason



Land Sale Contracts

Two stages, Contract stage then deed stage

Covenants under the contract merge with the deed and remedy will flow from the deed


SoF-writing, signed, essential terms (parties, descript, $)

Exceptions for SoF, part performance (pay AND improve), estoppel (reasonable rely and hardship/detriment)

Marketable Title

Every land sale contract has implied covenant of marketable title. Examples of unmarketable title includes adverse possession that is not quieted, encumbrances, violation of zoning ordinance.  Defect in title must be cured before merger of K and deed.  


reasonable buyer standard to determine in marketable


Remedy is to rescind contract if cannot fix defect in title


Implied warranty of fitness or U&O for new contruction



Duty to disclose defects sale

material defects substantially affecting value or desirability (ghosts can affect)

must disclose latent or hidden defects


Damages (for either seller or buyer) can be recission, damages, OR specific performance


Majority rule is the buyer holds equitable title/burden of loss between signing AOS and closing/delivery of deed




Adverse Possession Elements

Continuous (not literal, can tack previous possessor time)

for statutory period

Open and notorious (not hidden, able to be found reasonable search)

Hostile - against permission of owner - majority rule is that the mindframe of the possessor is not relevant

Exclusive - not shared with owner


if in mistake based on fraudulent deed, scope of adverse possession can give entire boundary of property, not just the part possesses in adversity. 


Deed Requirements

Must be delivered and accepted (look for examples of this on Bar)

Grantor must have present intent to transfer property


Deed must ID the 1) Parties, 2) signed by grantor, 3) words of transfer, 4) description or property (does not need to be official legal descirption)


agents can sign for grantor


registration of deed provides notice to the world, but is not required to be recorded to be valid but may have problems with subsequent buyers

What should be recorded with deed





Judgements against titles (adverse posses or lein)




Gifts, intesty, wills, generally not recorded


Types of Notice (recording, defects, et)

Actual notice

Constructive - when filed

Inquiry - when obvious or able to discern with some questions


Race Statutes for Recording Deeds

First to File/Record - look for wording of "record"

Notice Statues - "Good faith, without notice"

Race/Notice - "First duly recorded" (plus good faith, without notice)


Shelter rule - if takes from BFP protected by the recording act has the same rights as the grantor - look for 


Estopell by deed - when grantor conveys land that the grantor does not own - grantor is estopped




Three types of deed

General Warranty - most protection, warrants against all defects even if grantor did not cause the defects in deed


Protected rights of Gen Warranty Deed: Seisen, Right to Convey, Against encumbrances, quiet enjoyment, title


Special Warranty - most common - protect against defect that the grantor caused


Quit claim deed - no warranties re status of title, tax sales and intra family disputes, only transfers whatever owner has



Wills and Trust for Property
  • Escheat - die without will and no heirs
  • Ademption - a specific gift in will no longer there (65 mustang was sold prior to testators death)
  • Lapse - when beneficiary named in will dies before testator - falls to residuary gift - but most states have anti lapse statues that gives the lapsed gift to the dead beneficiaries' heirs - child, wife, etc. 
Diff between equitable servitude and real covenant

Both run with the land, need writing, intent to create, notice, touch and concern the land, notice (for equit servitude) or vertical privity (for real covenant)


Remedy is the key difference - can sue for both depending on language of the writing and what you are seeking

 if you sue for $ damages - its a real covenant

If you sue based on injunction - its an equitable servitud0


Covenants and Equit servitude supersede zoning rules

restraints on alienation of real propertyu

Cannot have absolute retraint on alienation


partial restraint can be valid if for a limited time and reasonable purpose


think covenant, easement, etc. 

Terms for Mortgages - mortgagor and mortgagee

Mortgagor - the borrower

Mortgagee - lender




Alternatives to regular mortgage

Deed of trust - the same as mort but deed held in trust for benefit of the lender


Installment land contract - seller provides financing and retains title - if there is default, there are state by state ways to address - mostly by treating like a trad, mortgage


Absolute deed - lender keeps deed - must have clear and convincing evidence that this was like a mortgage to be treated as a mortgage in default situations. Can use parole evidence


Transfers in Mortgages - if lender transfers loan to another entity or if buyer transfer property to another person

when homeowner transfers to another person by sale, normally have a due on sale clause - if transferred by will or intestate sucesssion, recipient of property personally liable for loan


If lender transfers loan to another entity, can do this freely

Foreclosure Notes - lien vs title theory

Lein theory vs Title Theory - Lein theory ( majority) lender cannot take possession of home until foreclosure complete


Title theory, lender has right to possess property as title holder at any time upon default


Equity of redemption - borrower has right to pay in full the loan and get property before foreclosure sale.  Lender cannot clog this right to redeem - cannot waive this right



Priorities in Mortgages Notes

Senior interests survive foreclosure, junior interest do not

Other debts after foreclosure sale satisficed chronologically


purchase money mortgage exception - mortgages to buy property (not HELOCs) take priority against earlier liens on the home - traffic fines, ex. 


First to file rule for junior mortgages - if senior loan did not file, they are not first. 


  1. Foreclosure eliminates the morrtge on the property - junior interests are destroyed. 



Easements pg 57
Easement Terminology

Servient estate - burdened by easement

Dominant estate - benefit by the easement

Easement appurtenant - use of land, fully transferrable - goes with the land

Easement in gross - not tied to land, able to swim in pond

Express vs implied easement - both are transferrabel

FOur types of implied easements
  • Necessity - landlocked after original owner sold part
  • Implication/Prior use - common owner before severed, continuous after severance, reasonable necessity (access to a well)
  • By Prescription - adverse possession based on use - same elements as adverse possession except exclusive
  • Easement by estoppel - initial permitted use, reliance, permission withdrawn

Oener of easement has duty to maintain

Termination of easements

Expressed release


Abandoment - need lack of use and INTENT to abandon

Sale to a bonafide purchaser can terminate

Estoppel - servient owner acts on statements by owner

End of necessity can terminate easement


Real Covenants - five requirements to run with the land
  1. Writing
  2. Intent to run wiht land
  3. touch and concern the land - affect both parties
  4. Privitiy - common horizontal at start, then strict in vertical privity - must transfer entirety of estate
  5. Notice - actual, inquiry or constructive
Implied reciprocal servitude
  1. Part of a planned community - master plan
  2. Intent to burden all plots
  3. Reciprocal - all plots
  4. negative, restriction on use
  5. Notice - actual, inquiry or constructive - advertising

Need drastic change to inside of the community (not surrounding areas) to release servitude

misc rules for property

Tresspassors can remove an improvement they made, or recover value if they acted in good faith


Cumulative zoning - normal - residental allowed everywhere, commercial less, industrial the least


Variance to zoning requires 1) Hardship, unique, keeps with purpose of ordinance, not cause harm to general welfare

Equitable conversion in property law
A doctrine that regulates the ownership of real property in the interval between contract formation and closing. Once the parties execute an enforceable contract for the sale and purchase of property, the buyer is regarded as the equitable owner of the property, and the seller acquires the equitable right to be paid the purchase price. The buyer's equitable ownership is treated as an interest in real property, and the seller's right to the sale proceeds is treated as personal property.
State vs Fed Evidence Difference

Use State law for privilege's and for prelim question of evidence


No fed rule for physician-Patient confidentiality

There is a fed rule for Psychiatrist-patient confidentiality




Plain error rule


And Limited Admissibility rule


Plain error - If you fail to object to something and it is obvious on its face that you should have objected, appellate courts will likely reverse the case to prevent misarrange of justice


Limited admissibility - Evidence may be admissible for one purpose but inadmissable for another purpose - court can provide limiting instructions to juror if objecting party asks


Past recollection refreshed vs past recollection recorded

For recollection refreshed, witness just looks at notes, does not read notes, and the notes do not go to jury


Past Recollection recorded - witness reads from notes, notes can be introduced by opposing party if desired.  


Note must have been taken when event was fresh in their mind and accurately recorded. 

Types of improper questioning in trial
  1. Leading questions
  2. Compound questions
  3. Facts not in evidence (don't you hate your mother?)
  4. Argumentative questions (what makes you think you can get away with that...)
  5. Inappropriate conclusions (how did the other party feel when you said that?)
Rebuttable assumption
Shifts the burden of proof for a particular issue to the other party - rebuttable by other party but burden is now higher to prove something other than the rebutted issue.
FRE 401 and 402 - what is relevent evidence

Anything than makes the fact more likely than it would be without the evidence




evidence must be material and probative (tendency to prove or disprove a fact)

Character Evidence

Cannot use character trail to show action in conformity to that trait.  Cannot say defendant is violent and therefore likely to have committed assault.  


When Character evidence is allowed, can show only by reputation and opinion testimony - not by specific bad acts.


 OK to use for impeach witness, child custody, negligent entrustment, sexual assault cases (and use prior acts) and some civil actions such as defamation, 



chratcter evidence for Def or Victim

Def can introduce a positive trait of themselves (testimony of others re opinion or reputation), but opens the door for cross exam. Prosecutor can then bring in known prior bad acts to disprove the positive trait. 


In homicide or assault, Def can bring in evidence that other person is violent, but also opens the door for Def to have facts showing their bad charater



When can prior acts be introduced


M - to show motive (murdered to conceal embezzlement)

I - to show intent (previously sold drugs, still likely doing it)

M - absence of mistake - three other marriages wife dies

I - Identity/modus operadi - always robs bank on tuesday

C - Common plan - not clear but not common


Habit evidence

Allowed to prove action in conformity with the habit - something that is routine, regular or automatic.  


For both individuals and organizations...


The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.


regular response to a repeated specific situation


Witness competence

Must have personal knowledge of the matter


willing to take oath


Dead man statues dont allow for testimony on business transactions with someone deceased

3 Ways to impeach witnesses
  1. Bias - paid, plea deal, bias for trial outcome
  2. Sensory competence (ability to see, hear, etc)
  3. Character for truthfulness
    1. character witness or reputation,
    2. can cross examine on specific acts, with good faith basis - still 403 balance test for prejudice
      1. crimes for dishonesty
      2. Felonies
      3. prior inconsistent statements - you said to your mother the car was blue, not red...
      4. Cannot use crimes that are pardoned
Lay Witnesses

Generall, facts, not opinions from lay person


Witness opinion can be OK for common sense impressions, based on clear perception and clear interpretation


Cannot be scientific, technical, or specialized knowledge. 

Expert Witness, Daubert

Daubert test:

  1. Qualified by knowledge, skill, training, or education
  2. Based on facts or data
  3. Testimony based on reliable methods
  4. Apply methods reliably to the facts of the case

Experts may provide opinion re ultimate issue in most cases


Cannot provide opinion re if defendant had requiresit mental state of any element of a crime or defense. 

Ways to authenticate evidence

By testimony of the parties


ancient documents, 20 year old, no suspcion


Voice identification low bar, easy


Called the person, he answered, assumed to be that person

Best Evidence RUle

Should not describe documents, but should show them unless the document is unavailable, lost or destroyed. 


duplicates are OK as long as there is no authenticity issue, but originals should be used. 


Exception when the document is unavailable, or a summary can be used when there is lots of data/documents







Parole Evidence Rule

Excludes oral evidence that would change the terms of a written contract when the final document is a complete integration.  


If a partial integration, oral evidence cannot contradict the express terms of the agreement.  


Exceptions to parole evidence is to clarify an ambiguity, provide a custom of trade, show mistake, duress


Protects confidential communication when seeking legal advice. 


Does not protect pre existing documents. 


For corporations, communications can be made with employees and still be confidential if within scope of employees duties and was for the purpose of seeking legal advice.  


Cannot protect discussions of future crimes or fraud.  

Work product doctrine.

Documents prepared by a lawyer in anticipation of litigation


may be required to share documents if substantial need and undue hardship to other party


mental impression can never be shared


Similar for physician patient (no fed law for this) and therapist-patient (FRE rules)

Spousal Privilege's - Diff between confidential marital communications and spousal privilege's.

Confidential martial communications - protected, held by both spouses, survives after marriage. 


Spousal immunity - cannot force spouse to testify against another spouse in a criminal case - held by testifying spouse, only for currently married spouses.  

Liability insurance, subsequent remedial measures, settlement offer or negotiations, offers to pay med expenses

Cannot be used against 


Settlement offers/negotiations cannot be used to prove validity or amount of a disputed claim



Plea negotiations cannot be used in civil or criminal cases. 

Rape shield law

Cannot use victims past sexual behaviors as evidence in a sexual misconduct trial. 


Exceptions when there is a criminal trial to show physical evidence of prior sex when relevant, or to to show previous sexual consent


Exceptions in civil trials - only if previous sexual conduct has probative value that substantially outweighs the danger of harm.  Victim can bring it up and open the door.  

Child molestation and other sex assaults' can be used in civil and criminal cases - any relevant use - very broad. 

hearsay Definition

An out of court statement to prove the truth of the matter - the declarant is acting as a witness.  


Can be spoken, written or gesture


Non hearsay is if a statement is used to show effect on the listner, notice to insurance, show state of mind (I am king henry..)

What is NOT hearsay

Certain consistent or inconsistent prior statements made under oath and cross examined.  Grand jury not OK


Identification in a line up is not hearsay, declarant must still testify as a witness and crossed; not if witness died


Admission of party opponent - 


Vicarious admissions of a agent in scope of work


Statements of co conspirators during/in furtherance

Declarant unavailable exceptions to hearsay

Unavailable if refuses, lacks memory, privlidge, dead or ill, cannot be found.  

  • Former testimony - under oath with cross
  • Dying declaration
  • statements against interest - 
  • If criminal exonerations statement, must have corroboration
  • Statements of family history
  • Declarant unavail due to party wrongdoing
Hearsay exceptions where unavailability is immaterial
  • Present sense impression - statements contemporaneous to event - something heard on the phone
  • Excited utterance - not contemporaneous - startling, stress of excitement
  • State of mind - contemporaneous intent - im going to ohio
  • Statements for med cause, diagnosis or treatment
  • Past recollection recorded - record prepared when fresh, accurate, witness insufficient memory, witness can read to jury, adverse party can introduce to jury.  
  • manifestation OF WILLINGESS to enter 
  • OBJECTIVE TEST - Offeror is master of the offer- offeree needs to comply
  • Unilateral vs bilateral - offeror decides which type of offer to make; the offeree must play by those rules
  • offer must be specifically directed to person
  • even if open offer, must know  to get reward
  • you must normally communicate acceptable
  • mailbox rule - acceptance when mail sent


Mailbox Rule

  • Offer accepted when sent
  • Not apply if offeree sends rejection/counter 1st
  • does not apply to other items such as rejections
  • Not applies to option contracts
  • unsure if it applied to fax or email or text messages
  • must be properly addressed and stamped
  • if you mail acceptance then offeror calls to revoke, cannot terminate the contract
  • if mail get lost in transit, still have contract
  • if mail accept, and then call to reject, still contract unless detrimental reliance
  • if send reject and acceptance offer - depends on which letter sent first
Acceptance by silense
  • Unilateral reward ok by silence - carboxylic smoke
  • Unilateral when you can see performance started
  • History of acceptance by silence in regular business
  • if offer states to accept by silence - 

Implied in fact contracts - acceptance by action - like auctions -  prices marked and advertised

- you say nothing and they cut your hair, there is a acceptance of contract

  • Common law - mirror image rule- if not, it a counteroffer
  • Look for conditional words - if, on the condition
  • For UCC - more forgiving - allow some diff in terms - 2-207- 
UCC 2-207 Counter offer
  • Battle of the forms with different minor terms such as indemnification terms
  • Can accept with major terms of deal without acceptance - dont have to be a merchant
  • If there is an issue, related to minor terms
  • CHECK TO SEE IF ACCEPTANCE REQUIRES ACCEPT ADDED TERMS - added terms must not be too onerous
  • Must be timely/seasonable - less than 2 week is ok - must also be for the same good
  • must also be a definant expression of acceptance
New Terms in 2-207
  1. New term in the accept MAY control only if all of the following are true
  2. both are merchants
  3. new term does not materially change
  4. initial offer did not expressly limit acceptance to its terms
  5. Offeror does not reject within reasonable time to new term

Consideration  a deal in which the parties exchange promises involving a legal detriment or benefit - something of value 


Ask questions: 1) who is making the promise (promisor)

2) is there a benefit to promisor or detriment to promisee

3) Was this bargained for - quid pro quo


did you give up a right that you could have done=OK

no conditional or gift promises



Issues with consideration
  • Adequacy of consideration - cannot be nominal
  • Illusory promise - "if you feel like" is not consideration or I will buy your car when I have the money - must have a promise
  • Satisfaction contracts are not illusory (if the service is done to my satisfaction)
  • Output and requirement contracts are not illusory - there is a way for either party to breach
  • past consideration is not consideration
  • Promising NOT to sue - settlement of a claim can be consideration if good faith belief in validity of claim




Contract Modification

Common Law - preexisting duty rule - a promise to do something that ou are already required to do is not consid. 

Exception is change in performance, change in term of services, or paying a different person


Reduction in debt is not consideration is debt is currently due and undisputed


UCC rule is different - if modification done in good faith, then it is binding even without consideration

QUASI Contracts - contracts where there is no traditional consideration - promissory estoppel, quasi contact, etc.

Promissory estoppel - one party reasonably relies on the promise to take some detrimental action and justice requires enforcement


Quasi contract - plaintiff conferrs a benefit on the defendant, the plaintiff reasonably expected to get paid and would be fair to get the benefit - paying for rescue services someone else incurred on your benefit. 


Moral obligation PLUS subsequent promise to pay can be consideration - 



Seven Defenses to contract formation








Misunderstanding and Incapacity

Misunderstanding - parties use a MATERIAL term that is open to one or more reasonable interpretations, each relies on a different meaning, Neither party know the confusion


Incapacity - lacks capacity to agree - Minors, mentally ill, VERY intoxicated-other party must know of incapacity - contract is VOIDABLE - but still must pay fair value price (not contract price) for a necessity (food, shelter)






Mistake - a belief that is not accord with the present fact - only a few mistakes count 


Mutual mistake - both parties are mistaken - adversely affected party can rescind if there is a mistake of material fact, mistake related to a basic assumption of the contract, the impacted party did not know of the mistake. 


Unilateral Mistake - adversely effected party can rescind if can prove mutual mistake PLUS show unconscionable or knew or caused the mistake  

Fraud, Misrep and Nondisclosure defenses to contract formation
  • Misrepresentation - a statement not true at time of contracting - intentional or accidental - must show: 1) misrep of present fact (not opinion), 2) material or fraudulent, 3) justifiable reliance on the term.  
  •  "its a great car" (opinion) vs "car runs well" (fact)
  •  Fraud in execution - tricking someone to sign knowing they don't know its a contract.  
  •  Nondisclosure-quite when you know material problem - dont need to disclose unless real property or you have fiduciary duty - cannot hide the problems either
Duress and Illegality Defense in Contract formation
  • Duress - improper threat depriving one party from making a meaningful decision to enter into a contact - look for economic duress where terms are very unfair. 
  • Undue influence, hard sales tactics in time shares
  • Illegality - illegal contracts are uneforceable - but a contract in furtherance of a illegal act is OK.  Taxi ride to kill someone is still valid contract.  
Unconscionability defense to contract formation
  • Ultimate defense to contract - everything seems OK but something shocks the conscious - either
  • Procedural unconscionability (hidden term, long contract, slipped in surprise - or there is no meaningful choice - OR
  • Substantive unconscionability - substantive rip off in terms of contract - some places require both types, others require only one type of unconscionability,  
Statue of Frauds Basics
  • Two initial questions - does SoF apply to this transaction THEN 2) has SoF been satisfied
  • Main topics - 1) services cannot be performed in 1year 2) goods over $500 3) real property, or suretyship (guarantee to pay others debt/cosigner ecept IF for your economic benefit such as agent buying for you)
  • Requires writing signed by the defendant or some performance on the purported deal. 
  • One year rule - is there no possible way for the contract to be completed in 1 year,  TRICK if start of contracting is 1 year out, even for 3 months=SoF. 
Satisfaction of SoF
  • 2 ways to satisfy SoF Services -common law - full performance by one party OR
  • contract in writing signed (ID parties, essential elements) - or payment, possession, or
  • improvement (2 of 3) for real estate. 
  • Of UCC Goods - No need for price, just Quantity signed. 
  • Part performance can also be enforced with goods or if goods are custom made and substantial beginning of manufacture of good started. 
  • Confirming memo between merchants w/in 10 days. 



Agency and Modification in SoF satisfaction

signed writing to authorize agent is required to form a contract under SoF - Equal Dignity Rule


Modification of SoF contract - if modification brings it into SoF requirements, then it is bound by SoF requirements, if modification takes it our of Sof, its out of SoF requirements.  If modification keeps it in SoF, modification must also be in writing. 

Governing Law for Services and Goods

Services - common law

Goods - UCC Article 2


Mixed contracts - predominant purpose rule governs which body of law to use. 


All or nothing rule - entire contract for mixed services and good will be governed 100% by one set of laws UNLESS there are separate contracts for goods vs services.  

Formation of a contract - offer

All Contracts Don't Stink:

A - Agreement - offer and acceptance

C - consideration

D - Defenses

S - SoF

  • Offer - manifestation of a willingness to enter into a contract that creates a power of acceptance
  • Objective test - outward appearance is what matters - not subjective intent of offeror or offeree
  • Humor or anger may show lack of objective offer
Offer Issues
  • offeror must show objective serious intent to be bound
  • Offer directed to specific offeree except in reward or advertisement situation
  • For common law services - all essential terms must be covered - parties, subject, price, quantity (PSPQ)
  • For UCC Goods - quantity is the key term, others filled in by gap 

Beware of invitations to deal - RFPs, does not have power of acceptance

Advertising need to be very specific and leave no questions

Five patterns re Termination of Offer
  1. Offeror revokes via express communication
  2. Offeror takes action resulting in CONSTRUCTIVE revocation - must be apparent to offeree
  3. Offeree rejects or counteroffers inquires to negotiate is ok "would you consider X" does not reject offer. 
    1. offeree becomes offeror in counteroffer
  4. Offeror DIES - offer dies, but existing K does not
  5. Reasonable time passes - 90 days 
Option and Firm Offer Rules
  • Offeror can normally revoke at any time before acceptance - except in firm offer or option contract
  • Option contract=consideration to keep offer open for specific time, can be applied to purchase or not
  • Firm offer rule -GOODS-offer by merchant, signed by offeror, explicit promise not to revoke, up to 90 days if not stated. 


Unilateral and bilateral Contracts

When offeree started performance, offeror cannot revoke when its a unilateral contract - I will pay you $1000 if you take action to paint my house - can only accept by performance and therefore cannot be revoked


Bilateral contracts require both parties to agree and therefore part performance does not limit offeror from revocation. 





Promissory Estoppel or Detrimental Reliance for Contracts

Look for in contractor, subcontractor situations where NO CONSIDERATION is shown


When an offeree REASONABLY relies TO HIS DETRIMENT on the promise in some FORESEEABLE manner


Contract without consideration is binding if:

  • The defendant made a clear promise.
  • The plaintiff acted in reliance on the promise.
  • The reliance was reasonable and foreseeable.
  • The plaintiff suffered an injury due to reliance
Performance and Parole Evidence Rule Issues

Parole evidence



Excuse of performance


"Pizza With Crawling Escargot"





Parole Evidence Rule For Services/Common Law

If comprehensive writing/final agreement, no ability to bring in oral agreements that conflict with the writing. oral modifications maybe allowed to an integrated K.  

Oral and previously written agreement are excluded. 


Final/comprehensive agreement is key to determine - court will rule if partial, complete or not integrated writing. Look for MERGER clause --> means fully integrated.  


Oral modifications may be acceptable to contradict written contract. 

Parole Evidence in Goods/UCC

More forgiving, normally the UCC does not consider a K as fully integrated and therefore can be subject to oral agreements UNLESS the parties would have certainly included a disputed term in the writing. 



In both common law and UCC, defenses (fraud) are not subject to elimination per the PER.  Also a party can provide evidence of a separate deal.  


If writing is integrated, a party can introduce evidence to define an ambiguous term.  




Warranty is a promise re a term of the contact that shifts risks to the party making the promise.  


You can disclaim all warranties - as is basis. 








3 special warranties in UCC
  1. Expressed warranties - any promise/model that describes the goods or is part of the bargain
  2. Implied warranty of merchantability - seller must be merchant, and goods are FIT FOR ORIDNARY PURPOSE
    1. Can disclaim implied warranty of merchantabi
    2. Look for MERCHANTABILITY term
    3. look for merchants who are selling something not in their normal business
  3. Implied warranty for specific purpose - reliance on seller expertise. no merchant requirement, can disclaim warranty in writing.   
Conditions in

Look for terms such as "only if" "on the condition", etc.  

Express conditions must be strictly satisfied unless the condition is somehow excused.  


Satisfaction conditions - met by nature of performance, use objective standard of satisfaction - most people OK - but can also be specified that for aesthetic conditions to buyer


waiver-warranty can be waived by words or conduct.  or waived if other party interferes with the condition - based on good faith standard

Implied Conditions

Constructive condition of exchange: One party's performance is conditioned on the other party performance.  

Common law - substantial performance states that a party meets the requirements unless there is a material breach.  and only if failure is not willful in nature. 


If minor problem, damages can be recovered

If material breach or breach of express condition breaching party might get a quasi contract or if the conract is DIVISIBLE - look for payment for each item


UCC Performance for Goods

The UCC requires perfect tender - no substantical performance or material breach.  


Two main requirements for perfect tender - perfect goods and perfect delivery.  


Defect in goods after delivery can result in revokation of acceptance when defect is identified in reasonable time


if time is left on the contract, buyer must allow cure the defect.  

UCC Defect in Delivery of Goods

Default method of delivery under UCC is one delivery of the goods.  UCC allows for installment contracts where delivery is in separate lots - buyer can reject any single lot.  


method of delivery - at sellers place of business, or shipment/FOB (shipment contract to seller place of business) - get the goods to a shipper, make arrangements for delivery, notify buyer = perfect delivry


Destination contract FOB Buyer place of business - seller must get goods to buyer and notify the buyer.  



Risk of Loss Problems

Look for when damages occur to goods - 4 steps:

  1. Did parties address this risk in contract
  2. has either party has breached?  Then breaching party has risk of loss
  3. If no breach, see if shipment or destination - if shipment, then buyer - if destination contract, seller has risk of loss
  4. If none of these apply, and if the seller is a merchant, risk stays with seller until buyer accepts; if not a merchant, risk shifts to buyer when shipped.  
Impossibility and Impracticability

There is a contract, but something prevents performance of the K


Look for fact patterns where: performance is illegal after K formed, subject matter of K is destroyed, or services contract with Special person dies or is incapacitated (death does not normally excuse performance).  More difficult services (rock foundation harder to dig) is NOT excuse - must be unforeseen and unexpected or extreme issue. 





Frustration of purpose excuse to K

Performance can still occur, but underlying purpose of the contract - very rate - extreme situation - Covid may apply - Rent room for parade and parade is cancelled.  


Performance excused for K because initial K is modified or cancelled

Both parties cannot walk way as long as there is some performance remaining from each side.  K can be cancelled by mutual agreement of both parties.  


Accord and Satisfaction - Parties to an earlier K agree that performance will be satisfied by the completion of a different performance.  New performance is called the Accord, the excusal of the initial obligation is the satisfaction; if there is a breach, party can sue for original obligation or revised obligation.  

Novation of K

Novation: When both parties agree that a substitute person will perform the K.  Must be mutual and then original promisor is excused from performance.  


If unilateral, then this is a delegation of responsibility

Common Law and UCC Anticipatory Repudiation

Common law - if clear and unequivocal, nonbreaching party can assume breach and sue immediately OR demand performance; If services complete and payment is due, cannot sue early until payment is late.


UCC - if REASONABLE grounds anticipating repudiation, nonbreaching party can demand and adequate assurance of performance.  if no response then its a breach.  


Either UCC and Common law, you can rescind repudiation but not if lawsuit already started or acted upon reliance of repudiation.  

Expectation Damages

Goal is to put the nonbreaching party in same economic position asif the contact had been performed.  Compare value of performance with contract to value of performance with new contract or loss.  


K for $100K, provider breaches, now new K is for $110K, then sue for the $10K difference.  


Same for UCC and common law 

3 limits on value of expectation damages
  • Must be proven with reasonable certainty - new business with unknown losses will be difficult - 
  • Unforseeable consequential damages - not recoverable unless breaching party knew of collateral damages. 
    • General damages, incidental damages, freely accepted damages
    • Consequential damages - loss of profits, extra cost as a result of the breach - only if KNOWN by breaching party. 
  • Mitigation - nonbreaching party must mitigate damages
Special problems with expectation damages
  • Lost volume profits - mitigate damages by selling goods that were not accepted - but if seller sells these with large inventory- a sale the next day may not be mitigation of damages.  Charge for loss of profit.  
  • Incomplete performance - if paying party breaches, the builder cannot continue to perform - running up damages.  mitigation of damages is to stop work. 
    • Exp Damages=K price - already paid - amount needed to finish the job.  
    • 100 million K price - XXXX. 
Economic waste and diminution in market value damages

Economic waste = normal measure is the cost to complete the job. Hire to build tower for 100million, pay for 30 million months, then repudiate.  Now cost 80 million to complete, 10million is damages.  Cannot be unreasonable in calc of damages.  


Diminution of market value damages - breaching party must be innocent/unintentional.  Difference in copper vs lead pipes - both the same function - likely no damages if innocent.  


Incidental vs Consequential damage

Incidental are always recoverable - part of the reasonable costs to complete K - new contract is 10K more and you spent 5K to get new K, then 15K damages


Consequential damages are special to the innocent party - lost profits, etc.  Only recoverable if breaching party knew of the situation.  

Reliance Damages

Goal is to put the nonbreaching party in the same position as if the contract was not breached-groundhog day damages -TRY TO WIND BACK TIME-BACKWARD LOOKING


diff then expectation damages - which are same position if K had not been breached.  


what loss did Plaintiff incurred that would not have happened but for breach of K.  A party cannot recover both and expectation and reliance damages - one or the other.  



Restitution Damages

Goal - give P an amount equal to the economic benefit they provided to defendant.  sometimes like restitution damages


50K for nose job plus 10K in hospital cost.  nose job is botched.  Restitution damages are $50K; Reliance damages is 60K; expectation damages would be too uncertain, what is value of perfect nose that he should have recieved.  



Liquidated damages

K wills state what is the damage upon breach.  courts are wary about awarding punitive liquidated damages.  


for liquidated damages to be OK, must have 1) reasonable amount of liquidated damage at time of K and 2) actual damages hard to prove

Punitive damages and Injunctive relief

almost never allowed in K law - unless there is a breach like a tort such as fraud, misrepresentation


Specific performance also rare - only when money damages are inadequate.  mostly in real estate contracts - competing pharmacies at same shopping mall. 


Specific performance is not available for K of personal service - cannot force to perform personal service. 


UCC specific services and right of reclamation

Specific performance for goods is available only for specific goods like art or custom made items.  


Right of reclamation - unpaid seller able to get goods back when sold on credit and buyer insolvent.  Must have 1) buyer is insolvant at time of receipt, 2) seller must demand return of goods, 3) buyer still has goods.  

Expectation vs Restitution vs Reliance damages

Expectation - normal calculation - put party in same economic position as if the contract was perfomed - include incidentals.  


Restitution - give plaintiff the amount that the def gained (or would have) from the contract.  you pay dr, $50K, $50K damages.  When K finished and performance bad. 


Reliance - put a party in the same economic position that it would have if K had never been signed.  turn back time and give back money spent on K minus payment.  



3rd party beneficiaries

3rd party beneficiary K - can a 3rd party sue on K between 2 other people - only if promisor, promisee and beneficiary - beneficiary can sue if they are damaged in breach. 


Types of 3rd parties - the beneficiary must be INTENDED beneficiary, if incidental beneficiary, cannot sue. Likely stated in K as beneficiary   


A creditor beneficiary arises when the promisee agrees to repay the debt of a 3rd party,cbannot sue.  a Donee beneficiary can sue.  

Revoking 3rd party rights
Can revoke rights, but 3rd party bene may sue under promissory estoppel if Bene relies on the rights OR manifests assent to the contract OR the bene sues to enforce the contract.

Assignment - transfer of rights under a K'

Delegation - transfer of duties


Almost all of K benefits can be assigned in whole or part, unless language says otherwise-does not allow assignmnt. 


If the K says rights are not assignable, you must determine if the K prohibits assignments or invalidates assignments. if prohibits, 3rd party can recover, if invalidates, 3rd party cannot recover.  


Delegation is outsourcing of duties under a K

Delegation is generally OK unless K says not allowed. 


Delegatee (one who gets the new duties)  is not liable for breach unless they receives/ consideration or a benefit from the delegating party.  


Obligee is original person with the K duty and transfers the duty to the delegate


Novation - both parties agree to change one of the parties to the contract.  

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