Term
| What is the duty of care? |
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Definition
| A legal requirement to act as an ordinary, prudent reasonable person taking precaution against unreasonable risks of injury to others. |
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Term
| What are the duties of care of a landowner? |
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Definition
To a trespassor there is no duty.
To a known trespassor there is duty to warn of known dangers.
To a Licensee - there is a duty to warn of known dangers.
To an invitee there is a duty to inspect for dangers and make safe. |
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Term
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Definition
| Negligence by law of a staute designed to prevent the type of injury and protect this class of plaintiff |
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Term
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Definition
The accident does not normally occur absent negligence on the part of the defendant and
Te instrumentality causing the accident was within the defendant's exclusive control. |
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Term
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Definition
Minority Rule - A negligent plaintiff is barred from recovery.
Las clear chance rule - A negligent plaintiff can still recover if he can show that the defendant had the last clear chance to avoid the injury and failed to do so.
Only use if fact pattern says this is a contributory negligence jurisdiction. |
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Term
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Definition
A negligent plaintiff's recovery will be reduced by the percentage of his own negligence.
Pure - Can recover even if plaintiff's negligence exceeds defendant's
Modified - Recover only if Plaintiff's negligence is less than defendant's
MBE always uses Pure COmparative Negligence
This has no last clear chance doctrine. |
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Term
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Definition
| 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. |
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Term
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Definition
When a tortfeasor makes a pretrial agreement to pay her share of the damages awarded to the plaintiff, such settlements usually preceed the courts determination of each tortfeasor's relative liability.
The settling defendant's percentage of fault is deducted from the damages awarded the plaintiff regardless of the actual payment made by the settling defendant. |
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Term
| Foreseeable intervening causes |
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Definition
Negligent rescue
Subsequent medical malpractice
Subsequent disease
General Negligence
If forseeable the defendant remains liable |
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Term
| Unforeseeable Superseding causes |
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Definition
Acts of god like lightining or floods
Intentional torts of third parties
intentional crimes of third parties
If unforeseeable defendant not liable (superseding). |
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Term
|
Definition
An act by the defendant that confines or constrains the plaintiff
to a bounded area
defendant intends to confine
Causation |
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Term
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Definition
| If a shopkeeper reasonably believes that a theft has occured he is priveleged to make a detention in a reasonable manner for a reasonable period of time. |
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Term
| Intentional entries onto the land of another |
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Definition
Defendant is liable for intentional entries onto the land of another
Damages to the land is not required
Mistake is no defense. |
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Term
| Unintentional entries onto the land |
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Definition
| A person is not liable for trespass for negligent or reckless entries unless he causes damages to the land. |
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Term
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Definition
| A defense which allows the defendant to interfere with the property interests of an innocent party in order to avoid a greater injury. The defendant is justified in her behavior because the action minimizes the overall loss. |
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Term
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Definition
Defendant injures a private property interests to protect the community. This is a complete defense.
IE: Sully sullenburger lands the plane in my cornfield destroying five acres of my corn but saving 200 lives this is a public necessity and it is an absolute defense to the damge to the corn. |
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Term
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Definition
Defendant interferes with another person's lawful possession of a chattel (movaable perosonal property).
The interference can be any physical contact with the chattel in aa quantifiable way, or any dispossession by taking it, destroying it, or barring owner's access.
Conversion is a greater wrong as trespass to chattels is argued to be actionable per se.
Factors - Duration, value, damage. |
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Term
| Is it trespass to chattels or larceny? |
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Definition
Who are the parties?
If its larceny the state is a party
Private individuals can't bring about criminal charges.
Criminal law requires an intent to permanently deprive the owner of possession.
Torts law requires only an intent to take, regardless of knowledge of ownership. |
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Term
| Intentional infliction of emotional distress |
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Definition
Extreme and outrageous conduct
intent by defendant that plaintiff suffer severe emotional distress, or recklessness
causation
damages (must be severe emotional distress) |
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Term
| Intentional infliction of emotional distress - Third Party Recovery |
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Definition
When the defendant causes physical harm to a third party and the plaintiff suffers emotional distress because of her relationship to the injured person:
Plaintiff must be present
Plaintiff is a close relative to the injured person
Defendant must know or should have known of the presence and plaintiff and
acutal damages are required. |
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Term
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Definition
D intends to commit an offensive or hamful contact, and an offensive or harmful contact results.
D intends to commit an assault, and an offensive or harmful contact results.
D commits an act which he knows or should know, creates a substantial certainty that a harmful or offensive contact will occur.
(Swinging nuncucks in a small crowded area) |
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Term
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Definition
If the victim gives permission,w hat would otherwise be tortious is instead priveleged.
Consent can be expressly or through nonverbal gestures
Consent can be implied
Consent can be implied by law. (healthcare to unconcious people) |
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Term
|
Definition
An act by the defendant creating a reasonable apprehension in plaintiff of immediate harmful or offensive contact
intent on the part of the defendant to bring about apprehnsion of immediate harmful or offensive contact in the plaintiff
Causation |
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Term
| Abnormally Dangerous activities |
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Definition
A category of activity subject to strict liability
If the activity creates a risk of serious injury to the land or chattels of the plaintiff or to the plaintiff himself and this risk cannot be eliminated through the exercise of due care and the particular activity is not generally perfomed in the particular physical area.
Examples - Storage of explosives, fumigation, crop dusting, the storage of flammable liquids, pile driving, and the maintenance of hazardous waste site. |
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Term
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Definition
An owner of a wild animal is strictly liable to persons who are injured by the animal.
Example - Lions tigers bears oh my. Elpheants wolves, monkeys and sharks snakes and spiders. |
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Term
| Strict products liability |
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Definition
One who sells a product in a defective condition unreasonably dangerous to the user or consumer is held strictly liable for the harm or injury that is caused.
Defenses Assumption of the risk
Adequate warning
products misuse |
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Term
| Products liability defendants |
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Definition
One who sells a product is a deffective condition unreasonably dangerous to the user or consumer
Defendant must be a commercial seller of such products |
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Term
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Definition
False statement made with
Scienter (guilty knowledge) with
intent to induce plaintiff to act
the plaintiff justifiably relies on the false statement
and damages occur |
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Term
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Definition
| A disturbance that creates a substnatial and unreaosnable interference with the use and enjoyment of one's property. |
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Term
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Definition
Defamatory statement of fact, not opinion
Publication to any 3rd party who reasonably undrstands
Damages.
Plaintiff's standard of proof
Defendant is a public official -> Malice (synonymous with reckless)
D is a private person and this is a matter of publci concern -> Negligence
D and it is a matter of private concern -> publication only. |
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Term
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Definition
Defamatory statement imputing
latohesome disease
unchastity to a woman
improper conduct in one's trade, business or profession
false accusation of a crime.
Look for the answer that doesn't require you to prove special damages. |
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Term
| Types of Invasion of right to privacy |
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Definition
Appropriation
False light
Intrusion upon Seclusion
Public disclosure of facts |
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Term
| How do you establish a prima facie case of intentional misrepresentation? |
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Definition
a plaintiff must establish that the defendant has made a false representation
knowing that it was false or
with reckless disregard for the truth with the intent that the plaintiff rely on it.
The plaintiff must also show justifiable reliance that caused damages. |
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Term
| When can the State regulate federal government? |
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Definition
only if the state regulation is consistent with federal policy or
if the federal government permits the state regulation. |
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Term
| What is a bill of attainder? |
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Definition
A bill of attainder punishes named individuals or easily ascertainable members of a group without the benefit of a judicial trial.
The constitution forbids bills of attainder to be passed by the states as well as federal government. |
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Term
| How do hearsay statements made for the purpose of medical diagnosis or treatment get admitted? |
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Definition
Under FRE 803(4), hearsay statements made for the purpose of medical diagnosis or treatment, describing medical history or past or present symptoms, pain, or sensations are admissible as an exception to the hearsay rule.
To be admissible under this exception the statement must be made to a physician or other person who is assisting in the treatment or diagnosis of the declaration/patient.
Statements regarding the cause of injury will be admissible under this exception "insofar as reasonably pertinent to diagnosis of treatment."
However where the circumstances are such that the guarantees of reliability normally associated with this exception are not present, such a statement must be excluded. |
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Term
| When can a party request assurance of due performance and suspend its own performance? |
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Definition
According to the UCC: When there are reasonable grounds for insecurity, and to withold performance pending receipt of assurances of the performance by the other party.
In addition UCC permits the seller, upon discovering the buyer's insolvency to withold delivery except for cash. |
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Term
| What duty does a person holding a remainder in a mortgaged property have? |
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Definition
A duty to pay the principal. A life tenant has a duty to pay the interest on a mortgage.
However, the life tenant's duty is capped at:
1 rents and profits derived from a third person in possession of the property; or
the reasonable rental value of the premises, if the life tenant remains in possession of the property. |
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Term
| When can federal courts abstain from deciding cases that contain federal law issues? |
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Definition
When they may be avoided by giving the state courts the opportunity to resolve ambiguous questions of state law first.
By giving the state courts this opportunity, the federal law issues may become unnecessary to decide. |
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Term
| What does the confrontation clause guarantee? |
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Definition
A defendant has the right to face and cross-examine anyone providing evidence against him.
One exception is if the defendant has already had the opportunity to question the witness and the defendant's motive at the time of the examination was the same as the present motivation. |
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Term
| What do federal courts require for adjudication? |
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Definition
| An actual and definite dispute between parties having adverse legal interests. |
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Term
| What are the constitutional law requirements for standing? |
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Definition
Plaintiff must show a concrete personal stake in the outcome.
Injury in fact and
Causation / Redressability |
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Term
| What are the determining factors for Justiciability? |
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Definition
RAMPS
Ripeness
Advisory opinions
Mootness
Poltiical Questions
Standing |
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Term
| When can a Federal Court abstain from hearing a justiciable case? |
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Definition
When it can abstain
Pullman - Federal court will refuse to review a case based on an unsettled issue of state law
Younger - Federal court review prohibited where there are pending state criminal proceedings. |
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Term
| What are the presidential powers? |
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Definition
Issuance of executive orders which have binding force of law on federal agencies
Commander in Chief
Appointment powers
Emergency Powers
Clemency Powers |
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Term
| What are the two types of executive orders? |
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Definition
Executive agreement - A handshake deal between President and another country.
Executive orders - Control people within the executive branch of government. Binding force of law on Federal Agencies. |
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Term
| What is the Hierarchy of Laws |
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Definition
1. Constitution
2. Acts of Congress / Treaty
3. Executive Agreements
4. State Law
When their is a conflict at the same level the last in time is controlling. |
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Term
| What are the Generally Wrong Constitutional Law Answers? |
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Definition
1. General Welfare Clause
2. Necessary and Proper Clause
3. 14th Amendment Priveleges and Immunities Clause.
4. Contracts Clause.
5. Distinction between Rights and Priveleges
6. 10th Amendment |
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Term
| When may Congress delegate the task of implementing its laws. |
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Definition
Congress may delegate its task to government agencies if:
Congress passes enabling legislation
that specifies the purpose, functions, and powers
and describes the procedures of the agency. |
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Term
| What is the Supremacy Clause? |
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Definition
Superceeding Doctrine: A federal law will supersede any state law in direct conflict.
Preemption Doctrine: Any state law in an area where congress intends to occupy the field is unconstitutional. |
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Term
| When will a state statute be upheld? |
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Definition
If it does not violate the dormant commerce clause.
Meaning that it is non-discriminatory
and no undue burden on interestate commerce
When it is an exercise of the state's police power - health, safety, welfare. |
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Term
| State Taxation of the Federal government |
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Definition
Federal Government is immune from state taxation.
Federal employees and contractors may be taxed as long as the incidence of tax does not fall on the federal government itself. |
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Term
| When will a federal statute be upheld? |
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Definition
When it is Dominant under the Supremacy Clause
When it is created by an enumerated power of congress
When it is a use of the federal property power. |
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Term
| How should you approach a Con Law question? |
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Definition
Who is passing the Law?
What is the Subject Matter?
Match the appropriate pwoer
Who is affected by the law? |
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Term
| What is the Federal Property Power |
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Definition
| Congress has the power to dispose of the territory or other property belonging to the United States |
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Term
| What is the Affectation Doctrine? |
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Definition
| Congress may regulate any activity which has a substantial economic effect on interstate commerce. |
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Term
| When is state regulation of interstate commerce allowed? |
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Definition
It is constitutional as long as it is
non discriminatory and
Does not place an undue burden on interstate commerce. |
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Term
| What threshold must be met before private discrimination can be restricted? |
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Definition
| A state action must be made by the government |
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Term
| What are the different levels of scrutiny? |
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Definition
Strict Scrutiny
Intermediate Scrutiny
Rational Basis Scrutiny |
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Term
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Definition
Burden on government to show the regulation necessary to a compelling government interest
ex race alienage national origin |
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Term
| What is intermediate scrutiny |
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Definition
Burden on government to show the regulation is substantially related to an important government interest
ex gender, illegigimatcy. |
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Term
| What is rational basis scrutiny |
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Definition
Burden on plaintiff to show that the reuglation is not rationally related to a legitimate government interest
ex poverty, necessities, age, mental retardation, social and economic welfare measures. |
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Term
| What issues have a fundamental right to privacy? |
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Definition
CAMPER
Contraception
Abortion
Marriage
Procreation
Private Education
Family Relations
Apply Strict scrutiny |
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Term
| What is substantive due process? |
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Definition
| A term used to classify the source from which the fundamental rights (to vote, to travel to privacy) derive. |
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Term
| Fundamental Right to Vote |
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Definition
Apply Strict scrutiny wen:
there is discrimination in voting
reapportionment
Switching party affiliation
Ballot restrictions based on special interests (land ownership) |
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Term
| Non-Fundamental Voting rights |
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Definition
Apply rational basis
The right to be a candidate
payment of a filing fee
minimum and maximum age restrictions |
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Term
| What does the Article IV priveleges and immunities clause do? |
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Definition
| Prevents economic discrimination by one state against citizens or residents of another state, unless a substantial government interest exists. |
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Term
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Definition
| A regulation that denies the owner all reasonable economically viable use of his land. |
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Term
| What is the requirement for Public Use |
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Definition
1. Burden on government to show the measure is rationally related to any conceivable purpose
2. To qualify as a public purpose the property does not have to be held out for use by the general public. |
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Term
| What is a Bill of Attainder |
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Definition
| Legislative punishment of a named group or individual without judicial trial. This is forbidden by the constitution. |
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Term
| What is Procedural Due Process |
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Definition
| Procedural safeguards of notice and a hearing are available whenever there is a serious deprivation of any life, liberty or property interest. |
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Term
| What are Ex Post Facto Laws |
|
Definition
Unconstitution criminal law that
Makes criminal conduct that was not a crime when comitted; or
decrease the amount of evidence needed to convict/change the procedures for conviction. |
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Term
| What are the standards of scrutiny for Content Specific Regulation |
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Definition
Protected speech -> Apply Strict Scrutiny
Unprotected Speech
clear and present danger
defamation
obscenity
child pronography
fighting words
fraudulent commercial speech |
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Term
| Content neutral regulation of time, place, and manner |
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Definition
APply a 3 part test regulation must:
Further a signficant government interest
Be narrowly tailored (least restrictive means possible), and
Leave open alternative channels of communication. |
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Term
| What are facial attacks on speech |
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Definition
over breadth
vagueness
prior restraints
unfettered discretion |
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Term
|
Definition
| Streets, sidewalks, public parks. Areas generally open to public. |
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Term
| What are Limited Public forums? |
|
Definition
Courts, School Rooms,
opened by state on permanent/ limited basis |
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Term
| What are non public forums? |
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Definition
Most other public places
military bases, city bus government workplaces, airport terminals. |
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Term
| Restrictions on Vice Advertising |
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Definition
Government regulation must
Directly advance
a substantial governmental interest
and be narrowly tailored. |
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Term
| What is Free Exercise Methodology |
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Definition
Congress shall make no law respecting an establishment of religion or prohibit the free exercise therof
Purposeful interference -> Apply strict Scrutiny test
Incidental burden -> Apply rational basis test |
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Term
| Establishment Clause (Lemon v. Kurtzman) |
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Definition
Primary purpose must be secular
Primary effect must neither inhibit nor advance religion
No excessive government entanglement with religion. |
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Term
| When may an anticipatory repudiation amount to ta total breach. |
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Definition
When one party to a bilateral contract, prior to the time specified for performance indicates by words or conduct that he does not intend to perform, such an anticipatory repudioaton may amount to a total breach of the contract entitling the aggrieved party to terminate the agreement, and sue for a breach.
A total breach occurs when a material breach (one precluding a finding of substantial performance) is not cured within a reasonable time. |
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Term
| What is a covenant that runs with the land? |
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Definition
A covenant that runs with the land is a promise that attaches to the land. In that covenant, the covenator promises to do or refrain from doing something on his land.
A covenant is usually negative in nature such as a restriction on the right to use the land in a certain way.
It provides the developer with the best measn of assuring the continuation of the residential scheme that she intends for the property. |
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Term
| Principles of Criminal liability |
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Definition
Actus Reus
Mens Rea
Concurrence
Causation
Defenses |
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Term
|
Definition
| A person has knowledge of a material fact if he is aware of the fact or he correctly believes that it exists. Most jurisdictions also permit a finding of knowledge of an attendant circumstances when the defendant is said to be guilty of willful blindness or deliberate ignorance. |
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Term
| What are the 3 types of crimes |
|
Definition
Specific Intent
General Intent
and Strict Liability |
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Term
|
Definition
| Requires an actual subjective intent to cause a specific result |
|
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Term
|
Definition
| requires only an intent to do the prescribed act |
|
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Term
|
Definition
Requires no mens rea
Regulatory offenses
regulation of food, drugs, firearms
morality crimes. |
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Term
|
Definition
Defense to specific intent crimes only
A defense to a specific intent crime where it negates the mens rea, but no defense to a general intent crime. |
|
|
Term
|
Definition
Defense to
SI - Any mistake, reasonable or unreaosnable
GI - Only reasonable mistakes
Strict Liability - Mistake of fact is no defense |
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Term
|
Definition
Reasonable non-deadly force is allowed where defendant reasonably believes it is necessary to avert immenent harm
Deadly force is allowed
to meet deadly force, or
to counter a threat of serious bodily harm.
General Rule: There is no duty to retreat |
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Term
|
Definition
Cognitive test
Deendant does not know the act and quality of his act Or
He does not know what he was doing was wrong |
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Term
|
Definition
|
|
Term
|
Definition
Felony Murder
Intent to inflict serious bodily injury
Depraved heart murder |
|
|
Term
|
Definition
Voluntary Intentional Killing
Adequate provocation
Mistaken justification
or involuntary
Gross Negligence
Misdemeanor manslaughter |
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Term
| Criminal liability for failure to act |
|
Definition
A duty may arise by
statute
contract
creation of victim's peril
Relationship (parent and spouses) |
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Term
|
Definition
| To be guilty of felony murder, the killing must have ben done in the furtherance of the felony, but the victim must be an innocent party. Felony murder does not apply when the person killed is a co-felon. |
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Term
|
Definition
Specific Intent
Defendant entices encourages, orders, or requests another to commit a crime. The crime is complete at this point
Merges into the target offense
No defenses at common law. |
|
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Term
|
Definition
Specific Intent
Agreement between 2 or more persons
intent to achieve same criminal objective
Conspriacy doe snot merge
Withdrawal is no defense at common law
MPC contra if defendant thwarts the scucess |
|
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Term
|
Definition
Intent to commit a crime
A substantial step in furtherance that goes beyond mere preparation
Merges into the completed offense
Defenses
Legal impossibility (cat boxing is not a crime) |
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Term
| Unilateral theory of conspiracy |
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Definition
| According to thee model penal code, an agreement between 2 or more persons is not required. Only an intent by a single actor agreeing with another is needed. |
|
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Term
|
Definition
A co-conspirator is guilty of all crimes committed in furtherance of the conspiracy.
Withdrawal from conspriacy may occur where a conspirator
notifies all other members of the conspiracy and
such notice is timely giving other members the opportunity to about their plans |
|
|
Term
|
Definition
Specific Intent
Gives aid or encouragement with
intent to achieve same criminal objective
scope: all crimes reasonably forseeable |
|
|
Term
|
Definition
General intent crime
Unlawful application of force |
|
|
Term
|
Definition
Specific intent crime
Either
Attempted battery or
intent to frighten |
|
|
Term
|
Definition
| Fals representation of a past or present material fact which causes the victim to pass title to the wrong doer |
|
|
Term
|
Definition
Specific Intent
Fradulen conversion of the personal property of another by one in lawful possession |
|
|
Term
|
Definition
Breaking and entering of
the dwaelling house of another
at night with
the intent to commit a larceny or felony therein. |
|
|
Term
|
Definition
Shifts the burden of production to the opposing party
Must be accepted as true, unless rebutted
A jury instruction creating a presumption as to an element of the crime charged is unconstitutional and violates due process. |
|
|
Term
|
Definition
| Attaches where improisnment for more than 6 months is possible |
|
|
Term
|
Definition
| Attaches for felonies or misdemeanors where imprisonment is actually imposed |
|
|
Term
| Reasonable Expectation of privacy |
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Definition
| If it exists, then the police intrusion constitutes a search. |
|
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Term
|
Definition
| Defendant must have a possessory interest in the premesis searched or in the items seized. |
|
|
Term
|
Definition
Requires
probable cause
warrant unless an exception applies |
|
|
Term
|
Definition
Stop and frisk
search incident to lawful arrest
plain view
automobile
consent
hot pursuit
exigent circumstances |
|
|
Term
|
Definition
| A routine search to protect arrestee's personal items and to safeguard the police from any claims of theft. |
|
|
Term
|
Definition
The land immediately surrounding a house or dwelling.
Including any closely associated buildings and structures, but excludig any associated open fields beyond. |
|
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Term
|
Definition
Applies to are beyond the curtilage
No REP |
|
|
Term
|
Definition
| Consent extends to all areas where a person with an apparent equal right to use or occupy the property would have joint access or control |
|
|
Term
|
Definition
No.
A positive canine alert provides probable cause to search. |
|
|
Term
| Requirements for a warrant. |
|
Definition
A search warrant may be issued only by a neutral disenterested magistrate
Search warrant require probable cause, oath or affirmation and a particular description of the place and object of the search to meet constitutional requirements.
A sworn statement of facts showing probable cause to search a particular place for particular items
The standard for probable cause is objective meaning that there is sufficient information to persuade a reaosnable person that a certain place contains evidence of a crime. |
|
|
Term
|
Definition
Sweep of the area immediately around the arrestee, and the path, walk or hallways directly to and from him and the entrance to the residence.
The purpose is to ensure the security of law enforcement.
Must be limited to a cursory inspection of places where a person may hide, and last no longer than is necessary to dispel reasonable suspicion of danger. |
|
|
Term
|
Definition
Law enforcement officials are required to administer warnings in order to protect an individual who is in custody and subjects to direct questioning or its functional equivelant.
Prevents against violations of individuals fifth amendment right against compelled self-incrimination |
|
|
Term
| 6th amendment right to counsel |
|
Definition
prevents deliberate elicitation of incriminating statements onceformal charges have been filed
actual waiver required. |
|
|
Term
|
Definition
| The act of putting a person through a second trial for an offense for which hse has been prosecuted or convicted. |
|
|
Term
|
Definition
| Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probably than it would be without the evidence. |
|
|
Term
|
Definition
Statement of a party
Used against them by their oppoenent |
|
|
Term
|
Definition
Evidence of the habit of a person, or the routine practice of an organization is admissible to prove conduct
Corroborationis not required |
|
|
Term
| Subsequent remedial measures |
|
Definition
Evidence of subsequent remedial measures is inadmissible to prove negligence
exceptions
ownership
control |
|
|
Term
|
Definition
Offers to settle claims in dispute are admissible
Admissions are not severed and are inadmissible |
|
|
Term
|
Definition
Offers to pay medical expenses of another are inadmissible.
Admissions are severed (admissible). |
|
|
Term
| Relevancy of Defendant's Character Evidence in Criminal Cases |
|
Definition
| Defendant may open the door with reputation or opinion evidence (not specific acts) of his good character to prove his innocence and the prosecution may so rebut. |
|
|
Term
| Relevancy of Victim's character Evidence in criminal cases |
|
Definition
| Where evidence of a pertinent trait of character of the alleged victim is offered by the accused, the prosecution may rebut the same way. |
|
|
Term
| Character evidence in civil cases |
|
Definition
Defamation
Negligent Hiring
Negligence entrustment
Child Custody
ROSA
Reputation
opinion
specific acts |
|
|
Term
|
Definition
Criminal
Has the door been opened?
Is there the proper trait?
Is it limited to reputation/opinion?
Civil
Is character in Issue
Defamation, Negligent Hiring, Negligence entrustment, child custody?
ROSA? |
|
|
Term
| 4 Ways to impeach a witness |
|
Definition
Bias / Prejudice
Prior inconsistent statement (which time were you lying)
Sensory Defects (mycousin vinny)
Character to impeach |
|
|
Term
| Prior inconsistent statement |
|
Definition
Admissible substantively in 3 cases
if sworn in
As an admission
or if a hearsay exception applies |
|
|
Term
|
Definition
| Any sensory or mental defect that might affect a witness's capacity to observe, recall, or relate the events about which the witness has testified is admissible to impeach. |
|
|
Term
| Using Convictions to impeach |
|
Definition
Felony Convictions or
Convinctions involving dishonesty or false statement. |
|
|
Term
|
Definition
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith, it may however be admissible for other purposes.
Motive
Intent
absence of Mistake/knowledge
Identity
Common Plan or Scheme |
|
|
Term
|
Definition
Isolate the statement
Determine who is the declarant
Purpose for which the evidence is being offered
For its truth = hearsay
not for its truth = not hearsay
Apply the hearsay exceptions |
|
|
Term
| Out of court statement used for its effect on the listener |
|
Definition
Not hearsay
Circumstantial eviddence offered to show
knowledge
intent
attitude
belief
. . . of the declarant or of the listener |
|
|
Term
|
Definition
Hearsay Exception
Statatement of thene xisting statement or physical condition
intent
design
plan
motive |
|
|
Term
| Statements made for medical diagnosis or treatment |
|
Definition
Hearsay exception
Statements made for purposes of medical diagnosis or treatement and describing medical history, or past or present symptoms, pain, or sensations, or external source therof insofar as reasonably pertient to diagnosis of treatment |
|
|
Term
| Past recorded Recollection |
|
Definition
Hearsay exception
Witness once had personal knowledge of the writing
the witness now forgets the writing and showing the writing to the witness does not jog his or her memory
The writing was either made by the witness or adopted by the witness
The writing was made when the event was fresh in the witness's memory; and
The witness can attest that, when made the writing was accurate. |
|
|
Term
|
Definition
Hearsay Exception
Report or record concerning act or event
Made at or near the time
a person with knkowledge
kept in the regular course of business |
|
|
Term
| Absence of entry in a Business record |
|
Definition
| Lack of a record to prove that a transaction or occurence had not taken place, is admissible if it was regular practice of the business to record such events if they had actually occured. |
|
|
Term
| 804(b)(2) Dying Declaration |
|
Definition
Hearsay Exception
Statement must concern cause or circumstances of death
unavialable declarant
criminal homicide of any civil case
declarant's belief of imminent death |
|
|
Term
| Confrontation clause Requirements |
|
Definition
In a criminal case
where the declarant is unavailable
testimonial evidence is inadmissible unless defendant is given prior opportunity to cross-examine the declarant.
Non-testimonial evidence: primary purpose is to obtain police asssistance to meet an ongoing emergency
Testimonial evidence: primary purpose of the interrogation is to establish or prove past events relevant to the later prosecution |
|
|
Term
| Declaration Against interest |
|
Definition
Hearsay Exception
Statement of an
unavilable witness
to a nonparty
against interest when made |
|
|
Term
| FRE 804(b)(1) Former testimony |
|
Definition
Testimony from the same or different proceeding or in a deposition
Unavailable delcarant
Opporutnity and similar motive to develop the testimony on direct cross or redirect. |
|
|
Term
|
Definition
Hearsay Exception
A statement concerning declarant's own relationship by blood, adoption, or marriage or other similar fact of personal family history. |
|
|
Term
| Leading Questions are appropriate when: |
|
Definition
On cross
hostile or adverse witnesses
questioning children
refreshing a witness
preliminary background matters |
|
|
Term
|
Definition
Protects communication before and during marriage
Privelege lost at divorce
Criminal cases only
Holder:
common law
party spouse
federal courts
witness spouse |
|
|
Term
|
Definition
Protects communications only during marriage
Priveleges survives divorce
Both ciil and criminal
Holder:
Both spouses |
|
|
Term
| Attorney Client Privelege |
|
Definition
| Communications between a client and her attorney are inadmissible |
|
|
Term
|
Definition
An objective manifestation by the offeror of a willingness to enter into a bargain creating the power of acceptance in the offeree
The offeror is the master of the bargain |
|
|
Term
|
Definition
An objective Manifestation by the offeree to be bound by the terms of the offer.
Mailbox Rule - Accepted as soon as it's in the mailbox |
|
|
Term
Contracts
Termination of an Offer |
|
Definition
Death of the Offeror
Revocation by the offeror - Has to be communicated in advance of the acceptance - mail not effective until communicated to offeree
Rejection by the offeree - rejection terminates the offeree's power of acceptance inquiry does not terminate the offeree's power of acceptance. Offeror can renew offer in the face of a rejection
Counteroffer by the Offeree
Lapse of time |
|
|
Term
Contracts
Face to Face Conversation Rule |
|
Definition
| At the end of the conversation the offer dies on the vine. It's alive during the conversation |
|
|
Term
Contracts
UCC Non-Conforming Goods |
|
Definition
| If non-conforming goods are shipped, the shipment serves as an acceptance and at the same time a breach. |
|
|
Term
|
Definition
Offeror makes an offer that calls for performance
Looking for Action |
|
|
Term
|
Definition
Offeror and Offeree exchange mutual promises
Looking for Promise |
|
|
Term
| UCC 2-205 Firm Offer Rule |
|
Definition
| A signed writing by a merchant which by its terms gives assurances that it will be held open is not revocable for ack of consideration for the stated period of time not to exceed three months |
|
|
Term
|
Definition
Bargained for Legal Detriment
Look for a valid contract
Is there a bargain the court must enforce?
Bargained for exchange
Forbearance to sue?
Look for a substitute for consideration
Is there a bargain the court should enforce? |
|
|
Term
|
Definition
A quasi-Contract is not an actual contract, rather a legal substitute for a contract formed to impose equity between two parties.
A contract should have been formed, even though in actuality it was not
Used when a court faces a stiutation of injustice to enforce the agreement to ensure fairness. |
|
|
Term
|
Definition
A subsequent agreement that alters or changes the parties duties and obligaitions under the terms of the original contract
UCC Modification requires
Good faith
No consideration is required
Common law modification requires
Pre-Existing Duty rule
New Consideration is required. |
|
|
Term
Contracts
Pre-existing duty rule |
|
Definition
| Performance of an act by which a party is already contractually bound to perform doe snot constitute valid consideration for a new promise. |
|
|
Term
|
Definition
Both parties are mistaken as to a material element that goes to the heart or essence of the baragain.
Remedy: Rescission |
|
|
Term
Contracts
Unilateral Mistake |
|
Definition
| Contract enforceable against mistaken party unless non-mistaken party knew or should have known of the other's mistake. |
|
|
Term
Contracts
Anti Assignment Clause |
|
Definition
The assignor need not consult the other party to the contract
An assignment cannot have any effect on the duties of the other party to the contract, nor can it reduce the possiblity of the other party receiving full performacne of the same quality.
Certain kinds of performance, therefore, cannot be assigned, because they create a unique relationship between the parties to the contract. |
|
|
Term
|
Definition
| A legal substitute for a contract formed to impose equity between two parties. A contract should have been formed, even though in actuality it was not. |
|
|
Term
|
Definition
| An agreement ounded upon a meeting of the minds, which although not embodied in an express contract, is inferred from the conduct of the parties. |
|
|
Term
|
Definition
|
|
Term
|
Definition
Injunction
Specific performance - used to enforce a contract for sale of unique itmem or personal property for real property.
Rescission
Reformation
Quiet Title Actions
Partition proceedings |
|
|
Term
Contracts
Condition Precedent |
|
Definition
| An act or an event other than the lapse of time that must occur first before aparty is under a duty to perform |
|
|
Term
|
Definition
Minors are regarded as not having sufficient capacity to comprehend questions involving contractual rights
A person dealing with minors does so at his or her peril and subject to the right of the minor to avoid the contract
Certain contracts cannot be voided
taxes
penalties
bank regulations
military
necessities |
|
|
Term
|
Definition
MYLEGS must be in writing
Mariage, incontemplation of
Year, cannot be performed in less than
Land, for sale of - Part performance exception for moving in / making repairs / paid purchase.
Executor
Guarantee
Sale of Goods of $500+ |
|
|
Term
|
Definition
Once the parties have reduced their agreement to a writing, evidence of any prior oral or written or contemporaneous oral agreements is inadmissible to alter, vary, or contradict the terms of the writing
Exceptions
Fraud
Mistake
Illegality
Duress
Partial integration
Conditions precedent. |
|
|
Term
|
Definition
| A contract in which one agrees to supply as much of a good or service as is required by the other party, and in exchange the other party expressly or implicitly promises that it will obtain its goods or services exclusively from the first party |
|
|
Term
|
Definition
After covering aggrieved buyer may recover:
Price to cover - Contract Price + incidental and consequential damages. |
|
|
Term
| UCC 2-615 Impracitcability |
|
Definition
| Delay in deliver or non delivery by a seller is not a breach if the seller's performance is made impracticable by a contingency whose non-occurence was made a basic assumption on which the contract was made. |
|
|
Term
|
Definition
Subjective impossibility will not excuse duties of performance under a contract
objective impossibility will excuse duties of performance under a contract. |
|
|
Term
Contracts
How to analyse 3rd party beneficiaries |
|
Definition
Identify third party beneficiary contract
Intent to benefit test?
Is third party incidental? He has no rights
Is third party intended? Continue analysis
Has third party vested?
Learned of the contract and assented to it?
Changed positions in reliance on the contract? |
|
|
Term
| UCC 2-2601 Non Conforming Goods |
|
Definition
Buyer has three options
He can accept the whole shipment
he can reject the whole shipment
he can accept any commercial unit or units and rejct the rest |
|
|
Term
|
Definition
| Indicates that the seller is responsible for getting goods to a shipper designated by the buyer. At this poitn, the risk for loss passes from the seller to the buyer. |
|
|
Term
Contracts
Incidental Damages |
|
Definition
Expenses incurred by the injured party as a result of the other party's breach of a contract
Expenses for inspection, receipt, transprotation
storage of rejected goods or services
Expenses associated with buying
replacement goods or services and
Any other expenses related to delay in deliver or non delivery |
|
|
Term
Contracts
Consequential Damages |
|
Definition
Damages which do not derive directly from the breach, but from the results of the breach; they are more indirect in nature.
Losses buyer incurs which the supplier had reason to know at the time of contracting and which buyer could not reasonably have prevented. |
|
|
Term
Contracts
Right to adequate assurances |
|
Definition
When reasonable grounds for insecuirty arise, one party may in writing demand adequate assurances from the other that performances will occur
assurances must be provided within a reasonable time (no more than 30 days)
Failure to provide assurances is a repudiation of the contract. |
|
|
Term
Real Property
When to worry about the
Rule Against Perpetuity |
|
Definition
COPER
Contingent remainders / Class Gift
Options ot Purchase
Powers of Appointment
Executory interests
Rights of First Refusal |
|
|
Term
Real Property
Restraint on Alienation |
|
Definition
A restriction prohibiting the recipient from selling or otherwise transferring his interest in the property.
Such restraints are void as against public policy of allowing landowners to freely dispose of their property
Certain restraints are valid including
- a prhobition against partition of property for a limited time.
- The right of first refusal - A sells property to B, A may require that if B later decides to sell property, she must first give A the opportunity to buy it back. |
|
|
Term
Real Property
Joint Tenancy |
|
Definition
Has 4 Unities
Time
Title
Interest
Posession
Estate passes to he Survivor |
|
|
Term
Real Property
Tenants by the entirety |
|
Definition
Reserved for husband and wife
5th Unity - of Person |
|
|
Term
|
Definition
| Have a unity of possession only. |
|
|
Term
Real Property
Severance of A Joint tenancy Estate |
|
Definition
Caused by
Conveyance intervivos
Death of one of two remaining JTs
Mortgage under title theory - only use when the bar tells you to.
Final partition action - Applied for, granted by judges |
|
|
Term
|
Definition
| A revocable personal privelege to enter the servient tenement of the licensor without liability for trespass |
|
|
Term
|
Definition
| A non posessory interest in the use of land of another |
|
|
Term
|
Definition
| No dominant tenement Runs with the land |
|
|
Term
|
Definition
2 parcels of land
One benefited - the dominant estate
One burdened - the Servient estate
Do run with the land. |
|
|
Term
|
Definition
Expressly in writing - grantor to grantee
Necessity - Landlocked, but allow judge to make the decision
Implication - Reflect practices and customs of property
Prescriptipion - Adversely Possessed (No exclusivity) |
|
|
Term
|
Definition
Written release
End of Necessity
Abandonment - REquires intent and physical act
Merger - Unity of Ownership |
|
|
Term
|
Definition
| A contract in which the covenantor makes a promise to a covenantee to do or not do some action tied to the use of land. A covenant running with the land, imposes duties or restrictions upon the use of the land regardless of the owner. |
|
|
Term
|
Definition
Premises are uninhabitable
The tenant is forced to move out (and does) |
|
|
Term
|
Definition
Tenancy for Years
Periodic Tenancy
Tenancy At well
Tenancy at sufferance |
|
|
Term
Real Property
Delivery of Possession |
|
Definition
English Rule
LL has a duty to deliver at the lease inception
American (Minority) Rule
Contra: New Tenant only has a cause of action against holdover tenant. |
|
|
Term
Real Property
Subadjacent lateral support |
|
Definition
Landowner is strictly liable if his excavation causes unimproved adjacent land to subside.
If the land has been improved only landowner will only be liable for negligence. |
|
|
Term
Real Property
Adverse Possession |
|
Definition
Actual and exclusive
Open and Notorious
Adverse and HOstile
Posession for the Statutory period |
|
|
Term
Real Property
Statute of Frauds |
|
Definition
MYLEGS
Marriage
Year
Land
Executor
Guarantee
Sale of Goods ($500+) |
|
|
Term
Real Property
Valid Delivery of a Deed |
|
Definition
Can becompleted with
Proper Execution of the Deed
and Intent |
|
|
Term
Real Property
Equitable Conversion |
|
Definition
Common Law
Risk of loss for casualty is placed on the buyer during the executory period
The buyer is equitable owner of the land wheras the seller, who holds legal title, is the equitable owner of the rights to the full purchase price.
Shifts the burden and the benefits to the buyer. |
|
|
Term
Real Property
Uniform Vendor and Purchaser's Act |
|
Definition
| Risk of loss is on buyer only if he has a legal title or possession of the property. ONly use if prompted to. |
|
|
Term
|
Definition
Every Contract for the sale of land contains an implied warranty of marketable title. (To be free of encumbrances)
Encumbrances
Mortgage
lien
easement
equitable servitude
zoning violation
future interests |
|
|
Term
|
Definition
Pays Value
Takes in Good Faith and
Takes without notice |
|
|
Term
|
Definition
Race - 1st to record wins
Notice - Last Bona Fide Purchaser Wins
Race-Notice - 1st BFP to record wins.
If you read the word first it's most likely a race-notice jurisidction. If the word first is omitted it's probable a Notice jurisdiction |
|
|
Term
|
Definition
| An interest in land created in writing providing security for the performance of a duty or the payment of a debt. |
|
|
Term
|
Definition
| Method by which the security is applied to satisfy a debt. |
|
|
Term
Real Property
Deficiency Judgment |
|
Definition
| Allowed where the proceeds of the foreclsoure are insufficient to satisfy the debt |
|
|
Term
|
Definition
A grantee who assumes a mortgage is personally liable
A grantee who takes subject to the mortgage is not personally liable. |
|
|
Term
| When a deed is Subject to mortgage |
|
Definition
| Where the deed makes no reference to the mortgage, it is presumed the grantee takes subject to and is not personally liable. |
|
|
Term
|
Definition
| A purchase money mortgage takes priority over other prior mortgages, regardless of recording statutes. The purchase money mortgage itself however, must be recorded. |
|
|
Term
|
Definition
| The right of a surety to compel the mortgagee to proceed first against the person or property primarily liable. |
|
|
Term
Contracts
Under the UCC When can a contract be formed without acceptance? |
|
Definition
In sales contracts between merchants, a contract is generally not formed unless the offeree communicates his acceptance of the offer.
Receipt and sale of delivery may constitute acceptance. |
|
|
Term
Con Law
Why is Congress able to regulate tinted glass on motor vehicles? |
|
Definition
The Commerce Clause, Article I, Section 8, grants Congress plenary power over the channels and faclities of interstate commerce and activities that may, in the aggregate, have a national economic effect.
The facilities of interstate commerce include motor vehicles, so Congress acted within it's authority to regulate the equipment on or in those vehicles. |
|
|
Term
Con Law
Why can Congress regulate for aggregate nation economic effect? |
|
Definition
| The federal government may regulate the channels or facilities of interstate commerce and activities that may, in the aggregate, have a national economic effect. |
|
|
Term
Crim Law
When does the FRE allow a witness to be impeached with evidence that he has been convicted of a crime? |
|
Definition
| When it involves dishonesty. |
|
|
Term
Evidence
Marital Communication Privelege |
|
Definition
Allows either spouse to refuse to disclose or prevent the other spouse from disclosing confidential communications made between spouses during their marriage.
Unlike the spousal privilege that applies in criminal cases, the marital communication privilege does not terminate when the marriage ends.
Even after the spouses divorce, the marital communication privilege still protects from disclosure any confidential communications between the spouses made during the marriage. |
|
|
Term
Evidence
When can double hearsay be admitted? |
|
Definition
| FRE 805 provides taht hearsay included within hearsay is not excluded under the hearsay rule if each part of the ocmbined statement conforms with an exception to the hearsay rule. |
|
|
Term
| What sstandard is used to determine if a brief investigoatory stop of persons or vehicles is valid? |
|
Definition
The fourth Amendment is satisfied if an officer's action is supported by reasonable suspicion to believe that criminal activity may be afoot.
Courts must look to the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing. |
|
|
Term
| Custodian Liability with respect to suicide |
|
Definition
| Liable for non feasance if they had reason to know of a particular individual's suicidal tendencies and failed to take reasonable protective steps. |
|
|
Term
|
Definition
A right to use the land and remove something from it.
A profit must be created in a writing sufficient to satisfy the statute of frauds. |
|
|
Term
Contracts
Traditional measure of damages in the area of seller's remedies |
|
Definition
The difference between the contract price and the market price at the time and place for tneder, less expenses saved in consequence of the buyer's breach.
This measure of recovery does not consider the so-called lost volume seller.
Lost volume occurs when the seller resells to a buyer who would have bought from the seller even if there had been no breach of the original.
The result is the seller's total volume of sales by year's end is reduced by one and his damages are the profit the seller would have made on that additional sale. |
|
|
Term
|
Definition
Generally character evidence is not admissible to prove action in conformity with that character.
However, an exception to this rule exists for habit evidence, which refers to actions that a person always or invariably performs.
Actions performed frequently or often are not habits; a habit is a regular response to a given situation that is performed without must forethought. |
|
|
Term
Con Law
When is a matter ripe for adjudication? |
|
Definition
A case or controversy is a real and substantial dispute that touches the legal relations of parties having adverse interests and that can be resolved by a judicial decree of a conclusive character.
A controversy must be ripe for decision so that courts do not waste time deciding constitutional issues that might never need deciding.
Thus, a person asking a court to hold a statute unconstitutional must be able to show not only that the statute in question is invalid, but also that he has sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement. |
|
|
Term
Con Law
When Can a plaintiff establish third-party standing? |
|
Definition
As a general rule, a claimant must assert his own constitutional rgihts to have standing to sue in the federal court.
However federal courts recognize third party standing to bring suit when
1. The claimant has suffered a non-constitutional injury; and
2. it would be difficult or unlikely for the party experiencing the constitutional injury to assert their own rights; and
3. there is a special relationship between the claimant and the third party. |
|
|
Term
Con Law
When will a tax be upheld |
|
Definition
| A tax will be upheld under the taxing power provided it raises revenue in fact or is intended to raise revenue, even if the activity taxed is affected negatively by the tax. |
|
|
Term
Con Law
What does the Supremacy Clause provide? |
|
Definition
| The Supremacy clause provides that the Constitution and federal laws are the supreme law of the land, preempting conflicting state law. |
|
|
Term
Con Law
Level of Scrutiny on Regulation of speech in a public place |
|
Definition
A regulation of speech in a public place is subjected to scrutiny very similar to that of intermediate scrutiny under equal protection analysis.
The regulation must be content-neutral,
Narrowly tailored to serve a signficant government interest,
and leave other channels of communication open. |
|
|
Term
| Constitutional Requirement for COnfrontation |
|
Definition
This test requires that the witness's statement have been subject to cross-examination.
In accordance with the intent of the Sixth Amendment Confrontation clause, prior testmonial evidence is inadmissible unless
The declarant is unavailable and
The defendant had a prior opportunity to cross-examine the declarant.
Thus, while actual cross-examination is not required, the opportunity to do so is. |
|
|
Term
| When will a prior identification by admissible? |
|
Definition
Where a witness has made a previous out of court identification of a person after perceiving that person, the prior identification is not hearsay, even though offered to prove the truth of the matter asserted.
The prior idetnifciation statement will be admissible as substantive evidence.
However, the admission of a prior identification is permitted only where the defendant is available to testify at the trial and will be subject to cross-examination. |
|
|
Term
|
Definition
Admissions are the words or acts of party opponent, or his predecessor or representative, offered as evidence against him.
Under FRE 801(d)(2), an admission is classified as non-hearsay.
Most states treat admissions by a party opponent as an exception to the hearsay rule. |
|
|
Term
| When will a covenant run with the land? |
|
Definition
For a covenant to run with the land, there must be a writing,
intent expressed in the writing,
horizontal privity,
there must be notice of the covenant, and
the covenant must touch and concern or directly influence the use of the land
To touch and concern the land means simply that the benefit touches if it increases the value of the benefited roperty or if it decreases the value of the burdened property. |
|
|
Term
| Right to offer of first refusal |
|
Definition
| An agreement to give fellow tenants in common a right of first refusal is within the statute of frauds operation concerning conveyances of real property, and thus must be in writing. |
|
|
Term
| Investigation burden of a commercial bailee |
|
Definition
A commercial bailee is not liable for conversion if he returns the chattel to his bailor without knowledge of any other claims to the property.
This rule is necessary to make commercial bailment business possible.
If the bailee was potentially liable for conversion every time he returned a chattel to the party who placed it in him, the investigation burdens on the bailee would make the business economically impossible.
Commercial Bailee = Storage facility. |
|
|
Term
| When will a defendant manufacturer be relieved of strict products liability? |
|
Definition
| If an intermediate handler of the product discovers the defect and knowingly passes it on in the stream of commerce to the plaintiff, having taken no action to prevent the plaintiff's injury. |
|
|
Term
|
Definition
A false statement made to another by defendant that causes economic injury to plaintiff.
The false statement need not be defamatory, need not personally relate to plaintiff, and need not cause others to shun plaintiff's relations with others to plaintiff's economic disadvantage.
In any jurisdictions, such motives will be found upon proof that defendant knowingly made the false statement or was reckless with regard to its truth or falsity. |
|
|
Term
| Riperian water rights for domestic use |
|
Definition
Water rights for domestic use are superior to and protected against commercial or agricultrual use.
However if the jurisdiction follows the prior appropriation doctrine. First in time, first in right will be superior. |
|
|
Term
|
Definition
| An offer intended to be accepted by performance. |
|
|
Term
|
Definition
Slander requires a defamatory oral statement that is published to a third person.
The statement must communicate a message or meaning that holds a person up to
hatred
scorn
or ridicule
or causes customers to stop doing business with them.
Generally an action for defamation exists only for statements of fact, as opposed to an opinion. However, an opinion that implies the speaker knows certain facts to exist or to be true is actionable.
Unless a statement is slanderous per se, damages must be proven.
A statement is slanderous per se and thus damages are presumed when it imputes to the plaintiff
the commission of a crime that involves moral turpitude or
a type of infamous punishment
alleges the plainitff has a loathsome disease
imputes dishonesty or incompetency or other improper conduct in the operation of a business or profession
or accuses a woman of being unchaste. |
|
|
Term
| Ineffective Assistance of Counsel |
|
Definition
Defendant must show
That her counsel was ineffective and
That a different outcome would have resulted in the attorney had been effective. |
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Term
| UCC Warranty of Merchantability |
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Definition
Whenever the seller is a merchant, the UCC adds an implied warranty of merchantability unless it is specifically excluded.
This is a warranty that the goods are fit for their ordinary purposes. |
|
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Term
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Definition
Is the instution of criminal proceedings by defendant, done for an improper purpose, and without probable cause, which terminate favorably to the plaintiff, and which cause the plaintiff damages.
Thus, damages to a plaintiff is a necessary element of an action for malicious prosecution. |
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Term
|
Definition
An agreement between two or more people for an unlawful purpose.
At common law, the conspiracy is complete upon the agreement; many staes have modified the common law by stuatue requiring that some overt act e performed in furtherance of the conspiracy. |
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Term
| Evidence of the lack of similar accidents or injuries |
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Definition
Usually not admissible to prove the lack of negligence or defects.
This does not have enough probative value when used for such a purpose. |
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Term
| Covenants of a General Warranty Deed |
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Definition
Six assurances to guarantee regarding the quality of the title of the property conveyed:
The covenant of seisin
The covenant of right to convey
the Covenant against encumbrances
The covenant of quiet enjoyment
the covenant of warranty and
the covenant of further assurances.
The remedy for breach of any of these six covenants is damages. |
|
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Term
|
Definition
A remedy whereby a contract is canceled.
It is available if the contract was a result of mistake, duress; fraud or where the contract is materially breached. |
|
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Term
| A child's standard of care |
|
Definition
A child is generally judged by a standard comparing him to a reasonable child of the same age, experience, mental abilities, etc.
Some states established a minimum age below which it is held that no negligence was possible, and would rebuttably presume that a child between that minimum and some later age was not capable of negligence.
However, where the child is the wrongdoing defendand and was engaged in an activity normally conducted only by adults, such as operating a motorvehicle, most states now judge the child by adult standards, reasoning that the innocent plaintiff should not suffer because of the age-related incapacities of the tortfeasor. |
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Term
| How should an individual act in an emergency? |
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Definition
An individual, when engaged in any activity, has a legal duty to act as a reasonably prudent person under the circumstances.
The existence of an emergency does not relieve the individual from the responssibility of acting reaosnably.
Minors are expected to act in a manner that is similar to how a reasonable child of the same age, education, intelligence and experience would have acted. |
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Term
Contracts
Subjective Impossibility |
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Definition
Occurs when the performance under the ocntract becomes impossible because of some failure or fault on the part of the performing party.
Under those circumstances, the performance obligation is not excused and will be considered as a breach of the contract. |
|
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Term
Contracts
The rights of a third - party beneficiary |
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Definition
| Are entirely dependent on the underlying contract, any valid defenses the reneging promisor would have to the enforcement of the contract, such as impracticability, the failure of a condition, or a breach of the contract by the promisee, would also be effective against the beneficiary. |
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Term
Contracts
Donee Beneficiary |
|
Definition
When a promise seeks a promised performance from the promisor that will benefit a third party and that promisee's purpose is to make a gift of that performance to the third party, the third-party benficiary is a donee benefificary.
Both donee beneficiaries and creditor beneficiaries are considered intended beneficiaries, and both can sue the promisor if the promisor's performance is not forthcoming. |
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Term
|
Definition
Prohibits the citizens of one state from suing their own state or another state on federal claims for money damages, in federal court or state court, without the state's consent.
Eleventh Amendment immunity applies not only to diversity suits but to federal question cases as well.
The concept of governmental, or sovereign, immunity means that the government may not be sued without its consent.
However, subdivions of a state do not have immunity from suit under the Eleventh Amendment. |
|
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Term
| Attractive nuisance doctrine |
|
Definition
A possessor of land is subject to liability for physical harm to trespassing children where
an artificial dangerous condition exists on the property
the possessor knows or show know that children are likely to trespass on the property
the children because of their youth, age, or immaturity fail to appreciate the danger or realize the risks involved in intermeddling with it
and the utility of maintaining the dangerous condition is slight compared to the risks involved.
It is important to note that the inaibility of the child to appreciate the danger is a subjective test. |
|
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Term
| Time, place and manner of speech restrictions |
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Definition
Regulation of speech in public place is subjected to scrutiny very similar to that of intermediate scrutiny under equal protection analysis.
The regulation must be content-neutral, narrowly tailored to serve a signficant government interest,
and leave other channels of communication open. |
|
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Term
|
Definition
Under the UCC a contract between merchants to slell or purchase goods becomes irrevocable if the offeror gives assurances that it will remain open for a specified time or, if no time is specified, for a reasonable time, not to exceed three months.
This is true regardless of whether additional consideration is supplied by the offeree. |
|
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Term
| Liability of an Owner-Developer of tract housing |
|
Definition
Subject to strict liability if an injury results from an unreasonably dangerous defect in a house he constructed.
The builder of a single home, either custom-built or to be sold on the market, is not subject to strict liability. |
|
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Term
| How a public figure recovers for defamation |
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Definition
| A public figure must demonstrate that a media defendant published a statement with knowledge of its falsity or reckless disregard for its truth or falsity. |
|
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Term
|
Definition
To be guilty of attempt, two requirements are necessary:
The defendant must have the specific intent to commit the target offense; and
the defendant must perform an act that constitutes a substantial step in the commission or attempted commission of a crime. |
|
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Term
Crim Law
Legal impossibility |
|
Definition
| Occurs when the defendant did everything he intended to do, but his actions would not constitute a criminal offense. |
|
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Term
| FRE Rule 702 rendering an expert opinion |
|
Definition
The witness must be qualified as an expert by knowledge, skill, experience, training or education
The scientific, technical, or other specialized knowledge possessed by the witness will assist the jury; and
the witness is able to testify with a reasonable degree of probability concerning the opinion. |
|
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Term
| Easements for light and air |
|
Definition
| Must be created by express grant. Such easements will not e implied, even if the remaining elements for implication of a quasi easement are present because such easements are not apparent to purchasers of the servient estate. |
|
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Term
|
Definition
A defendant may be strictly liable for injuries caused by a dangerous animal in his possession, both wild animals and domestic ones who have shown a dangerous propensity.
However, for strict liability to apply, the plaintiff's harm must have resulted from the type of danger that justified classifying the animals as dangerous. |
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Term
Torts
Interference with prospective advantage |
|
Definition
protects the probable expectancy intersts of future contractual relations of a party, such as the prospect of obtaining employment or the opportunity to obtain customers.
Modern decisions have expanded this tort action to protect such non-commercial expectancies as interference with an expected gift or legacy under a will. |
|
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Term
|
Definition
A fundamental right exists for related persons to live together.
This fundamental right does not apply to unrelated persons. |
|
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Term
Evidence
Expert testifying to mental state of Defendant |
|
Definition
| No expert witness stesitfiying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or a defense thereto. |
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Term
Contracts
Third - Party beneficiary contracts |
|
Definition
Intention to confer a benefit on the third party has always been declared by the courts as essential to the right of the third party to enforce the promise.
A useful test to determine the necessary intention is to ask yourself "to whom is performance to be rendered"
If performacnce is ot the third party, she is a protected beneficiary and thus entitled to sue.
But if the promised performance is to be rendered to the promisee the contract is for the benefit alone of parties thereto, and any third party is an incidental beneficiary. |
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Term
Contracts
A bilateral executory accord |
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Definition
An agreement that an existing claim shall be discharged in the future by the rendition of a substituted performance
for example c writes d, i promise to discharge the debt you owed me upon delivery of your black mare if you promise to deliver the horse to me within a reasonable time.
D promises.
Their agreement is a biliteral executory accord. Note, too, that if D delivers the horse and c accepts it, there is an accord and satisfaction.
The agreement is the accord.
Its perforance is the satisfaction |
|
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Term
Contracts
UCC measure of damages for non-delivery or repudiation by the seller |
|
Definition
| Difference between market price at the time when the buyer learned of the breach and the contract together with incidental (and or consequential) damages |
|
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Term
|
Definition
| A remedy that is awarded on when there is not an enforceable contract and the court needs to imply the existence of a contract at law to avoid unjust enrichment. |
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Term
Contracts
Subcontractors bound by promissory estoppel |
|
Definition
A promisor who induces substantial change of position by the promisee in reliacne on the promise is estopped to deny its enforceability as lacking consideration.
The reason of this doctrine is to avoid an unjust result.
Restatement of contracts provides: An offer which the offeror should reasonably expect to induce action or forbearance of a substantial character on the part of the offeree before acceptance and which does induce such action or forbearance is binding as an option contract to extent necessary to avoid. |
|
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Term
Contracts
The UCC provides that if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may |
|
Definition
Reject the whole; or
accept the whole; or
accept any commercial units or units and reject the rest. |
|
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Term
|
Definition
A promisor who induces substantial change of position by the promisee in reliance on the promise is estopped to deny its enforceability as lacking consideration.
The reason for the octrine is to avoid an unjust result. |
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Term
Contracts
Revoking an offer after it is promised not to be revoked for the stated time |
|
Definition
Offeror may, at any time before acceptance, terminate his offer by revoking it.
This is true even though the offeror has promised not to revoke for a stated time, unless the promise is
under seal or
for a consideration. |
|
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Term
Contracts
Parol evidence rule |
|
Definition
| Provides that when a contract is expressed in a writing that is intended to be the complete and final expression of the rights and duties of the parties, parol evidence of prior or written negotiations or agreements of the parties (or of their contemporaneous oral agreements), which varies or contradicts the written contract, is not admissible. |
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Term
Contracts
UCC measure of damages for non delivery or repudiation by the seller |
|
Definition
| Difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental consequential damages a provided under the UCC 2-715 |
|
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Term
Contracts
Merchant buyer's duties as to rightfully reject goods. |
|
Definition
After there has been a rejection of goods, the buyer is under a duty to
follow reasonable instructions recevied from the sleller with respect to the goods and
in the absence of such instructions
make reaeasonable efforts to sell them for the seller's account.
When the buyer sells the goods, he is entitled to reimbursement out of the proceeds for reasonableexpenses of caring for and selling them.
This amount should not exceed 10 percent on the gross proceeds. |
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Term
Contracts
What is an offer |
|
Definition
| An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to the bargain is invited and will conclude it. |
|
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Term
Contracts
What is a unilateral contract |
|
Definition
A unliateral contract is a contract in which a promise is given in exchange for an actual performance by the other party.
The genuine unilateral contract situation will be rare, as it will opearate only where the offer expressly and unambiguously requires a performance acceptance. |
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Term
Contracts
Ways in which an order or other offer to buy goods for prmpt or current shipment may be accepted |
|
Definition
By a prompt promise to ship goods.
or
Prompt shipment of conforming goods. |
|
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Term
Contracts
What is a condition? |
|
Definition
In certain contracts, a party's obligation to perform is conditioned upon some event or action by the other party.
Under contract law, a condition is a contingency
which must be satisfied before a party is obligated to perform or
happening of which will extinguish one or more contractual obligations.
In colloquial speech, however the word condition is often misused. |
|
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Term
A buyer's right to inspect and reject
and the effect of a provision requiring payment on delivery. |
|
Definition
| Is not affected by a provision in the contract requiring payment on delivery. |
|
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Term
Contracts
Promissory Estoppel |
|
Definition
May be used to enforce a promise made in the absence of consideration if the promise induced detrimental reliance by the promisee.
According to the doctrine of promissory estoppel, if necessary to avoid injustice, a promise may be enforced if the promisor should have reaosnably foreseen that the promise would induce detrimental reliance on the promisee and the promisee actually relied on the promise.
The reliance on the promisee must have been reasonable.
The reliance must also be of a substantial nature, although this rquirement is not as stringently enforced as it used to be. |
|
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Term
|
Definition
| Where mutual assent is expressed through conduct, an implied-in-fact contract is formed. |
|
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Term
|
Definition
Cannot be admitted if used to contradict terms of a fully integrated agreement.
A completely integrated agreement is evidenced by the terms of an agreement and often includes a merger clause.
Parol evidence rule only serves to exclude communications and evidence which took place or otherwise arose prior to or contemporaneously with the execution of written contract. |
|
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Term
Contracts
Rights of a third party beneficiary |
|
Definition
A third-party beneficiary whose rights have vested may enforce the contract in an action against the promisor. The third-party beneificary's rights vest when the beneficiary learns of the contract and assents to it, deteriementally relies on it, or files suit to enforce it.
Until a beneficiary's rights are vested, the original contracting parties may modify or rescind the contract without the beneficiary's assent. |
|
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Term
|
Definition
To avoid unjust enrichment, the promisor who induces substantial change of position by the promisee in relianceon the promise is estopeed to deny its enforceability as lacking consideration.
Deterimental action or forbearance by the promisee in reliance on a gratuitous promise, within limits, constitutes a substitute for consideration, or a sufficient reason for enforcement of the promise without cosideration, under the doctrine of promissory estoppel. |
|
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Term
|
Definition
An accord is a contract to settle a claim that is the subject of a good-faith dispute between a debtor and a creditor.
The debtor's posiition need not be a certain winner in litigation; it is sufficient if the debtor holds his position in good faith, and a reasonable person would consider the issue debatable.
Once the disputed debt has been reduced to an accord, the original contractual claim is suspended. A statisfaction occurs once the duties of the accord have been satisfied.
If a satisfication is acomplsihed, the n the originla breach of contract claim is discharged.
However, if the debtor breaches the accord by refusing to honor its terms, the aggrieved credtiro may elect between the causes of action. |
|
|
Term
| Two Primary circumstances in which a contractual condition will be excused: |
|
Definition
A breach of contract by the other party; or
a waiver of the condition by the other party. |
|
|
Term
|
Definition
party seeking recovery must have conferred a benefit on the other party with a reasonable expectation of being compensated;
the other party must have expressly or implicilty requested the benefit; and
the other party would be unjustly enriched if not required to compensate the party seeking recovery. |
|
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Term
| Contract Damages for employment. |
|
Definition
Should give the aggrieved party what he expected from the bargain, and, to the extent that money can do so, the aggrieved party should be placed in the same position as if the contract had been fully performed.
When an employee breaches an employment contract, the standard measure of damages equal any additional compenation paid for a substitute employee. |
|
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Term
Contracts
Donee Beneficiaries |
|
Definition
Under the First Restatement, if a promisee confers on a third party a right against the promisor to some performance neither actually nor assertedly owed to the third party, the third party is considered a donee beneficiary.
A donee beneficiary's rights vest upon making of the contract unless the instrument provides otherwise. |
|
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Term
Contracts
Valid Assignment |
|
Definition
| Assignor must manifest an intention to make a present assignment. A proimse to transfer a right that the assignor expects to acquire in the future is not an effective assignment. |
|
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Term
| Presidential Power to appoint |
|
Definition
President all amabassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the united states, with the advice and consent of the senate.
Congress may not appoint members or an agency or commission with administrative powers. Such persons are deemed officers of the united states and must be appointed by thee president. |
|
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Term
| Scrutiny applied to speech |
|
Definition
| Strict scrutiny review is applied to speech - except for unprotected sppech which is governed by the reational basis test, and time, place and manner restrictions. |
|
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Term
| Doctrine of political questions |
|
Definition
Preclude federal judicial review of nonjusticiable issues (matters not capable of judicial resolution due to inherent separation of powers limitations).
Test to identify such nonjusticiable issues.
Where a textually demonstrable commitment to a coordinate political branch of government has been made, or
where there is a lack of judicially manageable standards to resolve the issue, or
Where judicial resolution would create the potential for embarassment fo multifarious pronouncements by various branches of government,
then the judiciary will decline resolution of such nonjusticiable political questions. |
|
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Term
|
Definition
US Supreme Court held nconstitutional a statute that provided for payment of salary supplements to parochail schoolteachers who taught solely secular subjects.
The Court concluded that the degree of government surveillance necessary to ensure that the supplements would be restricted to teachers of secular subjects would entangle the government exculsively |
|
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Term
| Procedure for the government to terminate an individual's ability to engage in a profession |
|
Definition
| It must grant that individual a procedure to determine his fitness to be a memeber of the profession. Thus, an individual must be afforded a fair hearingbefore a government agency may revoke his license to practice a profession. |
|
|
Term
|
Definition
State regulations, even in areas generally described as local, cannot be accepted if they impose an unraeasonable burden on interestate commerce.
In order to determine the reasonableness of the burden, the court will balance the nature and extent of the burden that the state regulation would impose on interstate commerce against the purposes of the state regulation. |
|
|
Term
| The Power of the president to appoint and remove officers of the United States |
|
Definition
Stems in part from express provisions of the Constitution and in part from the implications of express grants of power.
Article 2 Section 2, Clause 2 establishes in the President the power to appoint officers of the United states; it also provides that congress may vest the appointment of inferior officers in eiher the President alone, in the courts, or in the heads of departments.
At no time, however, may the legislative branch excercise executive authority by retaining the power to appoint those who will execute its laws. |
|
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Term
| Power of the State to restrict abortions |
|
Definition
| The state may restrict abortions so long as they do not place "undue burdens" on the woman's right to choose. |
|
|
Term
| Presidential Clemency Power |
|
Definition
Ariticle II of the COnstitution
Empowers president to grant reprieves and pardons for offenses against the US.
The president may pardon absolutely or conditionally commute sentences, and remit fines, penalties, and forfeitures. |
|
|
Term
| Scope and jurisdiction of the federal courts |
|
Definition
Article III
Cases arising under the USC;
cases in which the US is a party;
cases between two or more states or between a state and the citizens of another state;
cases between citizens of different states based on diversity;
cases between citizens of the same state claiming lands under grants of different states;
cases between a state or its citizens and foreign states or citizens;
and cases where ambassadors or other public ministers are effected. |
|
|
Term
| Congress's power to establish Federal courts |
|
Definition
| The source of congressional power to establish lower federal courts and their jurisdiction is article III, which grants the US Congress the authority to ordain and establish such inferior courts as congress finds necessary. |
|
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Term
|
Definition
Federal court may abstain if it is possible that a state court decision will resolve the issues relying on unsettled state law.
Under the abstention doctrine, the federal court may temporarily refuse jurisdiction, even if the case involves a federal question, if the issues can be disposed of on state law grounds. |
|
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Term
|
Definition
The supremacy clause provides that the federal law is the supreme law of the land, and inconsistent state law is preempted if expressly prohibited or if the US Congress has intended the federal law to provide a comprehensive regulatory scheme.
Whether state regulation contains a provision resolving potential conflicts with federal law is not a factor SCOTUS looks at to determine whether a state law is preempted. |
|
|
Term
| Congress's authority to enact legislation to elimiate inteference with constitutionally guaranteed rights |
|
Definition
Under the enabling clause of the 14th amendment Congres may override state government action restricting 14th amendment rights to equal protection and due process.
Under the enabling clause of the 15th amendment, congress may legislate to prevent a state government from denying the right to vote on the basis of race, color, or previous condition of servitude.
The 15th Amendment has been invoked by the US Supreme Court to uphold a congressional act forbidding literacy tests in elections. |
|
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Term
| Federal classifications based upon alienage |
|
Definition
Alienage is a suspect class; thus, ordinarily, strict scrutiny analysis is used.
However, federal classifications baed upon alienage are not subject to the strict scrutiny test because the US Congress has broad plenary power to regulation immigration.
SCOTUS upheld a federal law that established af ederal residency requirement for federal medicare benefits that disqualified many resident aliens. |
|
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Term
| What is the only constitutions limitation upon the President's power to conduct foreign affairs? |
|
Definition
| With regard to treaties, they become valid only when ratified by two -thirds of the Senate. |
|
|
Term
| State taxation of imports |
|
Definition
Article I Section 10 Caluse 2 provides that no state shall without the onsent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it's Laws.
Imports lose their status and become subject to taxation when they have been mingled with other items imported in bulk, sorted, and arranged for sale. |
|
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Term
| Presidents power to regulate interstate commerce |
|
Definition
Granted by Article I, Section 8 grants Congress, not the president the power to regulate interstate commerce.
The president does not have any constitutionally delegated power that is inherently law-making in nature. |
|
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Term
| State valid tax on licenses |
|
Definition
| Such license taxes (as well as privelege, franchise, and occupation taxes) when applied to local activities-separate from the interstate commerce, of which they are a part are generally upheld if nondiscriminatory and not unreasonably burdensome in their impact on the interstate commerce involved. |
|
|
Term
| Congress's Power to regulate interstate commerce and commerce with foreign nations. |
|
Definition
The power to regulate commerce is very broad. It does, however, have limits so as not to obliterate the distinction between what is national and what is local.
To be within congress's power under the commerce clause, a federal law must either
regulate the channels of interstate commerce;
regulate the instrumentalities of interstate commerce; or
regulate activities that have a substantial effect on interstate commerce. |
|
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Term
| Route of appeal from the highest state court after a they declare a statute uncosntitutional |
|
Definition
| According to 28 USC Section 1257 When a state stute is declared unconstitutional by the highest state court the route of appeal is by certiorari. |
|
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Term
| 14th amendment due process clause and families |
|
Definition
| The court recognized that the freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause fo the 14th amendment. Thus, city may not regulate the occupancy of its housing by selecting certain categories of relatives who may live together and declaring the others may not. |
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Term
| Burden on the state for regulation of candiates to be placed on ballot |
|
Definition
| In cases in which the signature requirement places a severe restriction on being placed on the ballot, the burden will be on the state to show that the regulations are narrowly drawn to achieve a state interest of compelling importance. |
|
|
Term
|
Definition
Consists of
An intent to commit the target offense, and
a substantial step in the furtheranceof the crime. |
|
|
Term
| Fee simple subject to an executory interest |
|
Definition
| an estate that permits the grantor to transfer the land to a third party upon the happening of an event. |
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Term
| Prior Inconsistent Statement Impeachment |
|
Definition
A witness may be simpeached with a prior inconsistent statement.
However, extrinsic evidence of the witness's prior inconsistent statement is only admissible if the witness has an opportunity to explain or deny the prior statement, and the adverse party has an opportuntiy to examine the witness about it. |
|
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Term
| Accepting a Bilateral Contract |
|
Definition
A bilateral contract is accepted by the offeree's promise to perform.
An implied promise to perform would likewise constitute an acceptance ofan offer. |
|
|
Term
| Merchant's acceptance with terms varying from the offer |
|
Definition
Under UCC section 2-207, where both parties are merchants and there is an acceptance which varies from the terms of the offer, the offer is deemed accepted and the new terms will be incorporated into the newlry formed contract unless:
The offer was expressly limited to itsown terms;
the offeror objects within a reasonable time; or
the new terms materially alter the contract |
|
|
Term
|
Definition
| Restitution is appropriate where one party receives a benefit, not bargained for, and it would be unconscionable for him to keep the benefit. |
|
|
Term
|
Definition
2-2601 of the UCC
Provides that any goods at the time of delivery that do not conform to the contract may be wholly rejected, wholly accepted, or partially accepted.
However, section 2-508, also allows a seller the right to cure the defect if the goods tendered are rejected at the time of delivery.
Pursuant to this provision, the seller can notify the buyer that i tintends to cure the defects and is permitted a reasonable period of itme to do so. |
|
|
Term
| Liability and Delegation of duties |
|
Definition
The delegator / obligor remains secondarily liable to the obligee / beneficiary of the delegation if the delegatee fails to satisfactorily perform.
The only situation in which the obligor would be released from his duties under the original contract is where there is a novation, which requires an express or implied agreement by the obligee to rlease him in exchange for the new liability of the delegatee. |
|
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Term
| Assigning the rights of a contract |
|
Definition
| Upon assignment of the rights of a contract, the assignee stands in the shoes of the assignor, meaning that the obligor may raise any defenses against the assignee that could have been raised against the assignor. |
|
|
Term
| Exceptions to the Statute of Frauds |
|
Definition
Oral promises to pay are enforceable if the seller has tendered the goods and the buyer has accepted them.
There are more |
|
|
Term
| Warranty of fitness for a particular pupose |
|
Definition
The warranty only applies where, at the time of contracting, the seller has good reason to know:
The particular purpose for which the goods are required; and
that the buyer is relying on the seller's skill or judgment to select or furnish reasonable goods. |
|
|
Term
|
Definition
For an assignment to be valid, the assignor must manifest an intention to make a present assignment.
A promise to transfer a right that the assignor expects to acquire in the future is not an effective assignment. |
|
|
Term
| Prior Consistent Statement |
|
Definition
Generally not admissible to support the witness's testimony at trial.
Where the testimony of a witness is assailed as a recent fabrication, it may be confirmed by proof of declarations of the same tenor before the motive to falisfy existed.
Prior consistent statements used for this purpose are not hearsay under FRE 801(d)(1) |
|
|
Term
| FRE 803 Hearsay Exceptions |
|
Definition
Availability of declarant immaterial
present sense impression
excited utterance
statement o fdeclarant's existing state of mind, emotion, or physical condition
Statements for medical diagnosis or treatment
Recorded recollection
records of regularly conducted business activity
public records and reports
records of vital statistics
family records
ancient documents
learned treatises |
|
|
Term
| FRE 804 Hearsay Exceptions |
|
Definition
Declarant must be unavailable
Former testimony
dying declaration
statement against interest
statement of pedigree |
|
|
Term
| FRE 608(b) Specific instantces of the conduct of a witness |
|
Definition
For purpose of attacking or supporting his credibility, other than conviction of crime as provided in fre 609, may not be proved by extrinsic evidence.
They may haover in the discreation of the court in probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness
Concerning his chs character for truthfulness or untruthfulness or
concerningthe character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. |
|
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Term
| FRE 1003 Best evidence rule |
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Definition
| Duplicates of a document are generally admissible to the same extent as the original. Duplicates include a photographic miniature. |
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Term
| FRE 609(a)(2) Evidence of a conviction for purpose of attacking a wittnesses credbility |
|
Definition
For purposes of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross exmanination but only if the crime involved dishonesty or a false statement, regardless of thepunishment.
The only way a conviction of a misdemeanor can be used to impeach a witness under the rule is if the misdemeanor involves dishonesty or false statement. |
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Term
| Character evidence in a civil case |
|
Definition
Character evidence is not admissibile in a civil case unless character is in issue.
According to FRE 405 character is in issue if it is an essential element of a charge, claim, or defense.
For the exam purposes, remember that character is generally in issue and thus, admissible in the following civil actions
defamation
child custody
negligent entrustment and
negligent hiring.
Another civil action where the character is in issue is an action for fraud.
In regard to a fraud or deceit action, the defendant's character for honesty is in issue. |
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Term
| FRE 801(d)(2)(D) Vicarious Admission |
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Definition
| A statement offered against a party by his agent or servant concerning a matter within the scope of his agency or employment, made durinng the existence of the relatinoship is admissible as a a vicarious admission. |
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Term
| FRE 801(d)(2)(B) Adoptive admission |
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Definition
| A statement is an admission if it is offered against a party and is a statement of which the party has manifested his adoption or belief in its truth, under circumstnaces whrere a reasonable person would deny the statement. |
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Term
|
Definition
| Evidence tending to prove or disprove a material fact. |
|
|
Term
|
Definition
| A statement, other than one made by the declarant at the time of trial or hearing, offered in evidence to prove the truth of the matter asserted. |
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Term
| Form of Character Evidence |
|
Definition
When character evidence is admissible, character may be proven in the form of reputation or opinion testimony only.
Evidence of specific acts of misconduct would be admissible only on cross-examination, as a way of testing the validity of the reputation or opinion evidence. |
|
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Term
| Physician - patient privilege and hospitalization proceedings |
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Definition
| There is no physician-patient privelege for communications relevant to an issue in proceedings to hospitalize the patient for mental illness if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization. |
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Term
| Prior Testimony Hearsay Exception |
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Definition
The rule excluding hearsay evidence is designed to prevent the introduction of a statement by a a witness whom the opposing party will not have the opportunity to cross-examine.
Prior testimony is not admissible unless it was subject to cross examination, with the same issues present during that cross-examination. |
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Term
|
Definition
Exception to the hearsay rule
A present sense impression is a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. |
|
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Term
|
Definition
Requires a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.
The declarant must be unavailable as a witness.
A dying declaration does not require the declarant to die. |
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Term
| FRE 803(2) Excited Utterance |
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Definition
| A astatement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. |
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Term
| Extinguishment of an easement by merger. |
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Definition
| When an easement appurtenant exists and both the dominant and servient tenements come under the ownership of the same person, the easement is terminated by operation of law. |
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Term
Property
Right of Lateral Support |
|
Definition
| One who by excavation, or other methods, withdraws lateral support from her neighbor's land is liable for the injury done to suh land in itsn atural condition, regardless of negligence. The common law right to latteral support is a right to the support of land in substnatially its natural condition. It does not include the right to have the additional weight of artificial structures supported by the neighboring land. However, a defendant may be held liable for damage caused to structures if there is proof of negligence on his part. |
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Term
| Race-Notice recording statute |
|
Definition
To prevail under a race notice statute a claimiant of real property must prove the following four elements
that the claimant took subsequent in time to another person claiming ownership of the real property in question
that the claimant was a bona fide purchaser for value
that the claimant took the property without actual, constructive or inquiry notice and
that the claimant recorded first. |
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Term
Property
Doctrine of equitable conversion |
|
Definition
Risk of loss from casualty and other fortuitous events is normally placed on the purchaser in the absence of controlling provisions in the contract.
Equity thus considers the vendee as the owner of the land and the vendor as the owner of the purchase money.
Limited to cases where the intention of the parties will not produce an inequitable result. |
|
|
Term
| Doctrine of estoppelnby deed |
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Definition
| When a person executes a deed purporting to convey an estate in land that he does not have, and such person at a later date acquires such estate in such land, then subsequently acquired estate will, by estoppel, pass to the grantee. |
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Term
| Common law renters liability to pay after unforeseen action |
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Definition
| At common law, the gneeral rule is that a tenant remains liable to pay rent even though because of fire, floods, or other unforeseen action, the property is rendered totally uninhabitable. |
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Term
| Liability of a tenant who covenants to keep the leasehold premises in good repair |
|
Definition
Liable under such a covenant for all defects regardless of their cause.
As a result the tenant remains liable for any defects that she caused or that were caused by third persons. |
|
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Term
| Release of contract obligations by a tenant - assignor by assignment |
|
Definition
| Where a tenant-assignor trensfers all of his leasehold interest to an assignee, such assignment does not release the original tenant from his contract obligations to the landlord under the terms of the lease. |
|
|
Term
| Tenant for years duty to make ordinary repairs |
|
Definition
| A tenant for years is legally bound to take such ordinary repairs on the leased property as will avoid serious injury to the property. |
|
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Term
| Process for gaining government owned property through adverse possession |
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Definition
|
|
Term
Property
Liability of an assignee |
|
Definition
| By virture of the assignment, the assignee falls into privity of estate with the landlord and he is liable on all covenants in the original lease that run with the land. |
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Term
| The extent of a conveyance of property beyond a life estate |
|
Definition
| A life tenant cannot lease, mortgage, or otherwise encumber a property to an extent greater than his interest in the property. |
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|
Term
Property
Restraints on Fees |
|
Definition
Any direct restraint imposed upon a fee is invalid.
Only estates less than fees may be subject to restraints upon alienation. |
|
|
Term
| Ownership of a fee interest and the use of minerals |
|
Definition
| Ownership of a fee interest, even a defeasible fee, includes the right to exploit the mineral resources of the land, including oil. |
|
|
Term
| When will a landlord be liable in tort to the tenant, his guests, licensees and invitees |
|
Definition
| A landlord may be liable in tort to the tenant, his guests, licensees and invitees, if at the commencement of the lease there is a dangerous condition that the landlord knows or should know about and the doscovery of which would not likely occur by the tenant exercising due care. |
|
|
Term
|
Definition
Similar to an easement in that it is a non-possessory interest.
The holder of the profit is entitled to enter upon the servient tenement and take the substance of the land subject to the privilege.
In this regard, a profit, like an easement, may be appurteant or in gross. |
|
|
Term
| What does a leasehold convey |
|
Definition
A leasehold conveys the right to exclusive possession, rather than title to the property.
The holder of a leasehold does not have an ownership stake. |
|
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Term
| What rights can be asserted against the seller after title passes? |
|
Definition
| Once title passes, the buyer cannot assert any rights against the seller except by way of suit-based potential contract defenses or for breach of an express warranty of title. |
|
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Term
| Who do recording statutes protect? |
|
Definition
| Recording statutes are designed to protect only bona fide purchasers. If one of the claimants did not give value or took notice, the order in which the documents are recorded is irrelevant. |
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Term
| How can title to land be returned to the grantor after being accepted? |
|
Definition
| Once accepted, title to land can only be returned to the grantor by way of a deed delivered to and accepted by the original grantor. |
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Term
| Rights of the owner of an implied easement to upgrade the easement |
|
Definition
| The owner of an implied easement has a limited right to upgrade the easement and generally may not develop or upgrade it beyond the reasonable contemplation of the parties at the time the property was divided. |
|
|
Term
| Abandonment of an easement |
|
Definition
| Requires a showing of non-use plus an act demonstrating intent to abandon. |
|
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Term
| Mortgagee's right to receive the mortgagor's rent and profits |
|
Definition
When the mortgagor's right to receive rents and profits is not expressly included in the mortgage agreeement and there are no provisions to the contrary, the mortgagor's right to receive rents and profits until default is implied.
Upon default, the mortgagee does not automatically succeed to that right. |
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|
Term
| A mortgagor's exercise of the redemption right and junior intersts |
|
Definition
A mortgagor's exercise of the redemption right does not extinguish all junior intrests; however, a foreclosure sale would extinguish junior interests.
Exercise of the redemption rights halts foreclosure. |
|
|
Term
| UCC Section 2-207 Battle of the forms |
|
Definition
2-207 Allows additional terms in the acceptance or confirmation of an offer.
When both parties are merchants, new terms are considered to be additions to the contract and become part of the contract unless
the offer expressly limits acceptance to the terms of the offer;
they materially alter it; or
notification of objection to them has already been given or is given within a reasonable time after notice of them is received.
Arbtriation clauses constitute a material alteration to the terms of the contract. |
|
|
Term
Torts
Effect of a foolish or reckless rescue effort |
|
Definition
| If a rescue effort is foolish or reckless, it is deemed to be the sole legal cause of any additional injury resulting if the injuries are divisible. |
|
|
Term
| Liability of a seller of a defective product |
|
Definition
The seller of a defective product in a condition that is unreasonably dangerous to the user or consumer or to his property is strictly liable for harm caused by the product if the seller is in the business of selling such a product, and if it is expected to and does reach the consumer without a substantial change in condition.
This rule applies even if the seller used all possible care in the preparation and sale of his product, and the consumer has not bought the product from or entered into any contractual relation with the seller. |
|
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Term
|
Definition
| Monetary losses suffered due to the injury of reputation |
|
|
Term
| General damages in defamation cases |
|
Definition
| General damages are presumed in defamation actions if there occurs non-pecuniary injury to reputation, such as humiliation and loss of friends. |
|
|
Term
|
Definition
| May be assessed to punish and deter future wrongful conduct. |
|
|
Term
|
Definition
False light portrayal occurs when information is published about a person that attributes to him views he does not hold or actions he did not take and is highly offensive to a reasonable person.
For a public figure (which would include someone running for office), the requisite standard of fault is malice - knowledge of falsity or reckless disregard for the truth.
However, as with defamation, truth is an absolute defense. |
|
|
Term
Torts
Public disclosure of private facts |
|
Definition
Requires that the defendant reveal true facts about the plaintiff, the disclosure of which would be objectionable to a reasonable person.
The facts must be of a private nature, not newsworthy.
However, unlike defamation, public disclosure of private facts requires a widespread publication of the facts. |
|
|
Term
| When can SCOTUS review a State Supreme Court decision decided on state law? |
|
Definition
Under Michigan v. Long, any opinion of the highest appellate court of any state appealed to SCOTUS cannot be reviewed by the court if the decision in the case is based on independent, adequate state law grounds.
However, when the opinion is unclear as to whether the decision was based on state or federal law grounds, SCOTUS may review the case and decide the federal issues. |
|
|
Term
| Presidential power of executive agreements |
|
Definition
The president has the power as the nation's chief executive to enter into executive agreements with foreign nations.
Executive agreements are valid even without the advice or consent of the Senate. |
|
|
Term
| When can non-citizens assert protection of the privileges and immunities clause of the Fourteenth Amendment? |
|
Definition
| People who are not US citizens cannot assert a violation of the Fourteenth Amendment's Privileges and Immunities Clause. |
|
|
Term
|
Definition
Applied to government action to determine whether there is a violation of the establishment clause is whether the action
Has a secular purpose
has a Principal or primary effect of advancing or prohibiting religion and
Results in excessive government entanglement with religion
PEEL
Purpose
Effect
Entanglement
Lemon |
|
|
Term
| What does the Fourteenth Amendment equal protection clause protect against? |
|
Definition
Discriminatory practices of state and local governments, not private entities.
To successfully assert a claim against a private entity, the claimants must show a sufficient amount of state action.
The requisite state action exists where the private entity is so involved with the government that state action is deemed to exist.
State licenses and supplies may be involvment sufficient for a court to find that the private actor's discriminatory practices are characterized as state action that allows the Fourteenth Amendment's equal protection clause to apply. |
|
|
Term
| Use of specific instances of conduct to attack the credibility of a witness |
|
Definition
Specific instances of conduct of a witness are not generally admissible to attack the credibility of the witness, unless they relate to a crime of which the witness was convicted.
Specific instances can be inquired into on cross-examination of the witness concerning the witness's character for truthfulness. |
|
|
Term
| FRE 411 Evidence that a person was or was not insured |
|
Definition
Evidence that person was or was not insured against liability is not admissible to prove (or disprove) negligence or wrongful conduct.
Evidence of liability insurance is admissible for other purposes, however, including the following:
to prove agency, ownership or control; or
to prove bias or prejudice of a witness |
|
|
Term
| FRE 801(d)(1)(B) Prior consistent statement |
|
Definition
A declarant's prior statement that is consistent with her testimony is not hearsay only if offered to rebut a charge of recent fabrication or improper influence or motive.
In addition, the declarant must testify and be subject to cross-examination concerning the statement.
If these conditions are met, the statement may be used substantive evidence. |
|
|
Term
|
Definition
| An admission by a party that is offered against that party is not hearsay. |
|
|
Term
| Rule against perpetuities |
|
Definition
| Any conveyance that would vest 21 years after any life in being is void. |
|
|
Term
|
Definition
Easement rights may be acquired by adverse use.
So long as the hostile, actual, open and notorious, continuous for stautory period elements are satisfied, a use of property can establish an easement by prescription in the same sense that an adverse possession can establish ownership. |
|
|
Term
| When does the UCC authorize specific performance in favor of the buyer? |
|
Definition
| Where the goods are unique or in other proper circumstances. |
|
|
Term
| FRE 701 opinion testimony of non-experts |
|
Definition
If the witness is not testifying as an expert his testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness and helpful to clear understanding of his testimony or the determination of a fact in issue.
The testimony must not be based on scientific, technical, or other specialized knowledge. |
|
|
Term
| Doctrine of equitable conversion |
|
Definition
Upon the signing of the purchase and sale agreement, the seller acquires a legal interest in the property (the right to obtain the purchase price), and the buyer acquires equitable ownership in the property (the right to conveyance of the realty).
Thus, the seller has a right in personalty (the purchase money), and the buyer has a right in realty. |
|
|
Term
| Direct restraints on a fee simple |
|
Definition
As a general rule, any direct restraint imposed upon a fee simple is invalid; only estates less than fees may be subject to restraints upon their alienation.
However, even less than a freehold estate is involved, a disabling restraint is always void.
A disabling restraint seeks to withhold the power of alienation.
Common examples of a disabling restraint include such clauses as "shall not transfer" or "any transfer is void." |
|
|
Term
|
Definition
Contains six covenants of title
Covenant of seisin
the covenant of right to convey
the covenant against encumbrances
the covenant of quiet enjoyment
the covenant of warrant
covenant of further assurances.
The remedy for breach of any of the covenants of title is recovery of damages. |
|
|
Term
|
Definition
| An unrecorded conveyance or other instrument is invalid as against a subsequent bona fide purchaser for value without notice and who records first. |
|
|
Term
|
Definition
The warranty of fitness for a particular purpose grants that the goods being sold are fit for the particular purpose for which the buyer intends to use them.
The warranty only applies where, at the time of contracting, the seller has good reason to know:
the particular purpose for which the goods are required; and
that the buyer is relying on the seller's skill or judgment to select or furnish reasonable goods
The warranty may be negated:
where the negation is in writing and conspicuous; and
the language used to negate the warranty is in a form that a reasonable buyer would understand. |
|
|
Term
| Liability of providers of services for injuries received by their customers. |
|
Definition
Generally, providers of services are not held strictly liable for injuries received by their customers.
If defective goods are supplied along with services, strict liability is still not applicable, so long as the goods supplied were merely incidental to rendition of the services.
Restaurants are frequently regarded as sellers of goods and are subject to strict liability. |
|
|
Term
| Attractive nuisance doctrine |
|
Definition
A possessor of land is subject to liability for physical harm to trespassing children where
an artificial condition exists on the property;
the possessor knows or should know that children are likely to trespass on the property;
the children based on their youth, age, or immaturity fail to appreciate the danger or realize the risks involved in intermeddling with it; and
the utility of maintaining the dangerous condition is slight compared to the risks involved. |
|
|
Term
|
Definition
| Evidence is relvant if it has a tendency to make some fact at issue more or less likely; this is known as logical relevancy. |
|
|
Term
|
Definition
For one to hold property adversely, his possession must be
actual and exclusive
open and notorious
continuous and peaceable (eaning without any interruption); and
hostile and adverse. |
|
|
Term
Property
The waiving the Right to Redeem |
|
Definition
| The right to redeem cannot be waived or clogged at the time the mortgage is created. |
|
|
Term
Property
The right to subjacent support |
|
Definition
The right to support from underneath the surface of the land.
A landowner has an absolute right to subjacent support for land in its natural state and for any structures on the land. |
|
|
Term
| Clauses covering all after-acquired property is good |
|
Definition
Mortgages on after-acquired property are valid as between the parties, "but to be effectual against third persons, it must point out the subject matter so that such persons by inquiry notice may be able to identify the property intended to be covered."
A clause covering all after acquired property is good and is sufficient to adequately identify the property between the mortgagor-mortgagee and to put third parties on notice. |
|
|
Term
| How mortgagors commit waste |
|
Definition
| Mortgagors commit waste if, without the mortgages consent, the mortgagor makes physical changes to the real property, negligently or intentionally, that reduces the value of the property. |
|
|
Term
Property
Right of lateral support |
|
Definition
The right of a landowner to have her land supported laterally by the neighboring land is an absolute right inherent in the land itself.
The right of lateral support means the land in its natural condition.
The right of lateral support does not include the right to have the additional weight of artificial structures supported.
If there is damage to artificial structures, the majority view is recovery is limited to damage to the land in its natural condition and may not include any damage to the artificial structures on the land.
However, if there is negligence on the part of the wrongdoer who removes lateral support, then the defendant is liable for all damages that proximately result, including damages to both the land and the artificial structures. |
|
|
Term
|
Definition
Equitable conversion applies when there is an enforceable obligation to sell land.
The doctrine treats interests in land as if the land has already been converted into personal property.
The doctrine states that when the sales contract is made, equity then considers the vendee as the owner of the land and the vendor as the owner of the purchase money. |
|
|
Term
| Doctrine of independence of covenants |
|
Definition
At common law, because a tenant was deemed to receive an estate in land, his rights and duties were treated as independent of the landlord's rights and duties.
Thus, if the landlord promised to keep the property in repair, a breach of the promise did not relieve the tenant from the duty of paying rent.
According to the common law rationale, the rent was owed as payment for the estate, and the promise to do repairs was merely a colateral promise, which could be enforced only by a separate contractual suit brought by the tenant. |
|
|
Term
|
Definition
An intentional tort in which the defendant causes harmful or offensive contact to another person.
Whether contact is offensive is judged by an objective standard, meaning that it depends on what an average reasonable person would think.
A contact is offensive if it would offend an ordinary person's reasonable sense of personal dignity, and not if it would only be offensive to someone who is unduly sensitive.
Thus, the contact must be unwarranted by the social usages prevalent at the time and place at which it is inflicted |
|
|
Term
|
Definition
The intentional tort of trespass to land occurs where the defendant intentionally causes someone or something to enter or to remain on land of another person.
A defendant can also be held liable for negligENTLY CAUSING A TRESPASS TO LAND THAT INJURES SOMEONE. |
|
|
Term
|
Definition
| an employer will be vicariously liable for torts committed by its employees within the scope of their employment. |
|
|
Term
|
Definition
A plaintiff can recover on a negligence claim, even if he or she is unable to prove exactly what was done negligently, if the plaintiff can show that the accident in which the plaintiff was injured is the sort of thing that ordinarily does not occur unless there was negligence, and the agency or instrumentality that caused the injury was within the exclusive control of the defendant.
In such a situation, res ipsa loquitur permits the jury to infer, based on the ccircumstantial evidence, that the defendant was negligent, even if the plaintiff cannot prove exactly what negligent act occurred. |
|
|
Term
Torts
Intentional infliction of emotional distress |
|
Definition
A person is liable for intentional infliction of emotional distress if he does something that is extreme and outrageous and that intentionally or recklessly causes sever emotional distress to someone.
In general, only the person who is the target of the extreme and outrageous conduct can recover.
However, a plaintiff can recover if she was present when the defendant did something extreme and outrageous to the plaintiff's immediate family member, and if the defendant knew or should have known that defendant was present and likely to suffer severe emotional distress from witnessing the event. |
|
|
Term
|
Definition
a false representation made by the defendant
knowledge or belief on the part of the defendant that the representation is false
an intention to induce the plaintiff to act or to refrain from action in reliance upon the misrepresentation
justifiable reliance upon the representation on the part of the plaintiff and
damage to the plaintiff resulting from such reliance |
|
|
Term
Torts
Exception to self-defense argument against Battery |
|
Definition
Mistake
If a person is about to be attacked, but knows the attack is based on a mistake as to the person's identity, the person is not privileged to await the attack and then use force to defend himself if he has time to correct the mistake and prevent the attack. |
|
|
Term
|
Definition
Requires the plaintiff to prove that the defendant intentionally communicated a defamatory matter to some third person, who reasonably understands that the plaintiff's reputation is lowered in the estimation of at least a substantial minority of the community, or such that third persons are deterred from associating with that person to whom the matter refers.
Therefore, only statements of fact can be actionable as being defamatory. |
|
|
Term
|
Definition
| A person is subject to liability for intentional trespass if he intentionally enters land possessed by another person, regardless of whether he causes any actual harm to he land. |
|
|
Term
Torts
Recovery for mental disturbance |
|
Definition
| No recovery will be allowed for mental disturbance alone unaccompanied by physical injury. |
|
|
Term
|
Definition
The tort of false imprisonment occurs where
one acts intending to confine the other within boundaries fixed by the actor
his act directly or indirectly results in such a confinement of the other, and
the other is conscious of the confinement or is harmed by it.
Confinement may be the result of physical barriers that restrain freedom of movement, or of present threats of force.
A bounded area prevents freedom of movement in all directions by providing no reasonable means of escape.
Any reasonable and reasonably knowable means of escape negates this element. To be reasonable, the means of exit must not expose Plaintiff to any threat of harm to her person or property, and it must not expose the plaintiff to embarrassment, unreasonable discomfort, or require her to be heroic. |
|
|
Term
| Duty a landowner owes to invitees |
|
Definition
A business owner who allows customers to use a restroom on the business premises owes the same duty of care to one who enters the premises solely to use the restroom as is owed to one who intends to make a purchase.
An owner or occupier of land owes such invitees a duty to not only inspect the premises for non-obvious, unknown dangers, but also to warn invitees of the danger or make the premises safe. |
|
|
Term
| Parents duty to control his minor child |
|
Definition
A parent is under a duty to exercise reasonable care to control his minor child as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the parent
knows or has reason to know that he has the ability to control his child, and
knows or should know of the necessity and opportunity for exercising such control. |
|
|
Term
|
Definition
Under the doctrine of vicarious liability, the negligence of one person may be imputed to a second person because of a relationship existing between them, even though the second person did not have any part in the negligent conduct.
One form of vicarius liability arises in connection with joint enterprises.
A joint enterprise is an undertaking to carry out a small number of acts or objectives, which is entered into by associates under such circumstances that all have an equal voice in directing the conduct of the enterprise.
A joint enterprise must have a common business, financial, or pecuniary purpose, and the parties to the enterprise must have a mutual right of control.
A joint enterprise is viewed as being similar to a partnership.
When a joint enterprise is formed, the law then considers that each associate is the agent or servant of the others, and that the act of any one within the scope of the enterprise is to be charged vicariously against the rest.
A joint enterprise is formed for a commercial or business purpose is usually called a joint venture. |
|
|
Term
Torts
Assumption of the risk |
|
Definition
A plaintiff is completely barred from recovery in strict liability if it can be shown that he assumed the risk of injury.
To assume the risk of injury the plaintiff must know of and appreciate the danger and voluntarily expose himself to such danger. |
|
|
Term
Torts
Liability of sellers of any product in a defective condition |
|
Definition
| One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if the seller is engaged in the business of selling such a product, and its expected to and does reach the user or consumer without substantial change in the condition in which it is sold. |
|
|
Term
| Strict products liability applied to services |
|
Definition
| Strict products liability is invoked when a defective product, for which an appropriate defendant is responsible, injures an appropriate plaintiff. Generally providers of services are not held strictly liable for injuries sustained by their customers. |
|
|
Term
Torts
When is there a duty to protect others from third parties? |
|
Definition
For example, if you see someone being attacked by a criminal, you might choose to help the victim, but you generally do not have a legal obligation to do so.
A legal duty does exist, however, if certain special realtionships are involved.
You ight have a special relationship to the crime victim that obligates you to protect him, or you might have a special relationship to the criminal that obligates you to control him.
One of the special relationships traditionally recognized is the reltaionship between a common carrier and its passengers.
The common carrier has a duty to its passengers to take reasonable actions to protect them against unreasonable risk of physical harm.
This duty protect extends not only to risks arising out of the common carrier's own conduct, but also to risks arising from the acts of third persons, whether they be innocent, negligent, intentional, or even criminal. |
|
|
Term
| Third person recovery for intentional infliction of emotional distress |
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Definition
Occurs where the target of the defendnat's extreme and outrageous act is some other person, not the plaitiff.
A plaintiff can recover either of the following two situations:
The plaintiff is present when the defendant does something extreme and outrageous to a third person, the defendant is aware of the plaintiff's presence, and the plaintiff is a close family relative of the third person who is the target of the defnedant's extreme and outrageous act.
The plaintiff is present when the defendant does osmething extreme and outrageous to a third person the defendant is aware of the plaintiff's presence, and the shock of witnessing the incidence is so horrible that it causes the plaintiff to suffer bodily injury rather than just emotional distress. |
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Term
Torts
Lessor's duty to others on his land |
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Definition
A lessee, as possessor of the property , has a duty to exercise reasoanble care to warn licensees about dangers known to the lessee. A lessor of land, on the other hand is generally not liable to his lessee or to others on the land for physical harm caused by an y dangerous condition whether natural or atificial, which existed when the lessee took possession.
However, exceptions to this gneeral rule include:
stiuations where the lessor contracts to repair;
undisclosed dangerous conditions known to the lessor;
land leased for the purpose involving admission of the public;
parts of land retained in the lessor's control, which lessee is entitled to use; or
where the lessor makes negligent repairs. |
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Term
Real Property
What liability would a purchaser have when taking subject to a loan or assuming a mortgage loan? |
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Definition
If the purchaser has assumed the mortgage when he bought the house, he would have personal liability for the mortgage loan.
If he takes the subject to the mortgage he is not personally liable, but the house can be sold at foreclosure sale. |
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Term
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Definition
Conduct that substantially and unreasonably interferes with another person's use and enjoyment of his land.
To bring a private nuisance action, the plaintiff need only have property rights or privileges in the land, so a renter's possessory interest would suffice.
For the interference to be categorized as substantial, it must be offensive to a person of normal sensibilities in the community.
It is not sufficient for the interference to be offensive to an abnormally sensitive person. |
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Term
Contracts
Common law modifications. |
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Definition
| Generally, new consideration is needed for a modification; however, the "unforeseen difficulties" doctrine permits an existing contract to be modified to account for unforeseen difficulties that arise during the course of performance that are not reasonably anticipated by the parties at the time of contracting. |
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Term
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Definition
| An actor is guilty of criminal battery when he intentionally or recklessly (or with criminal negligence) causes unlawful application of force to the person of another. |
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Term
Crim Law
Consent, as a defense to a charge of illegal search. |
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Definition
Has three elements
the consent must be unforced and the result of an informed decision;
the search must not exceed the scope of the consent; and
the consenting party must have the authority to consent.
Search cannot exceed the scope of permission. |
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Term
Property
General warranty deed |
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Definition
Contains the standard covenants of title:
seisin
right to convey
against encumbrances,
quiet enjoyment,
warranty. |
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Term
Property
Covenant of Quiet enjoyment |
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Definition
| Warrants that the grantee's possession and enjoyment of the property will not be disturbed by any third party asserting a valid claim to the property. |
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Term
| Fourteenth Amendment Enabling Clause |
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Definition
| Congress has the authority to enforce civil rights pursuant to the Fourteenth Amendment enabling clause. |
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Term
| Standard of scrutiny for Age |
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Definition
Age is not a suspect or quasi-suspect class.
Therefore any laws or other government actions based on age are subject only to a rational basis scrutiny.
Under the rational basis standard of scrutiny, the plaintiff bears the burden of persuasion.
Plaintiff must show the measure being challenged serves no legitimate government interest, or is not rationally related to any legitimate interest. |
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Term
| Congress's power over property belonging to the United States |
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Definition
Congress has the power to dispose of any property or territory which belongs to the United States, including Native American reservations.
No balancing test is required, nor will a state's compelling interest prevent the sale.
The power lies solely with Congress, as set forth in the Property Clause. |
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Term
| Requirements of a valid search warrant |
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Definition
Must be issued by a neutral and detached magistrate who reviews evidence submitted by law enforcement and determines that probable cause exists.
Probable cause exists when the information presented to the magistrate is sufficient that a reasonable person would conclude that it was more probable than not that evidence of named items or persons would be found.
The warrant may be issued based on an informant's tip where probable cause is established through the totality of the circumstances.
Two of the factors in assessing the totality of the circumstances are the reliability of the informant and police corroboration.
In addition, a warrant must describe with particularity the place to be searched and the items or persons to be seized. |
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Term
| Takings clause of the fifth amendment |
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Definition
Provides that private property shall not be taken for public use without the compensation.
This rule extends to the states through the 14th Amendment due process clause.
There are several types of takings, including regulatory takings.
A land use regulation is a taking if it denies an owner all reasonable economically beneficial use of his land.
However, a temporary regulation may not be a taking where the property will recover value when the prohibition is lifted.
In these cases, the regulation will not permanently deprive the owner of all economically beneficial uses of his land and is, therefore, not a taking.
To determine whether a temporary regulation is a taking, the courts will examine both the time and space dimensions of a property interest. |
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Term
| FRE basis of Expert opinion |
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Definition
Expert opinion may be based on assumed facts, facts not in evidence, or even inadmissible hearsay, provided it is of a type relied on by experts in the field.
An expert may also rely on information gained from another expert.
However, the testifying expert may not merely serve as a conduit for another expert's opinion. |
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Term
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Definition
The majority of jurisdictions defines assault as an attempted battery.
In attempted battery jurisdictions, actual fear (or even awareness) of the attempt is not necessary to sustain a conviction for assault.
Although battery itself is a general intent crime, attempt is a specific intent crime, so actual intent to injure is required. |
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Term
Evidence
What form of testimony can address the Ultimate issue? |
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Definition
Ultimate issues, such as a defendant's culpability are to be resolved by the finder of fact, and not by either lay or expert witnesses.
However, a witness may testify in the form of an opinion or inference as to an ultimate issue.
The only exception to this is in a criminal case, where an expert witness testifying as to a mental state or condition may not state an opinion or inference as to whether a defendant possessed a mental state or condition constituting an element of or defense to a crime. |
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Term
Crim Law
Use and Derivative Use immunity |
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Definition
The United States can compel testimony from an unwilling witness who invokes the Fifth Amendment privilege against compulsory self-incrimination by granting a witness "use and derivative use" immunity in exchange for his testimony.
Such immunity from use and derivative use is coextensive with the scope of the Fifth Amendment privilege, and is sufficient to compel testimony over a claim of privilege.
Testimony for which the individual has been granted use and derivative use immunity is not self-incriminating, and hence eliminates the privilege.
In a subsequent criminal prosecution, the prosecution has the burden of proving affirmatively that evidence proposed to be used is derived from a legitimate source wholly independent of the compelled testimony. |
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Term
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Definition
Are established in the same manner as acquiring title to land by adverse possession.
Mental, Physical, and time elements. |
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Term
| Doctrine of Equitable Redemption |
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Definition
If a mortgagee brings a foreclosure action against a mortgagor, the mortgagor has a right to redeem the mortgage (pay off the mortgage) prior to the foreclosure sale.
The exercise of a mortgagor's right to redemption does not affect the mortgagor's obligation to junior interests. |
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Term
Contracts
Doctrine of Impossibility |
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Definition
Impossibility excuses performance by both parties when performance has been rendered objectively impossible and the contingency that arose was unknown to both parties.
Objective impossibility requires that performance be literally impossible, not just difficult or risky.
Of course, all kinds of contingencies may be addressed in the contract itself but, absent any allocation of risk of the contingency in the contract, the doctrine of impossibility is available as a defense under its very restricted application guidelines.
When a change in the law renders performance illegal, impossibility may be a valid defense to breach of contract. |
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Term
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Definition
The commerce clause authorizes Congress to regulate the channels of interstate commerce, including railways.
The Supremacy clause provides that the Constitution and federal laws are the supreme law of the land. |
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Term
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Definition
Before the federal court will exercise jurisdiction a plaintiff must demonstrate standing to bring the action in federal court.
The plaintiff must allege that his rights under the Constitution or federal law were violated, causing him direct injury. |
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Term
Contracts
Duties and liabilities of a Delegatee |
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Definition
If a Delegatee fails, refuses to carry out, or defectively carries out a delegated duty, the obligor/delegator will be in material breach of the contract, and the obligee may sue the obligor/delegator for loss of bargain, money damages, or equiable relief.
Whether an obligee can sue a delegatee depends upon whether the delegatee has assumed the obligor/delegator's duty.
If the delegatee has not assumed the obligor/delegator's contract duties, he is not liable to the aggrieved obligee.
If there has been a contract of delegation between the obligor/delegator and the delegatee, the obligee is an intended third-party beneficiary of that contract and may sue the delegatee in that capacity.
The aggrieved obligee may choose to sue the obligor/delegator or the delegatee who has assumed duties, but it can only make one full recovery. |
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Term
Con Law
Free exercise clause |
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Definition
Prohibits the government from interfering with the freedom to choose any form of religion.
Because the freedom to choose is absolute, the court cannot inquire into reasonableness of a particular religious belief.
The court can, however, inquire into the sincerity of these beliefs, and it may convict a person for committing an illegal act in furtherance of his beliefs. |
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Term
Con Law
Privileges and Immunities clause of Article IV, Section 2 of the USC |
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Definition
The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.
This clause prohibits states from discriminating against non-residents with respect to essential activities or fundamental rights.
However, corporations and aliens are not citizens for purpose of the article IV privileges and immunities clause. |
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Term
Contracts
Anticipatory Repudiation |
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Definition
| The UCC requires that demands for adequate assurances be in writing. |
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Term
Contracts
Exceptions to Impossibility |
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Definition
When an unforeseen contingency arises that makes performance impossible, the parties are discharged from their obligations under the contract.
An exception to this rule is where the parties have allocated the risk of the contingency and made remedial measures available. |
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Term
Evidence
Business records exception |
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Definition
| Allows for the admission of a record made in the regular course of business and made near in time to the receipt of the information by a declarant with personal knowledge. |
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Term
| Fifth Amendment Due Process Clause |
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Definition
| Guarantees the same rights to individuals affected by discriminatory federal government action. |
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Term
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Definition
The trespassory taking or carrying away of the property of another with the intent to permanently deprive the owner of the property.
Only a slight movement is necessary to fulfill the carrying away requirement.
The conversion of property by an employee who has custody (but not possession) of an employer's property is larceny. |
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Term
Con Law
Congress's power to lay and collect taxes |
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Definition
The US Congress has the power to lay and collect taxes to pay the debts and provide for the common defense and general welfare.
However, Congress sometimes uses its taxing power to achieve a regulatory effect.
Generally, as long as Congress has the power to regulate the activity taxed, the tax can then be used as a regulating device rather than for revenue-raising purposes.
Further, even when congress does not have the power to regulate the activity taxed, the tax will be upheld if the tax does, in fact, raise revenue. |
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Term
| FRE 611 Objectives the judge should seek to attain during trial. |
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Definition
The judge must reasonably control witness interrogation and evidence presentation to make them useful to ascertaining the truth, avoid wasting time, and protect witnesses from harassment or undue embarrassment.
Thus, the judge has broad authority and can limit testimony to responses to specific questions to allow testimony in the form of a free narrative if effective for the ascertainment of truth. |
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Term
Property
Revocability of Licenses |
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Definition
| A license is generally revocable at the will of the licensor. |
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Term
Con Law
Content based regulation of protected speech |
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Definition
Subjected to strict scrutiny, so the state must show a compelling government interest in the regulation and that it does not have less restrictive means to this end.
Regulations affecting unprotected speech, such as obscenity, defamation, or commercial speech, are scrutinized under a lesser standard. |
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Term
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Definition
Article I, Section 10 of the US Constitution provides: No state shall pass any law impairing the obligation of contracts.
The contract clause applies to state legislation, but not state court decisions or the federal government.
A private contract may be modified by the legislature under its police power when necessary to serve an important and legitimate public interest, and the regulation is reasonable and narrowly tailored to promote that interest.
In determining whether a contract may be modified, a court will consider the severity of the impairment and the importance of the public interest to be served. |
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Term
Contracts
Requirements for Contract for sale of lands under the statute of Frauds. |
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Definition
| A contract for the purchase or sale of real property must be in writing, containing all necessary provisions, and signed by the party to be charged. |
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Term
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Definition
| An intentional act that causes a person to experience reasonable apprehension of an immediate harmful or offensive |
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Term
| Level of scrutiny for laws affecting fundamental interests |
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Definition
| Laws affecting fundamental interests are subject to the strict scrutiny test, under which the state has the burden to persuade the court that it has a compelling interest in infringing on a constitutional right. |
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Term
| FRE 609 Previous Convictions as impeachment testimony |
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Definition
Any witness may be impeached with evidence of the witness's previous conviction of a crime involving dishonesty, regardless of whether the crime is a misdemeanor or a felony.
Crimes involving dishonesty include perjury, fraud, or embezzlement. |
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Term
| UCC standard of measure for damages |
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Definition
The difference between the market price and the contract price.
If that is inadequate to put the seller in as good a position as he was prior to performance, the seller may recover the profit, including reasonable overhead, which the seller would have made from the buyer's full performance.
Such damages are known as lost volume profits. |
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Term
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Definition
| Statement must concern the cause or circumstances of death; the declarant must be unavailable; the declarant must have believed that death was imminent; and the case must be a homicide or any civil action. |
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Term
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Definition
| Prevents a spouse from being compelled to testify against their defendant spouse in a criminal trial, is lost once the couple is divorced. |
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Term
| Marital communication nprivilege |
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Definition
Survives divorce. In any civil or criminal case, either spouse whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication made between the spouses while they were husband and wife.
When the spouses are joint participants in a crime, the marital communication privilege does not apply with respect to communications about the crime. |
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Term
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Definition
False imprisonment requires that the perpetrators intentionally confined the victims and that such confinement was unlawful.
The victims must be fully confined, and they are not required actively to search for an escape route. |
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Term
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Definition
Requires a proponent to provide the original of a writing, recording or photograph when seeking to prove its contents.
For the rule to apply, the proponent of the writing must be trying to prove its content of the writing, not merely that it exists, was delivered, was executed, or that a transaction was memorialized by a writing.
The rule applies when a party is trying to establish the terms or wording of a legally operative document, such as a will or contract.
In such a case, the proponent must produce the original writing unless the proponent can establish that the original is unavailable. |
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Term
| Who can alter the number of justices on the Supreme Court |
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Definition
The size of the supreme court is determined by Congress. It has varied in membership from five to ten, but has remained at nine since 1869.
The president cannot alter the number of justices unilaterally, but where congresss has written and approved the necessary legislation the president may sign such legislation into law. |
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Term
| FRE 804 Prior recorded testimony of a witness |
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Definition
Admissible under an exception to the rule exluding hearsay evidence if
the declarant is currently unavailable as a witness; and
the party against whom the former testimony is offered had an opportunity and similar motive to develop the former testimony by direct, redirect or cross-examination. |
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Term
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Definition
Under UCC section 2-205 where a merchant makes a written, signed offer to sell goods and includes a promise to hold the offer open, the offer is irrevocable for the period stated, or for a reasonable period, neither to exceed three months.
A merchant is a person who has knowledge of the business practices involves in the contract |
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Term
| Sufficiency of provocation to mitigate an intentional killing from murder to voluntary manslaughter |
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Definition
It must be objectively reasonable, that is, it must be such as would cause a reasonable person to lose normal self-control and engage in homicidal behavior.
The traditional approach took no account whatsoever of the defendant's particular circumstances, so that if he suffered from sunstroke a head injury and was more than usually excitable, the jury was instructed to disregard such information and assess the adequacy of provocation as if the reasonable person were perfectly healthy.
Modernly, there is a trend toward giving consideration in the reasonable provocation analysis to any particular circumstances surrounding the defendant that might fairly affect how a reasonable person circumstances surrounding the defendant that might fairly affect how a reasonable person would behave.
This is the approach that has been adopted by the Model Penal Code.
Under this approach, the defendant's individual moral idiosyncrasies, and such voluntarily induced handicaps as intoxication, and are still ignored in determining the mitigating effect of the victim's conduct. |
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Term
| Evidence of an offer to compromise or settle |
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Definition
| Evidence of an offer to compromise or settle a disputed claim is not admissible to prove liability for the claim, because a matter of public policy litigants should be encouraged to attempt settlements. |
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Term
| When can an express easement be terminated |
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Definition
| An express easement may be terminated by written release, by merger, by severance, by abandonment, by excessive use, by destruction of the servient estate, by prescription, by estoppel, and by operation of a recording act. |
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Term
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Definition
| Violation of a criminal statute is negligence per se only if the person harmed is of the class intended to be protected, and if the injury is the type the statute was designed to protect against. |
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Term
Con Law
Nonjusticiable political question |
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Definition
one that the court determines should be resolved in a political branch of the government, rather than in court.
Nonjusticiable political questions generally involve considerations of separation of powers or areas of government lacking judicially manageable standards, such as the composition, training, equipping and discipline of the military. |
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Term
Torts
Contributory Negligence |
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Definition
A defense that may be raised against the plaintiff even when the defendant's duty of care has been established by statute.
Some statutes specifically exclude the intoxicated person as a plaintiff under the dram shop act.
Those that do not, presumably, allow the defendant to assert the plaintiffs contributory negligence as a bar to his recovery. |
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Term
| Restrictions on the right to vote. |
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Definition
The fundamental right of US citizens over age eighteen to vote extends to all federal, state, and local elections, as well as to primaries.
Strict scrutiny review is used to adjudicate restrictions on the right to vote.
However, reasonable restrictions on the right to be a candidate, residency requirements, or the payment of filing fees, are not deemed to be fundamental and require only minimum rational basis scrutiny.
Under the rational basis standard of review, the burden of persuasion is on the plaintiff to show that the measure being challenged is not rationally related to any legitimate interest.
The term rational relationship is a minimal requirement, which means that the law cannot be arbitrary or unreasonable. |
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Term
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Definition
| In proving the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent. |
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Term
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Definition
An assault is an intentional act that causes the plaintiff to experience a reasonable apprehension of an immediate harmful or offensive contact.
Assault requires an intent to cause a harmful or offensive contact. |
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Term
| Misdemeanor Manslaughter Rule |
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Definition
| Applies when the underlying misdemeanor is a malum in se offense. |
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Term
| When can threat of deadly force be used |
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Definition
| The necessity defense gives a defendant a privilege to threaten or even use force if the defendant reasonably believed it was necessary to avoid a greater harm. |
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Term
Contracts
Substantial Performance |
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Definition
A party's complete performance under the contract will be excused if the party has substantially performed.
A party will be deemed to have substantially performed so long as his breach is minor.
Although the party is excused from fully performing, the other party may be entitled to recover for any damages incurred due to the minor breach.
Generally not applicable to sale of goods. UCC follows perfect tender rule.
Perfect tender rule provides that "if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may reject the whole, accept the whole, or accept part and reject part. |
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Term
| Privileges or Immunities clause Prevents states from doing what? |
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Definition
From discriminating against nonresidents with respect to fundamental rights or essential activities.
However, it may discriminate against nonresidents in the provision of benefits that do not implicate fundamental rights.
The Supreme Court has never held that college education is a fundamental right. |
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Term
Contract
Concurrent Conditions |
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Definition
Are those that are mutually dependent and are to be performed at the same time.
Any contract for the sale of real property contains concurrent conditions, in that each party's performance is conditioned upon the other party's performance, and both conditions can occur at the same time.
If one party breaches the agreement, the aggrieved party, prior to filling a breach of contract action, must show that he did perform or was prepared to perform his contractual duties. |
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Term
| When will an express assumption of risk in a disclaimer clause be valid? |
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Definition
When three criteria are met:
The plaintiff is aware of the terms;
The injury which occurs is within the risks of which the plaintiff agreed to relieve the defendant;
The disclaimer is not contrary to public policy.
A disclaimer is contrary to public policy when it is actually involuntary because the service is a critical need and the plaintiff has no other effective option. |
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Term
| Level of scrutiny applied to classifications based on race or national origin |
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Definition
Strict Scrutiny.
Laws or state policies that make distinction based on race or national origin will be presumptively invalid, and the state has the burden of showing state that the measure is necessary to a compelling interest.
Although race or ethnic origin may be a consideration in admissions quotas are disfavored and will almost always be struck down as not being necessary to promote racial equality or educational diversity |
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Term
| When will past crimes or other wrongful acts be admitted as circumstantial proof of an element of the charged crime? |
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Definition
MIMIC
Motive, intent, absence of mistae identity or commmon scheme or plan.
In a jury trial, the judge must carefuly consider whether the risk of undue prejudice substantially outweights the probative value of the past crimes or wrongful conduct evidence. |
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Term
| Marital Communication privilege |
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Definition
In any civil or criminal case, either spouse, whether or not a party has a privilege to refuse to disclose, and to prevent another from disclosing a confidential communication made between the spouses while they were husband and wife.
The marital privilege protects only communications made during a valid marriage, not before; however, upon divorce, the marital privilege endures as to those communications that were made during the marriage. |
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Term
| Unknown trespassers and Vicious watchdogs |
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Definition
| Most jursidictions do not impose any liability for injuries inflicted on unkown trespassers by defendant's animals while plaintiff is on defendant's land, even animals with known dangerous propensities. However, a defendant is strictly liable even to unknown tresspassers for injuries inflicted by vicious watchdogs. |
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Term
| Allergy and Adverse reaction Product warning liability |
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Definition
Whether absence of a warning of allergic or other adverse reactions is a dangerous defect depends upon the severity of the potential reaction and the number of people expected to be affected.
A small number of reactions justify a warning if the adverse reaction threatens death or serious illness.
A mild reaction might require a warning if a substantial number of people likely will experience it. |
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Term
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Definition
Occurs when a defendant tells a victim
a lie of;
past or present fact, which is;
relied on by the victim and;
title to property passes to the defendant; and
the defendant has intent to defraud the victim. |
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Term
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Definition
Where a witness has made a previous out-of-court identification of a person after perceiving that person, the prior identification statement is not hearsay, even though offered to prove the truth of the matter asserted. The prior identification statement will be admissible as substantive evidence.
However, the admission of a prior identification is permitted only where the declarant is avaialable to testify at the trial and will be subject to cross examination. |
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Term
| Defamation between private plaintiffs and defendants |
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Definition
| When a private plaintiff sues a private defendant for defamation regarding a matter of purely private concern, the plaintiff need only show negligence with regard to the turth of falsity of the statement. |
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Term
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Definition
Specific intent to commit a crime
and an over act that is a substantial step in furtherance of the intent |
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Term
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Definition
| Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. |
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Term
| Standard measure of damages recoverable by a seller of goods |
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Definition
The difference between the unpaid contract price and the market price at the time and place of tender, plus incidental expenses and less any expenses saved as the result of the breach.
Where the standard measure is inadequate to put the seller in as good a position as performance, as where the breach results in lost volume that is not replaced by resale, the measure of damages is lost profits including reasonable overhead plus incidental damages and cost incurred. |
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Term
Evidence
Party's failure to respond to a provocative accusation will be considered an admission when: |
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Definition
The party against whom the evidence is offered heard, understood and was capable of responding to the statement; and
a reasonable person in the party's position would have responded. |
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Term
Evidence
Declaration against interest |
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Definition
| Requires that the declarant be unavailable at trial, that the declaration was contrary to the declarant's pecuniary proprietary or penal interest or tended to subject the declarant to liability when it was made, and that a reasonable person in the declarant's position would not have made the declaration if it was not true |
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Term
| Testamentary gifts and the Rule Against perpetuities |
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Definition
| The rule against perpetuities provides that a gift must vest or fail within 21 years after a life in being at the time the gift was created. |
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Term
Property
A seller is entitled to rely upon the proceeds of sale to retire an outstanding encumbrance which would otherwise render the title unmarketable so long as: |
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Definition
The proceeds of sale are clearly sufficient to discharge the relvant debt and
The debt is discharged simultaneously to the transfer of the land. |
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Term
| Doctrine of impossibility |
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Definition
Excuses both parties from their obligations under a contract if the performance has been rendered impossible by evens occuring after the contract was formed.
The impossibility must be objective.
Objective impossibility occurs when the performance under the contract becomes literally impossible because of circumstances beyond the control of the parties.
Where the contract performance involves particular goodds, a building or structure, or any other tangible item, the destruction of which occurs without the fault of either party, then the contract is discharged. |
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Term
Property
Effective Conveyance of title |
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Definition
For a conveyance to be effective, the deed must be delivered to the donee.
A physical transfer of the deed is neither necessary nor sufficient.
An effective delivery of a deed requires that the grantor intend to deliver the deed. |
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Term
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Definition
A deed in which a grantor explicitly makes one or more assurances or covenants to the grantee regarding the quality of the title of the property conveyed.
A general warranty deed contains five different covenenats of title including
the covenant of seisin,
the covenant of right to convey,
the covenant against encumbrances,
the covenant of quiet enjoyment
and the covenant of further assurances
The first first three of these covenants are considered present covenants in that they are violated if at all at the moment the grantor delivers the deed to the grantee.
The remedy for this breach of covenants of title is recovery damages. |
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Term
| Damages for a breach of a time is of the essence contract |
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Definition
When parties to an agreement for the sale of goods specify a delivery date for the goods and declare that time is of the essence, the buyer will be entitled to recover damages resulting from the seller's failure to timely deliver the goods.
Where such a breach occurs, the buyer may recover the consequential damages that reasonably flow from the breach, which include lost profits (but not punitive damages). |
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Term
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Definition
| Federal courts have jurisdiction only over cases or controversies, and are prohibited from rendering advisory opinions. Article III Limits federal court jurisdiction to cases and |
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Term
| Intentional Interference with Contractual Relations |
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Definition
Prima facie cause of action includes the following elements:
existence of a contractual relationship or beneficial business relationship between two parties;
knowledge of that relationship by a third party;
intent of the third party to induce a party to the relationship to breach the relationship;
lack of any privilege on the part of the third party to induce such a breach; and
damage to the plaintiff. |
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Term
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Definition
| A protected property interest that cannot be taken away without procedural due process. |
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Term
| Supreme Court Original Jurisdiction |
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Definition
Article 3 section 2 provides that the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers, and those in which a state is a party.
SCOTUS held in Marbury v. Madison that congress may not diminish or increase the Supreme Court's original jurisdiction. |
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Term
| Establishment clause of the First Amendment |
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Definition
| Prohibits government conduct that has primary religious purpose and a primary effect that either advances or inhibits religion or would foster excessive government entanglement with religion. |
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Term
| Doctrine of continuing trespass |
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Definition
One who takes another's property intending only to use it temporarily before restoring it unconditionally to its owner may nevertheless be guilty of larceny.
If the initial taking was wrongful, the trespass is said to continue until the time the intent to steal is formed.
The intent element will be satisfied where a defendant intends, when taking the property to recklessly use it temporarily, and then abandon it, hoping someone will return it to the victim, even if the property somehow does return to the victim. |
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Term
| When will evidence of a person's character be relevant and admissible in any form? |
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Definition
| FRE 405 holds that when the character of a person is a substantive issue in litigation, evidence of his character is directly relevant and is admissible in any form: reputation, opinion, or specific instances of conduct. |
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Term
| Business Record Exception |
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Definition
| FRE 803(6), a report, record or data compilation is admissible if made at or near the time it occurred by a person with knowledge, if it was regular practice to keep the record in the course of a regularly conducted business activity. |
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Term
| When is former testimony admissible? |
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Definition
FRE 804(b)(1) former testimony is admissible where the former witness is unavailable in the present proceeding, and the party against whom the former testimony is offered had an opportunity to develop the former testimony and a similar motive to develop the former testimony.
Former testimony may be offered against a party who was not a party to the prior litigation if the former testimony was offered against a predecessor in interest of the present party, as in situations where a legatee follows a testator, a buyer follows a seller, or an estate representative follows a decedent. |
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Term
| What damages may a buyer recover from a seller's breach |
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Definition
| An aggrieved buyer may recover incidental damages resulting from a seller's breach, as well as consequential damages from the buyer's general or particular needs about which the seller had reason to know. |
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Term
| Satisfying the Statute of Frauds under the UCC |
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Definition
Statute of Frauds may be satisfied when two merchants enter an oral agreement for the purchase and sale of goods and one party then sends the other a written confirmation of the agreement.
In such a circumstance, the statute is satisfied against the recipient merchant if the latter fails to object to the confirmation in a timely fashion.
Under the UCC, a valid merchant's confirmation requires a writing that is:
Sufficient against the sender;
in conformation of the contract;
is sent within a reasonable time of the making of the oral agreement; and
the contents of which the receiving merchant has reason to know. |
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Term
| Powers reserved to the states under the 10th Amendment |
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Definition
The power to regulate for the general health, safety and welfare of state citizens is reserved to the states under the Tenth amendment.
A state regulation exercised under the police power is valid provided that the regulation is not pre-empted by a valid federal law in conflict with it, does not exceed the bounds of state power over interstate commerce, and does not violate individual constitutional rights protected by the constitution. |
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Term
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Definition
Article 1 of the USC provides Congress with the power to lay and collect taxes, duties, imposts, and excises, to pay the debt and provide for the common defense and general welfare of the country.
A congressional act purporting to be a tax should be upheld as a valid exercise of the taxing power, provided that it does, in fact, raise revenue or that it was intended to raise revenue.
A tax can also be used as a regulating device rather than for revenue-raising purposes if Congress has the power to regulate the activity taxed. |
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Term
| Termination of an easement by abandonment |
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Definition
There are two elements which result in termination of an easement by abandonment:
non-use of the easement and
some act which is evidence of an intent to abandon.
Non-use does not result in termination of an easement. |
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Term
| Exception to the rule that taxpayers generally don't have standing to challenge a federal spending program because the injury is deemed too remote. |
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Definition
When the congressional spending violates some specific constitutional limitation on the spending power, a federal taxpayer has standing to challenge the unconstitutional expenditure.
The only specific limit on the federal spending power the SCOTUS has recognized is the establishment clause of the First Amendment. |
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Term
| When can the government punish speech that is directed toward and likely to incite imminent lawless action? |
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Definition
| When there is an indication that the threat would be carried out by the speaker or his onlookers. |
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Term
| Remedies available for a sellers breach of a purchase agreement |
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Definition
| Expectation damages, reliance damages, consequential damages, and/or restitution. |
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Term
| When is a mortgagor allowed to do with mortgaged property? |
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Definition
A mortgagor is permitted to do such acts on the mortgaged property that are considered usual and proper, including remodeling structures and removing fixtures in a reasonable manner.
An injunction will not be granted for the removal of fixtures as long as there remains adequate security for the mortgagee.
Most courts follow the rulethat the threatened waste by the mortgagor will not be enjoined unless the injury to the land would bring the value of the security dangerously close to inadequacy or the danger zone. |
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Term
| Procedure for using a document to refresh a witnesses recollection |
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Definition
Before testifying the document must be admitted into evidence if the attorney for the other side wants the trier of fact to see the document to compare it with the testimony.
The reason for this is to allow the jury to evaluate whether the witness is just reiterating the contents of the document or is testifying from memory of the events.
This may be helpful to the jury to evaluating credibility and deciding how much weight to give the testimony. |
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Term
| Standard of scrutiny applied to discrimination between economic groups |
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Definition
Rational basis.
Irrational laws will be struck down. |
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Term
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Definition
allows police to search a vehicle when the police have probable cause to believe that automobile contains contraband or evidence of ac rime.
However, the police may only search those areas of the vehicle that may contain the object of the earch.
Police may also open any closed containers in the vehicle where the item may be found. |
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Term
| Statute of frauds requirements for sale of real property |
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Definition
Must be in writing in order to be enforceable.
An oral contract for the purchase of real property is enforceable only where there has been at least partial performance of the contract or circumstances justifying an assertion of promissory or equitable estoppel. |
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Term
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Definition
| Exists where the suit is brought between citizens of different states. |
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Term
| 14th amendment equal protection clause requirement for discrimination against non-citizens |
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Definition
As a general rule, be subject to strict scrutiny.
Burden is on the state or local government to show that the discrimination is necessary to advance a compelling government interest. |
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Term
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Definition
| prohibits the government from imposing any burden on or granting any benefit to people because of their religious beliefs. |
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Term
| Receiving stolen property |
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Definition
receiving possession and control of stolen property, known to have been stolen by another person, with the intent to permanently deprive the owner of his interest in the property.
To be guilty the accused must have had specific intent to permanently deprive the owner of his property when he takes control of the property. |
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Term
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Definition
| a larceny from the victim's person or presence by force or threat of force. |
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Term
| Attorney-Client privilege |
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Definition
any person who engages in a confidential communication with an attorney for the purpose of seeking legal advice or representation has a privlege that allows that person to prevent anyone from testifying about the confidential communication.
The privilege exists until it is waived, and the privilege even extends beyond the life of the client.
While the client is the holder of the privilege, absent waiver by the client, the attorney must assert the privilege to protect the client.
If the client is a corporation, the privilege extends to confidential communications by officers or employees of the corporation if they were authorized or requested by the corporation to make the communication. |
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Term
| FRE 801(d1)(C) out of court identification |
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Definition
where a witness has made a previous out-of-court identification of a person after perceiving that person, the prior identification statement is not hearsay (even though offered to prove the truth of the matter asserted).
Prior identification statement will be admissible evidence.
The declarant must testify at the trial and be subject to cross-examination.
On an essay discuss the difference between steps taken to disguise one's appearance and those that just occur.
Remember to talk about motivations of the parties, as that can lead to consciousness of guilt arguments. |
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Term
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Definition
| party seeking to be excused must show that because of events that neither party anticipated at the time the contract was executed, performance has become so commercially unreasonable that performance is impractical. |
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Term
| When does transfer of intent apply (in tort) |
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Definition
| assault, battery, false imprisonment and trespass to land or to chattels. |
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Term
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Definition
When a defendant violates a criminal statute that violation may be considered negligence per se or may raise a rebuttable inference of negligence if all of the following conditions are met:
the injury caused by the defendant's violation is the type which the statute was intended to prevent;
the plaintiff is a member of the class intended to be protected; and
the defendant's violation is not excused. |
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Term
| Thin skulled plaintiff rule |
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Definition
| if the type of injury is foreseeable, the defendant is liable even if the extent of the injury is not foreseeable. |
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Term
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Definition
intentionally dispossessing another of the chattel or by using or intermeddling with a chattel in the possession of another.
A plaintiff must generally prove damages in the actual amount caused by the tortious conduct, or in the case of dispossession, by the loss of use |
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Term
| intentional infliction of emotional distress |
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Definition
| inteintional act amounting to extreme and outrageous conduct that causes plaintiff servere mental distress. |
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Term
| Testimonial evidence is admissible when |
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Definition
the declarant is unavailable; and
the defendant had a prior opportunity to cross-examine the declarant.
Actual cross-examination is not required, but the opportunity to do so, such as at a deposition, is required. |
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Term
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Definition
| tangible material or its intangible equivalent that is collected or prepared in anticipation of litigation is not discoverable, unless the party seeking discovery can demonstrate that the soucght facts can be obtained only through discovery and that those facts are indispensable for impeaching or substantiating a claim. |
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Term
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Definition
in order to prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph is required, subject to exceptions.
Not required and other evidence of its content is admissible if the original is unavailable because:
it has been lost or destroyed (absent loss or destruction by the proponent acting in bad faith);
it cannot be obtained by any available judicial process or procedure; or
it was in the possession of the party against whom offered, and who has notified (by the pleadings or otherwise) at the time of his possession that the original would be required at the hearing, and he did not produce it. |
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Term
| What is retained with a fee simple determinable |
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Definition
| The grantor retains a possibility of reverter |
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Term
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Definition
| applies to use of property that precede the life tenant's acquisition of the interest and to uses that are expressly authorized by the grantor or are necessary to maintain the property. |
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Term
| When will a defendant manufacturer be relieved of strict products liability? |
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Definition
If an intermediate handler of the product discovers the defect and knowingly passes it on to the stream of commerce to the plaintiff, having taken no action to prevent the plaintiff's injury.
The intermediate handler's wrongdoing shifts the responsibility to itself from the defendant. |
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Term
| Covenant that runs with the land |
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Definition
A promise that attaches to the land.
The elements are:
writing;
intent;
privity;
touch and concern; and
notice
Condominium common charges are a good example of a covenant that runs with the land. |
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Term
| FRE on Sentencing Hearings |
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Definition
DO NOT APPLY
For purposes of sentencing hearings, the judge may consider hearsay and other evidence that would not be admissible at trial. |
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Term
| attorney-client confidentiality |
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Definition
Attorney-client privilege allows a client to refuse to disclose confidential communications made for the purpose of facilitating legal service.
The privilege applies to communications between the atorney and the client.
A communication is confidential if it is not intended to be disclosed to third parties.
Circumstances must indicate the communication is confidential. |
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Term
| Scrutiny applied to distinctions between legitimate and illegitimate standard |
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Definition
Quasi-Suspect / intermediate
Such classifications require the state to prove an important government interest.
Evidentiary proof is not an important government interest to deprive illegitimate children of rights that are available to legitimate children. |
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Term
| Purpose of Expectations Damages |
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Definition
| put the non-breaching party in the position she would have been in if the breaching party had performed. |
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Term
| Terminating an easement by selling the servient estate |
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Definition
| When the servient estate is sold to one who pays value and takes without notice of the existence of an easement, the easement is terminated. |
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Term
| Mailbox rule and firm offers |
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Definition
Any offer that contains the offeror's promise to hold an offer open for a stated period of time cannot be revoked if it is supported by consideration.
Under the majority view, in order to exercise an option, the offeree must give notice of acceptance to the offeror within the time optioned.
Thus, the mailbox rule would not apply if the offeror would not receive notice before the time period runs out. |
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Term
| UCC Implied warranty of merchantability |
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Definition
Whenever the seller is a merchant, the UCC adds an implied warranty of merchantibility unless it is specifically excluded.
This is a warranty that the goods are fit for their ordinary purposes. |
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Term
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Definition
Are those that are mutually dependent and are to be performed at the same time.
Any contract for the sale of real property contains concurrent conditions, in that each party's performance is conditioned upon the other party's performance, and conditions can occur at the same time.
If one party breaches the agreement, the aggrieved party, prior to filing a breach of contract action, must show that he did perform or was prepared to perform his contractual duties. |
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Term
| Congress's power over SCOTUS's appellate jurisdiction |
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Definition
Article III of the constitution empowers congress to limit the appellate jurisdiction of the US Supreme Court.
Pursuant to this power, Congress may expand or restrict the number and types of lower court decisions which the court may hear. |
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Term
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Definition
First amendment provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
Where a law or government program prefers one religion or one religious sect over others, strict scrutiny analysis will be applied.
However, where a law or government program contains no religious or sectarian preference, courts follow the three part lemon test as follows:
The statute must have a secular purpose;
the principal or primary effect must neither advance nor inhibit religion; and
the statute must not foster excessive government entanglement with religion. |
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Term
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Definition
an unintentional killing proximately caused during the commission or attempted commission of any of several named serious or inherently dangerous felonies.
Unless a defendant is guilty of the independent underlying felony, he cannot be convicted of felony murder. |
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Term
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Definition
requires that the defendant obtain title to property from the victim based upon misrepresentation (which the defendant knows is false) and the defendant intend to permanently deprive the victim of the property.
The victim must rely upon the false representation in transferring title - the false representation must be a substantial factor in causing the victim to act.
Some jurisdictions used to apply a rule that if the victim's belief was unreasonable, that is, if the victim was particularly gullible or was negligent in believing the false representation, there was no reliance.
Modernly, this defense is universally rejected. |
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Term
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Definition
A fact whose existence can be inferred from the existence of a basic fact.
In criminal trials, the application of evidentiary presumptions raises constituitonal issues.
FRE does not address the use of presumptions in criminal trials, the rules covering the use of presumptions in criminal trials come from federal case law.
In a criminal context,a presumption is referred to ask permissive if the jury is instructed that it may infer a presumed fact from the existence of a basic fact.
There are also mandatory presumptions requirnig the presumed facts be inferred.
Use of a mandatory presumption in a criminal will be found unconstitutional because every element of a crime charged must be proved beyond a reaosnable doubt to convict a criminal defendant.
Presumptions used in a criminal trial should be interpreted as having the effect of a permissive presumption. |
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Term
| Catchall Exception to hearsay |
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Definition
| evidence that might otherwise be excluded as hearsay can be admitted if the evidence is material, trustworthy, more probative than other available evidence, and serves the interests of justice. |
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Term
| Statement against penal interest |
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Definition
| If a declarant makes a statement against his penal interest and is unavailable for trial, the statement will qualify as a declaration against interest and will be admitted as an exception to the hearsay rule. |
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Term
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Definition
promises that could not be enforced as covenants at law because of a lack of vertical or horizontal privity were enforced by the courts of equity.
Can be enforced by a successor to the original parties without consideration of privity; so long as the servitude touches and concerns the land, was intended by the parties to bind successors, and the party burdened had notice of the servitude, it can be enforced against him.
An equitable servitude touches and concerns the land if it decreases the use and enjoyment of the servient estate, and increases the dominat estate holder's use and enjoyment of her land. |
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Term
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Definition
Whether a chattel annexed to leased premises becomes a fixture, and thus a party of the real property which the tenant may not remove, is termined by the intentions of the parties as revealed by the circumstances.
In practical effect, the intentions of the parties are found by application of the following four factors:
Are the chattels firmly embedded or connected to the soil or some-preexisting structure;
Are the chattels peculiarly adapted or fitted to the particular premises?
Would removal of the chattels largely destroy the chattels or damage the premises?
Did the person who annexed the chattels have a substantial and permanent interest in the land?
To the extent that each question is answered yes, the disputed chattels are fixtures. |
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Term
|
Definition
| A purchaser is charged with inquiry notice of any prior claims to the property if he is aware f facts or circumstances that would lead a reasonable person to inquire further. |
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Term
| Doctrine of impossibility |
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Definition
| Where an event occurs that is not foreseen, and it is not possible for parties to perform their duties under a contract, their contractual responsibilities are discharged under the doctrine of impossibility. |
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Term
| When is a commercial bailee liable for negligence |
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Definition
If a reasonable storage facility operator would have contacted the police based upon the thief's odd behavior.
A commercial bailee is not liable for conversion if he returns the chattel to his bailor without knowledge of any other claims to the property.
This rule is necessary to make commercial bailment business possible.
If the bailee was potentially liable for conversion every time he returned a chattel to the party who had placed it with him, the investigation burdens on bailees would make the business economically impossible. |
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Term
|
Definition
States have power to regulate interstate commerce provided that the regulation:
is not preempted b existing federal regulation;
does not discriminate against interstate commerce; and
does not impose an undue burden on interstate commerce.
Not all discriminatory or burdensome regulation is prohibited by Congress.
A state may discriminate if Congress authorizes the discrimination or if the state shows a legitimate local purpose and the unavailability of nondiscriminatory alternatives.
A state may unduly burden interstate commerce provided that on balance, the burden imposed is outweighed by the local interest advanced.
The court will also examine whether there exist less restrictive alternatives that would satisfy the local interest. |
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Term
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Definition
| A product manufactured in a form other than the manufacturer intended contains a manufacturing flaw. |
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Term
|
Definition
Generally, a promise to answer for the debt of a third party - a suretyship, or guarantor agreement - is subject to the statute of frauds.
However, under the main purpose rule, if the main purpose of the guarantor's promise is to protect or promote his own economic interests, rather than the interest of the debtor, the agreement is not within the statute of frauds and no signed writing is required.
The mere presence of a selfish interest is not sufficient - it must be central to the promise. |
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Term
| Interference with prospective advantage |
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Definition
protects the probable expectancy interests of future contractual relations of a party, such as the prospect of obtaining employment or the opportunity to obtain customers.
Modern decisions have expanded this tort action to protect such non-commercial expectancies as interference with an expected gift or legacy under a will. |
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Term
|
Definition
out of court statement offered to prove the truth of the matter asserted.
Where an out of court statement offered for its truth contains another out of court statement must be examined separtely to determine whether a hearsay exemption applies. |
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Term
| Parent liability for intentional torts of a child |
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Definition
| A parent has a duty to exercise reasonable care to control a child to prevent the child from intentionally harming another person or from creating an unreasonable risk of harm to another person when the parent knows or has reason to know she has the ability to control the child and knows or should know of the necessity and opportunity to exercise control over the child. |
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Term
| Can congress prevent aliens from becoming lawyers |
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Definition
| No. Congress possesses greater power to discriminate against aliens than state governments do, but the supreme court has struck down laws prohibiting legal resident aliens from becoming lawyers. |
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Term
| Creation of a death escrow |
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Definition
It is valid for a grantor to create a death escrow by giving a deed to a third party with directions to deliver the deed when the grantor dies.
However, by reserving the right to reclaim the deed, Grantor makes the delivery ineffective and there is no transfer. |
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Term
| Right to counsel in a misdemeanor |
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Definition
applies when a sentence of incarceration is actually imposed.
Absent waiver, a defendant may not be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel.
A fine may be constitutionally imposed on the defendant even if denied the right to be represented by counsel.
The rule only applies to misdemeanor cases where a sentence of incarceration is actually imposed.
It does not have any impact on any fine imposed by the court. |
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Term
Depraved-heart murder.
What degree is it? |
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Definition
in most states, murder is divided into two degrees for the purpose of imposing a more severe penalty for some murders than for others.
First-degree murders includes intent-to-kill murder accompanied by premeditation, deliberation, and murder in the commission of any of several named serious or inherently dangerous felonies (BARRK).
Murder not falling within any of the first degree murder categories is considered second-degree murder.
Depraved-heart murder best fits as second-degree.
Depraved heart murder is defined as an unintentional killing resulting from conduct involving a wanton indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury, absent any defense negating the defendant's awareness of the risk.
Unlike involuntary manslaughter, depraved-heart murder involves extremely negligent conduct (or recklessness) that is of a higher degree than gross or criminal negligence (the standard for involuntary manslaughter). |
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Term
|
Definition
an unintentional killing proximately caused during the commission or attempted commission of a serious or inherently dangerous felony (BARRK).
Majority of states classify an unintentional killing done during a felony that is committed in a dangerous manner a felony murder as well. |
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Term
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Definition
| False making of the material altering of a ducment with the intent to defraud. |
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Term
|
Definition
the intentional taking and carrying away of personal property in the possession of another without consent with intent to deprive the person of his interest in the property.
To be guilty of larceny for lost or mislaid property, the finder must intend to steal the property, and second the finder must either know who the owner is or have reason to believe (from markings on the property or from circumstances of the finding) that she can find out the owner's property. |
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Term
|
Definition
Occurs when a person who is in lawful possession of personal property of another fraudulently converts the property to the person's own use.
The crime of embezzlement is distinguished from the crime of larceny by the requirement that the defendant have lawful possession of the property at the time that he or she develops the intent to steal. |
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Term
|
Definition
the malicious burning of the dwelling house of another.
It is a malice crime, for which a defendant is considered to act maliciously if he acts with intent to burn the structure or reckless disregard of a high risk that the structure will burn.
To act with reckless disregard, a defendant must be aware of the risk inherent in his conduct. |
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Term
|
Definition
Breaking and entering into the dwelling house of another at night with then intent to commit a felony therein.
Breaking can be achieved by an actual breaking, involving use of force or by the creation or enlarging of an opening, however, entering through an open door or a partially open window is insufficient.
The element of a breaking can be satisfied where a defendant's initial entry is achieved through an open door, so long as the defendant later opens an inside door, such as a closet, with the intent to steal. |
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Term
|
Definition
Committed when a defendant
intending to permanently deprive the victem of property,
fraudulently induces the victim to deliver possession, and
then the property is converted to defendant's own use.
The taking occurs when the defendant formulates the intent to permanently deprive.
Thus, if the defendant intended to steal the property at the time time he induced the victim to transfer possession, the crime of larceny by trick is complete when the defendant carries it away. |
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Term
|
Definition
Where an employee receives property from a third party on behalf of her employer, the employee is generally considered to have received possession (as opposed to custody) of the property, except where the transaction is to be completed in the victim's presence or the property is place in a receptacle.
Thus, if the employee converts the property to her own use, she is guity of embezzlement.
Her initial possession is rightful, so there is not trespassory taking to support a larceny. |
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Term
| Sixth Amendment and adverse co-defendants |
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Definition
Sixth amendment guarantees a defendant the right to confront the witnesses against him.
If two defendants are tried together and one defendant gives a confession that implicates the other, the confession may not be admitted into evidence if the confessing defendant has not subjected himself to cross examination. |
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Term
|
Definition
may be used as a justification to criminal behavior when reasonable force is applied to avoid imminent injry resulting from natural forces or when a person reasonably believe that her criminal conduct is necessary to avoid a greater harm that would result from compliance with the law.
The necessity justification, however, cannot be used when the defendant is at fault in creating the perilous situation. |
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|
Term
Accomplice Liability
Accessory before the fact |
|
Definition
accomplice liability can create full liability for a crime that is physically committed by another.
Accessory before the fact applies to a person who aids, abets, counsels, or otherwise encourages the commission of a felony, but who is not present at the scene of the crime durings the commission of the crime.
Such a person is guilty and can be convicted and punished the same as a principal in the first degree. |
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Term
|
Definition
Purpose of the miranda requirements is to protect the due process rights of people accused or suspected of crimes.
In other words, miranda tries to protect people from feeling like they have to talk to ppolice in certain situations.
SCOTUS held that miranda is not triggered when an inmated believes he is talking to another inmate.
in that situation the defendant does not need the miranda warning because he doesn't even know he is talking to an officer and can therefore not feel that he has no choice but to tlak because of the officer's position of authority. |
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Term
| Burden of proof for sanity |
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Definition
| Preponderance of the evidence. |
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Term
| 6th amendment and the post charge line-up |
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Definition
Requires presence of defense counsel during the entire identification procedure.
SCOTUS has held that a post charge line-up is a critical statein the proceedings, and under the sixth amendment the defendant has an absolute right to have counsel present during the entire line-up procedure.
Counsel has the right to determine if the line-up is unduly suggestive or otherwise unfair and/or in violation of due process. |
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Term
| Self-Defense murder justification |
|
Definition
If a person has a reasonable belief that he is inimminent danger of unlawful bodily harm, he may, in self-defense, use a sufficient amount of force that is reasonably necessary to prevent such harm, unless he is the aggressor.
Deadly force is that which threatens death or serious bodily harm; non-deadly force threatens only bodily harm. |
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Term
|
Definition
| consists of a knowing false representation of a material fact with intent to defraud, which causes the victim to pass title to his property. |
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Term
|
Definition
D must have specific intent to commit the target offense; and
d must perform an act that constitutes a substantial step in the commission or attempted commission of the crime. |
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Term
|
Definition
| Merges with the target felony upon completion of the crime. No requirement of agreement. |
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Term
|
Definition
Larceny +
the taking must be from the person or in the presence of the person,
and the taking must be accomplished by force or violence or by intimidation of the threat of violence.
If the robbery is by threat of violence, the victim must be in actual fear at the time of the taking. |
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Term
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Definition
D can choose to invoke her miranda rights or waive them.
If miranda is invoked, they can be subsequently waived.
An effective waiver includes making unsolicited statements to police. |
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Term
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Definition
one who receives rights to a contract that was formed between two other parties.
Whether a third party beneficiary can enforce those rights depends first on their classification as an intended or incidental third party beneficiary.
An intended beneficiary is one whose benefit is the ajor reason for the contract.
An incidental third-party beneficiary is a third party mentioned in a contract, but the contracting parties had a major reason forthe contract other than benefitin the third party.
An incidental third party beneficiary has no rights in the original contract to enforce.
An intended third-party beneficiary's rights are enforceable once they vest.
Therefore, it does not matter why the original parties made the third party a beneficiary.
Even a donee beneficiary can enforce his rights once they vest.
An intended third-party beneficiary's rights vest once they have notice of and assent to the contract or once they demonstrate reliance on the benefit. |
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Term
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Definition
third parties who are to receive the performance of one of the original parties and who were present at the formation of the contract are third-party beneficiaries.
A third party beneficiary whose rights have vested may enforce the contract in an action against the promisor without joining the promisee. |
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Definition
| assignor must transfer the right assigned completely, but may divide several rights due to him for the obligor and assign one or more of them to one or more assignees. |
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Term
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Definition
delegator remains liable as a surety for the performance of the delegatee.
Thus, if the delegatee breaches the delegator is liable to the original promisee.
The delegator may therefore perform the obligation if the delegatee fails to do so and then seek redress against the defaulting delegatee for breach of the promise to perform. |
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Term
| Assignment of contract rights |
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Definition
General rule is that all contract rights may be assigned.
Includes furture rights in existing contracts.
However, a right expected to arise under a contract that is not then existing may not be assigned.
(according to the second restatement of contracts, a purported assignment of a right expected to arise under a contract not in existence operates only as a promise to assign the right when it arises and as a pwoer to enforce it.)
Thus as against the assignor the assignee has rights only to the extent that contractual remedies are available, as in the case of a promise to make a future assignment.
This is interpreted to mean that if a purported assignment is supported by cosnideration, it iwll be enforceable against the assignor. |
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Term
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Definition
Would nto prevent one of the parties from assigning it.
An assignment remains valid, because a covenant not to assign is held to only pprohibit the rights of the parties to assign.
The assignment is still effective - theparty that assigns has breached the covenant not to assign.
The obligor is still required to perform for the assignee, but the obligor may seek damages. |
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Term
| Who wins when two assignees claim the rights to collect form the obligor |
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Definition
First assignee wins
However, if the second assignee has paid value and took the assignment in good faith, the second assignee will prevail if she has also obtained payment from the obligor, recovered a judgment on the debt, entered into a new contract with the obligor, or received delivery of a tangible token or writing from the assignor that must be surrendered under the obligor's contract. |
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Term
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Definition
For an assignment to be valid the assignor must manifest an intention to make the assignment and it must be for a present transfer, without further action by the assignor or the obligor.
Such is the case here when the bartender told the guest that she would assign her right to payment from the family for her bartending services that day.
Once the assignee relies on the assignment to his detriment, the assignor is estopped from revoking the assignment. |
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| Contracts designed to place limits on the right to dispose of property by will |
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Definition
| Valid so long as they are entered into freely, under full disclosure and supported by adequate consideration. |
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Term
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Definition
Where there has been a delegation of a contract, the delegator remains liable and as a surety for the performance of the delegatee.
Thus, if the delegatee breaches, the delegator is liable to the original promisee.
Delegator may therefore perform the obligation if the delegatee fails to do so and then seek redress against the defaulting delegatee for breaching the promise to perform. |
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Term
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Definition
any statement other than a statement made by the declarant while testifying at the trial or hearing in which the statement is proffered,
which is offered into evidence in order to prove the turth of the matter asserted. |
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Term
| When are business records not admitted as a hearsay exception |
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Definition
| Business records that are prepared in anticipation of litigation do not qualify under the hearsay exception. |
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Term
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Definition
unlawful application of force to the person of another which results in bodily harm or offensive touching.
Unlike tortious battery, which requires specific intent, criminal battery is a general intent crime.
As such, recklessness is sufficient mens rea for culpability. |
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Definition
| larceny perpetrated through the use of fraud or deceit. |
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Definition
| malicious burning of the dwelling house of another. Many states expand the requirement of a dwelling to include any type of structure. |
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Term
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Definition
false writing with apparent legal significance, which means the writing must have purpose of value beyond the document's own existence, such as contract, will, negotiable instrument, deed or mortgage.
Creating a fake document that is valuable only because of its existence, may expose the maker to some other criminal liability, it does not fall within the definition of forgery. |
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Term
| Doctrine of continuing trespass |
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Definition
a person who takes another's property without authorization and intending only to use it temporarlily before restoring it unconditionally to its owner may nevertheless be guilty if D changes her mind and decides not to return the property at all.
As ag eneral rule, the intial taking must be wrongful, and then later intend to keep it. |
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Term
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Definition
case against P must have terminated in a manner indicating P's innocence.
Malicious prosecution is the institution of criminal proceedings by D, done for animporper purpose, without probable cause, whic hterminates favorably to P, and which causes P damages.
The criminal prosecution must have terminated in a fashion indicating P was innocent of the charges.
Termination on the merits is sufficient in this regard; termination based on procedureal or technical defects, prosecutorial discretion, or similar grounds is not.
A mistrial resulting from juror misconduct is a technical defect that does not indicate innocence. |
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Term
Invasion of privacy
intrusion into seclusion |
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Definition
| intrusive conduct that would be highly objectionable to a reasonable person. |
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Term
| Rule against perpetutites |
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Definition
| no interest is good unless it mst vest, if at all, not later than 21 years after some life in being at the creation of the interest. |
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Term
| Bullshit Miranda exception |
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Definition
| If a defendant had not been given Miranda warnings, then the prosecution for impeachment purposes may comment on D's post-arrest silence. |
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