§tudicata
Attack
Outline
Uniform Bar Exam / Multistate Essay Exam
February 2020
§
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Studicata UBE/MEE Attack Outline
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INTRODUCTION
Studicata UBE/MEE Attack Outline
RULE APPEARANCE RATES
Our outline includes an appearance rate (%) for each rule. This percentage represents the percent of prior exams that the featured
rule has appeared on. For example, if a rule has a 2.0% appearance rate, it has appeared on approximately 2.0% of previously
administered MEEs (over the last 20+ years). Rule appearance rates are a main factor in how we determine the priorities in the
following section.
PRIORITY LEGEND
Grey meters represent a fair chance of the rule being tested on the Feb 2020 MEE; blue meters represent a good to very good
chance of the rule being tested on the Feb 2020 MEE; and orange meters represent a substantial to excellent chance of the rule
being tested on the Feb 2020 MEE. While this is handy, ALL rules featured in this outline are notable and none should be neglected.
Fair
Good
Very Good
Substantial
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Excellent
BUSINESS ASSOCIATIONS
Studicata UBE/MEE Attack Outline
TABLE OF CONTENTS
AGENCY AND PARTNERSHIP
I.
AGENCY RELATIONSHIPS ............................................................................................................................. 1
A.
Creation................................................................................................................................................................................1
B.
Termination ..........................................................................................................................................................................1
II. POWER OF AGENT TO BIND PRINCIPAL ...................................................................................................... 1
A.
Authority ..............................................................................................................................................................................1
B.
Inherent Agency Power ........................................................................................................................................................2
III. VICARIOUS LIABILITY OF PRINCIPAL FOR ACTS OF AGENT .......................................................................... 3
A.
Tort Liability of Principal.......................................................................................................................................................3
B.
Contractual Liability of Principal ...........................................................................................................................................4
IV. FIDUCIARY DUTIES BETWEEN PRINCIPAL AND AGENT ................................................................................ 4
A.
Duty of Care, Loyalty, and Obedience ...................................................................................................................................4
V. CREATION OF PARTNERSHIPS ..................................................................................................................... 4
A.
General Partnerships ............................................................................................................................................................4
B.
Limited Partnerships.............................................................................................................................................................5
C.
Limited Liability Partnerships ...............................................................................................................................................5
VI. POWER AND LIABILITY OF PARTNERS ......................................................................................................... 6
A.
Tort Liability .........................................................................................................................................................................6
B.
Contract Liability ..................................................................................................................................................................6
C.
Transferability and Dissolution .............................................................................................................................................7
VII. RIGHTS OF PARTNERS AMONG THEMSELVES ............................................................................................. 7
A.
Management and Control.....................................................................................................................................................7
B.
Profits and Losses .................................................................................................................................................................8
C.
Duty of Care and Loyalty.......................................................................................................................................................8
VIII. DISSOLUTION ............................................................................................................................................. 9
A.
Distinguished from Winding Up and Termination .................................................................................................................9
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Agency and Partnership
NOTE: The MEE classifies Agency and Partnership as one subject. Essay questions may contain agency or partnership issues, or
elements of both. Be prepared to identify agency issues that may appear as sub-parts of questions testing other subjects.
I.
Agency Relationships
A.
Creation
1.
B.
Creation of Agency
a)
Agency is the fiduciary relationship that exists between an agent and principal where
the agent acts on the principal’s behalf and is subject to the principal’s control.
b)
An agency relationship is created when:
(1)
The parties voluntarily consent (express or implied) to enter into an agency
relationship; AND
(2)
The agent is subject to the principal’s control (e.g., supervision is sufficient – the
amount of control may be limited).
Termination
1.
Termination of Agency
a)
6.1% Appearance Rate
-
The agency relationship may be terminated by the parties or by operation of law.
(1)
(2)
II.
8.2% Appearance Rate
-
The agency relationship may be terminated by the parties if:
(a)
The agent or principal manifests to the other the desire to cease the
agency relationship (termination is effective when the other party
receives notice of the termination);
(b)
The express terms of the agency expire (e.g., principal expressly hires
agent for 6 months); OR
(c)
The purpose of the agency relationship is fulfilled.
The agency relationship may be terminated by operation of law if:
(a)
The agent or principal dies (some jurisdictions require that the party
receive notice of the other’s death);
(b)
The agent or principal loses capacity (some jurisdictions require that the
party receive notice of the other’s incapacity); OR
(c)
The agent materially breaches a fiduciary duty owed to the principal.
Power of Agent to Bind Principal
A.
Authority
1.
Authority of Agent to Bind Principal
a)
24.5% Appearance Rate
-
An agent may bind a principal to a contract if the agent is acting within his actual or
apparent authority, or inherent agency power. Once a principal is validly bound to a
contract by his agent, the principal is liable under the terms of the contract.
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2.
3.
Actual Authority
a)
An agent acts with actual authority when, at the time of taking action that has legal
consequences for the principal, the agent reasonably believes, in accordance with the
principal’s manifestations to the agent, that the principal wishes him (the agent) to act.
b)
Actual authority can be express or implied:
(1)
Actual express authority exists when the principal directs the agent to engage
in the precise task in question.
(2)
Actual implied authority exists when the agent believes, based on a reasonable
interpretation of the principal’s words or conduct, that the principal wishes him
(the agent) to act on the principal’s behalf.
(a)
Incidental authority. The agent’s authority to conduct a transaction
includes the authority to engage in actions that are incidental to it,
usually accompany it, or are reasonably necessary to accomplish it.
(b)
For Example: Principal tells Agent, “Sell my car.” Agent has the
authority to take actions that are reasonably necessary to sell the car
(e.g., placing advertisements in the newspaper, listing the car for sale on
auto trader websites, etc.).
Apparent Authority
a)
b)
B.
10.2% Appearance Rate
-
24.5% Appearance Rate
-
An agent acts with apparent authority when:
(1)
The principal holds the agent out as having authority to act on the principal’s
behalf; AND
(2)
The principal’s conduct, when reasonably interpreted, causes a third party to
rely on the agent’s appearance of authority when dealing with the agent.
Apparent authority does NOT exist if the third party has knowledge that the agent does
not have actual authority.
Inherent Agency Power
1.
Inherent Agency Power
a)
6.1% Appearance Rate
-
Pursuant to equitable considerations, the inherent agency power allows courts to hold
a principal liable for damages to third parties even when the principal’s agent acted
WITHOUT actual or apparent authority. Courts apply the inherent agency power when:
(1)
An agency relationship exists; AND
(2)
The totality of the circumstances weighs against forcing the third party to
absorb all of the damages.
b)
Undisclosed Principals. Courts commonly apply the inherent agency power to hold a
principal liable for his agent’s unauthorized actions when the principal is undisclosed to
the third party so long as the totality of the circumstances weighs against forcing the
third party to absorb the damages.
c)
NOTE. An agent for an undisclosed principal CANNOT have apparent authority because
the principal cannot hold the agent out as having authority to a third party if the third
party is unaware of the principal.
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III.
Vicarious Liability of Principal for Acts of Agent
A.
Tort Liability of Principal
1.
Respondeat Superior
a)
Under the doctrine of respondeat superior, an employer (principal) may be liable for
torts committed by an employee (agent) if:
(1)
An employer-employee relationship exists (NOT an independent contractor
relationship); AND
(a)
(2)
In determining whether an employer-employee relationship exists, the
most important consideration is the extent of control that the principal
exercises over the details of the agent’s work (the more control the
principal exercises over the agent, the higher the likelihood that the
agent will be considered an employee as opposed to an independent
contractor).
The employee’s commission of the tort occurs within the scope of employment.
(a)
2.
25.0% Appearance Rate
-
Activity is within the scope of employment when the employee’s
conduct is of the same general nature as that authorized, or incidental
to the conduct authorized by the employer. In making this
determination, courts examine whether the employee’s conduct was:
(i)
A function for which the employee was hired to perform;
(ii)
Within the employer’s authorized time and space limits;
(iii)
Conducted to serve the employer; AND
(iv)
Foreseeable to the employer.
b)
The employer remains liable during an employee’s detour (i.e., a minor deviation from
the scope of employment), even if the detour is mainly for the employee’s own personal
reasons. However, the employer does NOT remain liable during an employee’s frolic
(i.e., a major deviation from the scope of employment).
c)
Generally, employers are NOT liable for the intentional torts of employees UNLESS:
(1)
The intentional tort was authorized by the employer; OR
(2)
Force is within the scope of employment in the employee’s work (e.g., security
guards).
Independent Contractor Liability
6.1% Appearance Rate
-
a)
An independent contractor is a person who contracts with another to do something for
him but who is not controlled by the other nor subject to the other’s right to control
with respect to his physical conduct in the performance of the undertaking.
b)
The principal’s amount of control is the key factor in determining whether an agent is
an independent contractor; other relevant factors include:
(1)
The nature of the work;
(2)
The skill required in the particular occupation;
(3)
Who supplies the equipment or tools to perform the work;
(4)
The method of payment (hourly, salary, per project, etc.);
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c)
B.
(6)
How the parties characterize the transaction.
Generally, a principal is NOT liable in tort for the unauthorized conduct of an
independent contractor. However, the principal may be liable when an independent
contractor:
(1)
Makes misrepresentations for the benefit of the principal;
(2)
Is engaged in abnormally dangerous activities; OR
(3)
Acts with apparent authority.
Ratification
a)
4.1% Appearance Rate
-
A principal can ratify his agent’s unauthorized conduct, thereby making the principal
liable to third parties for contracts entered into by the agent, if:
(1)
The principal had knowledge of the material facts (i.e., the contract terms);
(2)
The agent purported to act on the principal’s behalf; AND
(3)
The principal affirmed the agent’s conduct by manifesting an intent to treat the
agent’s conduct as authorized (e.g., accepting the benefits of the agent’s
originally unauthorized action).
Fiduciary Duties Between Principal and Agent
A.
Duty of Care, Loyalty, and Obedience
1.
Agent’s Fiduciary Duties
a)
V.
The length of employment; AND
Contractual Liability of Principal
1.
IV.
(5)
2.0% Appearance Rate
-
An agent owes the following fiduciary duties to the principal:
(1)
The duty to act with reasonable care and skill;
(2)
The duty to act loyally for the principal’s sole benefit (i.e., an agent cannot
place his own interests above the interests of the principal); AND
(3)
The duty to act obediently within the principal’s control (i.e., to act within the
agent’s actual authority and to follow the principal’s instructions).
Creation of Partnerships
A.
General Partnerships
1.
General Partnership Formation
a)
14.3% Appearance Rate
-
A general partnership is a type of partnership that has NO limited personal liability (i.e.,
general partners remain personally, jointly and severally liable for ALL debts of the
partnership). A general partnership is formed when:
(1)
Two or more persons;
(2)
Associate as co-owners;
(3)
To carry on a business for profit.
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b)
B.
(1)
Sharing of Profits. A person who receives a share of the profits of a business is
presumed to be a partner in the business unless the partner receives the profits
as payment of debt, rent, wages, or for services rendered.
(2)
Joint Ownership. Joint ownership of property tends to show that the parties
associated as co-owners; however, it does not necessarily establish a
partnership in and of itself.
(3)
Sharing of Control. Sharing of control, capital investment, and labor tends to
show that the parties associated as co-owners; however, it does not necessarily
establish a partnership in and of itself.
Limited Partnerships
1.
Limited Partnership Formation
6.1% Appearance Rate
-
a)
A limited partnership consists of one or more general partners and one or more limited
partners. General partners remain personally, jointly and severally liable for ALL debts
of the limited partnership, while limited partners are personally liable for debts ONLY to
the extent of their investment in the limited partnership.
b)
General partners manage and control the day-to-day operations of the business, while
limited partners generally have no say in such matters. Limited partners are generally
passive investors, and only have voting rights in extraordinary situations (e.g., sale of the
partnership, amending the partnership, etc.).
c)
A limited partnership is formed when a written certificate of limited partnership is
executed and filed with the secretary of state. A certificate of limited partnership must
“substantially comply” with the following requirements, including:
d)
C.
In determining whether a general partnership exists, it is irrelevant whether the parties
intended to form a partnership. However, courts may consider the following:
(1)
The signature of each general partner;
(2)
The name of the limited partnership; AND
(3)
The name, street, and mailing address of:
(a)
Each general partner;
(b)
The initial designated office; AND
(c)
The initial agent for service of process.
NOTE. If the parties intend to form a limited partnership, but fail to substantially
comply with the above requirements, they may have instead formed another business
association (e.g., a general partnership).
Limited Liability Partnerships
1.
Limited Liability Partnership Formation
a)
4.1% Appearance Rate
-
A limited liability partnership (LLP), limits a partner’s potential liability for professional
malpractice (e.g., medical malpractice, legal malpractice, etc.) that is committed by
another partner. A partner in an LLP remains liable for professional malpractice if he:
(1)
Committed the malpractice himself or was directly involved in the activity that
resulted in the malpractice; OR
(2)
Supervised or directed the person who committed the malpractice.
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b)
Any partnership may become an LLP upon the:
(1)
Approval of the partners by vote; AND
(2)
Filing of a statement of qualification with the secretary of state.
(a)
c)
d)
VI.
NOTE. The filing of a statement of qualification does NOT create a new
partnership; the LLP continues to be the same entity that existed prior
to the filing.
A statement of qualification MUST contain the following:
(1)
The name and address of the partnership and agent for service of process;
(2)
A statement that the partnership elects to be an LLP; AND
(3)
A deferred effective date, if any.
Annual Reports. If an LLP fails to file an annual report with the appropriate state office
or pay the annual required filing fee, the state may revoke the partnership’s statement
of qualification. A partnership whose statement of qualification was revoked may apply
to the state for reinstatement within 2 years after the effective date of revocation.
Power and Liability of Partners
A.
Tort Liability
1.
Tort Liability of the Partnership
a)
2.
A general partnership, limited partnership, or LLP is liable for the wrongful acts or
omissions of ANY partner acting:
(1)
Within the ordinary course of the partnership’s business; OR
(2)
With the authority of ALL other partners.
Tort Liability of the Partners
a)
b)
B.
2.0% Appearance Rate
-
10.2% Appearance Rate
-
General Partners. General partners are jointly and severally liable for ALL obligations of
the partnership arising from any wrongful act or omission of any partner acting:
(1)
Within the ordinary course of the partnership’s business; OR
(2)
With the authority of ALL other partners.
Limited Partners. Limited partners are NOT personally liable for obligations of the
limited partnership arising from the wrongful acts or omissions of other partners.
However, limited partners are always liable for their OWN misconduct.
Contract Liability
1.
Contract Liability of the Partnership
a)
22.4% Appearance Rate
-
Each partner is an agent of the partnership. Therefore, the actions of every partner that
are made within the ordinary course of business to carry on the partnership’s business
(e.g., entering into contracts in the partnership’s name), bind the partnership, UNLESS
the partner taking the action:
(1)
Has NO authority to act on behalf of the partnership; AND
(2)
The other side has knowledge or notice that the partner lacks authority.
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b)
2.
C.
Contract Liability of the Partners
10.2% Appearance Rate
-
a)
General Partners. General partners are jointly and severally liable for ALL debts and
obligations of the partnership.
b)
Limited Partners. Limited partners are personally liable for the debts of the limited
partnership ONLY to the extent of their investment in the limited partnership.
However, limited partners are always liable for their OWN misconduct.
Transferability and Dissolution
1.
2.
VII.
Actions taken by a partner that are OUTSIDE the ordinary course of the partnership’s
business do NOT bind the partnership UNLESS the other partners unanimously
authorize the action with actual or apparent authority.
Transferability of Partner’s Interest
6.1% Appearance Rate
-
a)
Absent an agreement to the contrary, a partner may transfer his interest in the profits
and losses of the partnership (including the right to receive distributions) to a third
party. Upon transfer of such interests, the transferee does NOT automatically become a
partner nor does the partnership terminate or dissolve.
b)
A transferee does NOT become liable for the obligations of the partnership incurred
before or after the transfer, because he is not a partner. However, a transferee may
become a partner if the other partners unanimously consent. If the transferee becomes
a partner, he will be liable for the obligations of the partnership incurred AFTER his
admittance pursuant to the normal rules of agency and partnership.
Liability During Dissolution
4.1% Appearance Rate
-
a)
Dissolution of a partnership does NOT immediately terminate the partnership. Rather,
the partnership enters a “winding up” phase, which continues until the winding up of
the partnership’s affairs is completed.
b)
During the winding up phase, a partner’s actual authority to bind the partnership is
limited to actions that are necessary to wind up the partnership’s affairs. However, a
partner may still have apparent authority to bind the partnership so long as the other
side does not have notice of the partnership’s dissolution.
Rights of Partners Among Themselves
A.
Management and Control
1.
Equal Rights to Manage and Control
a)
2.
8.2% Appearance Rate
-
Absent an agreement to the contrary, general partners have equal rights to manage
and control the partnership’s business, while limited partners generally have no say in
such matters. Disagreements relating to ordinary matters connected with the business
of the partnership are decided by a majority of the partners.
Use of Partnership Property
a)
2.0% Appearance Rate
-
Absent an agreement to the contrary, a partner may ONLY use partnership property:
(1)
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(2)
b)
3.
B.
Any personal use of partnership property requires the consent of the other partners.
Books and Records
4.1% Appearance Rate
-
a)
Absent an agreement to the contrary, every partner MUST have access to the
partnership’s books and records during normal business hours; and upon reasonable
demand, the partnership MUST render true and full information of all things regarding
the affairs of the partnership that is just and reasonable under the circumstances.
b)
NOTE. A partner’s right to inspect the partnership’s records is NOT conditioned on the
partner’s purpose or motive. However, an abuse of these rights may constitute a
violation of the obligation of good faith and fair dealing.
Profits and Losses
1.
Equal Sharing of Profits and Losses
a)
C.
To carry on the business of the partnership.
4.1% Appearance Rate
-
Absent an agreement to the contrary, each partner is generally:
(1)
Entitled to an equal share of the partnership profits; AND
(2)
Responsible for a share of the partnership losses in proportion to the partner’s
share of the profits.
Duty of Care and Loyalty
1.
Duty of Care
a)
b)
2.
8.2% Appearance Rate
-
Each partner owes a limited fiduciary duty of care to the partnership and other partners,
which requires that each partner REFRAIN from engaging in:
(1)
Grossly negligent or reckless conduct;
(2)
Intentional misconduct; OR
(3)
A knowing violation of the law.
If a partner breaches the duty of care, he may be held personally liable for damages.
Duty of Loyalty
a)
b)
14.3% Appearance Rate
-
Each partner owes a fiduciary duty of loyalty to the partnership and other partners,
which requires that each partner:
(1)
Act in good faith and fairly toward the other partners;
(2)
Account for any property, profit, or benefit derived by the partner from the
partnership business or property; AND
(3)
REFRAIN from:
(a)
Competing with the partnership within the scope of the business (even
during dissolution); AND
(b)
Usurping a business opportunity that properly belongs to the
partnership.
If a partner breaches the duty of loyalty, he may be held personally liable for damages
(the duty of loyalty may be eliminated in the partnership agreement if reasonable).
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VIII. Dissolution
A.
Distinguished from Winding Up and Termination
1.
Dissolution
20.4% Appearance Rate
-
a)
Dissolution of a partnership does NOT immediately terminate the partnership. Rather,
the partnership enters a “winding up” phase, which continues until the winding up of
the partnership’s affairs is completed (i.e., dissolution triggers the wind up and
termination of the partnership).
b)
Dissolution Causes. There are three main causes of dissolution:
(1)
Actions taken by the partners (e.g., disassociation, partners agree to certain
causes for dissolution, etc.);
(2)
Operation of law (e.g., it becomes illegal to continue the business of the
partnership); OR
(3)
Court order (e.g., a court may grant a judicial dissolution if it is no longer
reasonably practicable to continue operation of the partnership business).
c)
Uniform Partnership Act (UPA). Under the UPA, any change in partner membership
automatically triggers dissolution of the partnership UNLESS there is an agreement to
the contrary. Thus, absent an agreement to the contrary, every partner generally has
the power to dissolve the partnership at any time by withdrawing from the partnership.
However, if the dissolution is wrongful, the remaining partners may hold the dissolving
partner liable for damages.
d)
Revised Uniform Partnership Act (RUPA). RUPA provides a basis for continuing the
partnership despite a partner’s withdrawal from the partnership where the remaining
partners may buy out the withdrawn partner’s interest instead of winding up the
partnership business. Under RUPA, absent an agreement to the contrary, the
“disassociation” (occurs when a partner ceases his association with carrying on the
partnership business) of a partner does NOT automatically trigger dissolution UNLESS
either of the following exceptions apply:
e)
(1)
At-Will Partnerships. Any member of an at-will partnership can disassociate at
any time automatically triggering dissolution and liquidation.
(2)
Will of the Parties. A partnership will automatically dissolve upon the
occurrence of an event that the partners specified would cause dissolution in
the partnership agreement (e.g., a partnership created for a specific term or
undertaking).
Term Partnerships. A term partnership is a partnership that exists for a specified
duration of time or until a specified event occurs. Under RUPA, a term partnership may
be dissolved before its term expires if:
(1)
At least half of the partner’s express their will to wind up the business within 90
days after a partner’s disassociation by death, declaring bankruptcy, becoming
incapacitated, or wrongful disassociation; OR
(2)
ALL of the partners agree to amend the partnership agreement by expressly
agreeing to dissolve the partnership.
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BUSINESS ASSOCIATIONS
Studicata UBE/MEE Attack Outline
TABLE OF CONTENTS
CORPORATIONS AND LLCs
I.
FORMATION OF THE CORPORATION........................................................................................................... 1
A.
Articles of Incorporation............................................................................................................................................................1
B.
Bylaws .......................................................................................................................................................................................1
II. PRE-INCORPORATION LIABILITY.................................................................................................................. 1
A.
Contract Liability .......................................................................................................................................................................1
III. PIERCING THE CORPORATE VEIL ................................................................................................................. 2
A.
Shareholder Liability..................................................................................................................................................................2
IV. FINANCING THE ORGANIZATION ................................................................................................................ 2
A.
Classes of Stock .........................................................................................................................................................................2
B.
Class Requirements ...................................................................................................................................................................3
C.
Dividends and Distributions ......................................................................................................................................................4
D.
Consideration in Exchange for Shares ........................................................................................................................................4
V. MANAGEMENT AND CONTROL ................................................................................................................... 4
A.
Shareholders .............................................................................................................................................................................4
B.
Directors....................................................................................................................................................................................5
C.
Officers ......................................................................................................................................................................................6
VI. FIDUCIARY DUTIES ...................................................................................................................................... 6
A.
Duty of Care and the Business Judgment Rule ...........................................................................................................................6
B.
Duty of Loyalty ..........................................................................................................................................................................6
VII. ORGANIZATIONAL STRUCTURE .................................................................................................................. 7
A.
Mergers and Consolidations ......................................................................................................................................................7
B.
Sales of Substantially All Corporate Assets ................................................................................................................................8
VIII. SHAREHOLDER LITIGATION ........................................................................................................................ 8
A.
Derivative Claims.......................................................................................................................................................................8
B.
Direct Claims .............................................................................................................................................................................8
IX. LIMITED LIABILITY COMPANIES (LLCs)......................................................................................................... 8
A.
Formation of the LLC .................................................................................................................................................................8
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Corporations and LLCs
I.
Formation of the Corporation
A.
Articles of Incorporation
1.
Articles of Incorporation Required Provisions
a)
b)
B.
Generally, a corporation is formed when the articles of incorporation are filed with the
secretary of state (unless the articles specify a delayed effective date). The articles of
incorporation MUST set forth the following:
(1)
The name of the corporation;
(2)
The maximum number of shares the corporation is authorized to issue; AND
(3)
The names and addresses of:
(a)
The first board of directors;
(b)
The incorporators executing the articles of incorporation; AND
(c)
The initial registered agent.
Amendments. The articles of incorporation may be amended if there is a majority vote
from the directors AND shareholders. However, minor amendments may be made by
the board of directors without shareholder approval.
Bylaws
1.
II.
4.1% Appearance Rate
-
Corporate Bylaws
6.1% Appearance Rate
-
a)
Corporate bylaws are written rules of conduct that must be initially adopted by the
incorporators or board of directors. Generally, bylaws provide for the ordinary business
conduct of the corporation (e.g., meeting times and dates, elections of a board and
officers, filling vacancies, notices, types of duties of officers, etc.).
b)
Corporate bylaws may contain any provision for managing the business and regulating
the affairs of the corporation to the extent that it is consistent with the law and articles
of incorporation.
c)
Conflicts. If there is a conflict between the bylaws and articles of incorporation, the
articles of incorporation govern.
d)
Amendments. The bylaws may be amended or repealed by the corporation’s
shareholders. The board of directors may also amend or repeal the bylaws UNLESS the
shareholders expressly specify otherwise.
Pre-Incorporation Liability
A.
Contract Liability
1.
Promoter Liability
a)
6.1% Appearance Rate
-
A promoter acts on behalf of a corporation that is yet to be formed (usually assists in
the planning and formation of the new business). A promoter is personally liable for
any contracts entered into on behalf of the corporation so long as both parties to the
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transaction know that the corporation has not yet been formed. However, a promoter
will NOT be held personally liable if:
2.
(2)
The promoter is able to obtain indemnity from the corporation (usually requires
that the promoter did not violate any fiduciary duties).
4.1% Appearance Rate
-
A corporation is NOT bound by any pre-incorporation contracts that were entered into
by promoters UNLESS the corporation adopts such contracts. An adoption can be
express or implied from the actions of the corporation or its agents (e.g., accepting the
benefits of a known pre-incorporation contract).
Piercing the Corporate Veil
A.
Shareholder Liability
1.
Piercing the Corporate Veil
12.2% Appearance Rate
-
a)
General Rule. Generally, shareholders of a corporation are NOT personally liable for the
debts of the corporation. However, the major exception to this rule is the doctrine of
piercing the corporate veil.
b)
Piercing the Corporate Veil. Courts will allow a creditor to pierce the corporate veil and
hold a shareholder personally liable for the debts of a corporation when:
c)
IV.
There is a novation where the parties agree to release the promoter from
liability in favor of holding the corporation solely liable; OR
Corporation Liability
a)
III.
(1)
(1)
The shareholder has dominated the corporation to the extent that the
corporation may be considered the shareholder’s alter ego (e.g., a shareholder
utilizes the corporate form for personal reasons);
(2)
The shareholder failed to follow corporate formalities;
(3)
The corporation was undercapitalized (i.e., inadequately funded at its inception
to cover debts and prospective liabilities); OR
(4)
There is fraud or illegality present.
Passive Investor Liability. Once the corporate veil has been pierced, courts generally
hold ALL the shareholders liable. However, some courts do not extend liability to
passive investors.
Financing the Organization
A.
Classes of Stock
1.
Common and Preferred Stock
a)
2.0% Appearance Rate
-
Common Stock. Common stock is a security that represents ownership in a corporation.
Holders of common stock exercise control by electing a board of directors and voting on
corporate policy. Common stockholders have the lowest priority in the ownership
structure (i.e., in the event of liquidation, common stockholders have rights to company
assets only AFTER bond holders, preferred stockholders, and other debt holders have
been paid in full.
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b)
2.
Entitled, in the event of liquidation or dissolution, to receive any payments or
distributions BEFORE another class of stockholders (e.g., common stockholders).
2.0% Appearance Rate
-
Authorized shares are the maximum number of shares that a corporation is legally
permitted to issue under its articles of incorporation. In order to increase the amount of
authorized shares, the articles of incorporation must be amended with a majority vote
from the directors and shareholders.
2.0% Appearance Rate
-
Outstanding shares are the total number of shares issued by the corporation and held
by the shareholders. Generally, each outstanding share is entitled to one vote
(regardless of class), UNLESS otherwise provided in the articles of incorporation.
2.0% Appearance Rate
-
Treasury stock consists of shares that a company issued and subsequently reacquired.
Shares that the corporation reacquired are NOT considered outstanding and CANNOT
be counted in a shareholder vote.
Options for the Purchase of Shares
a)
B.
(2)
Treasury Stock
a)
5.
Entitled to receive payment of dividends BEFORE any payment of dividends to
another class of stockholders (e.g., common stockholders); OR
Outstanding Shares
a)
4.
(1)
Authorized Shares
a)
3.
Preferred Stock. Preferred stock is a security that represents ownership in a
corporation. Preferred stock does NOT always have voting rights. Shares of stock are
preferred if their holders are:
2.0% Appearance Rate
-
A corporation may issue options for the purchase of its shares on certain specified
terms that are determined by the corporation’s board of directors (e.g., how the options
are issued, the consideration required for issuance, etc.).
Class Requirements
1.
Shares Within the Same Class
a)
2.
2.0% Appearance Rate
-
ALL shares within a class of stock MUST have identical rights and preferences UNLESS
the shares within a class are divided into separate series.
Preemptive Rights
2.0% Appearance Rate
-
a)
A preemptive right is a right of a current shareholder to purchase additional shares in
the corporation before outsiders are permitted to do so in order to maintain their
percentage of ownership in the corporation.
b)
In most states, a corporation must “opt in” to create preemptive rights by expressly
including such rights in the corporation’s articles of incorporation. However, in some
states, preemptive rights are presumed to exist unless the corporation “opts out” by
expressly barring such rights in the corporation’s articles of incorporation.
c)
Unless otherwise set forth in the articles, preemptive rights do NOT exist for:
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C.
(2)
Shares sold for a consideration other than cash; OR
(3)
Shares issued by majority shareholder vote to directors, officers, or employees.
Distribution Rights
4.1% Appearance Rate
-
a)
Unless otherwise set forth in the articles of incorporation, a shareholder does NOT have
any right to receive distributions (whether in the form of dividends or otherwise) from
the corporation. Dividends and distributions are generally paid to shareholders at the
full discretion of the board of directors.
b)
However, if the board of directors refuses to issue distributions in bad faith, but not
necessarily in bad judgment, the shareholders may be able to compel distribution.
Consideration in Exchange for Shares
1.
V.
Preferred shares that CANNOT be converted to common stock;
Dividends and Distributions
1.
D.
(1)
Consideration for Shares
2.0% Appearance Rate
-
a)
The board of directors may authorize issuance of shares for consideration of ANY
tangible or intangible property or benefit to the corporation (e.g., cash, promissory
notes, services performed, contracts for services performed, etc.).
b)
Absent fraud or bad faith, the judgment of the board of directors as to the
consideration received for the shares issues is conclusive.
Management and Control
A.
Shareholders
1.
Meetings
a)
b)
c)
4.1% Appearance Rate
-
Annual and Special Meetings. A corporation must hold an annual meeting of
shareholders at a time that is stated or fixed in accordance with the bylaws. Special
meetings can generally be called by:
(1)
Persons authorized under the articles of incorporation;
(2)
A demand from shareholders that accounts for at least 10% of the votes entitled
to be cast at the meeting; OR
(3)
The board of directors for limited purposes (e.g., dissolution of the corporation).
Notice. Generally, shareholders who are entitled to vote must be provided with notice
of all annual and special meetings. For special meetings, the notice must:
(1)
State the purpose of the meeting; AND
(2)
Be provided 10-60 days before the meeting commences (in most states).
Quorum. A quorum must be present in order for the shareholders to take action at a
meeting. Unless otherwise set forth in the articles of incorporation, a quorum exists
when at least a majority of the shares entitled to vote are present.
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2.
3.
4.
B.
Voting Rights
4.1% Appearance Rate
-
a)
Non-Voting Shares. The articles of incorporation may provide that holders of certain
types of shares cannot vote unless specific conditions are satisfied. However, such
shareholders are still entitled to receive notice even though their shares have nonvoting status.
b)
Weight of Vote. Unless otherwise provided by law or the articles of incorporation, all
shareholders’ votes are counted equally, regardless of class.
c)
Record Date. A shareholder is only entitled to vote if she acquired voting shares before
a designated record date. Generally, the record date may be designated in the bylaws
no more than 70 days prior to the shareholder meeting.
d)
Cumulative Voting. Shareholders elect directors either directly (each share equals one
vote) or cumulatively. Cumulative voting is usually a more favorable method to
represent the interests of minority shareholders. In cumulative voting, voters cast as
many votes as there are seats, but voters are not limited to giving only one vote to a
candidate. Instead, they can put multiple votes on one or more candidates.
Vote by Proxy and Revocation
10.2% Appearance Rate
-
a)
A vote by proxy allows a shareholder to vote without physically attending the
shareholder’s meeting by authorizing another person to vote her shares on her behalf.
A valid proxy must exist in the form of a verifiable electronic transmission or a signed
written appointment form.
b)
A proxy is freely revocable by the shareholder UNLESS the recipient of the proxy has an
economic interest in the shares.
Inspection of Books and Records
4.1% Appearance Rate
-
a)
Proper Purpose. A shareholder possesses the right to inspect corporate books and
records so long as the purpose for the inspection is proper. In order to be proper, the
purpose for the inspection must be reasonably related to a person’s interest as a
shareholder. However, a shareholder may inspect the articles of incorporation and
bylaws without providing a proper purpose.
b)
Procedural Requirements. Generally, a shareholder must:
(1)
Make a written demand to inspect corporate books and records and allow the
corporation a reasonable amount of time to respond (usually 5 days); AND
(2)
Conduct the inspection during regular business hours at the corporation’s
principal office.
Directors
1.
Authority of Directors
2.0% Appearance Rate
-
a)
Authority. Subject to any limitation imposed by law or the articles of incorporation, the
board of directors has full control over the affairs of the corporation.
b)
Quorum. A quorum must be present in order for the directors to take action or vote.
Unless otherwise set forth in the articles of incorporation, a quorum exists when at least
a majority of the directors are present. Directors are considered present so long as all
of the directors participating can simultaneously hear each other (e.g., conference calls).
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C.
c)
Informal Action. Informal action by the board may be taken without a quorum present
so long as the board has unanimously consented to the action in writing.
d)
Notice. It is presumed that directors have notice of regular meetings. However, for
special meetings, directors must be given 2 days notice, which includes information
about the time, location, and date of the meeting. However, such notice is NOT
required to provide the purpose of the special meeting.
Officers
1.
Authority of Officers
a)
VI.
2.0% Appearance Rate
-
The board of directors generally delegates day-to-day management of the corporation’s
business to officers elected by the board (CEO, CFO, president, etc.). The board may
remove officers at any time with or without cause. However, such removal may result
in a breach of contract action if the board is violating an employment agreement.
Fiduciary Duties
A.
Duty of Care and the Business Judgment Rule
1.
Duty of Care
a)
18.4% Appearance Rate
-
Directors and officers owe the corporation a fiduciary duty of care. This duty includes:
(1)
The duty to take reasonable steps to monitor the corporation’s management;
(2)
The duty to be satisfied that proposals are in the corporation’s best interests;
(3)
The duty to disclose material information to the board; AND
(4)
The duty to make reasonably informed decisions.
(a)
2.
Business Judgment Rule
a)
b)
B.
In making such decisions, directors and officers may rely on information
from others whom they reasonably believe are reliable.
18.4% Appearance Rate
-
In suits alleging that a director or officer violated his duty of care owed to the
corporation, courts will apply the business judgment rule. Under this rule, a court will
NOT second guess the decisions of a director/officer so long as the decisions are made:
(1)
In good faith;
(2)
With the care an ordinarily prudent person in a like position would exercise
under similar circumstances; AND
(3)
In a manner the director/officer reasonably believes to be in the best interests
of the corporation.
Liability. If a director or officer breaches the duty of care, he may be held personally
liable for damages. A corporation’s articles of incorporation may reasonably limit the
liability of directors and officers for bad judgment, but NOT for bad faith misconduct.
Duty of Loyalty
1.
Conflicting Interest Transactions
a)
12.2% Appearance Rate
-
Directors and officers have a duty to avoid implicating their personal conflicting
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interests in making business decisions for the corporation. A director/officer has a
conflicting interest in a transaction when the director/officer or a family member either:
b)
2.
Is a party to the transaction; OR
(2)
Has a beneficial financial interest in the transaction of such significance to the
director/officer that the interest would reasonably be expected to exert an
influence on the director/officer’s judgment if called upon to vote on the
transaction.
Safe Harbors. A director/officer that enters into a conflicting interest transaction may
be protected from liability if:
(1)
Disinterested shareholders approve the conflicting interest transaction;
(2)
The non-interested members of the board authorize the conflicting interest
transaction; OR
(3)
The transaction, judged according to the circumstances at the time of
commitment, is established to have been fair to the corporation.
Corporate Opportunities
a)
VII.
(1)
6.1% Appearance Rate
-
The corporate opportunity doctrine prohibits directors and officers from usurping
business opportunities that rightfully belong to the corporation for their own benefit.
Organizational Structure
A.
Mergers and Consolidations
1.
Mergers and Consolidations
a)
b)
2.
A merger occurs when one of two existing corporations is absorbed by the other
corporation. A consolidation occurs when two existing corporations combine into one
new corporation. A merger or consolidation both require:
(1)
The recommendation of an absolute majority of the board of directors; AND
(2)
The agreement of each corporation by an absolute majority of shareholders.
Short-Form Mergers. In many states, if a parent corporation owns at least 90% of the
stock of a subsidiary, the subsidiary may be merged into the parent without approval
from the shareholders of either corporation.
Dissenters’ Rights
a)
2.0% Appearance Rate
-
6.1% Appearance Rate
-
After a merger or consolidation takes place, dissenting shareholders opposed to the
merger or consolidation may either:
(1)
Challenge the action; OR
(2)
Receive payment determined at the fair market value of their shares
immediately before the merger/consolidation took effect.
(a)
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A dissenting shareholder who opts to receive fair market value for their
shares loses the right to challenge the action absent a showing of fraud.
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B.
Sales of Substantially All Corporate Assets
1.
Sales of Substantially All Corporate Assets
a)
6.1% Appearance Rate
-
Shareholder approval is required for the corporation to sell, lease, exchange, or
otherwise dispose of all, or substantially all, of its property if the disposal is NOT in the
corporation’s usual and regular course of business. However, if the disposal of assets is
in the corporation’s usual and regular course of business, shareholder approval is NOT
required (unless otherwise set forth in the articles of incorporation).
VIII. Shareholder Litigation
A.
Derivative Claims
1.
Derivative Claims
a)
A derivative claim is a lawsuit brought by a shareholder on behalf of the corporation.
The shareholder is suing to enforce the corporation’s rights when the corporation has a
valid cause of action, but has failed to pursue it. This often occurs when the defendant
in the suit is someone close to the corporation (e.g., a director or officer).
b)
Demand. Generally, a shareholder must make a written demand on the board before
commencing a derivative action. After submitting the written demand, the shareholder
must wait 90 days to file the derivative action, UNLESS the board rejects the demand
during the 90-day period.
(1)
c)
B.
However, under the common law, and in some jurisdictions today, the plaintiff
shareholder does NOT have to make a demand on the board if it would be futile
to do so (e.g., the board is interested in the transaction being challenged).
Damages. If a derivative claim is successful, the proceeds go to the corporation, not the
shareholder who brought the action. However, if the award to the corporation benefits
the defendants, the court may order that damages be paid directly to the shareholder.
Direct Claims
1.
Direct Claims
a)
IX.
16.3% Appearance Rate
-
10.2% Appearance Rate
-
A direct claim is a lawsuit brought by a shareholder to enforce his OWN rights. The
shareholder must prove actual injury that is NOT solely the result of an injury suffered
by the corporation. If a direct claim is successful, the proceeds go to the shareholder.
Limited Liability Companies (LLCs)
A.
Formation of the LLC
1.
Certificate of Formation
a)
2.0% Appearance Rate
-
Generally, an LLC is formed when the certificate of formation is filed with the secretary
of state. The certificate of formation is analogous to a corporation’s articles of
incorporation. Commonly, the certificate of formation must provide:
(1)
The name and purpose for which the LLC is organized;
(2)
The address of the principal place of business;
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2.
(3)
The name and address of the registered agent in the state;
(4)
The initial capital contributions agreed to be made by all members; AND
(5)
The number of persons, or classes of members, who will manage the LLC, and
the names and addresses of the persons or members who will serve as
managers.
Operating Agreement
a)
b)
2.0% Appearance Rate
-
The operating agreement is analogous to a corporation’s bylaws. Commonly, it governs:
(1)
The relations between the members and the LLC;
(2)
The rights and duties of managers;
(3)
The activities and affairs of the LLC; AND
(4)
The conditions, if any, for amending the operating agreement.
Generally, an LLC is presumed to be member-managed unless the operating agreement
provides otherwise. If the operating agreement provides that the LLC will be managermanaged, an elected group of managers will run the business analogous to how a board
of directors runs a corporation’s business.
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9
CIVIL PROCEDURE
Studicata UBE/MEE Attack Outline
TABLE OF CONTENTS
I.
JURISDICTION AND VENUE ..................................................................................................................... 1
A.
Subject Matter Jurisdiction (SMJ) .........................................................................................................................................1
B.
Personal Jurisdiction .............................................................................................................................................................3
C.
Service of Process and Notice ...............................................................................................................................................4
D.
Venue and Transfer ..............................................................................................................................................................5
E.
Abstention ............................................................................................................................................................................6
II. PRETRIAL PROCEDURES ......................................................................................................................... 6
A.
Preliminary Injunctions and Temporary Restraining Orders (TROs) ......................................................................................6
B.
Pleadings ..............................................................................................................................................................................7
C.
Joinder of Parties ..................................................................................................................................................................9
D.
Discovery ............................................................................................................................................................................ 10
F.
Sanctions ............................................................................................................................................................................ 12
III. MOTIONS ............................................................................................................................................ 14
A.
Pretrial Motions ................................................................................................................................................................. 14
B.
Trial Motions ...................................................................................................................................................................... 15
C.
Post-Trial Motions .............................................................................................................................................................. 15
IV. VERDICTS AND JUDGMENTS ................................................................................................................ 16
A.
Final Judgments .................................................................................................................................................................. 16
B.
Effects of Final Judgments on Future Cases ........................................................................................................................ 16
C.
Default Judgments .............................................................................................................................................................. 17
V. APPEALS AND REVIEW ......................................................................................................................... 17
A.
Availability of Interlocutory Appeals .................................................................................................................................. 17
B.
Mandamus Review ............................................................................................................................................................. 17
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Civil Procedure
NOTE: Examinees are to assume the application of (1) the Federal Rules of Civil Procedure; and (2) the sections of Title 28 of the U.S.
Code pertaining to jurisdiction, venue, and transfer.
I.
Jurisdiction and Venue
A.
Subject Matter Jurisdiction (SMJ)
1.
2.
Federal Question Jurisdiction
a)
A federal court MUST have SMJ in order to decide cases before it. A federal court has
SMJ under federal question jurisdiction if the complaint alleges a claim that arises
under federal law.
b)
Well-Pleaded Complaint Rule. The federal question MUST be presented on the face of
the plaintiff’s complaint. Raising a defense or filing a counterclaim under federal law
does NOT trigger federal question jurisdiction.
Diversity Jurisdiction
a)
b)
3.
20.4% Appearance Rate
-
30.6% Appearance Rate
-
A federal court has SMJ under diversity jurisdiction if:
(1)
Complete Diversity is present – every citizenship represented on the plaintiff’s
side of the case must be different than EVERY citizenship represented on the
defendant’s side of the case (e.g., P1TX, P2TX, P3CA v. D1NY, D2NY, D3FL); AND
(2)
The amount in controversy (AIC) exceeds $75,000.
(a)
A claim for injunctive relief may be valued by the benefit to the plaintiff
or the cost of compliance for the defendant.
(b)
One plaintiff can aggregate all of her claims against one defendant to
meet the AIC requirement. One plaintiff can also aggregate all of her
claims against multiple defendants if the defendants are jointly liable.
(c)
If there are multiple plaintiffs; generally, each plaintiff’s claim must
meet the AIC requirement separately (unless supplemental jurisdiction
applies).
A federal court does NOT have diversity jurisdiction for probate actions and domestic
relation matters (e.g., divorce, child support/custody, etc.)
Citizenship
a)
14.3% Appearance Rate
-
The citizenship of each party to the action must be considered in order to decide
whether complete diversity is present. The rules for determining citizenship vary
depending on the types of parties involved:
(1)
Individuals. For individuals, citizenship is determined by the individual’s state
or country of domicile (i.e., the place of residence where the individual intends
to remain indefinitely). An individual can only have one domicile at a time.
(2)
Corporations. Corporations hold dual citizenship for diversity purposes:
(a)
The state or country of incorporation; AND
(b)
The state or country of its principal place of business (i.e., the “nerve
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Civil Procedure
1
center” – usually where corporate headquarters are located).
4.
(3)
Unincorporated Associations. Unincorporated associations and partnerships
(e.g., unions, trade associations, partnerships, and limited partnerships) are
considered a citizen of every state of which its members are citizens.
(4)
Class Actions. For class actions, the citizenship of each named party in the class
who are suing count for diversity purposes. Class members that are not named
may join without regard to citizenship.
Supplemental Jurisdiction
14.3% Appearance Rate
-
a)
Supplemental jurisdiction allows a federal court with valid SMJ over a case to hear
additional claims over which the court would NOT independently have jurisdiction if ALL
the claims constitute the same case or controversy. Claims constitute the “same case
or controversy” if they arise out of a common nucleus of operative fact (meaning all the
claims arise out of the same transaction or occurrence).
b)
Federal Question Cases. A federal court sitting in federal question jurisdiction may
hear a pendent state law claim under supplemental jurisdiction if the state law claim
arises out the same transaction or occurrence as the federal law claim.
(1)
c)
5.
For example: P sues D for copyright infringement (federal law) and breach of
contract (state law). A federal court may hear the breach of contract claim IF
the breach arose out of the same transaction or occurrence as the copyright
infringement claim. This holds true if the state and federal claims are spread
out against multiple defendants (called “pendent party” jurisdiction – P v.
D1Copyright Infringement, D2Breack of K).
Diversity Cases. There are three types of claims where supplemental jurisdiction is
commonly tested in diversity cases:
(1)
Compulsory Counterclaims. A compulsory counterclaim is a counterclaim
(usually the defendant countersuing the plaintiff) that arises out of the same
transaction or occurrence as the original claim filed. A federal court sitting in
diversity jurisdiction has supplemental jurisdiction over a compulsory
counterclaim.
(2)
Permissive Counterclaims. A permissive counterclaim is a counterclaim
(usually the defendant countersuing the plaintiff) that does NOT arise out of the
same transaction or occurrence as the original claim filed. A permissive
counterclaim can only be heard if it independently satisfies diversity jurisdiction
(e.g., complete diversity is present + amount in controversy exceeds $75,000).
(3)
Cross-Claims. A cross-claim is a claim filed by a plaintiff against another plaintiff
or by a defendant against a co-defendant. A federal court sitting in diversity
jurisdiction has supplemental jurisdiction over a cross-claim if the cross-claim
arises out of the same transaction or occurrence as the original claim.
Removal
a)
8.2% Appearance Rate
-
Removal allows the defendant to move a case from state court to federal court if the
case could have been brought originally in federal court. Removal MUST be sought:
(1)
By the Defendant; AND
(2)
Within 30 days of learning the grounds for removal (however, the defendant
cannot remove his case after one year from the commencement of the action,
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Civil Procedure
2
unless the plaintiff acted in bad faith to try to make the case non-removable).
B.
b)
Federal Question Cases. The defendant may remove the case to federal court if the
well-pleaded complaint discloses that the claim is based on federal law.
c)
Diversity Cases. The defendant may remove the case to federal court if:
(1)
Complete diversity is present;
(2)
The amount in controversy exceeds $75,000; AND
(3)
The action is brought in a state of which no defendant is a citizen.
Personal Jurisdiction
1.
Requirements
a)
b)
14.3% Appearance Rate
-
A court MUST have personal jurisdiction in order to adjudicate the rights and liabilities
of a defendant. If any of the following four “traditional bases” are satisfied, the court
will have personal jurisdiction over the defendant:
(1)
Domicile. Domicile will be satisfied if the defendant is domiciled in the forum
state. If the defendant is a corporation, it must be “at home” in the forum state
(e.g., state of incorporation + principal place of business).
(2)
Physical Presence. Service of process on the defendant while he is physically
present in the forum state will satisfy this base UNLESS the defendant was in
the state only to answer a summons or was brought there by force or fraud.
(3)
Consent. Out-of-state defendants may consent to personal jurisdiction (can be
express or implied by conduct).
(4)
Waiver. Unlike subject matter jurisdiction, lack of personal jurisdiction can be
waived by the defendant. A defendant waives any objection to personal
jurisdiction by substantial participation on the merits before raising the
objection (e.g., making a general appearance).
If none of the traditional bases are satisfied above, personal jurisdiction may still be
obtained by using a state long-arm statute. This requires (via Constitutional Due
Process) that minimum contacts exist between the defendant and the forum state.
Sufficient minimum contacts exist when:
(1)
General or specific jurisdiction is present (see below); AND
(2)
The exercise of such jurisdiction does NOT offend traditional notions of fair
play and substantial justice – courts weigh the following factors to determine
fairness of the forum jurisdiction in regard to the defendant:
(a)
(b)
(c)
(d)
(e)
2.
General Jurisdiction
a)
Convenience for the defendant;
Whether the forum state has a legitimate interest in providing redress;
Whether the plaintiff’s interest in obtaining relief is proper;
The interstate judicial system’s interest in efficiency; AND
The shared interest of the several states in furthering social policies.
6.1% Appearance Rate
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General Jurisdiction is present when the defendant is “essentially at home” in the
forum state (most often, this is where the defendant is a citizen – see above). When
general jurisdiction is present, the defendant can be sued on ANY claim (even if the
claim is unrelated to the defendant’s contact with the forum state).
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3.
Specific Jurisdiction
a)
b)
c)
C.
12.2% Appearance Rate
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Specific Jurisdiction gives courts jurisdiction over out-of-state defendants for the
defendant’s specific contact with the forum state. The claim MUST arise out of the
defendant’s specific contact with the forum state. Specific jurisdiction is present if:
(1)
The defendant purposefully availed himself of the benefits of the forum state
(e.g., using state highways); AND
(2)
The defendant knew or reasonably should have anticipated that his activities in
the forum state made it foreseeable that he may be “hailed into court” there.
Stream of Commerce Cases. Generally, there will be specific jurisdiction over a
defendant if the defendant:
(1)
Places a product in the stream of commerce in the forum state; AND
(2)
Commits some other act to show intent to serve the forum state.
Internet Cases. Generally, internet cases involve either passive or active websites.
(1)
Passive Websites. A passive website is a website that is used for information
purposes rather than online sales and commerce. Generally, the maintenance
of a passive website, without more activity in the forum, is insufficient for
general jurisdiction. However, it may be sufficient for specific jurisdiction if the
defendant is targeting readers in the forum.
(2)
Active Websites. An active website is a website that is used for online
commerce to make sales. The maintenance of an active website may be
sufficient for general jurisdiction if the defendant is conducting significant
business in the forum state such that the defendant is at home in the forum.
Service of Process and Notice
1.
Service of Process and Notice
8.2% Appearance Rate
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a)
Service. A civil action is commenced by filing a complaint with the court. After the
plaintiff files a complaint, a summons MUST be served on the defendant with a copy of
the complaint. The plaintiff is responsible for having the summons and complaint
served within 90 days after the complaint is filed with the court. Any person who is at
least 18 years old and NOT a party to the action may serve a summons and complaint.
b)
An individual within a judicial district of the United States may be served by:
c)
(1)
Delivering a copy of the summons and complaint to the individual personally;
(2)
Leaving a copy of each at the individual’s dwelling or usual place of abode with
someone of suitable age and discretion who resides there; OR
(3)
Delivering a copy of each to an agent authorized by appointment or by law to
receive a service of process.
Unless prohibited by the foreign country’s law, an individual in a foreign country may
be served by:
(1)
Delivering a copy of the summons and complaint to the individual personally;
(2)
Using any form of mail that the clerk addresses and sends to the individual and
that requires a signed receipt; OR
(3)
Other means not prohibited by international agreement, as the court orders.
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d)
D.
A corporation, partnership, or association may be served by delivering a copy of the
summons and complaint to an officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of process.
Venue and Transfer
1.
Venue
a)
b)
c)
2.
16.3% Appearance Rate
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Venue. Venue determines the judicial district in which a lawsuit may be filed or
commenced. Venue is proper in a judicial district where:
(1)
ANY defendant resides, IF all the defendants reside in the same state;
(2)
A substantial part of the events or omissions giving rise to the claim occurred,
or a substantial part of property that is the subject of the action is located; OR
(3)
If there is NO district anywhere in the United States that satisfies (1) or (2), a
judicial district in which ANY defendant is subject to personal jurisdiction.
Residence. For venue purposes, the rules for determining the defendant’s residence
vary depending on the type of party involved:
(1)
Individuals. An individual is deemed to reside in the judicial district where he
is domiciled.
(2)
Business Entities. A business entity is deemed to reside in any judicial district
where the entity is subject to personal jurisdiction with respect to the action in
question.
(3)
Foreign Defendants. A defendant who is NOT a resident of the United States,
whether a U.S. citizen or an alien, may be sued in ANY judicial district.
NOTE. The rules to determine residence for venue purposes are different than the
rules to determine citizenship for jurisdiction purposes.
Change of Venue
10.2% Appearance Rate
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a)
Proper Venue. If venue is proper, the court may nonetheless transfer the case for the
convenience of the parties or witnesses to any court where the case could have been
originally filed (i.e., the transferee court must have valid SMJ + personal jurisdiction
over the defendant + proper venue).
b)
Improper Venue. If venue is improper, the court MUST:
c)
(1)
Dismiss the case; OR
(2)
Transfer the case to a venue in which the case could have been originally filed
(i.e., the transferee court must have valid SMJ + personal jurisdiction over the
defendant + proper venue).
Choice of Law. If a court transfers a case to another venue, the law that the transferee
court must apply depends on whether the original venue was proper and the type of
case involved.
(1)
Proper Original Venue. If the transferor court had proper venue:
(a)
Diversity Cases. In a diversity case, the transferee court must apply the
law that would have been applied in the district court that transferred
the case.
(b)
Federal Question Cases. In a federal question case, the transferee court
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Civil Procedure
5
must apply the federal law as interpreted by its own federal court of
appeals.
(2)
E.
(a)
Diversity Cases. In a diversity case, the transferee court must apply the
choice-of-law rules of the state in which it is located, as opposed to the
state law of the district court that transferred the case.
(b)
Federal Question Cases. In a federal question case, the transferee court
must apply the federal law as interpreted by its own federal court of
appeals.
Abstention
1.
Abstention
a)
II.
Improper Original Venue. If the transferor court had improper venue:
4.1% Appearance Rate
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Generally, a federal court with valid SMJ is required to adjudicate controversies before
it. However, a federal court may abstain from hearing a case or stay the matter pending
the outcome of a state court action in order to avoid intruding upon the powers of a
state court.
Pretrial Procedures
A.
Preliminary Injunctions and Temporary Restraining Orders (TROs)
1.
Preliminary Injunction
a)
b)
c)
d)
6.1% Appearance Rate
-
General. A preliminary injunction preserves the status quo of the parties until a final
judgment on the merits can be reached. There are two types of preliminary injunctions:
(1)
Prohibitory Injunction. A prohibitory injunction prohibits or restrains a party
from engaging in a specified behavior.
(2)
Mandatory Injunction. A mandatory injunction requires the defendant to
engage in an affirmative act. Courts are much more reluctant to grant
mandatory injunctions as opposed to prohibitory injunctions.
Contents. Every order granting an injunction must:
(1)
State the reasons as to why it was issued;
(2)
State its terms specifically; AND
(3)
Describe in reasonable detail the act or acts restrained or required.
Requirements. A plaintiff seeking a preliminary injunction must establish that:
(1)
She is likely to suffer irreparable harm if the preliminary injunction is not issued;
(2)
She is likely to suffer greater harm than the defendant will if the preliminary
injunction is not issued;
(3)
She is likely to succeed on the merits; AND
(4)
The injunction is in the best interest of the public.
Notice. The non-moving party MUST be given notice and an opportunity to oppose the
preliminary injunction at a hearing before the court.
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2.
Temporary Restraining Order (TRO)
a)
General. A TRO preserves the status quo of the parties until there is an opportunity to
hold a full hearing on the application for a preliminary injunction. A TRO may NOT last
longer than 14 days unless good cause exists or the non-moving party consents.
b)
Contents. Every order granting a TRO must:
c)
d)
B.
6.1% Appearance Rate
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(1)
State the reasons as to why it was issued;
(2)
State its terms specifically; AND
(3)
Describe in reasonable detail the act or acts restrained or required.
Requirements. A plaintiff seeking a TRO must establish that:
(1)
She is likely to suffer irreparable harm if the TRO is not issued;
(2)
She is likely to suffer greater harm than the defendant will if the TRO is not
issued;
(3)
She is likely to succeed on the merits; AND
(4)
The TRO is in the best interest of the public.
Ex Parte Notice. Unlike a preliminary injunction, the court may issue a TRO without
written or oral notice to the non-moving party ONLY IF:
(1)
Specific facts in an affidavit or a verified complaint clearly show that immediate
and irreparable harm will result to the movant before the non-moving party can
be heard in opposition; AND
(2)
The movant’s attorney certifies in writing any efforts made to give notice to the
non-moving party and the reasons why it should not be required.
Pleadings
1.
Requirements
a)
b)
6.1% Appearance Rate
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Complaint. The complaint is the first pleading filed by the plaintiff – it commences the
lawsuit. A complaint MUST state:
(1)
Grounds for subject matter jurisdiction;
(2)
A short statement of the claim that shows the pleader is entitled to relief; AND
(3)
A demand for judgment for relief.
Pre-Answer Motion. After the complaint is filed, the defendant may file a pre-answer
motion or respond with the answer. The pre-answer motion may raise any or all of the
following defenses:
(1)
Lack of subject matter jurisdiction;
(2)
Lack of personal jurisdiction;
(3)
Improper venue;
(4)
Insufficiency of process;
(5)
Insufficiency of service of process;
(6)
Failure to state a claim upon which relief can be granted; AND/OR
(7)
Failure to join an indispensable party under compulsory joinder.
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c)
Answer. The answer MUST state:
(1)
A specific denial or admission of each allegation in the complaint OR a general
denial of all allegations with specific admissions if necessary; AND
(a)
(2)
d)
2.
NOTE. A failure to deny an allegation constitutes an admission.
Any affirmative defenses that the respondent has, or that defense is deemed
waived.
Timing. The timing of the answer depends on whether a pre-answer motion is made:
(1)
If no pre-answer motion is made, a defendant who is formally served must
present an answer within 21 days after service.
(2)
If a pre-answer motion is made, the responsive pleading must be served within
14 days after the court’s denial or postponement of the motion.
Amendments to Pleadings
a)
A party may amend a pleading by right or by leave of the court:
(1)
By Right. A party may amend a pleading once as of right within 21 days if no
responsive pleading is required. If a responsive pleading is required, the party
may amend within 21 days of whichever event is earlier:
(a)
(b)
(2)
The service of the responsive pleading; OR
Being served with a Rule 12(b) motion.
By Leave of the Court. The court can permit an amendment to a pleading when
justice so requires. Generally, a court will permit a proposed amendment if the
proposed amendment:
(a)
(b)
b)
6.1% Appearance Rate
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Is not subject to dismissal under Rule 12(b); AND
Would NOT result in undue prejudice to the opposing party.
Relation Back Doctrine. The relation back doctrine determines whether an amendment
to a pleading will relate back to the date of the original pleading. This can be important
for statute of limitation purposes.
(1)
New Claim. If the pleading is amended to include a new claim or defense, the
amendment will relate back to the date of the original pleading if the new claim
or defense arose out of the same transaction or occurrence set out in the
original pleading.
(2)
New Party. If the pleading is amended to include a new party or changes the
name of a party, the amendment will relate back to the date of the original
pleading if:
(a)
It asserts a claim that arose out of the same transaction or occurrence
set out in the original pleading;
(b)
The party to be brought in by amendment receives notice of the action
within 90 days after the filing of the original complaint such that he will
not be prejudiced in defending his case on the merits; AND
(c)
The party to be brought in by amendment knew or should have known
that the action would have been brought against him, but for a mistake
concerning the proper party’s identity.
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C.
Joinder of Parties
1.
Compulsory Joinder (Indispensable Parties)
a)
2.
3.
(1)
The court has personal jurisdiction over the absentee;
(2)
The absentee’s presence would not destroy subject matter jurisdiction or
venue; AND
(3)
Either:
(a)
Complete relief cannot be accorded among the other parties to the
action without the absentee party; OR
(b)
The absentee has such an interest in the action that a decision in his
absence will impede his ability to protect the interest or leave any of the
other parties subject to a substantial risk of incurring multiple or
inconsistent obligations.
4.1% Appearance Rate
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Parties MAY join as plaintiffs or be joined as defendants when:
(1)
Some claim is made by each plaintiff and against each defendant that arises out
of the same transactions or occurrences; AND
(2)
There is a question of fact or law common to all parties.
Interpleader
4.1% Appearance Rate
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a)
Interpleader allows a plaintiff or defendant to initiate a lawsuit in order to compel two
or more other parties to litigate a dispute.
b)
By a Plaintiff. Persons with claims that may expose a plaintiff to double or multiple
liability may be joined as defendants and required to interplead. Joinder for
interpleader is proper even though:
c)
4.
A plaintiff MUST join an absent party or face dismissal of his lawsuit if:
Permissive Joinder
a)
6.1% Appearance Rate
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(1)
The claims of the several claimants, or the titles on which their claims depend,
lack a common origin or are adverse and independent rather than identical; OR
(2)
The plaintiff denies liability in whole or in part to any or all of the claimants.
By a Defendant. A defendant exposed to similar liability may seek interpleader through
a cross-claim or counterclaim.
Intervention
a)
2.0% Appearance Rate
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Intervention permits a nonparty to intervene in an action. Intervention may be granted
to a party as of right OR permissively:
(1)
As of Right. Intervention is available as of right when the applicant claims an
interest in the property or transaction that is the subject matter of the action,
AND the disposition of the action without him may impair his ability to protect
that interest.
(2)
Permissive. Intervention is permissive when the applicant’s claim or defense
and the main action have a question of law or fact in common. Permissive
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intervention must be supported by its own jurisdictional grounds and is
discretionary with the court.
5.
Class Actions
a)
b)
D.
2.0% Appearance Rate
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A class action is a type of suit where one of the parties is a group of people who are
represented collectively by a member or members of that group (called “named
parties”). A class action is proper if:
(1)
The class is so numerous that joinder of all members is impracticable;
(2)
There are questions of law or fact common to the class;
(3)
Named parties’ interests are typical of the class; AND
(4)
Named parties will adequately represent the interests of the absent members
of the class
Once the above four requirements are met, the class will be certified IF:
(1)
Separate actions would create a risk of inconsistent results or impair the
interests of unnamed parties;
(2)
The defendant has acted or refused to act on grounds applicable to the class
and injunctive or declaratory relief is appropriate for the class as a whole; OR
(3)
Common questions of law or fact predominate over individual issues and a
class action is superior to alternate methods of adjudication.
Discovery
1.
Pretrial Conferences
a)
b)
2.
Rule 26(f) Conference. The parties must confer as soon as it is practicable to:
(1)
Consider their claims and defenses, the possibility of settlement, initial
disclosures (see below), and a settlement plan; AND
(2)
Submit to the court a proposed discovery plan addressing the timing and form
of required disclosures, the subjects on which discovery may be needed, the
timing of and limitations on discovery, and relevant orders that may be required
by the court.
Additional pretrial conferences may be held to expedite the trial and foster settlement.
Initial Disclosures
a)
6.1% Appearance Rate
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2.0% Appearance Rate
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Each party to an action MUST make certain initial disclosures, even if an opposing party
does not ask for such information, within 14 days after the parties’ Rule 26(f)
conference. These disclosures include:
(1)
The names, addresses, and telephone numbers of individuals likely to have
discoverable information that the disclosing party may use to support its claims
or defenses, UNLESS the use would be solely for impeachment;
(2)
Copies or descriptions of documents, electronically stored information, and
tangible things that are in the disclosing party’s possession or control that the
disclosing party may use to support its claims or defenses, UNLESS the use
would be solely for impeachment;
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Civil Procedure 10
3.
b)
5.
(4)
Copies of insurance agreements under which an insurer might be liable for all
or part of any judgment that might be entered.
2.0% Appearance Rate
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Scope of Discoverable Information. Generally, discovery is permitted with regard to
any non-privileged matter that is:
(1)
Relevant to any party’s claim or defense in the action; AND
(2)
Proportional to the needs of the case.
Limitations on Discovery. On motion or on its own, the court is required to limit the
frequency or extent of discovery if the court determines that:
(1)
The discovery sought is unreasonably cumulative or can be obtained from some
other source that is more convenient or less expensive; OR
(2)
The party seeking discovery had ample opportunity to obtain the
information by discovery in the action.
Depositions
2.0% Appearance Rate
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a)
Depositions. A party may take the deposition of any party or nonparty witness (with a
subpoena) at any time after the party has made its initial disclosures. Without leave of
the court, the plaintiffs and the defendants, each as a group, are limited to 10
depositions by oral or written examination. An oral deposition is limited to 1 day of 7
hours, unless the parties agree otherwise or the court orders otherwise.
b)
Notice. A party who seeks an oral deposition of a person must give reasonable written
notice to every other party, stating the time and place of the deposition and, if known,
the deponent’s name and address.
Interrogatories
2.0% Appearance Rate
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a)
Availability. Any party may serve no more than 25 written interrogatories on any other
party. Interrogatories may NOT be used on nonparties.
b)
Scope. Interrogatories may relate to any non-privileged matter that is:
c)
6.
A computation of damages claimed by the disclosing party and copies of
materials upon which the computation is based; AND
Scope of Discoverable Information
a)
4.
(3)
(1)
Relevant to any party’s claim or defense in the action; AND
(2)
Proportional to the needs of the case.
Answers and Objections. Interrogatories must be answered fully and separately under
oath by the party to whom they are directed, unless the responding party objects by
stating the specific grounds for the objection. The responding party must serve its
answers and any objections within 30 days after being served with the interrogatories.
Duty to Preserve Relevant Evidence
a)
2.0% Appearance Rate
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When it can be reasonably anticipated that an action will be filed, all parties have a
duty to preserve potentially relevant evidence. The term "evidence" includes all
information, including not just hard copy documents, but all electronically stored
information on any medium and in any electronic format.
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Civil Procedure 11
7.
Attorney Work-Product Doctrine
a)
E.
6.1% Appearance Rate
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The work-product doctrine protects materials prepared by an attorney or a client (or
their agent) in anticipation of or during litigation from discovery by opposing counsel.
Such materials will NOT be protected from disclosure to opposing counsel IF:
(1)
The materials are otherwise unavailable;
(2)
There is a substantial need for the materials; AND
(3)
The materials cannot be obtained without undue hardship.
b)
However, a writing that reflects an attorney’s impressions, conclusions, opinions, legal
research, or theories is NEVER discoverable.
c)
When a party withholds information she believes is privileged or protected by workproduct, the party MUST make the claim expressly and describe the nature of the
documents in a manner that will enable other parties to assess the applicability of the
privilege or work-product doctrine.
Sanctions
1.
Pretrial Conference Sanctions
a)
b)
2.
3.
The court may direct counsel and unrepresented parties to appear for pretrial
conferences (to expedite the action, foster settlement, etc.). The court may issue
sanctions (including dismissal of all or part of the action or holding parties in contempt
of court) if counsel or a party:
(1)
Fails to appear;
(2)
Fails to participate in good faith; OR
(3)
Fails to obey a pretrial conference order.
Dismissal of an action is a severe sanction, and generally it is only appropriate when a
party’s conduct is serious, repeated, extreme, or otherwise inexcusable.
Failure to Participate in the Framing of a Discovery Plan
a)
4.1% Appearance Rate
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2.0% Appearance Rate
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If a party or her attorney fails to participate in good faith in the development and
submission of a Rule 26(f) proposed discovery plan, then the court may, after providing
an opportunity for a hearing, order the party or attorney to pay reasonable expenses,
including attorney’s fees, as a result of such failure.
Rule 11(b) Sanctions
4.1% Appearance Rate
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a)
Signature. Every pleading, written motion and other paper served must be signed by at
least one attorney of record in the attorney’s name or by a party personally if the party
is unrepresented. The paper must state the signer’s address, email address, and
telephone number. The court MUST strike an unsigned paper unless the omission is
promptly corrected after being called to the attorney’s or party’s attention.
b)
Representations to the Court. By presenting to the court a pleading, written motion, or
other paper (whether by signing, filing, submitting, or later advocating it) an attorney or
unrepresented party certifies that to the best of the person's knowledge, information,
and belief, formed after an inquiry reasonable under the circumstances:
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Civil Procedure 12
4.
(1)
It is not be presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2)
The claims, defenses, and other legal contentions are warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing
law or for establishing new law;
(3)
The factual contentions have evidentiary support or, if specifically so identified,
will likely have evidentiary support after a reasonable opportunity for further
investigation or discovery; AND
(4)
The denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of information.
c)
Opportunity to Correct. Before a party may seek sanctions under Rule 11, the party
must serve on the opposing party a motion that describes the specific conduct that
allegedly violated the rule. The opposing party must be given 21 days to withdraw or
correct the challenged pleading. If the 21-day period passes, and the pleading is not
corrected, the motion for sanctions may be filed with the court.
d)
Sanctions. The court (on motion or on its own) may issue sanctions for failing to
comply with the above requirements. The sanctions may include nonmonetary
directives; an order to pay a penalty into court; or, if imposed on motion, an order
directing payment to the movant of part or all of the reasonable attorney’s fees and
other expenses directly resulting from the violation.
e)
Imposition of Sanctions. Sanctions may be imposed upon the defendants’ attorney, his
law firm, and the defendants. However, monetary sanctions for asserting an
unwarranted legal contention may NOT be imposed upon the defendants, but only
upon the attorney or his law firm.
f)
Purpose and Discretion. The court has considerable discretion in imposing sanctions.
The purpose of any sanctions award should be to deter similar future conduct by this
lawyer or others.
Failure to Preserve Electronically Stored Information
a)
2.0% Appearance Rate
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If electronically stored information that should have been preserved in the anticipation
or conduct of litigation is lost because a party failed to take reasonable steps to
preserve it, and it cannot be replaced through additional discovery, the court:
(1)
Upon finding prejudice to another party, may order measures no greater than
necessary to cure the prejudice; OR
(2)
Upon finding that the party acted with the intent to deprive another party of
the information, may presume that the lost information was unfavorable, and:
(a)
Instruct the jury that it may or must presume that the lost information
was unfavorable to the wrongdoing party;
(b)
Dismiss the action; OR
(c)
Enter a default judgment.
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Civil Procedure 13
III.
Motions
A.
Pretrial Motions
1.
Rule 12(b) Motions to Dismiss
a)
6.1% Appearance Rate
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A party may assert any or all of the following defenses by motion to dismiss:
(1)
Lack of subject matter jurisdiction;
(a)
(2)
Lack of personal jurisdiction;
(a)
(3)
(7)
Timing. The defense of insufficient process must be raised in a preanswer motion or, if no pre-answer motion is made, in the answer, or
the defense will be waived.
Insufficient service of process;
(a)
(6)
Timing. The defense of improper venue must be raised in a pre-answer
motion or, if no pre-answer motion is made, in the answer, or the
defense will be waived.
Insufficient process;
(a)
(5)
Timing. The defense of lack of personal jurisdiction must be raised in a
pre-answer motion or, if no pre-answer motion is made, in the answer,
or the defense will be waived.
Improper venue;
(a)
(4)
Timing. The defense of lack of subject matter jurisdiction may be raised
at any time, even on appeal.
Timing. The defense of insufficient service of process must be raised in
a pre-answer motion or, if no pre-answer motion is made, in the
answer, or the defense will be waived.
Failure to state a claim upon which relief can be granted; AND
(a)
Timing. The defense of failure to state a claim may be raised in a
pleading, in a motion for judgment on the pleadings, or at trial.
(b)
2-Step Analysis. Under Rule 12(b)(6), a claim for relief can be dismissed
if it either fails to assert a legal theory of recovery that is cognizable or
fails to allege facts sufficient to support a cognizable claim. In making
this determination courts apply a 2-step analysis:
(i)
First, the court must identify and reject legal conclusions
unsupported by factual allegations; THEN
(ii)
Second, the court should assume that the well-pleaded factual
allegations are true and, drawing on the court’s judicial
experience and common sense, determine whether the
allegations plausibly give rise to the entitlement of relief.
Failure to join an indispensable party under compulsory joinder.
(a)
Timing. The defense of failure to join an indispensable party may be
raised in a pleading, in a motion for judgment on the pleadings, or at
trial.
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Civil Procedure 14
2.
Motion for Summary Judgment (MSJ)
a)
A MSJ may be filed at any time until 30 days after the close of discovery.
b)
A MSJ must be granted if, from the pleadings, affidavits, and discovery materials on
file, when viewing the evidence in the light most favorable to the nonmoving party, it
appears that:
c)
B.
(1)
No genuine dispute of material fact exists; AND
(2)
The moving party is entitled to judgment as a matter of law.
Summary judgment may be partial (e.g., limited to certain issues rather than the entire
case). Denial of a MSJ is NOT appealable.
Trial Motions
1.
C.
10.2% Appearance Rate
-
Motion for Judgment as a Matter of Law (JMOL)
6.1% Appearance Rate
-
a)
A JMOL (formerly known as a “directed verdict”) may be filed by either party after the
close of the nonmoving party’s evidence OR at the close of all evidence.
b)
The motion will be granted if, when viewing the evidence in the light most favorable to
the nonmoving party, the court finds that a reasonable jury would not have a legally
sufficient basis to find for the nonmoving party. A JMOL is a prerequisite for the
making of a renewed motion for judgment as a matter of law after the trial.
Post-Trial Motions
1.
2.
Renewed Motion for Judgment as a Matter of Law
2.0% Appearance Rate
-
a)
A renewed motion for judgment as a matter of law (formerly known as a “motion for
judgment notwithstanding the verdict” or “JNOV”), may be filed no later than 28 days
after the entry of judgment. It may ONLY be raised if a JMOL was previously filed.
b)
The motion will be granted if, when viewing the evidence in the light most favorable to
the nonmoving party, the court finds that a reasonable jury would not have a legally
sufficient basis to find for the nonmoving party. A party is generally limited to those
issues raised in the JMOL.
Motion for a New Trial
a)
2.0% Appearance Rate
-
The court may, on motion, grant a new trial (on all issues or with respect to only certain
issues or parties) for any of the reasons for which new trials have traditionally been
granted, such as:
(1)
An error made at trial that renders the judgment unfair;
(2)
Newly discovered evidence that existed at the time of the trial was excusably
overlooked and would likely have altered the outcome of the trial;
(3)
Prejudicial misconduct of counsel, a party, the judge, or a juror;
(4)
A verdict that is against the clear weight of the evidence;
(5)
A verdict that is based on false evidence such that a new trial is necessary to
prevent injustice; OR
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Civil Procedure 15
(6)
A verdict that is excessive or inadequate.
(a)
IV.
If the verdict is excessive, the court may order a new trial OR offer the
plaintiff remittitur, which allows the plaintiff to choose between a
lesser award or a new trial. “Additurs” are not permitted in federal
court; the only option is a new trial.
Verdicts and Judgments
A.
Final Judgments
1.
Final Judgment Rule
a)
B.
6.1% Appearance Rate
-
The federal courts of appeals have jurisdiction over appeals from final judgments of the
district courts. A final judgment is a decision by the court on the merits that leaves
nothing for the court to do but execute the judgment.
Effects of Final Judgments on Future Cases
1.
Res Judicata (Claim Preclusion)
a)
Res judicata provides that a final judgment on the merits of an action precludes the
parties from successive litigation of an identical claim in a subsequent action. To bar a
claim under res judicata:
(1)
The original claim must have resulted in a valid final judgment on the merits;
(2)
The original and later-filed causes of action must be sufficiently identical (i.e.,
related to the same transaction or occurrence); AND
(3)
The claimant and the defendant must be the same (and in the same roles) in
both the original and later-filed action, or privity exists between the parties in
the original and later-filed action.
(a)
2.
NOTE. Res Judicata is limited to the parties and their privies; thus, a
similar action by a different party would NOT be barred under res
judicata.
Collateral Estoppel (Issue Preclusion)
a)
6.1% Appearance Rate
-
8.2% Appearance Rate
-
Collateral estoppel precludes the re-litigation of issues of fact or law that have already
been necessarily determined by a judge or jury as part of an earlier claim. To bar an
issue under collateral estoppel:
(1)
The issue sought to be precluded must be the same as that involved in the prior
action (i.e., the facts relevant to the particular issue and the applicable law must
be identical);
(2)
The issue must have been actually litigated in the prior action;
(3)
The issue must have been determined by a valid final judgment on the merits;
AND
(4)
The determination of the issue must have been essential to the prior judgment.
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Civil Procedure 16
C.
Default Judgments
1.
Effect of a Default Judgment
a)
V.
2.0% Appearance Rate
-
A default judgment will have a preclusive effect if the court had valid personal and
subject matter jurisdiction. States vary as to the extent of preclusion a default judgment
has, but generally, a party is barred from asserting defenses or compulsory
counterclaims that could have been raised in that original action.
Appeals and Review
A.
Availability of Interlocutory Appeals
1.
Appeal of Interlocutory Orders
2.0% Appearance Rate
-
a)
2.
(1)
An order granting, modifying, refusing, or dissolving an injunction;
(2)
An order appointing or refusing to appoint a receiver; AND
(3)
A decree determining the rights and liabilities of the parties to admiralty cases
in which appeals from final decrees are allowed.
Collateral Order Doctrine
a)
B.
An interlocutory order is an order that is provisional, interim, temporary, or non-final
(e.g., TROs). Although most interlocutory orders are NOT immediately appealable,
certain equitable orders are immediately reviewable as a matter of right, including:
8.2% Appearance Rate
-
The doctrine of collateral order allows a party to appeal interlocutory rulings if the
ruling decides a claim or issue:
(1)
That is separable from and collateral to the merits of the case;
(2)
Involves a serious and unsettled legal question; AND
(3)
Would be effectively unreviewable if the court waited until final judgment to
hear the claim or issue.
Mandamus Review
1.
Mandamus Review
2.0% Appearance Rate
-
a)
Under mandamus review, a court of appeals can immediately review an order that is an
abuse of judicial authority (e.g., orders beyond the trial court’s jurisdiction, orders that
violate a mandatory duty of the trial court, etc.). Such review does NOT extend to all
orders that constitute an error of law.
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Civil Procedure 17
CONFLICT OF LAWS
Studicata UBE/MEE Attack Outline
TABLE OF CONTENTS
I.
CHOICE OF LAW........................................................................................................................................... 1
A.
Choice of Law Theories .........................................................................................................................................................1
B.
Application in Specific Areas .................................................................................................................................................1
C.
Federal-State Conflicts..........................................................................................................................................................3
II. RECOGNITION AND ENFORCEMENT OF OTHER STATES’ JUDGMENTS ........................................................ 3
A.
Full Faith and Credit..............................................................................................................................................................3
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Conflict of Laws
NOTE: Conflict of Laws issues are embedded in other MEE topic areas (when tested, they frequently appear in civil procedure
questions). Conflict of Laws issues do not appear as stand-alone questions.
I.
Choice of Law
A.
Choice of Law Theories
1.
Choice of Law Approaches
a)
In determining whether to apply the law of the forum or the law of another jurisdiction
with an interest in the controversy, the court will use one of the following approaches:
(1)
Vested Rights. Under the traditional vested rights approach, the court applies
the law of the jurisdiction where the event that gave rise to the lawsuit
occurred (usually the place where the harm took place).
(2)
Governmental Interest. Under the modern governmental interest approach,
the court applies the law of the jurisdiction that has a greater interest in having
its law applied. In making this determination, the court will examine:
(3)
B.
8.2% Appearance Rate
-
(a)
The policies behind the respective laws in the forum and the other
jurisdiction; AND
(b)
Whether it is reasonable for the respective jurisdictions to assert an
interest in the application of those policies under the circumstances.
Most Significant Relationship. Under the Second Restatement, the court
applies the law of the jurisdiction that has the most significant relationship to
the problem at issue. In making this determination, the Second Restatement
sets forth the following factors for the court to consider:
(a)
Relevant policies of the forum and other interested jurisdictions;
(b)
Relevant policies underlying the field of law at issue;
(c)
Uniformity of result; AND
(d)
Ease of application of the law to be applied.
Application in Specific Areas
1.
2.
Express Choice of Law in Contracts
4.1% Appearance Rate
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a)
Parties to a contract are generally free to choose a particular jurisdiction’s law to be
applied for matters of contract interpretation through choice-of-law provisions.
b)
However, for matters of contract validity, the parties may choose which law applies
only if:
(1)
The jurisdiction selected has some connection with the contract; AND
(2)
The choice of law is NOT contrary to a substantial policy interest of another
jurisdiction with a greater interest in the matter.
Choice of Law Application in Contracts
a)
2.0% Appearance Rate
-
If a contract does not contain a valid choice-of-law provision, courts will usually use the
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Conflict of Laws
1
vested rights approach or the most significant relationship approach to determine which
jurisdiction’s law to apply:
3.
(1)
Vested Rights. Under the traditional vested rights approach, the court will
apply the law of the jurisdiction where the contract was formed. If the court is
examining issues involving performance of the contract, the court will apply the
law of the jurisdiction in which the performance was due.
(2)
Most Significant Relationship. Under the Second Restatement, the court
will apply the law of the jurisdiction that has the most significant relationship to
the contract under the circumstances. In making this determination, the court
will consider the following factors:
The place where the contract was formed;
(b)
The place where the contract was negotiated;
(c)
The place of performance;
(d)
The location of the subject matter of the contract; AND
(e)
The connection of the parties to the forum (e.g., domicile, residence,
place of incorporation, etc.).
Choice of Law Application in Torts
a)
(1)
Vested Rights. Under the traditional vested rights approach, the court will
apply the law of the jurisdiction where the injury occurred.
(2)
Governmental Interest. Under the modern governmental interest approach,
the court applies the law of the jurisdiction that has a greater interest in having
its law applied. In making this determination, the court will examine:
(a)
The policies behind the respective laws in the forum and the other
jurisdiction; AND
(b)
Whether it is reasonable for the respective jurisdictions to assert an
interest in the application of those policies under the circumstances.
Most Significant Relationship. Under the Second Restatement, the court
will apply the law of the jurisdiction that has the most significant relationship to
the tort claim under the circumstances. In making this determination, the court
will consider the following factors:
(a)
The place of the injury;
(b)
The place where the conduct that caused the injury occurred;
(c)
The connection of the parties to the forum (e.g., domicile, residence,
place of incorporation, etc.); AND
(d)
The place where the relationship between the parties is centered.
Choice of Law Application in Real Property
a)
2.0% Appearance Rate
-
In tort cases, courts will use one of the following approaches in determining which
jurisdiction’s law to apply:
(3)
4.
(a)
2.0% Appearance Rate
-
Generally, all issues affecting title to land (including land sale contracts) are governed by
the law of the jurisdiction where the real property is located. However, some courts
may depart from this rule if another jurisdiction has a more significant relationship to
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Conflict of Laws
2
the case than the jurisdiction where the real property is located.
5.
Choice of Law Application in Decedents’ Estates
a)
6.
C.
The disposition of the decedent’s personal property is governed by the law of the
jurisdiction of the decedent’s place of domicile. The disposition of the decedent’s real
property is governed by the law of the jurisdiction where the real property is located.
Substance vs. Procedure
4.1% Appearance Rate
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a)
Generally, courts use their own law for procedural issues and the law of other
jurisdictions (if necessary) for substantive issues.
b)
Statute of Limitations. Most jurisdictions treat statute of limitations issues as
procedural for choice of law purposes (i.e., they apply the law of the forum to statute of
limitations issues).
Federal-State Conflicts
1.
II.
4.1% Appearance Rate
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Erie Doctrine
8.2% Appearance Rate
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a)
Under the Erie Doctrine, a federal court sitting in diversity jurisdiction MUST apply the
law of the forum state in which it sits (NOT its own federal law) regarding substantive
issues. However, federal courts are free to apply their own rules to procedural issues.
b)
NOTE. Choice of law issues are considered substantive; therefore, a federal court sitting
in diversity MUST apply the forum state’s choice of law rules.
Recognition and Enforcement of Other States’ Judgments
A.
Full Faith and Credit
1.
Full Faith and Credit
a)
4.1% Appearance Rate
-
Courts MUST give full faith and credit to the judicial proceedings of every U.S. state and
territory, UNLESS there is a valid defense to recognition or enforcement. Such defenses
include:
(1)
Lack of Jurisdiction. A court is NOT required to enforce the judgment of
another court if the other court:
(a)
Lacked valid jurisdiction (personal or subject matter jurisdiction); AND
(b)
The party challenging the judgment did not litigate the jurisdictional
issue in the other court.
(2)
Fraud. A court is NOT required to enforce the judgment of another court if the
other court’s judgment was procured by fraud (e.g., bribery of judicial officers,
perjury, etc.).
(3)
Not on Merits. A court is NOT required to enforce the judgment of another
court if the other court’s judgment was not entered on the merits (e.g., case is
dismissed for lack of subject matter jurisdiction).
(4)
Lacking Finality. A court is NOT required to enforce the judgment of another
court if the other court’s judgment was not final (e.g., judgments on appeal).
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Conflict of Laws
3
CONSTITUTIONAL LAW
Studicata UBE/MEE Attack Outline
TABLE OF CONTENTS
I.
THE NATURE OF JUDICIAL REVIEW .............................................................................................................. 1
A.
Jurisdiction ...........................................................................................................................................................................1
B.
Justiciability ..........................................................................................................................................................................1
II. THE SEPARATION OF POWERS .................................................................................................................... 3
A.
The Powers of Congress ........................................................................................................................................................3
B.
The Powers of the President .................................................................................................................................................4
III. THE RELATION OF NATION AND STATES IN A FEDERAL SYSTEM ................................................................. 6
A.
Federal and State Powers .....................................................................................................................................................6
B.
Federalism-Based Limits on State Authority .........................................................................................................................7
IV. INDIVIDUAL RIGHTS .................................................................................................................................... 7
A.
State Action ..........................................................................................................................................................................7
B.
Due Process (5th and 14th Amendments) ...............................................................................................................................7
C.
Equal Protection (14th Amendment) .....................................................................................................................................9
D.
Takings (5th Amendment) ................................................................................................................................................... 10
E.
Other Protections ............................................................................................................................................................... 11
F.
1st Amendment Free Speech – General Principles ............................................................................................................... 12
G.
1st Amendment Free Speech – Regulation Based on Conduct ............................................................................................. 12
H.
Unprotected Speech – Regulation Based on Content .......................................................................................................... 14
I.
Freedom of Association ...................................................................................................................................................... 15
J.
Religious Freedoms ............................................................................................................................................................ 15
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Constitutional Law
NOTE: The terms “Constitution,” “constitutional,” and “unconstitutional” refer to the federal Constitution unless indicated
otherwise. Only Article III courts (e.g., courts established by Congress pursuant to Article III) are the subject of this outline.
I.
The Nature of Judicial Review
A.
Jurisdiction
1.
Article III
a)
2.
Federal judicial power extends to cases involving:
(1)
Interpretation of the Constitution, federal laws, treaties, and admiralty and
maritime laws; AND
(2)
Disputes between states, states and foreign citizens, and citizens of diverse
citizenship.
State Sovereign Immunity (11th Amendment)
a)
b)
B.
< 1.0% Appearance Rate
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8.3% Appearance Rate
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The 11th Amendment is a jurisdictional bar that prohibits:
(1)
The citizens of one state or a foreign country from suing another state in federal
court for money damages or equitable relief; AND
(2)
Suits in federal court against state officials for violating state law.
However, the following are exceptions to the application of the 11th Amendment:
(1)
Consent. A state may consent to a suit by waiving its 11th Amendment
protection.
(2)
Injunctive Relief. When a state official, rather than the state itself, is named as
the defendant in an action brought in federal court, the state official may be
enjoined from enforcing a state law that violates federal law or may be
compelled to act in accord with federal law despite state law to the contrary.
(3)
Individual Damages. An action for damages against a state official is not
prohibited so long as the official himself (not the state) will have to pay.
(4)
Congressional Authorization. Congress may abrogate state immunity from
liability if it is clearly and expressly acting to enforce rights created by the 14th
Amendment.
Justiciability
1.
Standing
a)
< 1.0% Appearance Rate
-
A federal court cannot decide a case unless the plaintiff has standing (i.e., a concrete
stake in the outcome of the action). To have standing, a plaintiff bears the burden of
establishing three elements:
(1)
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Injury in Fact. The injury must be concrete and particularized (when a harm is
concrete, though widely shared, there is standing). However, it does not have
to be physical or economic. While the threat of future injury can suffice, it
cannot be merely hypothetical or conjectural, it must be actual and imminent.
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1
2.
Redressability. It must be likely that a favorable court decision will redress an
injury suffered by the plaintiff.
< 1.0% Appearance Rate
-
Generally, a taxpayer does NOT have standing to file a federal lawsuit simply because
the taxpayer believes that the government has allocated funds in an improper way.
However, a taxpayer does have standing to litigate whether, or how much, she owes on
her tax bill. In addition, a taxpayer has standing when the taxpayer challenges
governmental expenditures as violating the Establishment Clause.
< 1.0% Appearance Rate
-
Generally, one cannot assert the constitutional rights of others to obtain standing, but a
claimant with standing in her own right may also assert the rights of a 3rd party if:
(1)
The 3rd party would experience difficulty or is unable to assert their own rights;
(2)
There is a special relationship between the plaintiff and the 3rd party; OR
(3)
The plaintiff’s injury adversely affects the plaintiff’s relationship with the 3rd
party.
Organizational Standing
a)
5.
(3)
3rd Party Standing
a)
4.
Causation. The injury must be fairly traceable to the challenged action (i.e., the
the defendant’s conduct caused the injury).
Taxpayer Standing
a)
3.
(2)
< 1.0% Appearance Rate
-
An organization may bring an action when it has suffered an injury. In addition, an
organization may bring an action on behalf of its members (even if the organization
itself has not suffered an injury) if:
(1)
Its members would have standing to sue in their own right; AND
(2)
The interests at stake are germane to the organization’s purpose.
Timeliness
< 1.0% Appearance Rate
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a)
Ripeness. A federal court will NOT consider a claim before it has fully developed. For a
case to be ripe for litigation, the plaintiff must have experienced a real injury or
imminent threat thereof.
b)
Mootness. A case has become moot if further legal proceedings would have no effect
(i.e., there is no longer a controversy). A live controversy must exist at each stage of
review (not merely when the complaint is filed). There are three exceptions:
(1)
Capable of Repetition, Yet Evading Review. A case will not be dismissed as
moot if the controversy is a type that may often recur, but that will not last long
enough to work its way through the judicial system (e.g., abortion challenges
once the woman is no longer pregnant).
(2)
Voluntary Cessation. A case will not be dismissed as moot if the defendant
voluntarily ceases the wrongful action once litigation has commenced. The
court must be assured that there is no reasonable expectation that the wrong
will be repeated.
(3)
Class Actions. An entire class action will not be dismissed as moot solely
because the named party’s claim in the class is resolved and becomes moot.
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2
6.
Advisory Opinions
a)
7.
II.
Federal courts may NOT render advisory opinions on the basis of an abstract or
hypothetical dispute. An actual case or controversy must exist. However, courts may
issue declaratory judgments (i.e., judgments that determine the legal effect of
proposed conduct without awarding damages or injunctive relief) so long as the action
in question poses a real and imminent danger to a party’s interests.
Political Questions
a)
< 1.0% Appearance Rate
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< 1.0% Appearance Rate
-
A federal court will NOT rule on a matter in controversy if the matter is a political
question to be resolved by one or both of the other two branches of government. A
political question not subject to judicial review arises when:
(1)
The Constitution has assigned decision making on the matter to a different
branch of government; OR
(2)
The matter is inherently not one that the judiciary can decide.
The Separation of Powers
A.
The Powers of Congress
1.
2.
Necessary and Proper “Power”
a)
Congress can exercise those powers enumerated in the Constitution plus all auxiliary
powers necessary and proper to carry out all powers vested in the federal government.
Thus, Congress has the power to make all laws necessary and proper for executing any
power granted to any branch of the federal government.
b)
The Necessary and Proper Clause standing alone cannot support federal law – it MUST
work in conjunction with another federal power (several are listed below).
c)
NOTE. If a fact pattern creates a scenario where Congress passes a new law; you
MUST discuss which enumerated power(s) gives them the ability to make that law (e.g.,
taxing power, spending power, commerce power, etc.).
Taxing and Spending Powers
a)
b)
3.
< 1.0% Appearance Rate
-
Taxing Power. Congress has the power to tax, and most taxes will be upheld if:
(1)
They bear some reasonable relationship to revenue production; OR
(2)
Congress has the power to regulate the activity taxed.
Spending Power. Congress may spend to “provide for the common defense and
general welfare.” Spending may be for any public purpose (do not confuse this with a
general police power – Congress has NO general police power).
Commerce Power
a)
4.2% Appearance Rate
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8.3% Appearance Rate
-
Congress has the power to regulate all foreign and interstate commerce. To be within
Congress’s power under the Commerce Clause, a federal law regulating interstate
commerce must either regulate the:
(1)
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Channels of interstate commerce;
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3
b)
c)
4.
(3)
Activities that have a substantial effect on interstate commerce.
When Congress attempts to regulate intrastate activity under the third prong, the Court
will uphold the regulation if:
(1)
The regulation is of economic or commercial activity (e.g., growing wheat or
medicinal marijuana even for personal consumption); AND
(2)
The court can conceive of a rational basis on which Congress could conclude
that the activity in aggregate substantially affects interstate commerce.
However, if the regulated intrastate activity is noneconomic and noncommercial (e.g.,
possessing a gun in a school zone or gender-motivated violence), the Court generally
will not aggregate the effects and the regulation will be upheld only if Congress can
show a direct substantial economic effect on interstate commerce, which it generally
will not be able to do.
4.2% Appearance Rate
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Each of the 13th, 14th, and 15th Amendments (ban on slavery, equal protection and due
process, and voting rights) contain a provision that authorizes Congress to pass
“appropriate legislation” to enforce the civil rights guaranteed by those Amendments.
Delegation of Legislative Power
a)
B.
Instrumentalities of interstate commerce and persons and things in interstate
commerce; OR
13th, 14th, and 15th Amendment Enforcement Power
a)
5.
(2)
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Legislative power may generally be delegated to the executive or judicial branch
provided that:
(1)
Intelligible standards are set to guide the delegation; AND
(2)
The power is NOT uniquely confined to Congress (e.g., power to declare war).
The Powers of the President
1.
Domestic Powers
a)
< 1.0% Appearance Rate
-
The President has the power to:
(1)
Reprieve or pardon federal offenses, except in cases of impeachment;
(2)
Appoint all officers of the United States (e.g., ambassadors, Supreme Court
Justices, etc.) with the advice and consent of the Senate;
(3)
Remove any executive appointee without cause and without Senate approval,
except in cases of federal judges (federal judges may only be removed by
impeachment); AND
(4)
Veto any bill presented to her by Congress.
(a)
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Procedure. Upon presentment of a bill, the President has 10 days to
act. If the president signs the bill, it becomes law. If the President does
nothing, the bill becomes law without the President’s signature so long
as Congress is still in session at the end of the 10-day period. If the
President vetoes the bill by sending it back with objections, Congress
may override the veto and enact the bill into law by a two-thirds vote in
each house.
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(b)
2.
Scope of Presidential Power
a)
3.
4.
5.
Line Item Veto. The President may NOT exercise a line item veto
(refusing part of a bill and approving the rest).
< 1.0% Appearance Rate
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In order to determine whether the President’s actions are within the scope of his
constitutional power, the court must consider the degree of congressional
authorization the President is acting with:
(1)
When the president is acting with the express or implied authorization of
Congress, presidential authority is at its highest, and the action is strongly
presumed to be valid.
(2)
When Congress has not spoken, presidential authority is diminished, and the
action is invalid if it interferes with the operations or power of another branch
of government.
(3)
When Congress has spoken to the contrary, presidential authority is at its
lowest, and the action is likely invalid.
Foreign Powers
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a)
Commander in Chief. Although the President is commander in chief of the military, only
Congress may declare war. However, the President may take military action without a
declaration of war in the case of actual hostilities against the United States.
b)
Treaties. The President has the exclusive power to negotiate treaties, although a treaty
may only be ratified with the concurrence of two-thirds of the Senate.
c)
Executive Agreements. The President has the power to enter into executive
agreements (e.g., trade agreements) with foreign nations without approval of the
Senate.
Executive Privilege and Immunity
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a)
The President has a privilege to keep certain communications secret. National security
secrets are given the greatest deference by the courts. In criminal proceedings,
presidential communications will be available to the prosecution where a need for such
information is demonstrated.
b)
The President has absolute immunity from civil damages based on any action he took
within his official responsibilities as President; however, there is no immunity for acts
that allegedly occurred before taking office.
Impeachment
a)
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The President, Vice President, and all civil officers of the United States are subject to
impeachment. Grounds include treason, bribery, high crimes, and misdemeanors. A
majority vote in the House is necessary to invoke the charges of impeachment, and
two-thirds vote in the Senate is necessary to convict and remove from office.
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III.
The Relation of Nation and States in a Federal System
A.
Federal and State Powers
1.
2.
3.
Exclusive Federal Powers
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a)
Power of States Expressly Limited. Some powers are exclusively federal because the
Constitution limits or prohibits the use of the power by state (e.g., treaty power, coinage
of money).
b)
Inherent Federal Powers. Other powers are exclusively federal because the nature of
the power itself is such that it can be exercised only by the federal government (e.g.,
declaration of war, federal citizenship)
Exclusive State Powers (10th Amendment)
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a)
Reserved Powers. The 10th Amendment provides that all powers not assigned by the
Constitution to the federal government are reserved to the states, or to the people.
b)
Federal Regulation. The federal government has virtually unlimited power to regulate
the states. Generally, Congress may regulate the states so long as it is exercising an
enumerated power. While Congress cannot command state legislatures to enact
specific legislation or administer federal regulatory programs, it may encourage state
action through the use of its taxing and spending powers (e.g., Congress can condition
federal highway funds on the state’s requiring a minimum drinking age of 21).
Dormant Commerce Clause
a)
The Dormant Commerce Clause refers to a constitutional principle that is inferred from
the Commerce Clause (not specifically enumerated). If Congress has not enacted
legislation in a particular area of interstate commerce, then the states are free to
regulate, so long as the state or local action does NOT:
(1)
Discriminate against out-of-state commerce;
(2)
Unduly burden interstate commerce; OR
(3)
b)
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(a)
A state law that discriminates against interstate commerce in a way
that operates as a tariff or trade barrier against out-of-state interests is
subject to strict scrutiny and is virtually per se unconstitutional.
(b)
A nondiscriminatory state law (i.e., the law applies equally to in-state
and out-of-state participants) that imposes an incidental burden on
interstate commerce will be unconstitutional if the burden it imposes is
clearly excessive in relation to the putative local benefits.
Regulate wholly out-of-state activity.
Legislation that violates any of the above requirements is generally deemed
unconstitutional UNLESS:
(1)
The state is acting as a market participant rather than a market regulator;
(2)
The legislation favors state or local government entities that are performing a
traditional government function; OR
(3)
Congress explicitly permits the legislation.
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B.
Federalism-Based Limits on State Authority
1.
Supremacy Clause and Preemption
a)
The Supremacy Clause provides that federal law is the “supreme law of the land.” Any
state law that directly or indirectly conflicts with a federal law is void under the
Supremacy Clause.
b)
Express Preemption. Federal law expressly preempts state law when:
c)
IV.
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(1)
The Constitution makes the federal power exclusive; OR
(2)
Congress has enacted legislation that explicitly prohibits state regulation in the
same area.
Implied Preemption. Federal law implicitly preempts state law when:
(1)
Congress intended for federal law to occupy the entire field (intent to occupy a
field can be inferred from a framework of regulation so pervasive that Congress
left no room for states to supplement it or when there is a federal interest so
dominant that the federal system will be assumed to preclude enforcement of
state laws on the same subject);
(2)
The state law directly conflicts with the federal law (e.g., requiring conduct that
is forbidden by the federal law or making it impossible to comply with both); OR
(3)
The state law indirectly conflicts with the federal law by creating an obstacle to
or frustrating the accomplishment of the federal law’s purpose.
Individual Rights
A.
State Action
1.
State Action Requirement
a)
B.
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Generally, the Constitution protects against wrongful conduct by the government, not
private parties (there is an exception for the prohibition of slavery, which applies to the
government and private parties). Thus, state action is required to trigger an individual’s
constitutional protections. State action may exist in cases of private parties when:
(1)
A private person carries on activities that are traditionally performed
exclusively by the state; OR
(2)
There are sufficient mutual contacts between the conduct of a private party
and the government (this is a question of the degree of state involvement).
Due Process (5th and 14th Amendments)
1.
Procedural Due Process
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a)
The Due Process Clause of the 14th and 5th Amendments guarantees that no person shall
be denied life, liberty, or property without due process of law. Thus, a fair process
(e.g., notice and hearing) is required for a government agency to individually take a
person’s life, liberty, or property. Only intentional (not negligent) deprivation of these
rights violates the Due Process Clause.
b)
The term “liberty” includes more than just freedom from bodily restraints (e.g., it
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includes the right to contract and to engage in gainful employment). A deprivation of
liberty occurs if a person:
2.
3.
(1)
Loses significant freedom of action; OR
(2)
Is denied a freedom provided by the Constitution or a statute.
c)
The term “property” includes more than personal belongings and realty. A deprivation
of property occurs if a person has a legitimate claim or entitlement that is not fulfilled
(e.g., continued attendance at public school, welfare benefits, etc.).
d)
The type and extent of procedural due process that is required is determined by a
three-part balancing test that weighs:
(1)
The importance of the individual’s interest that is being affected; AND
(2)
The value of specific procedural safeguards to that interest; AGAINST
(3)
The government interest in fiscal and administrative efficiency.
Substantive Due Process
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a)
Analysis. A governmental regulation that infringes upon a fundamental right is subject
to the strict scrutiny standard of review, while a governmental regulation that does NOT
infringe upon a fundamental right is subject to the rational basis standard of review.
b)
Strict Scrutiny. The government must prove that the regulation is the least restrictive
means to achieve a compelling government interest (very difficult to prove).
c)
Rational Basis. The challenger must prove that the regulation is NOT rationally related
to any legitimate government interest (very difficult to prove).
d)
Fundamental Rights. Some rights are so deeply routed in our nation’s tradition and
history that they are considered fundamental. These rights include:
(1)
The right to interstate travel;
(2)
The right to vote; AND
(3)
The right to privacy, including:
(a)
The right to marry;
(b)
The right of married persons to use contraceptives;
(c)
The right of adults to engage in non-commercial, consensual sex;
(d)
The right of parents to make decisions regarding the care, custody, and
control of their children (including the right to privately educate a child
outside the public school system); AND
(e)
The right of related persons to live together in a single household.
Abortion
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a)
The right to privacy includes the right of a woman to have an abortion without
interference from the state under certain circumstances. However, normal strict
scrutiny cannot be applied because the state has two compelling interests that
compete: the woman’s health and protecting the fetus that may become a child.
b)
The Supreme Court has adopted two basic rules:
(1)
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Pre-Viability Rule. Before viability (a realistic possibility that the fetus could
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8
survive outside the womb), a state may adopt a regulation protecting the
mother’s health and the life of the fetus if the regulation does not place an
undue burden on the woman’s right to obtain an abortion.
(2)
c)
C.
Post-Viability Rule. Once the fetus is viable, the state’s interest in the fetus’s
life can override the woman’s right to obtain an abortion, but the state cannot
prohibit the woman from obtaining an abortion if it is necessary for her health.
The government has NO obligation to pay for abortions.
Equal Protection (14th Amendment)
1.
2.
Equal Protection
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a)
The Equal Protection Clause of the 14th Amendment prohibits the government from
denying citizens equal protection of the laws. When the government makes laws that
classify people into groups, the constitutionality of the law will be evaluated according
to the type of classification made (i.e., whether the group is a suspect classification,
quasi-suspect classification, or other classification).
b)
If a suspect classification is involved, the strict scrutiny standard applies. Classifications
are suspect if they are based on race, ethnicity, national origin, or alienage (alienage is
only suspect if the classification is made by state law). Under the strict scrutiny
standard, the government must prove that the regulation is the least restrictive means
to achieve a compelling government interest.
c)
If a quasi-suspect classification is involved, the intermediate scrutiny standard applies.
Classifications are quasi-suspect if they are based on gender or legitimacy (non-marital
children). Under intermediate scrutiny, the government must show that the
classification is substantially related to an important government interest.
d)
Governmental Intent. For strict or intermediate scrutiny to be applied, there MUST be
intent on the part of the government to discriminate. A discriminatory effect or
disparate impact toward a group of people alone is NOT enough to show governmental
intent. Governmental intent may be shown by:
(1)
A law that is discriminatory on its face;
(2)
A discriminatory application of a facially neutral law; OR
(3)
A discriminatory motive behind a facially neutral law.
e)
For all other classifications (e.g., age, disability, and wealth classifications), the rational
basis standard applies. Under rational basis, the challenger must prove that the
regulation is NOT rationally related to any legitimate government interest.
f)
NOTE. If a law limits liberty of ALL persons to engage in some activity, it is usually a due
process issue. If a law treats a person or class of persons differently from others, it is
usually an equal protection issue.
Affirmative Action
a)
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States may implement regulations to remedy past discrimination if the class has
actually suffered persistent and readily identifiable past discrimination. A race-based
plan cannot be used to remedy general past “societal discrimination.” The level of
scrutiny applied to the regulation depends on the classification.
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D.
Takings (5th Amendment)
1.
Takings Clause (Eminent Domain)
a)
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The power of the government to take private property for public purposes is known as
“eminent domain.” The Takings Clause of the 5th Amendment acts as a check on this
power. It provides that:
(1)
Private property may be taken;
(2)
For public use;
(a)
(3)
The government may take private property not only for its own direct
use, but also to transfer the property to another private party. To
challenge this taking as not being made for public use, the challenger
must prove that the transfer of property is NOT rationally related to
any conceivable public purpose (very difficult to prove).
With just compensation.
(a)
Just compensation requires payment of fair market value (the
reasonable value of the property at the time of the taking). The value is
measured in terms of loss to the owner, not the benefit to the
government.
b)
Seizure of Property. The classic application of the Takings Clause is the seizure of
private property for governmental use (e.g., acquiring private land to construct a police
station). Here, the property owner’s main challenge is whether he received just
compensation.
c)
Regulatory Taking. Generally, a governmental regulation that adversely affects a
person’s property interest is NOT a taking (does not require just compensation);
however, it is possible for a regulation to rise to the level of a taking (requiring just
compensation). In determining whether a regulation constitutes a taking, the Penn
Central factors are considered:
d)
(1)
The economic impact of the regulation on the property owner;
(2)
The extent to which the regulation interferes with the owner’s reasonable
investment-backed expectations regarding the use of the property; AND
(3)
The character of the regulation (including the degree to which it will benefit
society, how the regulation distributes the burdens and benefits among
property owners, and whether the regulation violates any of the owner’s
essential attributes of property ownership, such as the right to exclude others
from the property).
Per se Takings. A governmental regulation clearly results in a taking when the
regulation results in a:
(1)
Permanent physical occupation of the property (e.g., a law requiring a landlord
to permit a cable company to permanently install equipment on the landlord’s
property); OR
(2)
Permanent total loss of the property’s economic value (a regulation that results
in a dramatic decline in the value of the property does not necessarily constitute
a taking).
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2.
Exaction as a Taking
a)
E.
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A local government may exact promises from a developer (e.g., setting aside a portion
of the land being developed for a public use in exchange for issuing the necessary
construction permits) without violating the Takings Clause if there is:
(1)
An essential nexus between legitimate state interests and the conditions
imposed on the property owner; AND
(2)
A rough proportionality between the burden imposed by the conditions on the
property owner and the impact of the proposed development.
Other Protections
1.
2.
3.
Privileges and Immunities Clause
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a)
The Privileges and Immunities Clause prohibits one state from discriminating against the
citizens of another state (does not apply to corporations or aliens). Out-of-state citizens
are protected against discrimination with respect to any fundamental rights or essential
activities (e.g., pursuit of employment, transfer of property, engaging in the political
process, etc.).
b)
However, discrimination against out-of-state citizens may be valid if the state can show
a substantial reason for the difference in treatment. A substantial reason exists if:
(1)
The out-of-state citizens either cause or are part of the problem that the state is
attempting to solve; AND
(2)
There are no less restrictive means to solve the problem.
Contracts Clause
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a)
The Contracts Clause limits the ability of states to enact laws that retroactively impair
contract rights. It does NOT affect contracts not yet made. There is no comparable
clause applicable to the federal government; however, flagrant contract impairment
would likely violate the 5th Amendment Due Process Clause.
b)
State legislation that substantially impairs an existing private contract (a contract
between private parties) is invalid unless the legislation passes intermediate scrutiny
(e.g., the challenged law must further an important government interest by means that
are substantially related to that interest).
c)
State legislation that substantially impairs an existing public contract (a contract in
which the state is a party) is tested by the same basic test as above, but will likely
receive stricter scrutiny.
Ex Post Facto Laws
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a)
The state or federal government may not pass an ex post facto law. An ex post facto
law is a law that retroactively alters criminal offenses or punishments in a substantially
prejudicial manner for the purpose of punishing a person for some past activity.
b)
A statute retroactively alters a law in a substantially prejudicial manner if it:
(1)
Makes criminal an act that was innocent when done;
(2)
Prescribes greater punishment for an act than was prescribed when it was
done; OR
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(3)
4.
Bills of Attainder
a)
F.
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Bills of attainder are legislative acts that inflict punishment on individuals without a
judicial trial. Both state and federal governments are prohibited from passing bills of
attainder.
1st Amendment Free Speech – General Principles
1.
2.
3.
Scope of Speech
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a)
The freedom to speak includes the freedom not to speak. Thus, the government
generally cannot require people to salute the flag or display other messages with which
they disagree (e.g., a person need not display the state motto “live free or die” on a
license plate).
b)
The freedom can extend to symbolic acts undertaken to communicate an idea (e.g.,
wearing a black armband to protest war), although the government may regulate such
acts if:
(1)
The government has an important interest independent of the suppression of
speech; AND
(2)
The incidental burden on speech is no greater than necessary to further that
interest.
Overbreadth and Vagueness
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a)
Overbreadth Doctrine. If a regulation of speech or speech-related conduct punishes a
substantial amount of protected speech in relation to its plainly legitimate sweep, the
regulation is facially invalid (e.g., a regulation outlawing ALL 1st Amendment activity in
an airport terminal; a regulation prohibiting all canvassers from going onto private
residential property to promote ANY cause without first obtaining a permit).
b)
Void for Vagueness Doctrine. A statute or regulation is void for vagueness IF it does
not put the public on reasonable notice as to what is prohibited.
Prior Restraints (Censorship)
a)
G.
Reduces the evidence required to convict a person of a crime from what was
required when the act was done.
4.2% Appearance Rate
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A prior restraint is a regulation of speech that occurs before its expression. Generally,
prior restraints are presumed to be unconstitutional with limited exceptions, including:
(1)
There is a particular harm to be avoided (e.g., restraining a newspaper from
publishing troop movements).
(2)
Procedural safeguards are provided to the speaker (e.g., the standards must be
narrowly drawn, reasonable, and definite).
1st Amendment Free Speech – Regulation Based on Conduct
1.
Content vs. Conduct
a)
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Speech regulations can generally be categorized as either:
(1)
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Content-based (regulations forbidding communication of specific ideas); OR
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(2)
b)
c)
2.
Conduct-based (regulations of the conduct associated with speaking, such
as the time of speech, sound level, etc.).
Content-Based Restrictions. It is presumptively unconstitutional to place burdens on
speech because of its content, except for certain categories of unprotected speech (e.g.,
obscenity, defamation, etc.). However, content-neutral speech regulations generally
are subject to intermediate scrutiny – they must:
(1)
Advance important interests unrelated to the suppression of speech; AND
(2)
NOT burden substantially more speech than necessary (i.e., narrowly tailored)
to further those interests.
Conduct-Based Restrictions. Conduct related to speech can be regulated by contentneutral time, place, and manner restrictions (see below).
Time, Place, and Manner Restrictions
Conduct-Based Restrictions
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a)
The government has power to regulate the conduct associated with speech, although
the breadth of this power depends on whether the forum involved is a public forum, a
designated public forum, a limited public forum, or a nonpublic forum.
b)
Public Forums and Designated Public Forums
(1)
Public property that has historically been open to speech-related activity is
called a public forum (e.g., streets, sidewalks, and public parks).
(2)
Public property that has NOT historically been open to speech-related activities,
but which the government has made open for such activities on a permanent or
limited basis, by practice or policy is called a designated public forum (e.g.,
schoolrooms that are open for after-school use by social, civic, or recreation
groups).
(3)
The government may regulate speech in public forums and designated public
forums with reasonable time, place, and manner regulations that:
(a)
(b)
(c)
c)
Are content-neutral (i.e., are subject matter and viewpoint neutral)
Are narrowly tailored to serve an important government interest; AND
Leave open alternative channels of communication.
Limited Public Forums and Nonpublic Forums
(1)
Government property that has NOT historically been linked with speech and
assembly but has been opened for specific speech activity is called a limited
public forum (e.g., school gym opened to host a debate on a particular
community issue).
(2)
Government property that has NOT historically been linked with speech and
assembly and has NOT been opened for specific speech activity is called a
nonpublic forum (e.g., military bases, schools while classes are in session,
government workplaces, etc.).
(3)
The government may regulate speech in limited public forums and nonpublic
forums if the regulations are:
(a)
(b)
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Viewpoint neutral; AND
Reasonably related to a legitimate government purpose
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H.
Unprotected Speech – Regulation Based on Content
1.
Unprotected Speech
a)
2.
3.
4.
(1)
Inciting imminent lawless action;
(2)
Fighting words;
(3)
Obscenity;
(4)
Defamatory speech; AND
(5)
Some commercial speech
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Speech can be restricted if it creates a clear and present danger of imminent lawless
action. It must be shown that:
(1)
Imminent illegal conduct is likely; AND
(2)
The speaker intended to cause it.
Fighting Words
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a)
True threats are NOT protected by the 1st Amendment (e.g., cross-burning carried out
with an intent to intimidate).
b)
Speech also can be limited if it constitutes fighting words. Fighting words are personally
abusive words that are likely to incite immediate physical retaliation in an average
person. Words that are merely insulting or annoying are not enough.
c)
The Supreme Court will NOT tolerate fighting words statutes that are designed to punish
only certain viewpoints (e.g., prohibiting only fighting words that insult on the basis of
race, religion, or gender).
Obscenity
a)
5.
To be valid, restrictions on the content of speech must be necessary to achieve a
compelling government interest. The government has a compelling interest in the
following categories of speech, which are deemed “unprotected speech” under the 1st
Amendment:
Inciting Imminent Lawless Action
a)
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Obscene speech is NOT protected. Speech is obscene if it describes or depicts sexual
conduct that, taken as a whole, by the average person:
(1)
Appeals to the prurient interest in sex, using a community standard;
(2)
Is patently offensive; AND
(3)
Lacks serious literary, artistic, political, or scientific value, using a national
reasonable person standard.
Commercial Speech
a)
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Generally, commercial speech is afforded 1st Amendment protection if it is truthful.
However, commercial speech that proposes unlawful activity or that is false,
misleading, or fraudulent may be restricted as unprotected speech. Any other
regulation of commercial speech will be upheld only if it:
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b)
I.
Serves a substantial government interest;
(2)
Directly advances that interest; AND
(3)
Is narrowly tailored to serve that interest.
Therefore, complete bans on truthful advertising of lawful products are very unlikely to
be upheld due to a lack of narrow tailoring.
Freedom of Association
1.
J.
(1)
Freedom of Association
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a)
Freedom of Association protects the right to form or participate in any group, gathering,
club, or organization without government interference. However, the government may
infringe upon this right if they can satisfy strict scrutiny.
b)
Public Employment. A person may only be punished or deprived of public employment
based on association if that individual:
(1)
Is an active member of a subversive organization;
(2)
Has knowledge of the organization’s illegal activity; AND
(3)
Has a specific intent to further those illegal objectives.
Religious Freedoms
1.
Free Exercise Clause
a)
2.
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The Free Exercise Clause prohibits the government from punishing someone on the
basis of her religious beliefs or interfering with her exercise of religion. E.g., it forbids:
(1)
State governments from requiring office holders or employees to take a
religious oath;
(2)
States from excluding clerics from holding public office; AND
(3)
Courts from declaring a religious belief to be false.
b)
The Supreme Court has not defined what constitutes religious belief, but it is clear that
religious belief need not come from an organized religion or involve a supreme being.
The court has never held an asserted religious belief to be not religious for 1st
Amendment purposes.
c)
NOTE. The government can deny benefits or impose a restriction on someone based on
her religious beliefs so long as there is a compelling interest (i.e., meets strict scrutiny).
However, the Supreme Court has never found an interest so compelling that it justifies
such action.
Establishment Clause
a)
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The Establishment Clause, along with the Free Exercise Clause, compels the government
to pursue a course of neutrality toward religion. Government action challenged under
the Establishment Clause will be found invalid, unless the action:
(1)
Has a secular purpose;
(2)
Has a primary effect that neither advances nor inhibits religion; AND
(3)
Does NOT produce excessive government entanglement with religion.
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b)
This is known as the Lemon Test. However, some recent cases have simply focused on
whether the action is neutral between the religious and nonreligious when there is no
endorsement of a particular religion.
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CONTRACTS
Studicata UBE/MEE Attack Outline
TABLE OF CONTENTS
I.
INTRODUCTION ........................................................................................................................................... 1
A.
General Principles.................................................................................................................................................................1
II. FORMATION OF CONTRACTS ...................................................................................................................... 1
A.
Mutual Assent (Offer + Acceptance) .....................................................................................................................................1
B.
Consideration .......................................................................................................................................................................5
C.
Consideration Substitutes (Alternative Theories of Enforcement) ........................................................................................6
D.
Defenses to Contract Formation ...........................................................................................................................................7
E.
Statute of Frauds ................................................................................................................................................................ 10
III. PERFORMANCE ......................................................................................................................................... 12
A.
Parol Evidence and Interpretation ...................................................................................................................................... 12
B.
Warranties.......................................................................................................................................................................... 13
C.
Conditions .......................................................................................................................................................................... 14
D.
Excuses ............................................................................................................................................................................... 15
E.
Anticipatory Repudiation.................................................................................................................................................... 16
IV. REMEDIES.................................................................................................................................................. 17
A.
Money Damages ................................................................................................................................................................. 17
B.
Equitable Remedies ............................................................................................................................................................ 18
C.
Mitigation of Damages ....................................................................................................................................................... 19
V. THIRD-PARTY RIGHTS ................................................................................................................................ 19
A.
Third-Party Beneficiaries .................................................................................................................................................... 19
B.
Assignment of Rights and Delegation of Duties .................................................................................................................. 19
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NOTE: Examinees are to assume the Article 2 and Revised Article 1 of the Uniform Commercial Code (UCC) have been adopted and
are applicable when appropriate.
I.
Introduction
A.
General Principles
1.
Common Law vs. UCC
a)
b)
2.
The gateway issue in all contracts and sales essay questions will be to determine
whether the common law or Article 2 of the UCC governs:
(1)
The common law governs if a contract deals with services or real estate (e.g.,
hiring someone to mow your lawn).
(2)
The UCC governs if a contract deals with goods (e.g., agreement to buy 100
reams of paper from a paper supply company).
For mixed contracts (contracts that have elements of both services and goods), two
rules operate to determine whether the common law or UCC applies:
(1)
The common law and UCC CANNOT both govern one indivisible contract at the
same time. Thus, mixed contracts must fall into one class or the other.
However, there is a limited exception for divisible contracts (contracts that can
divide the goods and services portions into separate mini-contracts).
(2)
The predominant purpose of the contract determines whether the common law
or UCC governs (i.e., whether a good or service plays a bigger role in the
contract). If the predominant purpose of the contract involves the purchase or
sale of goods, the UCC applies. If the predominant purpose of the contract
involves services or real estate, the common law applies.
Requirements to Form a Valid Contract
a)
II.
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A traditional, enforceable contract is formed when there is:
(1)
Mutual assent (a valid offer + valid acceptance of that offer);
(2)
Consideration; AND
(3)
No defenses to formation that would invalidate the otherwise valid contract.
Formation of Contracts
A.
Mutual Assent (Offer + Acceptance)
1.
Offer
a)
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To form a valid offer, the offeror must:
(1)
Manifest an OBJECTIVE willingness to enter into an agreement; AND
(a)
Objective Test. The offer is governed by an objective test, which means
that outward appearances of words and actions are determinative – not
subjective hidden intentions (e.g., If a person makes an offer as a
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practical joke with his fingers crossed behind his back but his outward
words and actions demonstrate willingness to enter the agreement, it is
a valid offer. The offeror’s subjective intent is irrelevant).
(2)
2.
Create a power of acceptance in the offeree (i.e., the offeree can simply say,
“I accept” and know that he has concluded the deal).
(a)
Specific Offeree. Generally, an offer must be directed to a specific
offeree. However, there is a limited exception for contest offers and
reward offers that promise something to anyone who accomplishes a
certain task (e.g., a posted sign that offers a cash reward for finding lost
puppy is a valid offer).
(b)
Advertisements. An advertisement is usually considered to be an
invitation to deal rather than an offer, because advertisements usually
fail to confer a power of acceptance to the other side. However,
advertisements that are very specific and leave nothing open to
negotiation may constitute offers.
Terms Required in the Offer
a)
Certain terms MUST be specified in the offer in order for the offer to be valid.
b)
Under the common law, all essential terms must be specified in the offer. Generally,
this includes the following four terms:
c)
(1)
Parties;
(2)
Subject;
(3)
Quantity; AND
(4)
Price
Under the UCC, the law is more willing to plug the gaps. Unlike the common law, PRICE
IS NOT REQUIRED in the offer. Generally, only three terms are required under the UCC:
(1)
Parties;
(2)
Subject; AND
(3)
Quantity
(a)
3.
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Requirements and output contracts are valid under the UCC even
though they do not specify an exact quantity. In a requirement
contract, the seller agrees to sell as much as the buyer would require.
In an output contract, the seller agrees to sell his entire production to
the buyer.
Terminating the Offer
a)
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If a valid offer is terminated at any time before acceptance, the offer is invalidated. It
CANNOT be accepted or revived unless a new offer is made. An offer is terminated if
any of the following occur at any time BEFORE acceptance:
(1)
The offeror revokes the offer by express communication to the offeree (unless
the offer is irrevocable – see below).
(2)
The offeree learns that the offeror has taken an action that is absolutely
inconsistent with a continuing ability to contract (“constructive revocation”);
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4.
The offeree rejects the offer by express communication to the offeror;
(4)
The offeree expressly communicates a counteroffer to the offeror;
(5)
The offeror dies or otherwise becomes incapacitated (only terminates the offer,
not a previous valid contract);
(6)
A reasonable amount of time passes (usually requires weeks, not days); OR
(7)
The subject matter of the offer becomes illegal or is destroyed.
Irrevocable Offers
a)
5.
(3)
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The offeror is normally free to revoke at any time prior to acceptance; however, there
are four types of offers that are irrevocable:
(1)
Option contracts. An agreement where consideration is given in exchange for a
promise to keep an offer open (e.g., “I promise not to revoke this offer for one
week if you pay me an additional $100 to keep the offer open.”).
(2)
Firm offers. Under the UCC, a merchant (someone who regularly deals in the
type of good at issue – i.e., a businessperson) can make a firm offer to buy or
sell goods. A firm offer will either last as long as stated in the offer or for a
reasonable time period not to exceed 90 days. A firm offer MUST:
(a)
Be in writing;
(b)
Contain an explicit promise not to revoke; AND
(c)
Be signed by the merchant.
(3)
Offeree has started performance. A unilateral offer to contract cannot be
revoked by the offeror if the offeree has started performance. A unilateral
offer arises from a promise that requests acceptance by an action of the
promisee (versus a return promise, which is called a bilateral contract).
(4)
Detrimental Reliance. An offer cannot be revoked if the offeree reasonably
and detrimentally relies on the offer in a foreseeable manner.
Acceptance
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a)
An acceptance is a manifestation of a willingness to enter into the agreement by the
offeree (usually must be communicated to the other party – silence generally does not
manifest willingness unless there is a past history of silence serving as acceptance).
b)
The offeror is the master of the offer, which means that the offeree MUST accept the
offer according to the rules of the offer (e.g., whether the offer is bilateral or unilateral).
(1)
For bilateral contracts, the start of performance manifests acceptance.
(2)
For unilateral contracts, the start of performance only makes the offer
irrevocable – the offer is only accepted once performance is complete.
c)
Acceptance is governed by an objective test, which means that outward appearances of
words and actions are determinative – not hidden intentions (e.g., a person accepts an
offer with his fingers crossed behind his back).
d)
The offer must be specifically directed to the person trying to accept it – cannot accept
an offer directed elsewhere (for open-to-all contests and reward offers, the person must
know about the contest or reward offer in order to accept it.).
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6.
Mailbox Rule
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a)
Remember, if a valid offer is terminated at any time BEFORE acceptance, the offer is
invalidated. It CANNOT be accepted or revived unless a new offer is made. The mailbox
rule establishes the moment in time that an acceptance becomes effective.
b)
Mailbox Rule. An ACCEPTANCE that is sent by mail, email, or fax is valid at the moment
of dispatch (not when the letter is received), UNLESS:
(1)
The offeree-sender uses the wrong address or has improper postage (e.g., the
offeree-sender forgets to put a stamp on the envelope);
(2)
The offeror expressly stipulates that the acceptance is valid upon receipt;
(3)
An option contract is involved;
(4)
The offeree-sender sends a termination letter BEFORE the acceptance letter; OR
(a)
(5)
7.
If the offeree-sender places a counteroffer/rejection letter in the
mailbox and a moment later, places an acceptance letter in the mailbox,
whichever letter the offeror receives and opens first controls. Notably,
if the offeree-sender places an acceptance letter in the mailbox first,
then the acceptance becomes effective at the moment of dispatch
(unless another exception applies).
The offeror detrimentally relies on a termination BEFORE he receives the
acceptance letter.
Counteroffer vs. Acceptance
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a)
A counteroffer operates as both a rejection that terminates the original offer AND as a
formation of a new offer.
b)
Mirror Image Rule. Under the common law, the terms in the acceptance MUST match
the terms of the offer exactly – otherwise it is not an acceptance, it is a counteroffer
(i.e., the terms of the offer and acceptance must mirror each other exactly).
c)
UCC § 2-207 (“Battle of the Forms”). Under the UCC, the acceptance does NOT have to
mirror the offer (i.e., the acceptance can include different or additional terms from
those in the offer). UCC § 2-207(1) determines whether the purported acceptance
(containing new terms) will operate as an acceptance or as a counteroffer. It states:
(1)
A definite and seasonable expression of acceptance or written confirmation;
(2)
Which is sent within a reasonable amount of time;
(3)
Operates as an ACCEPTANCE even though it states terms additional to or
different from those offered or agreed upon;
(4)
UNLESS acceptance is expressly made conditional upon assent to the additional
or different terms.
UCC § 2-207(2). If the purported acceptance is a valid acceptance under UCC § 2-207(1),
the next issue is whether the additional or different terms in the acceptance will govern
the contract or whether UCC gap fillers will be implemented. Under UCC § 2-207(2), the
ADDITIONAL terms (see distinction between "additional" and "different" terms
below) will govern the contract if BOTH parties are merchants UNLESS:
(1)
The initial offer expressly limited acceptance to its terms;
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(2)
The additional terms materially alter the deal; OR
(3)
The offeror objects to the additional terms within a reasonable amount of time.
The Knockout Rule. Most courts apply the knockout rule with UCC § 2-207(2) to
determine whether the new terms control or whether UCC gap fillers must be
implemented. Under the knockout rule, a distinction is made between "different" and
"additional" terms.
(1)
A different term is a term that was not included in the original offer that
conflicts with the terms of the original offer (e.g., offeree changes the price
term from $5,000 to $4,000 and sends it back to the offeror).
(2)
An additional term is a term that was not included in the original offer that
does NOT conflict with the original offer (e.g., offeree adds a choice of law
provision that was not included in the original offer and sends it back to the
offeror).
Under the knockout rule, different terms in the original offer and acceptance knock
each other out creating a gap in the contract. UCC gap fillers are then used to plug this
gap (regardless of whether the parties are merchants). The knockout rule does not
apply to additional terms added by the offeree. UCC § 2-207(2) will determine whether
the additional terms control or whether UCC gap fillers must be implemented.
B.
Consideration
1.
Consideration
a)
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To form a traditional, enforceable contract, the agreement must be supported by
consideration. Consideration involves a transfer of legal value in a bargained-for
exchange. Consideration is present if:
(1)
The promisee incurs a legal detriment OR the promisor receives a legal benefit
(most courts only focus on whether the promisee incurred a legal detriment
irrespective of whether the promisor received a benefit); AND
(a)
(b)
(2)
A legal detriment generally consists of:
(i)
Promising to do something the party has no prior legal duty to
do;
(ii)
Performing an action that the party is not otherwise obligated
to undertake; OR
(iii)
Refraining from or promising to refrain from exercising a legal
right which the party is otherwise entitled to exercise.
Promising not to sue (settlement of a legal claim) will constitute a legal
detriment so long as the party promising not to sue has an honest and
good faith belief in the validity of the claim.
The promise induces the detriment AND the detriment induces the promise
(i.e., a “bargained-for exchange”).
b)
Gift promises are NOT consideration (e.g., A promises to give B his truck for free. Here,
B incurs no legal detriment and A's promise to give B his truck is not induced by any
action or forbearance from B. This is a gift promise, not bargained-for consideration.).
c)
Conditional gift promises are NOT consideration (e.g., A promises to give B his truck if B
will drive 30 minutes away to pick the truck up from A's house. Here, A's promise to give
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B his truck is not induced by B coming to pick the truck up. Thus, A is not bargaining for
B to come. This is a conditional gift, not bargained-for consideration.).
2.
d)
Preexisting legal duties are NOT consideration (e.g., A promises to pay B $100 if B
refrains from smoking crack-cocaine for 6 months. Here, B already has a preexisting
legal duty imposed by law to refrain from smoking crack-cocaine. Thus, B incurs no legal
detriment, which means consideration is not present.).
e)
Past consideration is NOT consideration (e.g., A's truck catches fire as A is
demonstrating the truck’s safety features to B. After the fire erupts, B rushes over and
extinguishes the flames saving A's life. Grateful, A promises to pay B $100 for the
rescue. Here, B’s detriment (saving A’s life) was not induced by A’s promise. This is past
consideration, not bargained-for consideration.).
f)
A pretense of consideration is NOT consideration (e.g., A and B are cousins. A wishes to
give B his truck that is valued at $10,000 as a gift for B's birthday. Attempting to form an
enforceable contract, A "sells" B his truck for $1 solely to meet the consideration
requirement. Here, A is not induced to give B his truck for the $1. This is merely a
pretense of consideration, not bargained-for consideration.).
g)
An illusory promise is NOT consideration (e.g., A promises to buy B's truck if “he feels
like it.” Here, A is not committing to the deal. This is an illusory promise, not bargainedfor consideration.).
Contract Modification and the Preexisting Duty Rule
a)
Under the common law, contract modifications MUST be supported by consideration.
The common law follows the preexisting duty rule, which means that a promise to do
something that a party is already legally obligated to do (by contract or otherwise) is
NOT consideration.
(1)
b)
C.
12.5% Appearance Rate
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Watch out for this Bar Exam trick: Alex rents an apartment from Slumlord for
one year at a rent of $1,500 per month. Later that year, Alex (running short on
cash) and Slumlord both agree to modify the rent to $1,000 per month. Here,
under the common law, Slumlord can sue Alex at the end of the month for the
extra $500, because there was no consideration for the modification of the
contract (Alex had a preexisting legal duty to pay the full $1,500).
Under the UCC, there is no consideration requirement. A contract modification is valid
if it is made in good faith (i.e., the UCC does NOT apply the preexisting duty rule).
Consideration Substitutes (Alternative Theories of Enforcement)
1.
Promissory Estoppel
a)
b)
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Promises that lack consideration may still be enforced under the doctrine of promissory
estoppel if:
(1)
The promisor should reasonably expect the promise to induce action or
forbearance from the promisee;
(2)
The promise does induce such action or forbearance to the promisee’s
detriment; AND
(3)
Injustice can be avoided only by enforcement of the promise.
Under the restatement approach, the remedy granted for promissory estoppel may be
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limited as justice requires. Courts that follow the restatement approach usually limit the
plaintiff's recovery to the monetary value of the losses incurred in reliance on the
promisor's promise (i.e., reliance damages).
c)
2.
Quasi-Contract
a)
b)
3.
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Contracts that lack consideration (“quasi-contracts”) may be enforced to avoid unfair
results if:
(1)
The plaintiff confers a measurable benefit on the defendant;
(2)
The plaintiff reasonably expected to get paid; AND
(3)
It would be unfair to let the defendant keep the benefit without paying.
Under a quasi-contract theory, the plaintiff’s recovery is limited to restitution (i.e., an
amount equal to the economic benefit that the plaintiff conferred on the defendant).
Moral Obligation + Subsequent Promise
a)
D.
Promissory estoppel often arises in fact patterns where gift promises that lack
consideration are made to charity organizations. Under the second restatement,
a charitable subscription (i.e., a written promise) or a marriage settlement is
binding without proof that the promise induced action or forbearance
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A few jurisdictions have some case law suggesting that a moral obligation plus a
subsequent promise can be binding. Normally, this type of promise would be past
consideration and thus nonbinding (e.g., Tom’s truck catches fire. Brady rushes over
and extinguishes the flames saving Tom’s life. Grateful, Tom promises to pay Brady
$100 for the rescue. Here, this is NOT bargained-for-consideration. However, Brady
could argue that the promise should be enforced due to the strong moral obligation
involved.).
Defenses to Contract Formation
1.
Incapacity
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a)
A party must have capacity to enter into a contract. There are three main types of
incapacity (infancy, mental illness, and intoxication).
b)
Infancy. Unless a statute provides otherwise, a person has the capacity to incur
only voidable contractual duties until the beginning of the day before the person turns
18. I.e., if a minor enters into a contract with an adult, the minor may choose to either:
(1)
Disaffirm (rescind) the contract and avoid liability under it; OR
(a)
(2)
If the minor chooses to disaffirm the contract, the minor must
return anything that he received under the contract that still remains in
his possession at the time of disaffirmance (there is no obligation to
return anything that has been negligently squandered or destroyed).
Affirm (enforce) the contract and hold the adult party liable under it.
(a)
A minor may affirm the contract expressly or implicitly by failing to
disaffirm the contract within a reasonable amount of time after turning
18 thereby ratifying the contract.
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c)
Mental Illness. A person incurs only voidable contractual duties by entering into a
transaction if by reason of mental illness or defect, the individual is unable to:
(1)
Understand in a reasonable manner the nature and consequences of the
transaction, OR
(2)
Act in a reasonable manner in relation to the transaction AND the other party
has reason to know of his condition.
If the mentally ill party wishes to avoid liability under the contract, he may disaffirm the
contract when lucid or by his legal representative. However, a party to a contract who is
mentally ill CANNOT disaffirm the contract if:
d)
(1)
The contract was made on fair terms; AND
(2)
The other party is without knowledge of the mental illness or defect (e.g., the
the mentally ill party is in a lucid state at the time of contracting).
Intoxication. A person incurs only voidable contractual duties by entering into a
transaction if the other party has reason to know that due to intoxication, the
individual is unable to:
(1)
Understand in a reasonable manner the nature and consequences of the
transaction, OR
(2)
Act in a reasonable manner in relation to the transaction.
If the intoxicated party wishes to avoid liability under the contract, he must act
promptly upon recovery to disaffirm the contract and is required to return any value
received, if possible.
e)
2.
Necessaries Doctrine. When necessaries (e.g., food, shelter, clothing, healthcare, etc.)
are furnished to a party who lacks capacity (i.e., minors, mentally ill parties, and
intoxicated parties), the party who lacks capacity is liable for the reasonable value of
the services or goods (not the agreed-upon price) under a quasi-contract theory of
restitutionary recovery.
Mistake
a)
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Mutual Mistake. A mutual mistake occurs when both parties are mistaken as to a basic
assumption on which the agreement is made. The adversely affected party may rescind
the deal if:
(1)
There is a mistake of fact, existing at the time that the deal is made;
(2)
The mistake relates to a basic assumption of the contract;
(3)
The mistake has a material impact on the deal; AND
(4)
The impacted party did NOT assume the risk of mistake.
(a)
The impacted party assumes the risk of mistake when:
(i)
He is aware, at the time the contract is made, that he has only
limited knowledge regarding the facts to which the mistake
relates but treats his limited knowledge as sufficient; OR
(ii)
The risk is allocated to him by agreement of the parties (e.g., “as
is” contracts).
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b)
3.
(1)
There is a mistake of fact, existing at the time that the deal is made;
(2)
The mistake relates to a basic assumption of the contract;
(3)
The mistake has a material impact on the deal;
(4)
The impacted party did NOT assume the risk of mistake; AND
(5)
The mistake would make the contract unconscionable OR the other side knew
of, had reason to know of, or caused the mistake.
Misrepresentation
a)
4.
Unilateral Mistake. A unilateral mistake is a mistake made by one party that is
unknown to the other party. The adversely affected party may rescind the deal if:
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A misrepresentation is a statement at the time of contracting that is NOT TRUE. It can
be intentional (fraudulent) or accidental. To assert this defense, the party must show:
(1)
A misrepresentation of a present fact (not opinion);
(2)
That is material OR fraudulent (knowingly or reckless); AND
(3)
That is made under circumstances in which it is justifiable to rely on the
representation.
Duress and Undue Influence
a)
b)
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Duress. A contract is VOID if a party to the contract is compelled by physical duress,
such as the threat to inflict physical harm (e.g., "Sign this or I'll break your legs with my
baseball bat."). Otherwise, a contract is VOIDABLE by the adversely affected party if the
adversely affected party's assent is induced by an improper threat that leaves the
adversely affected party no reasonable alternative. A threat is improper if:
(1)
What is threatened is a crime or tort, or the threat itself would be a crime or
tort if it resulted in obtaining property;
(2)
What is threatened is a criminal prosecution;
(3)
What is threatened the use of civil process AND the threat is made in bad faith;
(4)
The threat is a breach of the duty of good faith and fair dealing under a
contract with the recipient; OR
(5)
The resulting exchange is NOT on fair terms; AND
(a)
The threatened act would harm the recipient and would not
significantly benefit the party making the threat;
(b)
The effectiveness of the threat in inducing the manifestation of assent is
significantly increased by prior unfair dealing by the party making the
threat; OR
(c)
What is threatened is otherwise a use of power for illegitimate ends.
Undue Influence. A contract is VOIDABLE by the adversely affected party if the
adversely affected party’s assent is induced:
(1)
Due to the adversely affected party’s susceptibility to pressure; AND
(2)
The other side’s application of excessive pressure.
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5.
6.
Illegality
a)
If the consideration or performance under a contract is illegal or contrary to public
policy, the contract is VOID and will not be enforced (e.g., a contract to commit
murder). However, a contract entered into in furtherance of an illegal purpose will
generally be enforced (e.g., hiring an unsuspecting taxi driver to get somewhere in order
to commit a murder).
b)
Performance will be discharged if a contract that was legal when formed subsequently
becomes illegal.
Unconscionability
a)
b)
E.
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If a contract is so unfair or oppressive to one party such that it shocks the conscience of
the court, a court may find it unconscionable and refuse to enforce it. There are two
types of unconscionability that courts consider:
(1)
Procedural Unconscionability. This type occurs when there is a defect in the
bargaining process (e.g., dominant party applies unfair pressure).
(2)
Substantive Unconscionability. This type occurs when the terms of the deal are
grossly unfair and one-sided in one party’s favor.
Some courts will only refuse to enforce a contract if both types of unconscionability are
present. Other courts may refuse to enforce a contract if only one type is present.
Statute of Frauds
1.
Contracts Triggering The Statute of Frauds
a)
The following contracts are NOT valid unless they satisfy the statute of frauds (usually
requires that the contract be a signed writing):
(1)
Marriage. A contract made in consideration of marriage (e.g., a prenup);
(2)
Suretyship. A contract promising to guarantee the debt of another;
(a)
(3)
Main Purpose Exception. If the main purpose in agreeing to pay the
debt of another is for the guarantor’s own economic advantage, then
the Statute of Frauds does NOT apply.
One Year. A contract that by its terms cannot be performed within one year
from its making;
(a)
b)
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The one-year provision is interpreted very narrowly – there must be no
possible way that the contract could be performed within one year
from the time the contract is formed (e.g., A hires B to teach him
contract law “for the rest of A’s life” – the statute of frauds is not
triggered under the one-year provision because A could die at any time
before one year passes).
(4)
UCC. A contract for the purchase or sale of goods for $500 or more; AND
(5)
Real Estate. A contract to transfer, receive, or create an interest in real estate.
Modifications. The statute of frauds applies to a modification ONLY IF the contract as
modified (not the original contract) falls within the statute of frauds.
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2.
Satisfying the Statute of Frauds
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a)
Once it is determined that the statute of frauds is triggered (see above), the next issue is
whether the statute of frauds has been satisfied. There are two main ways to satisfy the
statute of frauds – by writing and by performance.
b)
Satisfaction by Writing. A writing will satisfy the statute of frauds if the writing:
(1)
Is signed by the party against whom enforcement is sought;
(2)
Shows that a contract was formed; AND
(3)
Includes the requisite terms.
(a)
c)
The requisite terms under the common law are parties, subject,
quantity, and price. The requisite terms under the UCC are parties,
subject, and quantity.
Satisfaction by Performance. The performance required to satisfy the statute of frauds
depends on the type of contract involved:
(1)
Services Contracts under the One-Year Provision. Under the common law,
FULL performance of a services contract by either side satisfies the statute of
frauds. Part performance does NOT satisfy the statute of frauds.
(2)
Contracts to Transfer, Receive, or Create an Interest in Real Estate. In most
jurisdictions, real estate contracts can satisfy the statute if:
(3)
(a)
The seller FULLY performs (i.e., conveys the land to the buyer); OR
(b)
The buyer performs two of the following three actions:
(i)
The buyer takes possession of the property;
(ii)
The buyer makes payment in full or part; AND/OR
(iii)
The buyer makes substantial improvements to the land.
UCC Goods Contracts for $500 or More. There are four main ways a contract
can satisfy the statute of frauds under the UCC (“P.A.W.S.”):
(a)
Performance. Under UCC § 2-201(3)(c), the statute of frauds is satisfied
for the quantity of goods for which payment has been made and
accepted or which have been received and accepted (the contract is
not enforceable under this provision beyond the quantity of goods for
which payment has been made and accepted or which have been
received and accepted).
(b)
Admission in Court. Under UCC § 2-201(3)(b), the statute of frauds is
satisfied if the party against whom enforcement is sought admits in his
pleading, testimony, or otherwise in court that a contract for sale was
made (the contract is not enforceable under this provision beyond the
quantity of goods admitted).
(c)
Written Confirmation between Merchants. Under UCC § 2-201(2), the
statute of frauds is satisfied if:
(i)
After an oral agreement between merchants;
(ii)
Either party sends a signed, written confirmation of the oral
contract (must be signed by the sender); AND
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(d)
III.
(iii)
The written confirmation is received by the other merchant to
the oral agreement; UNLESS
(iv)
The party receiving the written confirmation gives a written
notice of objection within 10 days after receipt of the written
confirmation.
Specially Manufactured Goods. Under UCC § 2-201(3)(a), the statute of
frauds is satisfied when a seller makes a "substantial beginning" toward
manufacture of custom goods that are to be specially made for the
buyer and are not suitable for sale to others in the ordinary course of
the seller's business under circumstances that reasonably indicate that
the goods are for the buyer.
Performance
A.
Parol Evidence and Interpretation
1.
Parol Evidence Rule (PER)
a)
When the parties to a contract express their agreement in a writing with the intent that
it embody the final expression of their bargain, the writing is an integration. If the
writing is not an integration (e.g., non-final expressions such as tentative drafts), the
PER does NOT apply. Otherwise, an integration may be complete or partial:
(1)
Complete Integration. If the writing completely expresses all of the terms of
the parties’ agreement, then it is a complete integration. ALL other expressions
or statements, written or oral, made prior to the writing, as well as any oral
expressions made contemporaneously with the writing, are inadmissible.
(a)
(2)
b)
8.3% Appearance Rate
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Merger Clause. A merger clause recites that the agreement is the
complete agreement between the parties. This is usually strong
evidence that the writing is a complete integration.
Partial Integration. If the writing sets forth the parties’ agreement about some
terms, but not all the terms, then it is a partial integration. Other expressions
or statements, written or oral, made prior to the writing, as well as any oral
expressions made contemporaneously with the writing, are admissible to
supplement the writing so long as the evidence does NOT contradict the terms
of the writing.
The PER does NOT apply if any of the following exceptions exist:
(1)
Defenses. Extrinsic evidence may be offered to establish a defense to the
formation or enforcement of a contract (e.g., incapacity, mistake, duress, lack of
consideration, etc.).
(2)
Separate Deals. Extrinsic evidence may be offered if it represents a distinct and
separate contract.
(3)
Condition Precedents. Extrinsic evidence may be offered if a party asserts that
there was an oral agreement that the written contract would not become
effective until a condition occurred.
(4)
Ambiguity and Interpretation. Extrinsic evidence may be offered for the
purpose of interpreting or clarifying an ambiguity in the agreement.
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Contracts 12
c)
B.
NOTE. The PER does NOT apply to agreements made between the parties AFTER the
the execution of the writing. Agreements made after the execution of the writing would
be analyzed as contract modifications, and do NOT trigger the PER.
Warranties
1.
Express Warranties
a)
b)
2.
3.
4.2% Appearance Rate
-
Under the UCC, express warranties by the seller are created as follows:
(1)
Any affirmation of fact or promise made by the seller to the buyer which
relates to the goods and becomes part of the basis of the bargain creates an
express warranty that the goods shall conform to the affirmation or promise.
(2)
Any description of the goods which is made part of the basis of the bargain
creates an express warranty that the goods shall conform to the description.
(3)
Any sample or model which is made part of the basis of the bargain creates an
express warranty that the whole of the goods shall conform to the sample or
model.
Disclaimer. Disclaimers that grossly conflict with express warranties are unenforceable
(e.g., broad disclaimers such as, “all warranties, express or implied, are disclaimed” are
not enforceable). A seller is liable for breach of contract if she violates an express
warranty.
Implied Warranty of Merchantability
4.2% Appearance Rate
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a)
Under the UCC, all merchants make an implied warranty (unless disclaimed) that the
goods being sold are fit for their ordinary commercial purposes. Merchants are liable
for breach of contract if the implied warranty of merchantability is violated.
b)
Disclaimer. A merchant can disclaim the implied warranty of merchantability if the
language used to disclaim is conspicuous. Language of “as is” or “with all faults” or
language that puts the buyer on notice will be sufficient for disclaiming the implied
warranty of merchantability. The disclaimer may be made orally so long as the term
“merchantability” is used.
c)
Inspection. If the buyer, before entering into the contract, has examined the goods or a
sample as fully as the buyer desires, or has refused to examine the goods, then there is
NO implied warranty of merchantability with respect to defects that an examination
ought to have revealed to the buyer.
Implied Warranty of Fitness for a Particular Purpose
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a)
A warranty that the goods are fit for a particular purpose is implied whenever the seller
has reason to know that the buyer has a particular use for the goods, and the buyer is
relying upon the seller’s skill to select the goods. The seller need NOT be a merchant for
this warranty to apply. A party is liable for breach of contract if she violates the implied
warranty of fitness for a particular purpose.
b)
Disclaimer. An implied warranty of fitness for a particular purpose can be disclaimed by
general language (e.g., “as is”), but the disclaimer MUST be in writing and conspicuous.
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Contracts 13
C.
Conditions
1.
2.
Express Conditions
a)
A condition is another way to shift risk by stating that one party’s contractual
obligations will kick in only if some future event takes place.
b)
An express condition in a contract makes performance conditional upon the
completion of the condition (look for language like: “only if,” “provided that,” “on the
condition that,” or “only in the event that,” etc.).
c)
Express conditions must be satisfied strictly, unless the condition is excused by waiver:
(1)
The party receiving the protection of the condition waives the condition with
words or conduct; OR
(2)
The party receiving the protection of the condition wrongfully interferes or
hinders the occurrence of the condition when judged by a good faith standard.
Good Faith and Fair Dealing
a)
3.
< 1.0% Appearance Rate
-
All contracts contain an implied obligation which requires the parties to a contract to act
in good faith and deal fairly with one another without:
(1)
Breaking their word;
(2)
Using deceptive means to avoid obligations; OR
(3)
Denying what the other party obviously understood.
Substantial Performance
Performance Under the Common Law
a)
4.
4.2% Appearance Rate
-
Under the common law, substantial performance is required, which means that
performance will be satisfied so long as there is NOT a material breach of the contract.
If there is a material breach, the non-breaching party’s performance is excused. If the
breach is not material, the non-breaching party’s performance is not excused.
Perfect Tender
Performance Under the UCC
a)
8.3% Appearance Rate
-
8.3% Appearance Rate
-
Under the UCC, perfect tender is required, which means that a seller must deliver
conforming goods in accordance with the terms of the contract (i.e., “perfect goods” +
“perfect delivery”). The smallest nonconformity is a breach that allows the buyer to
reject all or a portion of the goods. However, there are three main exceptions:
(1)
The parties can contractually change the default rules to include discussion of
substantial performance instead of perfect tender;
(2)
Installment contracts (agreement for delivery in separate lots) do NOT have to
satisfy perfect tender – the buyer can reject a specific installment delivery when
there is a substantial impairment in the installment that cannot be cured;
(3)
If the seller fails to tender perfect goods, the buyer MUST give the seller a
chance to cure the nonconformity if:
(a)
The time for performance under the contract has NOT yet expired; OR
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Contracts 14
(b)
b)
D.
The seller has reasonable grounds to believe that the buyer would
accept a replacement for the nonconformity.
Revocation of Acceptance. If a buyer fails to reject nonconforming goods after having
had a reasonable opportunity to inspect the goods, the buyer is deemed to have
accepted the goods. The buyer may revoke his acceptance if:
(1)
The nonconformity substantially impairs the value of the goods;
(2)
The revocation occurs within a reasonable time after the buyer discovers or
should have discovered the ground for nonconformity and before any
substantial change in condition of the goods which was not caused by their own
defects; AND
(3)
The buyer accepted the goods:
(a)
On the reasonable assumption that the nonconformity would be
cured and it has not been seasonably cured; OR
(b)
Without discovery of such nonconformity if his acceptance was
reasonably induced either by the difficulty of discovery before
acceptance or by the seller’s assurances.
Excuses
1.
Impossibility and Impracticability
a)
b)
2.
A party’s duty to perform under a contract is discharged if:
(1)
An unforeseeable event occurs that makes performance extremely and
unreasonably difficult or impossible;
(2)
The nonoccurrence of the event was a basic assumption of the contract; AND
(3)
The party seeking discharge was NOT at fault.
Look for these common fact patterns:
(1)
Performance becomes illegal after the contract is formed;
(2)
The subject matter of the contract is destroyed;
(3)
There is a services contract to hire a “uniquely skilled” individual (e.g., a famous
artist) who dies or becomes incapacitated.
Frustration of Purpose
a)
b)
< 1.0% Appearance Rate
-
< 1.0% Appearance Rate
-
A party’s duty to perform under a contract is discharged if:
(1)
Unexpected events arise that destroy one party’s purpose in entering into the
contract (even if performance of the contract is not rendered impossible);
(2)
The event that arises is NOT the fault of the frustrated party; AND
(3)
The nonoccurrence of the event was a basic assumption of the contract.
NOTE. The occurrence of the event need not be completely unforeseeable to the
parties (it must be unexpected and not a realistic prospect).
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Contracts 15
3.
Accord and Satisfaction
a)
b)
4.
E.
A party is excused from their obligations under a valid contract when there has been an
accord and satisfaction.
(1)
An accord is an agreement between two contracting parties to accept alternate
performance to discharge a preexisting duty between them.
(2)
The satisfaction is the subsequent performance of that accord. If satisfaction
never occurs, the other side can sue on either the original obligation or the
accord.
An accord and satisfaction differs from a modification, as a modification immediately
discharges a preexisting duty where an accord and satisfaction does not discharge a
preexisting duty until the satisfaction occurs.
Novation
a)
< 1.0% Appearance Rate
-
< 1.0% Appearance Rate
-
A novation arises when BOTH parties agree that a substitute person will take over the
contractual obligations. If there is a valid novation, the original promisor will be excused
from performance (the substitute becomes 100% liable for the performance).
Anticipatory Repudiation
1.
Anticipatory Repudiation
a)
b)
8.3% Appearance Rate
-
Under the common law, anticipatory repudiation occurs when a promisor clearly and
unequivocally repudiates a promise before the time for performance is due (by words
or conduct). Under the common law, repudiation may be retracted until the promisee:
(1)
Acts in reliance on the repudiation;
(2)
Signifies acceptance of the repudiation; OR
(3)
Commences an action for breach of contract.
Under the UCC, anticipatory repudiation occurs when:
(1)
The buyer or seller makes an unequivocal refusal to perform; OR
(2)
Reasonable grounds for insecurity arise regarding either party’s ability or
willingness to perform, and the repudiating party fails to provide adequate
assurances within a reasonable time (not to exceed 30 days) upon the nonrepudiating party’s demand for such assurances.
Under the UCC, anticipatory repudiation may be retracted until the non-repudiating
party cancels the contract or materially changes his position.
c)
When an anticipatory repudiation occurs, the non-repudiating party may:
(1)
Treat the repudiation as a breach and sue immediately for damages; OR
(a)
(2)
However, if the date of performance has not passed and the only
performance left is payment, the non-repudiating party must wait until
performance is due and the actual breach occurs before filing suit.
Ignore the repudiation, urge performance, and see what happens.
(a)
However, if the repudiation is ignored, then continued performance by
the non-repudiating party must be suspended if the performance would
increase the damages of the repudiating party.
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Contracts 16
IV.
Remedies
A.
Money Damages
1.
Expectation Damages
16.7% Appearance Rate
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a)
The goal of expectation damages is to put the non-breaching party in the same
economic position that it would be in if the contract had been performed as promised.
Expectation damages are measured by comparing the value of the performance
without the breach to the value of the performance with the breach.
b)
There are three major limitations on the calculation of expectation damages:
(1)
Expectation damages MUST be proven with reasonable certainty.
(a)
(2)
Unforeseeable consequential damages are NOT recoverable UNLESS the
breaching party had some reason to know about the possibility of these
unforeseeable damages.
(a)
(b)
2.
3.
Common fact patterns include new or unproven business ventures
that have trouble proving lost profits from a consistent sales record.
Reliance Damages
General Damages. The type of losses that almost anyone would suffer
from a breach (e.g., cost of storing rejected goods, finding a new buyer,
finding a replacement vendor, etc.).
Consequential Damages. The type of losses that are unique or special
to this plaintiff (i.e., losses that arise indirectly from the breach due to
the plaintiff’s special circumstances).
4.2% Appearance Rate
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a)
The goal of reliance damages is to put the non-breaching party in the same economic
position that it would be in if the contract had never been created. Reliance damages
restore the losses that the plaintiff incurred that would have never taken place but for
the breached contract.
b)
E.g., Tom decides to sell his truck and agrees to pay a local television network $500 for
one 30-second advertising slot. Unfortunately for Tom, the network forgets to run the
ad and Tom fails to sell his truck. Tom likely cannot recover the potential sale price of
his truck, but he can get reliance damages for the costs he incurred to make the ad.
c)
A party cannot recover both expectation and reliance damages; typically, the plaintiff
must elect one or the other.
Restitution
4.2% Appearance Rate
-
a)
The goal of restitution is to prevent unjust enrichment. Restitution gives the plaintiff an
amount equal to the economic benefit that the plaintiff has conferred on the defendant.
b)
E.g., Tom pays Mechanic $500 to fix his truck’s transmission. Tom incurs a $20 loss in
gas money spent in order to get to Mechanic’s repair shop. Mechanic fails to fix Tom’s
truck and negligently catches the truck on fire destroying it. Tom can only recover $500
in restitution damages for the benefit that he conferred to Mechanic.
c)
A party cannot recover both expectation and restitution damages; typically, the plaintiff
must elect one or the other.
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Contracts 17
4.
Liquidated Damages
a)
5.
B.
Liquidated damages are set forth in the terms of the contract and expressly state an
amount due upon breach. Courts are wary in awarding liquidated damages that are
punishing in nature and will only do so if:
(1)
The amount of liquidated damages was reasonable at the time of contracting;
AND
(2)
Actual damages from the breach would be uncertain in amount and difficult to
prove.
Punitive Damages
a)
< 1.0% Appearance Rate
-
4.2% Appearance Rate
-
Punitive damages are awarded to punish the defendant. Punitive damages are rarely
available in contract actions. Some states allow punitive damages to punish fraud,
violations of a fiduciary duty, or acts of bad faith. Under the Second Restatement,
punitive damages are NOT recoverable unless the conduct constituting the breach is
also a tort for which punitive damages can be recovered.
Equitable Remedies
1.
Specific Performance
a)
2.
3.
Specific performance is awarded ONLY when monetary damages are considered
inadequate to compensate the injured party (e.g., transactions involving unique goods
like art or custom-made items). Specific performance is presumptively available for real
estate transactions. Specific performance is presumptively NOT available for contracts
of personal service (injunctive relief is more common in these instances).
Rescission
a)
4.2% Appearance Rate
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Rescission is the cancelling of a contract so as to restore the parties to the positions
they had before the contract was made. Parties may seek to rescind a contract for a
variety of reasons, such as mutual mistake, fraud, misrepresentation, or even unilateral
mistake if the other party knew or should have known about the mistake. Rescission
can also occur by the mutual agreement of the parties.
Right of Reclamation (Replevin)
a)
< 1.0% Appearance Rate
-
4.2% Appearance Rate
-
Under the UCC, a seller may reclaim the goods she sent to a buyer if either of the
following circumstances apply:
(1)
Insolvent Buyer. When an insolvent buyer receives goods on credit, and the
seller learns that the buyer is insolvent, the seller may reclaim the goods if a
demand is made within 10 days after the buyer’s receipt of the goods.
However, the 10-day limitation does NOT apply if the buyer misrepresented his
solvency to the seller in writing within three months before delivery.
(2)
Bad Checks. If the buyer pays with a check that is subsequently dishonored,
then the seller may reclaim the goods following a demand made within a
reasonable time.
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Contracts 18
C.
Mitigation of Damages
1.
Duty to Mitigate
a)
V.
8.3% Appearance Rate
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The plaintiff has a duty to take reasonable steps to mitigate (reduce) his losses. If the
plaintiff fails to do so, the court will reduce the total damages by the amount that could
have been avoided had the plaintiff taken reasonable steps to mitigate his losses.
Third-Party Rights
A.
Third-Party Beneficiaries
1.
Third-Party Beneficiary Contracts
a)
An intended third-party beneficiary is NOT a party to the contract, but has rights under
the contract because the two contracting parties are aware that their respective
performances are intended to benefit the identified third-party. An intended
beneficiary HAS the right to sue for breach of contract.
(1)
b)
B.
E.g., Tom agrees to pay Mechanic $200 if Mechanic fixes Gisele’s truck. Gisele is
an intended third-party beneficiary; thus, she has the right to sue Mechanic if he
breaches. However, Mechanic could assert any contract defense against Gisele
that he would be entitled to assert against Tom (e.g., incapacity, duress, etc.).
An incidental third-party beneficiary is NOT a party to the contract, but just so happens
to benefit from the contract. An incidental beneficiary has NO legal rights because the
purpose of the contract was NOT intended to benefit them. An incidental beneficiary
does NOT have the right to sue for breach of contract.
(1)
c)
4.2% Appearance Rate
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E.g., Gisele is an international supermodel who uses her truck to get to and from
photo-shoots. Photographer incurs a $1,000 loss because Gisele could not get
to her shoot as Mechanic failed to fix her truck. Photographer is an incidental
beneficiary; thus he has no right to sue Mechanic for breach of contract.
The original parties can revoke or modify away the third-party beneficiary’s right to
enforce the contract up until the rights vest. Rights vest when the third-party
beneficiary has:
(1)
Detrimentally relied on the contract;
(2)
Accepted the benefit under the contract; OR
(3)
Brought suit to enforce the contract.
Assignment of Rights and Delegation of Duties
1.
Assignment
a)
4.2% Appearance Rate
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Generally, a party can assign rights and benefits, in whole or in part, under a contract to
a third party UNLESS the contract explicitly prohibits or invalidates assignments.
(1)
If the contract prohibits assignments, then the assignor has breached the deal
when he makes the assignment and is liable for damages; however, the
assignment is still valid and enforceable by the assignee.
(2)
If the contract invalidates assignments, then the assignment is void and the
assignee cannot enforce the assignment or recover.
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Contracts 19
b)
An assignee has the right to sue:
(1)
The obligor for non-performance; AND
(a)
(2)
However, any defense to enforcement that could be used against the
assignor may also be used against the assignee.
The assignor for wrongful revocation of assignment OR breach of an implied
warranty.
An assignor may sue an obligor only if the assignor did not receive consideration for the
assignment.
2.
c)
Consideration is NOT required for an assignment, but if consideration is provided, the
assignment becomes irrevocable.
d)
If an assignor assigns the same rights multiple times to separate parties, then the first
assignment for consideration will typically control. If the rights are assigned without
consideration, then the last assignment controls.
Delegation
a)
4.2% Appearance Rate
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A delegation of duties occurs when a party “outsources” her duties under a contract to a
third party. This is generally acceptable provided that:
(1)
The contract does not prohibit delegation; AND
(2)
The other party does not have some special interest in having a specific
individual perform (e.g., an artist to paint a portrait).
b)
Generally, a delegatee is NOT liable for breach unless she receives consideration from
the delegating party (i.e., the delegating party is NOT excused and remains liable for
non-performance unless there is consideration).
c)
NOTE: A delegation differs from a novation as a novation arises when BOTH parties
agree that a substitute person will take over the contractual obligations. A delegation
arises when ONE party independently decides to delegate duties to a third party.
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Contracts 20
CRIMINAL LAW
Studicata UBE/MEE Attack Outline
TABLE OF CONTENTS
I.
INTRODUCTION ........................................................................................................................................... 1
A.
General Principles.................................................................................................................................................................1
II. HOMICIDE ................................................................................................................................................... 2
A.
Common Law Criminal Homicides ........................................................................................................................................2
B.
Statutory Modification of Common Law Criminal Homicide .................................................................................................3
C.
Causation in Homicide ..........................................................................................................................................................4
III. OTHER CRIMES ............................................................................................................................................ 4
A.
Offenses Against the Person .................................................................................................................................................4
B.
Sex Offenses .........................................................................................................................................................................5
C.
Property Offenses.................................................................................................................................................................6
D.
Offenses Against the Habitation ...........................................................................................................................................8
E.
Inchoate Offenses.................................................................................................................................................................8
IV. CRIMINAL RESPONSIBILITY ....................................................................................................................... 10
A.
Parties to a Crime ............................................................................................................................................................... 10
B.
Criminal Capacity ................................................................................................................................................................ 10
C.
Justification Defenses ......................................................................................................................................................... 11
D.
Other Defenses ................................................................................................................................................................... 12
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Criminal Law
I.
Introduction
A.
General Principles
1.
Essential Elements of a Crime
a)
Almost all crimes require proof of the following four core elements:
(1)
Physical Act (actus reus). The defendant must have either performed a
voluntary physical act or failed to act under circumstances imposing a legal
duty to act. A failure to act gives rise to liability only if:
(a)
(b)
(c)
2.
There is a legal duty to act (e.g., by statute, contract, relationship, etc.);
The defendant has knowledge of the facts giving rise to the duty to act;
AND
It is reasonably possible to perform the duty.
(2)
Mental State (mens rea). The defendant must have committed the offense
with a culpable state of mind. However, a defendant need not know that their
conduct is illegal to be guilty of a crime.
(3)
Causation. There must be a casual connection between the defendant’s
physical act or failure to act and the harmful result.
(4)
Concurrence. The requisite mental state must be present at the same time the
physical act constituting the crime occurs.
Mental State Requirements
a)
8.3% Appearance Rate
-
20.8% Appearance Rate
-
The common law requires that one of the following four different mental states be
proven depending on the crime committed:
(1)
Specific Intent. This requires that the crime be committed with a specific intent
or objective. The existence of specific intent cannot be conclusively imputed
from the mere doing of an act, but the manner in which the crime was
committed may provide evidence of intent. The following are specific intent
crimes (and the specific intent required):
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(2)
Solicitation (intent to have the person solicited commit the crime)
Attempt (intent to complete the crime)
Conspiracy (intent to have the crime completed)
First Degree Murder (premeditated intent to kill)
Assault (intent to commit a battery)
Larceny and Robbery (intent to permanently deprive another of his
interest in the property taken)
Burglary (intent to commit a felony in the dwelling)
Forgery (intent to defraud)
False Pretenses (intent to defraud)
Embezzlement (intent to defraud)
Malice. The intent necessary for malice crimes require a reckless disregard of
an obvious or high risk that the particular harmful result will occur. Defenses
to specific intent crimes (e.g., voluntary intoxication) do NOT apply to malice
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Criminal Law
1
crimes. Malice crimes include:
(a)
(b)
(3)
General Intent. General intent is a “catch-all” category of intent. It requires
that the defendant intend to commit an act that is prohibited by law (whether
the defendant intended the act’s result is irrelevant). General intent crimes
include:
(a)
(b)
(c)
(d)
(e)
(4)
II.
Battery;
Rape;
Manslaughter;
Kidnapping; AND
False Imprisonment
Strict Liability. Strict liability only requires that the defendant voluntarily
commit the actus reus (regardless of the defendant’s intent). Defenses that
negate state of mind (e.g., mistake of fact) are NOT available. Strict liability
offenses include:
(a)
(b)
(c)
b)
Common Law Murder; AND
Arson
Statutory Rape;
Selling Liquor to Minors; AND
Bigamy (some jurisdictions)
The Model Penal Code eliminates the common law distinctions between general and
specific intent and adopts the following four categories of intent:
(1)
Purposely. A defendant acts “purposely” when his conscious objective is to
engage in the conduct or to cause a certain result.
(2)
Knowingly or willfully. A defendant acts “knowingly or willingly” when the
defendant is aware that his conduct is of the nature required by the crime or
that circumstances required by the crime exist.
(3)
Recklessly. A defendant acts “recklessly” when the defendant acts with a
conscious disregard of substantial and unjustifiable risk that a material
element of a crime exists or will result from his conduct. The risk must
constitute a gross deviation from the standard of conduct of a law-abiding
person.
(4)
Negligently. A defendant acts “negligently” when the defendant fails to
perceive a substantial and unjustifiable risk that a material element of a crime
exists or will result from his conduct. The risk must constitute a gross deviation
from the standard of conduct of a reasonable person in the same situation.
Homicide
A.
Common Law Criminal Homicides
1.
Common Law Murder
a)
8.3% Appearance Rate
-
Murder is the unlawful killing of a human being with malice aforethought. Malice
aforethought exists if there are NO facts reducing the killing to voluntary manslaughter
or excusing it AND it was committed with one of the following states of mind:
(1)
Intent to kill;
(2)
Intent to inflict great bodily injury;
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2.
Reckless indifference to an unjustifiably high risk to human life (“depraved
heart murder”); OR
(4)
Intent to commit a felony (under the felony murder rule).
Voluntary Manslaughter (“Heat of Passion”)
a)
3.
(3)
Voluntary manslaughter is a killing that would be murder BUT FOR the existence of
adequate provocation. Provocation is adequate only if:
(1)
It was a provocation that would arouse sudden and intense passion in the mind
of an ordinary person, causing him to lose self-control (e.g., exposure to a
threat of deadly force, finding a spouse in bed with another, being the victim of
a serious battery, etc.); AND
(2)
There was NOT sufficient time between the provocation and the killing for
passions of a reasonable person to cool off.
Involuntary Manslaughter
a)
8.3% Appearance Rate
-
Involuntary manslaughter is an unintentional killing committed:
(1)
With criminal negligence; OR
(a)
(2)
B.
8.3% Appearance Rate
-
Criminal negligence is grossly negligent action (or inaction when there is
a duty to act) that puts another person at a significant risk of serious
bodily harm or death.
During an unlawful act, which may occur in one of two ways:
(a)
Under the misdemeanor-manslaughter rule, which is a killing committed
in the commission of a misdemeanor; OR
(b)
A killing committed in the commission of a felony that is not statutorily
treated as 1st degree felony murder or 2nd degree murder.
Statutory Modification of Common Law Criminal Homicide
1.
First and Second Degree Murder
a)
8.3% Appearance Rate
-
In some jurisdictions, murder is divided into degrees by statute. Generally, a murder
is 2nd degree murder UNLESS it falls under any of the following statutory aggravating
circumstances, which make it 1st degree murder:
(1)
Premeditation. The murder was deliberate and premeditated. If the
defendant made the decision to kill in a cool and dispassionate manner and
actually reflected on the idea of killing, even if only for a very brief period (e.g.,
a few seconds), it is 1st degree murder.
(2)
Felony Murder. The murder falls under a 1st degree felony murder statute. In
many states, a killing committed during the commission of an enumerated
felony is felony murder and called 1st degree murder. The most commonly
listed felonies in such statutes are burglary, arson, rape, robbery, and
kidnapping (BARRK); however, other felonies that are inherently dangerous to
human life are often included as well.
(3)
Heinous Murder. The murder is performed in a certain way (e.g., torture,
mutilation, etc.). Some states make these types of killings 1st degree murder.
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2.
Felony Murder Rule
a)
C.
Any death caused in the commission of, or in an attempt to commit, a felony is murder.
However there are several limitations to this rule:
(1)
The defendant must have committed or attempted to commit the underlying
felony – a defense that negates an element of an underlying offense will also be
a defense to felony murder;
(2)
The felony must be distinct from the killing itself (e.g., commission of a battery
that causes a victim’s death does not qualify as an underlying felony because
the battery is not distinct from the killing itself);
(3)
The death must have been a foreseeable result of the felony; AND
(4)
The death must have been caused before the defendant’s “immediate flight”
from when the felony ended (i.e., once the felon has reached a place of
“temporary safety” – subsequent deaths are not felony murder).
Causation in Homicide
1.
Causation
a)
8.3% Appearance Rate
-
To be liable for homicide, the defendant’s conduct must be both the cause-in-fact and
the proximate cause of the victim’s death:
(1)
Cause-In-Fact. A defendant’s conduct is the cause-in-fact of the victim’s death if
the death would not have occurred but for the defendant’s conduct.
(2)
Proximate Cause. A defendant’s conduct is the proximate cause of the victim’s
death if the death is a natural and probable consequence of defendant’s
conduct. Superseding events break the chain of proximate causation (i.e.,
intervening events that are NOT foreseeable generally shield the defendant).
(a)
b)
III.
8.3% Appearance Rate
-
NOTE: A third party’s negligent medical care and the victim’s refusal of
medical treatment for religious reasons are both foreseeable risks –
thus, the defendant remains liable.
Traditionally, for a defendant to be liable for homicide, the death of the victim must
occur within one year and one day from infliction of the injury or wound. Most states
that have reviewed this rule have abolished it.
Other Crimes
A.
Offenses Against the Person
1.
Battery
a)
< 1.0% Appearance Rate
-
Battery is the:
(1)
Unlawful (without legal excuse);
(2)
Application of force;
(a)
(3)
The force can be applied by a third party acting under the defendant’s
direction or by an object controlled by the defendant.
To the person of another;
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(a)
(4)
That results in bodily harm or offensive contact.
(a)
b)
2.
b)
Remember, battery is a general intent crime (intent to cause injury is NOT necessary –
only the intent to do the unlawful act is required).
< 1.0% Appearance Rate
-
Assault is either:
(1)
An attempt to commit a battery; OR
(2)
Intentionally placing another in apprehension of imminent bodily harm.
If there has been physical contact with the victim, the crime can only be battery, not
assault.
False Imprisonment
a)
(1)
Unlawful (without legal excuse);
(2)
Confinement of a person;
(3)
Confinement may be effected by forcing a person to go where he does
not want to or by preventing him from going where he does not want so
long as no alternative routes are available to him. This may be done by
actual force, threat of force, or a show of force.
Without valid consent.
b)
The Model Penal Code requires that the confinement “interfere substantially” with the
victim’s liberty (i.e., It is not confinement to prevent a person from going where she
desires to go, provided that there is alternative routes available to her.).
c)
Remember, false imprisonment is a general intent crime (intent to cause injury is NOT
necessary – only the intent to do the unlawful act is required).
Kidnapping
a)
b)
B.
< 1.0% Appearance Rate
-
False imprisonment consists of the:
(a)
4.
The touching, however slight, must result in bodily harm (e.g., a bruise)
or an offensive touching (e.g., an unwanted kiss).
Assault
a)
3.
The application of force to an object near, carried by, or attached to the
victim is sufficient (e.g., kicking a cane used by the victim).
< 1.0% Appearance Rate
-
Modern statutes define kidnapping as unlawful confinement of a person that involves
either:
(1)
Some movement of the victim; OR
(2)
Hiding the victim.
Remember, kidnapping is a general intent crime (intent to cause injury is NOT
necessary – only the intent to do the unlawful act is required).
Sex Offenses
1.
Rape
a)
< 1.0% Appearance Rate
-
Common law rape requires:
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b)
c)
2.
C.
(1)
Unlawful sexual intercourse;
(2)
With a female;
(3)
Against her will by force or threat of force.
However, most modern day rape statutes have relaxed the common law elements.
There is now rape that:
(1)
Does not have to involve a woman (i.e., gender-neutral rape laws);
(2)
Can occur without force or threat of force (e.g., involuntary intoxication); AND
(3)
Can involve activity other than intercourse.
Remember, rape is a general intent crime (intent to cause injury is NOT necessary –
only the intent to do the unlawful act is required).
Statutory Rape
< 1.0% Appearance Rate
-
a)
Statutory rape requires only that there is sexual intercourse with a person under age.
b)
The defendant’s reasonable mistake of fact as to the victim’s age will NOT shield the
defendant’s liability, because statutory rape is a strict liability crime.
Property Offenses
1.
Larceny
a)
12.5% Appearance Rate
-
Larceny consists of:
(1)
A taking (obtaining possession);
(2)
And carrying away;
(a)
(3)
Of the personal property (not real property) of another;
(a)
The property must be taken from the custody or possession of
another. If the defendant had possession of the property at the time of
the taking, the crime is not larceny (may be embezzlement).
(4)
By trespass (without consent);
(5)
With intent to permanently deprive.
(a)
2.
The carrying away requirement is satisfied by even a slight movement
(e.g., inches)
The intent to permanently deprive the owner of their property must be
present at the time of the taking.
Embezzlement
a)
12.5% Appearance Rate
-
Embezzlement consists of:
(1)
The fraudulent conversion;
(a)
The defendant MUST intend to defraud (e.g., if the defendant intends to
restore the exact property taken, it is NOT embezzlement).
(2)
Of the personal property of another;
(3)
By a person in lawful possession of that property.
(a)
Custody of the property is insufficient – the defendant must be in lawful
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possession of the property when the conversion occurs for it to
constitute embezzlement. Possession involves a greater scope of
authority to deal with property than does custody (e.g., low level
employees usually only have custody of their employer’s property –
thus, they commit larceny if they take it).
3.
False Pretenses and Larceny by Trick
a)
False pretenses consists of:
(1)
Obtaining title;
(2)
To the personal property of another;
(3)
By an intentional false representation;
(a)
4.
Of a material past or present fact (not opinion);
(5)
With intent to defraud.
The defendant must either have known the statement to be false or
have intended that the victim rely on the misrepresentation.
Larceny by trick occurs when the defendant obtains possession or custody (NOT title)
of the victim’s property by the misrepresentation. Otherwise, false pretenses and
larceny by trick operate in the same manner.
Robbery
a)
4.2% Appearance Rate
-
Robbery consists of:
(1)
A taking and carrying away;
(2)
Of the personal property of another;
(3)
From the other’s person or presence;
(a)
(4)
(5)
The property taken must be on the victim’s person or within the victim’s
reach or control (i.e., in the presence of the victim).
By force or threat of force;
(a)
5.
The victim must rely upon the false representation, and that reliance
must cause the victim to pass title to the defendant.
(4)
(a)
b)
Threats must be made to the victim, a member of the victim’s family, or
some person in the victim’s presence.
With the intent to permanently deprive.
Receipt of Stolen Property
a)
8.3% Appearance Rate
-
4.2% Appearance Rate
-
Receipt of stolen property consists of:
(1)
Receiving possession and control;
(2)
Of stolen personal property;
(a)
The property must be stolen property at the time the defendant
receives it.
(3)
Known to have been obtained in an unlawful manner;
(4)
By another person;
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(5)
D.
With the intent to permanently deprive the owner of the property.
Offenses Against the Habitation
1.
Burglary
a)
8.3% Appearance Rate
-
Common law burglary consists of:
(1)
A breaking;
(a)
(2)
And entry;
(a)
(3)
A dwelling is a structure that is used regularly for sleeping purposes,
even if it is used for other purposes such as conducting a business.
Ownership of the dwelling is irrelevant – occupation by someone other
than the defendant is all that is required.
(4)
At nighttime;
(5)
With the intent to commit a felony in the structure (at the time of entry).
Arson
a)
< 1.0% Appearance Rate
-
Common law arson consists of:
(1)
The malicious;
(a)
(2)
(3)
I.e., intentional OR with reckless disregard of an obvious risk
Burning;
(a)
The fire must cause damage to the structure (e.g., lighting a couch on
fire in a house is not sufficient if there is no damage to the structure).
Of the dwelling of another.
(a)
E.
“Entry” exists if the defendant places any portion of his body or an
instrument used to commit the crime into the structure.
Of the dwelling of another;
(a)
2.
“Breaking” exists if the defendant creates or expands an opening by at
least minimal force, fraud, or intimidation.
A dwelling is a structure that is used regularly for sleeping purposes,
even if it is used for other purposes such as conducting a business.
Inchoate Offenses
1.
Attempt
a)
4.2% Appearance Rate
-
An attempt requires:
(1)
The specific intent to perpetrate a crime; AND
(2)
An overt act beyond mere preparation that falls short of completing the crime.
(a)
b)
Most states require the overt act to be a “substantial step” toward
completion of the crime under a subjective test.
Merger. Attempt merges with the underlying crime, meaning a person cannot be
convicted for both attempt and the underlying crime.
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c)
2.
Withdrawal. Under the common law, abandonment or withdrawal is NOT a defense
to attempt. If the defendant had the intent and committed an overt act beyond mere
preparation, she is guilty of attempt despite the fact that she changed her mind and
abandoned the plan before the crime was completed. However, under the Model Penal
Code (minority of jurisdictions), a fully voluntary and complete abandonment is a valid
defense. Abandonment is not voluntary if it is motivated by a desire to avoid detection.
Solicitation
a)
< 1.0% Appearance Rate
-
Solicitation consists of:
(1)
Requesting another to commit a crime;
(a)
(2)
3.
The crime is completed upon the request. The other person need not
agree to commit the crime in order to be found guilty of solicitation.
With the intent that the person solicited commit the crime.
b)
Merger. In most jurisdictions, solicitation merges with the substantive offense.
c)
Withdrawal. In most jurisdictions, it is NOT a defense that the solicitor renounces or
withdraws the solicitation. However, the Model Penal Code recognizes renunciation as
a defense if the defendant prevents the commission of the crime.
Conspiracy
a)
< 1.0% Appearance Rate
-
Under the common law, a conspiracy consists of:
(1)
An agreement between two or more persons;
(2)
To accomplish a criminal objective;
(3)
With the intent to enter into the agreement; AND
(a)
(4)
The intent to enter into the agreement may be inferred from the
conduct of the parties.
With the intent to commit the criminal objective.
b)
Overt Act. Unlike the common law, a majority of states also require that an overt act be
committed in furtherance of the criminal objective. The overt act does NOT have to be
criminal in nature (e.g., a conspirator buying a hammer in order to commit a burglary
would be a sufficient overt act, even though buying a hammer is not criminal in nature).
c)
Termination. A conspiracy terminates upon completion of the criminal objective. All
acts or statements made after termination are inadmissible against a conspirator (e.g.,
statements made to police after the completion of the criminal objective).
d)
Pinkerton Liability. A conspirator may be held liable for crimes committed by their
co-conspirators if the crimes were:
e)
(1)
Committed in furtherance of the criminal objective; AND
(2)
Foreseeable.
Withdrawal. Withdrawal may be a defense to crimes committed in furtherance of the
conspiracy. However, withdrawal from the conspiracy is NOT a defense to the
conspiracy itself UNLESS the conspirator:
(1)
Performs an affirmative act that notifies all members of the conspiracy of her
withdrawal;
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f)
IV.
(2)
Gives notice in time for the members to abandon their plans; AND
(3)
Attempts to neutralize her assistance if she provided any as an accomplice.
Merger. Conspiracy does NOT merge with the completed crime (i.e., a defendant may
be convicted of the crimes committed in furtherance of the conspiracy AND the
conspiracy itself).
Criminal Responsibility
A.
Parties to a Crime
1.
Accomplice Liability
a)
Under modern statutes, there are generally three potential parties to a crime:
(1)
Principal. The principal is the person who commits the illegal act or who causes
an innocent agent to do so.
(2)
Accomplice. The accomplice is the person who aids or encourages the principal
to commit the illegal conduct.
(3)
Accessory After the Fact. An accessory after the fact is a person who aids
another to escape knowing that he has committed a felony.
(a)
b)
c)
B.
< 1.0% Appearance Rate
-
An accessory after the fact is ONLY liable for the less serious offense of
being an accessory after the fact (i.e., NO accomplice liability).
An accomplice is liable for all the crimes that the principal committed AND all other
crimes that were a probable or foreseeable result, if the accomplice:
(1)
Aids, abets, or facilitates the commission of a crime committed by the principal;
(2)
With the intent that the crime be committed.
Withdrawal and Repudiation. Withdrawal is a valid defense to accomplice liability if
the accomplice withdraws his involvement BEFORE the crime becomes unstoppable.
Repudiation is a sufficient withdrawal for mere encouragement. If the accomplice’s
involvement went beyond mere encouragement, then the accomplice must attempt to
neutralize his assistance for the withdrawal to be sufficient.
Criminal Capacity
1.
Fitness to Stand Trial
a)
2.
A criminal defendant must be competent to stand trial. To be competent, under the
Dusky test, the defendant must have:
(1)
Sufficient present ability to consult with his lawyer with a reasonable degree of
rational understanding; AND
(2)
A rational as well as factual understanding of the proceedings against him.
Insanity
a)
4.2% Appearance Rate
-
8.3% Appearance Rate
-
A defendant may be entitled to acquittal if, at the time of the crime, the defendant was
legally insane. There are four formulations of the test to be applied in order to make
this determination:
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(1)
M’Naghten Rule. Under this rule, a defendant is entitled to acquittal if, because
of a mental illness, he did not know:
(a)
(b)
(2)
Irresistible Impulse Test. Under this test, a defendant is entitled to acquittal if,
because of a mental illness, he lacked the capacity:
(a)
(b)
(3)
3.
C.
For self-control and free choice; OR
To conform his conduct to the requirements of the law.
Model Penal Code Test. Under this test, a defendant is entitled to acquittal if,
because of a mental illness, he did NOT have substantial capacity:
(a)
(b)
(4)
The nature and quality of the unlawful act; OR
The wrongfulness of the unlawful act.
To appreciate the wrongfulness of the unlawful act; OR
To conform his conduct to the requirements of the law.
Durham Test. Under this test, a defendant is entitled to acquittal if the unlawful
act would not have been committed BUT FOR the defendant’s mental illness.
Intoxication
< 1.0% Appearance Rate
-
a)
Voluntary intoxication (intentional ingestion of an intoxicating substance without
duress, which is known to be intoxicating to the person ingesting the substance) is a
valid defense to specific intent crimes if the intoxication prevents the formation of the
required intent. Voluntary intoxication does NOT apply to general intent, malice, or
strict liability crimes.
b)
Involuntary intoxication (ingestion of an intoxicating substance under duress or without
knowledge of its intoxicating effects) is a valid defense to ALL crimes if the intoxication
serves to negate an element of the crime.
Justification Defenses
1.
Self-Defense
a)
b)
c)
< 1.0% Appearance Rate
-
Nondeadly Force. A person without fault may use nondeadly force in self-defense if
she:
(1)
Is confronted with unlawful force; AND
(2)
Reasonably believes it is necessary to protect herself from the imminent use of
unlawful force upon herself.
Deadly Force. A person without fault may use deadly force in self-defense if she:
(1)
Is confronted with unlawful force; AND
(2)
Reasonably believes that she is threatened with imminent death or great
bodily harm.
Duty to Retreat. In a minority of jurisdictions, a person MUST retreat before using
deadly force if the victim can safely do so UNLESS:
(1)
The attack occurs in the victim’s own home;
(2)
The attack occurs while the victim is making a lawful arrest; OR
(3)
The assailant is in the process of robbing the victim.
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D.
d)
Imperfect Self-Defense. Imperfect self-defense can reduce a murder charge to
voluntary manslaughter if the defendant kills another based on an honest but
unreasonable belief that the use of deadly force was necessary to prevent death or
serious bodily harm.
e)
Defense of Others. A defendant may defend others with force if he reasonably
believes that the person assisted has the legal right to use force in her own defense.
Only some courts allow imperfect self-defense to be applied to situations where the
defendant was defending another person.
Other Defenses
1.
2.
Duress
4.2% Appearance Rate
-
a)
The defense of duress is available to the defendant if the defendant reasonably
believed that another person would imminently inflict death or great bodily harm upon
him or a family member if he did not commit the crime.
b)
Under the Model Penal Code, threats to property can be sufficient for a duress defense
if the value of the property outweighs the harm done to society by commission of the
crime.
Mistake or Ignorance of Fact
a)
< 1.0% Appearance Rate
-
Mistake of fact is a defense that shows the defendant lacked the state of mind required
for the crime. If the charged offense is a specific intent crime, the mistake need NOT
have been reasonable. For malice and general intent crimes, the mistake MUST have
been reasonable. Mistake of fact is irrelevant if the crime imposes strict liability.
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Criminal Law 12
CRIMINAL PROCEDURE
Studicata UBE/MEE Attack Outline
TABLE OF CONTENTS
I.
4TH AMENDMENT ........................................................................................................................................ 1
A.
Searches ...............................................................................................................................................................................1
B.
Search Warrant Exceptions ...................................................................................................................................................2
C.
Arrests and Seizures of Persons ............................................................................................................................................3
II. 5TH AMENDMENT ........................................................................................................................................ 3
A.
Government Interrogations ..................................................................................................................................................3
III. 6TH AMENDMENT ........................................................................................................................................ 5
A.
Right to Counsel ...................................................................................................................................................................5
B.
Identification Procedures .....................................................................................................................................................6
IV. VIOLATIONS OF THE 4TH, 5TH, AND 6TH AMENDMENTS ................................................................................ 6
A.
Exclusionary Rule and Fruit of the Poisonous Tree ...............................................................................................................6
V. TRIAL PROCESSES ........................................................................................................................................ 7
A.
Pretrial Procedure ................................................................................................................................................................7
B.
Trial Procedure .....................................................................................................................................................................7
C.
Post-Trial Procedure .............................................................................................................................................................8
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Criminal Procedure
I.
4th Amendment
A.
Searches
1.
Reasonable Expectation of Privacy
a)
Under the 4th Amendment, a person is granted protection from unreasonable
government searches. A search occurs when government conduct violates a person’s
reasonable expectation of privacy.
(1)
Places where there is a reasonable expectation of privacy:
(a)
(b)
(c)
(d)
(e)
(2)
Public streets
Open fields (even if the open field is private property)
Garbage left out in the street
Abandoned property
Anything visible from public airspace
Anything that can be seen inside one’s home from public space
Absent any of the seven exceptions listed below, a warrantless search performed by
the government that violates a reasonable expectation of privacy is unlawful.
Evidence obtained without a warrant is usually excluded unless an exception applies.
Think of the seven exceptions to the warrant requirement as seven E.S.C.A.P.E.S. from
the warrant requirement:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
2.
Homes
Hotel rooms
Offices
Backyard of the home (curtilage)
Luggage
Places where there is NOT a reasonable expectation of privacy:
(a)
(b)
(c)
(d)
(e)
(f)
b)
Exigent circumstances
Search incident to lawful arrest (SILA)
Consent
Automobiles
Plain View
Evidence obtained from administrative searches
Stop and frisk
Warrant Requirements
a)
b)
12.5% Appearance Rate
-
< 1.0% Appearance Rate
~
A search warrant must:
(1)
Be issued by a neutral magistrate;
(2)
Be based on probable cause to believe that the items sought are fruits,
instrumentalities, or evidence of crime; AND
(3)
Describe the place and property to be searched with particularity.
If a warrant fails to meet these three requirements, the warrant is invalid, and the
recovered items will be excluded from the prosecutor’s case-in-chief.
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B.
Search Warrant Exceptions (E.S.C.A.P.E.S. from the Warrant Requirement)
1.
Exigent Circumstances
a)
b)
2.
3.
4.
The officers are in “hot pursuit” or immediate danger; OR
(2)
The evidence would spoil or disappear in the time it would take to obtain a
warrant.
However, a warrant is necessary for a search if the officers create the exigent
circumstances.
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Law enforcement officers may conduct a search without a warrant if the search occurs
at the time that a lawful arrest is made. The scope of the search is limited to objects
within the reach of the arrestee (e.g., if the arrestee is restrained, their reach is very
limited – this would limit the permissible scope of the search).
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a)
Law enforcement officers may conduct a search without a warrant if a person
voluntarily consents to a search. Officers do NOT have to inform the subject that she
has the right to refuse consent to the search.
b)
A third party with apparent authority can consent to search. However, officers cannot
search over a present occupant’s objection (e.g., if one occupant consents and the other
occupant refuses, officers cannot search the property).
Automobiles
4.2% Appearance Rate
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Law enforcement officers may conduct a search without a warrant if they have probable
cause to believe that an automobile contains contraband or evidence of a crime. They
can search the parts of the vehicle, and containers inside, which could reasonably
contain the items for which there is probable cause (e.g., cannot search for a shotgun in
the glove box where it cannot reasonably fit).
Plain View
a)
6.
(1)
Consent
a)
5.
Law enforcement officers may conduct a search without a warrant if:
Search Incident to a Lawful Arrest (SILA)
a)
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Law enforcement officers may seize evidence without a warrant if:
(1)
The officers are legally on the premises;
(2)
The evidence is observed (with any of the five senses) in plain view; AND
(3)
There is probable cause to believe the items are evidence of a crime or
contraband.
Evidence Obtained from Administrative Searches
a)
< 1.0% Appearance Rate
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Law enforcement officers do NOT need search warrants to conduct administrative
searches if the search is both:
(1)
Reasonable; AND
(2)
Conducted pursuant to established police agency procedures that are designed
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to meet legitimate objectives while limiting the discretion of the officer.
b)
7.
C.
Stop and Frisk (Terry Stop)
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a)
Law enforcement officers can stop an individual when the officer has a reasonable
suspicion, based on articulable facts (i.e., more than a “hunch” – less than probable
cause), to believe that the subject is or is about to be engaged in criminal activity.
b)
During a Terry stop, an officer can frisk a subject for weapons without a warrant;
however, the officer cannot initiate a search for evidence. If the frisk for weapons
reveals objects whose shape makes their identity obvious (e.g., object is obviously
contraband), the officer may seize those objects.
Arrests and Seizures of Persons
1.
Stops, Arrests, and Seizures
a)
b)
c)
II.
E.g., airplane boarding areas, international borders, roadblocks for drunk drivers or
seeking information, etc.
4.2% Appearance Rate
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In order to arrest an individual, law enforcement officers must have probable cause to
believe that the individual has committed a crime. An officer has probable cause if:
(1)
The officer witnesses the commission of the crime; OR
(2)
A person tells the officer that a crime has been committed.
An individual may be arrested with or without an arrest warrant; however, an arrest
warrant authorizes law enforcement officers to enter a home to arrest the individual.
An arrest warrant is issued by a neutral magistrate based on a finding of probable cause
to believe that the named individual has committed a crime. Without a warrant,
officers can arrest an individual inside the home only if there is:
(1)
Consent to enter; OR
(2)
Exigent circumstances.
NOTE. An individual can be stopped if there is a reasonable suspicion of criminal
activity (Terry stop). However, if probable cause develops during the Terry stop, the
officer can then make a lawful arrest of the individual.
5th Amendment
A.
Government Interrogations
1.
Right Against Self-Incrimination + Miranda
16.7% Appearance Rate
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a)
5th Amendment. The 5th Amendment provides that no person shall be compelled in any
criminal case to be a witness against himself. A defendant who wishes to invoke his 5th
Amendment right does so by simply not taking the stand.
b)
Custodial Interrogations. Under Miranda, any incriminating statement obtained as a
result of custodial interrogation (i.e., suspect is in custody and subject to police
interrogation) may NOT be used against the suspect at a subsequent trial UNLESS the
police informed the suspect of his Miranda rights.
(1)
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Custodial. A person is in custody when he reasonably believes that he is NOT
free to leave (e.g., in the back of a police cruiser).
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(2)
c)
Interrogation. A person is subject to an interrogation when the police know or
should know that their words or actions are likely to elicit an incriminating
response. Miranda does NOT protect volunteered statements, as they are, by
definition, not the product of interrogation.
Miranda Rights. When a person is in custody, the police MUST inform the person of her
Miranda rights before subjecting her to a police interrogation. This includes informing
the subject:
(1)
She has the right to remain silent;
(2)
Any statement she makes may be used against her in court;
(3)
She has the right to consult an attorney and to have the attorney present during
questioning; AND
(4)
She has the right to have an attorney appointed if she cannot afford one.
d)
Waiver. A defendant may knowingly and voluntarily waive his Miranda rights. The
burden is on the government to demonstrate by a preponderance of the evidence that
the waiver was made knowingly and voluntarily.
e)
Invocation. The police MUST cease their interrogation if either of the following occurs:
(1)
The party being questioned affirmatively invokes her right to remain silent; OR
(a)
(2)
The party being questioned affirmatively invokes her right to counsel.
(a)
f)
g)
h)
After a substantial period of time, police can go back to the suspect,
give Miranda warnings again, and seek to interrogate her further.
The interrogation cannot resume until the lawyer is present, the
suspect reinitiates the interrogation, or 14 days have passed since the
suspect was released from custody.
Miranda Violations. A statement obtained in violation of Miranda is inadmissible in the
prosecution’s case-in-chief, BUT can be admitted to impeach the defendant. Evidence
obtained from a voluntary statement taken in violation of Miranda is admissible.
Miranda is violated if:
(1)
The police fail to give Miranda warnings before a custodial interrogation; OR
(2)
The police fail to cease interrogation of a person after she has affirmatively
invoked her right to remain silent or her right to counsel.
Example. The police have a person in custody they suspect has committed murder. The
police fail to give the suspect any Miranda warnings before interrogating her. During
the interrogation, she voluntarily confesses to the murder and reveals the location of
the murder weapon that she used to commit the crime. The admissibility of each piece
of evidence is as follows:
(1)
The Murder Confession. The murder confession is inadmissible in the
prosecutor’s case-in-chief, because the suspect was not given proper Miranda
warnings. However, the confession may be used for impeachment purposes to
attack her credibility at trial.
(2)
The Murder Weapon. The murder weapon is admissible, because evidence
obtained from voluntary statements, even if in violation of Miranda, is
admissible.
Exceptions. There are three main exceptions to the Miranda requirement. The police
are NOT required to give Miranda warnings before questioning a suspect:
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i)
2.
(1)
When the public’s safety is at risk;
(2)
When the suspect being questioned is not aware that the interrogator is a police
officer (e.g., undercover police officers); OR
(3)
If the questioning is biographical for routine booking purposes.
Harmless Error Rule. If evidence in violation of Miranda is admitted at trial, a guilty
verdict will be upheld if the prosecution can prove beyond a reasonable doubt that the
error was harmless because the defendant would have been convicted even without the
tainted evidence.
Interrogation Tactics
a)
The 5th Amendment protects against government compulsion of involuntary
statements. Statements are involuntary only if the police coerced the defendant into
making the statements. To determine whether a statement was coerced by the police,
courts look at the totality of the circumstances. Relevant factors include:
(1)
The length of the interrogation;
(2)
The time and location where the interrogation took place;
(3)
Police tactics used; AND
(4)
b)
III.
4.2% Appearance Rate
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(a)
Force. The application of force or threats of force made by the police to
the person being interrogated renders any statements made during the
interrogation involuntary.
(b)
Trickery. Trickery or false promises made by the police to the person
being interrogated may render their statements involuntary. However,
deceit or fraud by the police (i.e., lying about an accomplice’s
confession) does not itself make a statement involuntary.
The character of the person being interrogated (e.g., age, experience, state
of health, education level, sophistication, intoxication, mental condition, etc.)
An involuntarily obtained statement is NOT admissible against a defendant for
substantive purposes or for impeachment purposes. Evidence obtained from an
involuntary statement is fruit of the poisonous tree and is presumptively inadmissible.
6th Amendment
A.
Right to Counsel
1.
6th Amendment Right to Counsel
4.2% Appearance Rate
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a)
The 6th Amendment guarantees a criminal defendant “the assistance of counsel for his
defense.” The 6th Amendment right to counsel automatically attaches once formal
adversarial judicial proceedings have commenced (e.g., formal charge, preliminary
hearing, indictment, arraignment, and all parts of the trial process). By contrast, the 5th
Amendment right to counsel (discussed above) must be affirmatively invoked by the
defendant (i.e., it does NOT automatically attach – must be affirmatively invoked).
b)
Once a defendant’s right to counsel has attached, any attempts to deliberately elicit a
statement from him in the absence of his attorney violates the 6th Amendment.
However, The 6th Amendment right to counsel is offense-specific; meaning that it only
applies to the offense that the defendant has been formally charged with. The police
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are free to question the defendant about unrelated offenses without his attorney
present (expressly or through undercover means).
c)
2.
Ineffective Assistance of Counsel
a)
B.
< 1.0% Appearance Rate
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The Supreme Court has held that part of the 6th Amendment right to counsel is a right to
effective assistance of counsel. If a convicted defendant can prove that he had
ineffective assistance of counsel at trial, his conviction can be overturned. To prove
ineffective assistance, a defendant must show:
(1)
That his trial lawyer’s performance fell below an objective standard of
reasonableness; AND
(2)
A reasonable probability that the result of the proceeding would have been
different BUT FOR his counsel’s unprofessional errors.
Identification Procedures
1.
Admissibility of Identification Procedures
a)
b)
IV.
The 6th Amendment right to counsel is in effect once it automatically attaches UNLESS
the defendant voluntarily, knowingly, and intelligently waives the right. The defendant
must understand the nature of the right being waived and the consequences for waiving
it.
< 1.0% Appearance Rate
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There are three main types of identification procedures:
(1)
Photo Arrays. Neither the defendant nor his attorney has the right to be
present, but the police must turn over the photo array to the defendant.
(2)
Pre-Indictment Lineups. The defendant does NOT have a 6th Amendment right
to have counsel present during a pre-indictment lineup.
(3)
Post-Indictment Lineups. The defendant has a 6th Amendment right to have
counsel present during a post-indictment lineup. If that right is violated, then
evidence that the witness identified the defendant at the lineup MUST be
excluded.
If the lineup was impermissibly suggestive, the court can exclude the evidence of it.
However, the witness is permitted to identify the defendant in court if the prosecution
can establish by clear and convincing evidence that the witness would have identified
the defendant even without the suggestive lineup.
Violations of the 4th, 5th, and 6th Amendments
A.
Exclusionary Rule and Fruit of the Poisonous Tree
1.
Exclusionary Rule
4.2% Appearance Rate
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a)
Evidence obtained in violation of the defendant’s 4th, 5th, or 6th Amendment rights is
inadmissible in a criminal case. Additionally, all evidence obtained as a result of the
constitutional violation is inadmissible as fruit of the poisonous tree. NOTE, these
exclusionary rules do NOT apply to Miranda violations; they only apply to 4th, 5th, and 6th
Amendment violations (see above for Miranda violations).
b)
The exclusionary rule does NOT apply if:
(1)
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The police had an independent source for the evidence that was distinct from
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6
the original illegal source;
(2)
The discovery of the evidence was inevitable regardless of the violation;
(3)
There is attenuation in the causal chain, such that intervening events and the
passage of time can remove the taint; OR
(4)
The police relied in good faith on either:
(a)
(b)
V.
Existing law that was later declared unconstitutional; OR
A warrant that, while facially valid, is later found to be defective.
Trial Processes
A.
Pretrial Procedure
1.
2.
Right to a Jury Trial
a)
The 6th Amendment guarantees a criminal defendant the right to a jury trial for all
serious offenses. Serious offenses are those for which the authorized punishment is
more than 6 months of incarceration.
b)
The potential jury pool must represent a fair cross-section of the community from
which no distinctive group is excluded. However, the actual jury that is seated must be
only impartial – it does NOT have to represent a fair cross-section of the community.
c)
Potential jurors may be removed for cause to ensure an impartial jury OR through the
use of peremptory challenges. Peremptory challenges allow each side to remove a
limited number of potential jurors for any reason other than race or gender.
Guilty Pleas
a)
B.
4.2% Appearance Rate
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A guilty plea waives the various trial rights that a defendant would otherwise have (e.g.,
right to a jury trial, right to appeal if there is a conviction, etc.). For a guilty plea to be
valid, the judge must:
(1)
Inform the defendant of his rights and ensure that the defendant understands
those rights;
(2)
Inform the defendant of possible sentences;
(3)
Make sure there is a factual basis for the plea;
(4)
Determine that the plea did not result from force, threats, or improper
promises; AND
(5)
Make sure that defendant understands the immigration consequences of
pleading guilty.
Trial Procedure
1.
Burden of Proof
a)
4.2% Appearance Rate
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The prosecution MUST prove every element of a crime beyond a reasonable doubt in
order to obtain a conviction of the defendant. However, the government can shift the
burden of proof to the defendant in regard to affirmative defenses argued by the
defendant.
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C.
Post-Trial Procedure
1.
Double Jeopardy
a)
b)
2.
Double jeopardy ensures that the defendant is protected against:
(1)
Prosecution for the same offense after acquittal;
(2)
Prosecution for the same offense after conviction; AND
(3)
Multiple prosecutions or punishments for the same offense.
Two distinct crimes do NOT constitute the “same offense” for double jeopardy purposes
if each crime requires proof of a fact for which the other does not (e.g., offenses with
different victims are separate offenses for double jeopardy purposes).
Motion for Judgment of Acquittal
a)
4.2% Appearance Rate
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4.2% Appearance Rate
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After the government closes its evidence or after the close of all the evidence, the court,
on the defendant's motion, must enter a judgment of acquittal for the defendant if the
evidence is insufficient to sustain a conviction (i.e., no reasonable jury could find that
each element of the offense was proven beyond a reasonable doubt).
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EVIDENCE
Studicata UBE/MEE Attack Outline
TABLE OF CONTENTS
I.
RELEVANCE ................................................................................................................................................. 1
A.
Determining Relevance.........................................................................................................................................................1
B.
Exclusion of Relevant Evidence for Public Policy Reasons .....................................................................................................1
C.
Character Evidence ...............................................................................................................................................................2
II. TESTIMONIAL EVIDENCE ............................................................................................................................. 4
A.
Impeachment .......................................................................................................................................................................4
B.
Opinion Testimony ...............................................................................................................................................................5
C.
Testimonial Privileges ...........................................................................................................................................................6
III. DOCUMENTARY EVIDENCE ......................................................................................................................... 7
A.
Authentication of Tangible Evidence ....................................................................................................................................7
B.
Best Evidence Rule (Original Document Rule) .......................................................................................................................8
IV. HEARSAY ..................................................................................................................................................... 8
A.
Statement of the Rule...........................................................................................................................................................8
B.
Statements that are Non-Hearsay ........................................................................................................................................8
C.
Hearsay Exceptions – Declarant Unavailability is Required ...................................................................................................9
D.
Hearsay Exceptions – Declarant Availability is Immaterial .................................................................................................. 10
E.
Constitutional Limitations .................................................................................................................................................. 12
V. JUDICIAL NOTICE ....................................................................................................................................... 12
A.
Judicial Notice of Fact ......................................................................................................................................................... 12
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Evidence
NOTE: All evidence questions should be answered according to the Federal Rules of Evidence, as restyled in 2011.
I.
Relevance
A.
Determining Relevance
1.
Logical Relevance
a)
Evidence MUST be relevant in order to be admissible. Evidence is relevant if it is both:
(1)
Probative; AND
(a)
(2)
Evidence is material if it is a fact of consequence in determining the
outcome of the action.
Legal Relevance
a)
B.
Evidence is probative if it has any tendency to make a fact more or less
probable than it would be without the evidence.
Material.
(a)
2.
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The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following:
(1)
Unfair prejudice;
(2)
Confusing the issues;
(3)
Misleading the jury;
(4)
Undue delay;
(5)
Wasting time; OR
(6)
Needlessly presenting cumulative evidence.
Exclusion of Relevant Evidence for Public Policy Reasons
1.
Subsequent Remedial Measures
a)
b)
2.
Subsequent remedial measures are actions taken after an injury or harm that make
future injury less likely (e.g., installing a handrail after a person falls down the stairs).
Subsequent remedial measures are NOT admissible to prove:
(1)
Negligence;
(2)
Defective product or design; OR
(3)
Culpable conduct.
Evidence of subsequent remedial measures are admissible to show agency, ownership,
or control of property or for impeachment purposes.
Compromise Offers or Settlement Negotiations
a)
4.2% Appearance Rate
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4.2% Appearance Rate
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Offers, conduct, or statements made during negotiations to settle or compromise are
NOT admissible:
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Evidence
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3.
b)
To prove an amount; OR
(3)
For impeachment purposes.
4.2% Appearance Rate
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Offers to pay medical expenses are NOT admissible to prove liability for the plaintiff’s
injuries. However, any conduct or statements accompanying the offer to pay are
admissible (e.g., factual admissions accompanying an offer to pay are admissible).
< 1.0% Appearance Rate
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Absent a knowing and voluntary waiver from the defendant, the following are NOT
admissible against the defendant:
(1)
Withdrawn guilty pleas;
(2)
No contest pleas;
(3)
Statements made while negotiating with prosecutors; AND
(4)
Statements made during plea negotiations.
However, pleas and statements made during negotiations are admissible if fairness
dictates or for perjury hearings.
Liability Insurance
a)
C.
(2)
Guilty Pleas
a)
5.
To prove a disputed claim;
Offers to Pay Medical Expenses
a)
4.
(1)
< 1.0% Appearance Rate
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Evidence that a person was or was not insured against liability is NOT admissible to
prove whether the person acted negligently or otherwise wrongfully. However, the
court may admit this evidence for another purpose, such as proving a witness’s bias or
prejudice or proving agency, ownership, or control.
Character Evidence
1.
Character Evidence
a)
b)
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Character evidence is evidence of a person’s character or a person’s specific character
trait (e.g., he is violent; she is honest; he is a reckless driver; etc.). There are three forms
of character evidence that can be presented:
(1)
Reputation in the community (e.g., “Everyone in the community knows Johnny
is violent.”);
(2)
Opinion testimony (e.g., “I personally think Johnny is a violent person.”); AND
(3)
Specific Instances (e.g., “I saw Johnny get into a bar fight last weekend.”)
Civil Cases. In civil cases, character evidence is NOT admissible for propensity purposes
(i.e., evidence of someone’s character cannot be introduced to show that they have the
propensity to act in accordance with the alleged character trait), UNLESS:
(1)
Character is an essential element of a claim or defense (e.g., defamation,
negligent hiring, negligent entrustment, child custody, etc.); OR
(a)
If character is an essential element of a claim or defense, it may be
shown by reputation, opinion testimony, or specific instances.
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Evidence
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(2)
c)
The case is based on the defendant’s sexual misconduct (allowed to introduce
evidence of a past sexual assault or child molestation by the defendant).
Criminal Cases. In criminal cases, the prosecution CANNOT introduce evidence of a
defendant's bad character to prove that the defendant has the propensity to have
committed the crime in question. However, the defendant may “open the door” and
present positive character evidence as long as it is:
(1)
Pertinent to the crime charged (e.g., if the crime charged involves violence, the
defendant may only put on character evidence of non-violence); AND
(2)
Through reputation or opinion testimony (NOT specific instances of conduct).
If the defendant opens the door by presenting evidence of positive character, the
prosecution may then introduce negative character evidence (must relate to the same
character trait in question) to rebut the defendant in two different ways:
(1)
The prosecution can call its own character witness; OR
(a)
(2)
The prosecution can cross-examine the defendant’s character witness.
(b)
d)
The witness is limited to reputation or opinion testimony (NOT specific
instances of conduct).
On cross-examination, the prosecution can introduce evidence of
specific instances as long as it relates to the same character trait in
question (e.g., “Are you aware that the defendant was involved in a bar
fight last week? Does this change your opinion of his character?”).
Evidence of the Victim’s Character in Criminal Cases. A criminal defendant may
introduce reputation or opinion testimony of the victim’s character if it is relevant to
one of the defenses asserted. If the defendant does so, the prosecution may rebut by
presenting evidence that:
(1)
The defendant possesses the same character trait; OR
(2)
The victim possesses a relevant positive character trait.
If this is done on cross-examination, the prosecution may introduce specific instances of
conduct to rebut.
2.
e)
Rape Cases. In cases involving rape, evidence offered to prove a victim’s sexual
behavior or predisposition is NOT admissible. However, in civil cases involving sexual
misconduct, evidence offered to prove a victim’s sexual behavior or misconduct may be
admissible if its probative value substantially outweighs the danger of harm to the
victim and unfair prejudice to any party.
f)
Homicide Cases. The prosecution may admit evidence of a victim’s character for nonviolence only if the defendant claims the victim was the aggressor (i.e., self-defense
claim).
M.I.M.I.C.
a)
25.0% Appearance Rate
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Specific instances of conduct are generally NOT admissible to show propensity, BUT are
admissible to show (M.I.M.I.C.):
(1)
Motive or opportunity;
(2)
Intent;
(3)
Absence of Mistake;
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Evidence
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b)
3.
Identity; OR
(5)
Common plan or preparation.
Specific instances of conduct are admissible for MIMIC purposes if:
(1)
There is sufficient evidence to support a jury finding that the defendant
committed the prior act (i.e., cannot “fish” for prior acts without proof); AND
(2)
The probative value of the specific instances of conduct is NOT substantially
outweighed by the danger of unfair prejudice to the jury.
Habit and Routine Practices
a)
II.
(4)
8.3% Appearance Rate
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Evidence of a person’s habit (e.g., putting on a seatbelt) or an organization’s routine
practice (e.g., filing certain paperwork) may be admitted to prove that on a particular
occasion the person or organization acted in accordance with the habit or routine
practice. The court may admit this evidence regardless of whether it is corroborated or
whether there was an eyewitness. Habit and routine practices are more specific than
character evidence (look for buzz words like “always” or “every time” to signal a habit or
routine practice).
Testimonial Evidence
A.
Impeachment – Attacking Witness Credibility
1.
Character for Truthfulness
a)
A witness’s credibility may be attacked by introducing character evidence of the
witness’s untruthfulness through reputation or opinion testimony.
b)
A witness’s credibility CANNOT be bolstered. This means that evidence of truthful
character may NOT be introduced until credibility has first been attacked.
c)
On cross-examination, a witness’s credibility may be attacked with specific instances of
conduct, provided that:
d)
2.
8.3% Appearance Rate
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(1)
The specific instance regards the truthfulness of the witness;
(2)
There is a good faith belief in the prior misconduct; AND
(3)
The specific instance does NOT involve an arrest or a consequence of an arrest.
Generally, extrinsic evidence of specific instances of conduct is NOT admissible (e.g., a
job application the witness lied on could be asked about on cross-examination, but the
application itself could not be introduced as extrinsic evidence).
Prior Convictions
4.2% Appearance Rate
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a)
Evidence of a prior felony OR misdemeanor conviction involving dishonesty is usually
always admissible to attack a witness’s credibility (subject to the 10-year restriction).
b)
Evidence of a prior felony (crime is punishable by death or imprisonment for more than
one year) that does NOT involve dishonesty is admissible IF it is legally relevant (i.e.,
probative value is not substantially outweighed by the danger of unfair prejudice).
c)
However, if more than 10 years has elapsed since conviction or release (whichever is
later) of ANY crime, the prior conviction is subject to a reverse legal relevance test.
The party introducing the evidence must show that the probative value of the
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Evidence
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conviction substantially outweighs the danger of unfair prejudice.
d)
3.
4.
Pardoned;
(2)
Annulled; OR
(3)
Later found innocent.
4.2% Appearance Rate
~
a)
A witness’s credibility may be attacked by introducing the witness’s prior inconsistent
statements. Extrinsic evidence may only be introduced if the witness is given an
opportunity to explain or deny the prior inconsistent statement.
b)
However, extrinsic evidence of a prior inconsistent statement CANNOT be used to
attack the witness’s credibility regarding a collateral matter (i.e., an irrelevant matter).
Sensory Competence
4.2% Appearance Rate
~
A witness’s credibility may be attacked by showing that the witness has a deficiency in
her ability to perceive, recall, or relate information (e.g., memory loss) that is NOT
collateral (i.e., must be a relevant matter).
Attacking and Supporting the Declarant
a)
B.
(1)
Prior Inconsistent Statements
a)
5.
Evidence of a prior conviction is NOT admissible if the conviction was:
4.2% Appearance Rate
~
When a hearsay statement has been admitted in evidence, the declarant’s credibility
may be attacked, and then supported, by any evidence that would be admissible for
those purposes if the declarant had testified as a witness. The court may admit
evidence of the declarant’s inconsistent statement or conduct, regardless of when it
occurred or whether the declarant had an opportunity to explain or deny it. If the party
against whom the statement was admitted calls the declarant as a witness, the party
may examine the declarant on the statement as if on cross-examination.
Opinion Testimony
1.
2.
Lay Witnesses
4.2% Appearance Rate
~
a)
A lay witness is any person who gives testimony that is not termed as an expert. Lay
witnesses are presumed competent unless proven otherwise. Questions about mental
competence go to the weight of the evidence, not admissibility.
b)
If a witness is NOT testifying as an expert, testimony in the form of an opinion is limited
to one that is:
(1)
Rationally based on the witness’s perception;
(2)
Helpful to clearly understanding the witness’s testimony or to determining a
fact in issue; AND
(3)
NOT based on scientific, technical, or other specialized knowledge within the
scope of an expert witness.
Expert Witnesses
a)
< 1.0% Appearance Rate
~
Expert witnesses may testify in the form of an opinion or otherwise if:
(1)
The expert witness is qualified by possessing sufficient knowledge, skill,
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Evidence
5
experience, training, or education;
b)
C.
(1)
The expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(2)
The testimony is based on sufficient facts or data;
(3)
The testimony is the product of reliable principles and methods; AND
(4)
The expert has reliably applied the principles and methods to the facts of the
case.
An expert may give an opinion regarding an ultimate issue; however, an expert
CANNOT give an opinion as to whether a criminal defendant had the requisite mental
state for the crime charged (i.e., an expert cannot make decisions intended for the jury).
Testimonial Privileges
1.
2.
Spousal Immunity
a)
Under federal law, a witness in a valid marriage may refuse to testify against her spouse
in ANY criminal proceeding (including a grand jury).
b)
In federal court and the majority of states, the witness-spouse holds the privilege and
may choose whether or not to testify. In a minority of states, the defendant-spouse
holds the privilege and may prevent the witness-spouse from testifying.
Confidential Marital Communications
a)
b)
3.
4.2% Appearance Rate
~
Communications between spouses are privileged if the communications were:
(1)
Made DURING the course of a valid marriage; AND
(2)
Intended to be confidential (e.g., “pillow talk”).
Unlike spousal immunity, this privilege:
(1)
Is held by both spouses (i.e., either spouse may assert it);
(2)
Applies to BOTH criminal AND civil proceedings; AND
(3)
Extends beyond the end of the marriage (i.e., may be asserted even if the
spouses are divorced).
Attorney-Client Privilege
a)
b)
c)
4.2% Appearance Rate
~
< 1.0% Appearance Rate
~
Communications between an attorney and a client or a person seeking to become a
client are privileged if the communications were:
(1)
Made to facilitate legal services; AND
(2)
Intended to be confidential.
If the client is a corporation:
(1)
Some states limit attorney-client privilege to the control group members (e.g.,
directors and officers).
(2)
Under federal law, attorney-client privilege extends to non-control group
members if they are communicating to seek legal advice for the corporation.
However, the attorney-client privilege does NOT apply when:
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Evidence
6
d)
III.
(1)
Legal services are sought to further a crime or fraud;
(2)
There is litigation involving a dispute between the attorney and client (e.g.,
malpractice suits); OR
(3)
Co-clients are later adverse parties involved in civil litigation against each other.
The client holds the privilege and it exists until the client waives it (even after the
client’s death). Intentional disclosure of confidential communications to a third party
constitutes a valid waiver of attorney-client privilege. Inadvertent disclosure does NOT
waive privilege if the client took reasonable steps to prevent and rectify the disclosure.
Documentary Evidence
A.
Authentication of Tangible Evidence
1.
Authentication
4.2% Appearance Rate
-
a)
All tangible evidence must be authenticated. Tangible evidence is any evidence not
presented as oral or verbal testimony (e.g., letters, contracts, weapons, drug
paraphernalia, videos, photographs, etc.).
b)
Authentication requires that a party show that the item being introduced as evidence is
what the party claims it to be.
c)
Physical evidence (e.g., weapons, clothing, videotapes, etc.) may be authenticated
through:
d)
e)
(1)
Witness testimony (i.e., personal knowledge of the witness who has familiarity
with the object); OR
(2)
Chain of custody (i.e., witness can verify the whereabouts of the evidence from
collection to trial)
Documentary evidence (e.g., letters, contracts, etc.) may be authenticated through:
(1)
Stipulation (both parties agree);
(2)
Witness testimony; OR
(3)
Handwriting verification
(a)
An expert witness or trier of fact can verify handwriting by comparing
the writing in question with another writing that has been proven to be
genuine.
(b)
A non-expert witness with personal knowledge of the handwriting in
question can verify the handwriting (e.g., a father may be able verify his
son’s handwriting). A non-expert cannot become familiar with the
handwriting in order to prepare for litigation.
The following documents are self-authenticating and do NOT require extrinsic proof of
authenticity:
(1)
Public documents bearing a seal;
(2)
Certified copies of public records;
(3)
Official publications issued by a public authority;
(4)
Newspapers and periodicals;
(5)
Notarized documents;
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Evidence
7
f)
B.
Commercial paper;
(7)
Trade inscriptions (i.e., affixed signs, tags, or labels indicating origin, ownership,
or control – e.g., clothing tags); AND
(8)
Records of regularly conducted business activity certified by a custodian of the
records.
Oral statements may be authenticated by any person who has heard the person’s voice
through any means (e.g., electronic recordings or live). It is irrelevant whether the voice
was heard in preparation for litigation.
Best Evidence Rule (Original Document Rule)
1.
Best Evidence Rule
a)
b)
IV.
(6)
< 1.0% Appearance Rate
~
A party MUST provide the original document (applies to writings, recordings,
photographs, electronic documents, x-rays, and videos) or an accurate duplicate when:
(1)
The contents of the document are at issue; OR
(2)
The witness is relying on the document when testifying.
A handwritten copy of an original is NOT an accurate duplicate and is only admissible
when the original or duplicate is lost, destroyed, or otherwise unobtainable.
Hearsay
A.
Statement of the Rule
1.
B.
Hearsay
33.3% Appearance Rate
-
a)
Hearsay is an out-of-court statement that is offered to prove the truth of the matter
asserted. Hearsay is NOT admissible UNLESS it falls under a valid exception.
b)
A “statement” includes a person’s oral assertions, written assertions, or nonverbal
conduct if the person intended it as an assertion (e.g., head nod, thumbs up, etc.).
Statements that are Non-Hearsay
1.
Non-Hearsay
a)
b)
33.3% Appearance Rate
-
If an out-of-court statement is NOT offered to prove the truth of the matter asserted,
the statement is NOT hearsay and is admissible. Common examples of statements that
are NOT offered to prove the truth of the matter asserted (thus are admissible) include:
(1)
Verbal acts of independent legal significance (i.e., the statement is offered to
prove that the statement itself was made, irrespective of its truth – e.g.,
defamatory statements, threats, etc.);
(2)
Statements offered to show the effect on the listener;
(3)
Statements offered to show the declarant’s mental state or state of mind; AND
(4)
Statements offered for impeachment purposes.
The Federal Rules of Evidence have categorically deemed the following statements as
admissible, non-hearsay:
(1)
Prior inconsistent statements are admissible for substantive purposes if:
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Evidence
8
(a)
The declarant is testifying at trial and is subject to cross-examination;
(b)
The statements were previously made under penalty of perjury (i.e.,
under oath); AND
(c)
The prior statements are inconsistent with present testimony being
given at trial.
If the statements were NOT previously made under penalty of perjury, they can
be offered only for impeachment purposes (not substantive purposes).
(2)
C.
Prior consistent statements are admissible to rebut a claim that the declarant is
fabricating or has a recent motive to fabricate the statement in court if:
(a)
The declarant is testifying at trial and is subject to cross-examination;
AND
(b)
The prior consistent statement was made before the declarant had a
motive to fabricate the statement.
(3)
Prior statements of identification (e.g., prior out-of-court identifications in
lineups, photo arrays, etc.) are admissible for substantive purposes if the
declarant is testifying at trial and is subject to cross-examination.
(4)
Admissions by a party opponent (prior out-of-court statements made by a
party to the current litigation that are offered by the opposing party) are
admissible as non-hearsay.
(a)
Adoptive Admissions. Silence is considered an adoptive admission if
the party heard and understood the statement and remained silent
where a reasonable person would have denied the statement.
(b)
Vicarious Admissions. Statements made by an authorized
spokesperson, an agent within the scope of and during the agency
relationship, or co-conspirators during and in furtherance of the
conspiracy are considered vicarious admissions and are imputed on the
party opponent.
Hearsay Exceptions – Declarant Unavailability is Required
1.
Unavailability Requirement
a)
b)
8.3% Appearance Rate
~
A declarant is deemed to be unavailable as a witness if the declarant:
(1)
Is exempted from testifying because the court rules that a privilege applies;
(2)
Refuses to testify despite a court order to do so;
(3)
Testifies to not remembering the subject matter;
(4)
Cannot be present or testify because of a death or then-existing infirmity,
physical illness, or mental illness; OR
(5)
Is absent and the statement’s proponent has not been able, by process or other
reasonable means to procure the declarant’s attendance.
The following four hearsay exceptions apply only if the declarant is deemed unavailable:
(1)
Former testimony;
(2)
Dying declarations;
(3)
Statements against interest; AND
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Evidence
9
(4)
2.
Forfeiture by wrongdoing.
Former Testimony
a)
4.2% Appearance Rate
~
Former testimony is admissible if:
(1)
The declarant is unavailable;
(2)
The statement was prior testimony given at a trial hearing or deposition; AND
(3)
The opposing party had an opportunity and similar motive to develop the
testimony through cross or direct examination.
(a) Prior testimony at a grand jury does NOT qualify as former testimony.
3.
Dying Declaration
a)
b)
4.
A statement is admissible if:
(1)
The declarant is unavailable;
(2)
The declarant believed that her death was imminent when she made the
statement (i.e., declarant does NOT have to actually die); AND
(3)
The statement pertains to the cause or circumstances of her death.
The dying declaration exception is ONLY available in homicide and civil cases.
Statement Against Interest
a)
(1)
The declarant is unavailable;
(2)
The statement is against the declarant’s self-interest; AND
(3)
D.
< 1.0% Appearance Rate
~
A statement is admissible if:
(a)
5.
< 1.0% Appearance Rate
~
I.e., The statement exposes the declarant to civil or criminal liability or
potential economic loss.
A reasonable person would NOT have made the statement unless he believed it
to be true.
Forfeiture By Wrongdoing
< 1.0% Appearance Rate
~
a)
A party forfeits her hearsay objection if the party intentionally or wrongfully makes the
declarant unavailable to testify as proven by a preponderance of the evidence (i.e.,
statements that would normally be inadmissible hearsay can be introduced against the
wrongdoer through forfeiture by wrongdoing).
b)
The act that makes the witness unavailable need NOT be criminal to qualify as forfeiture
by wrongdoing (e.g., sending someone away on vacation to a foreign country).
Hearsay Exceptions – Declarant Availability is Immaterial
1.
Present Sense Impression
a)
12.5% Appearance Rate
~
A present sense impression is admissible as a valid exception to the hearsay rule. A
present sense impression is a statement made by the declarant in which she describes
an event as it takes place or immediately thereafter.
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Evidence 10
2.
Excited Utterance
a)
3.
4.
4.2% Appearance Rate
~
a)
A statement of the declarant’s then-existing state of mind (e.g., motive, intent, or plan)
OR emotional, sensory, or physical condition (e.g., mental feeling, pain, or bodily health)
is admissible to prove the declarant’s state of mind or the declarant’s conduct.
b)
A statement regarding memory, a past belief, or a past state of mind to prove the fact
remembered or believed is NOT admissible unless it relates to the validity or terms of
the declarant’s will.
Medical Diagnosis or Treatment
12.5% Appearance Rate
~
A statement of a person’s past or present condition is admissible so long as it is made
for the purpose of medical diagnosis or treatment. The statement is admissible even if
it is made:
(1)
To nurses, family members, or any other non-medical individuals; OR
(2)
To enable a physician to testify at trial (as long as the statement is made for
medical diagnosis or treatment, it is admissible).
Recorded Recollection
a)
6.
An excited utterance is admissible as a valid exception to the hearsay rule. An excited
utterance is a statement that concerns a startling event, made by the declarant when
the declarant is still under stress from the startling event.
State of Mind
a)
5.
12.5% Appearance Rate
~
4.2% Appearance Rate
-
The record may be read into evidence if the witness cannot recall events or information
provided that:
(1)
The record is about a matter the witness once had personal knowledge of;
(2)
The record was made or adopted by the witness when the matter was fresh in
the witness’s mind.
(3)
The record accurately reflects the witness’s personal knowledge; AND
(4)
The witness can no longer recall the events or information well enough to
testify, even after reviewing the writing while on the stand.
b)
Under recorded recollection, the record may be read into evidence; however ONLY
opposing counsel can decide to enter it as an exhibit.
c)
Present Recollection Refreshed is an evidentiary rule that allows a witness to glance at
almost any item (usually a writing) to refresh her memory while on the stand (the item
is taken away while the witness is testifying and it is NOT admitted into evidence).
Recorded Recollection involves a writing made or adopted by the witness that
accurately reflects their personal knowledge (opposing counsel may allow the writing to
be admitted into evidence).
Business Records
a)
8.3% Appearance Rate
~
A business record is admissible as a valid exception to the hearsay rule if the record is:
(1)
Kept in the course of regularly conducted business; AND
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Evidence 11
(2)
b)
E.
Made by a person with knowledge of the matter at or near the time of the
matter's occurrence (e.g., a secretary who logs calls as they come in).
A business record is NOT admissible if the opponent can show that the source or
preparation of the record lacks trustworthiness.
Constitutional Limitations
1.
6th Amendment Confrontation Clause
a)
The Confrontation Clause guarantees a person accused of a crime the right to confront
witnesses against him in a criminal action (i.e., the right to be present at trial and the
right to cross-examine the prosecution’s witnesses).
b)
The use of an out-of-court statement (even if it falls under a valid hearsay exception or)
testimonial privilege) violates the defendant’s constitutional rights under the
Confrontation Clause if:
(1)
The proceeding is a criminal action (not civil);
(2)
The statement is testimonial;
(a)
c)
V.
8.3% Appearance Rate
~
A statement is testimonial if the declarant would reasonably expect
that the statement would be used for prosecution purposes.
(3)
The declarant is unavailable to be cross-examined at trial; AND
(4)
The defendant did NOT have an opportunity to cross-examine the declarant
at a proceeding prior to trial.
A common issue is whether statements made to police are testimonial. A statement
made to police whose primary purpose is to collect evidence to be used in a future
criminal prosecution is testimonial. A statement made to police whose primary
purpose is to provide assistance in an ongoing emergency is NOT testimonial.
Judicial Notice
A.
Judicial Notice of Fact
1.
Judicial Notice
a)
b)
< 1.0% Appearance Rate
~
Judicial notice allows a court to accept indisputable facts as true without requiring
formal proof, if the facts are:
(1)
Commonly known in the community (e.g., the sky is blue); OR
(2)
Readily capable of verification (e.g., the capital of Colombia is Bogotá).
Civil juries MUST accept judicial notice of a fact as true. Criminal juries may or may not
accept judicial notice of a fact as true.
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Evidence 12
FAMILY LAW
Studicata UBE/MEE Attack Outline
TABLE OF CONTENTS
I.
GETTING MARRIED ...................................................................................................................................... 1
A.
Controversies Arising in Anticipation of Marriage ................................................................................................................1
B.
Limitations on Who May Marry ............................................................................................................................................1
C.
Procedural and State of Mind Requirements ........................................................................................................................2
D.
Common Law Marriage ........................................................................................................................................................2
E.
Premarital Contracts.............................................................................................................................................................2
II. BEING MARRIED .......................................................................................................................................... 3
A.
Rights and Responsibilities of Spouses .................................................................................................................................3
III. ANNULMENT, DIVORCE, AND DISSOLUTION............................................................................................... 4
A.
Grounds and Defenses..........................................................................................................................................................4
B.
Jurisdiction and Recognition of Decrees ...............................................................................................................................4
C.
Division of Property ..............................................................................................................................................................5
D.
Maintenance or Alimony ......................................................................................................................................................6
E.
Child Support ........................................................................................................................................................................7
IV. CHILD CUSTODY .......................................................................................................................................... 7
A.
Standards for Decision ..........................................................................................................................................................7
B.
Visitation ..............................................................................................................................................................................8
C.
Joint Custody ........................................................................................................................................................................8
D.
Modification .........................................................................................................................................................................9
E.
Moving the Child ..................................................................................................................................................................9
F.
Mediation .............................................................................................................................................................................9
V. RIGHTS OF UNMARRIED COHABITANTS ...................................................................................................... 9
A.
Rights of Cohabitants Inter Se...............................................................................................................................................9
B.
Unmarried Parents and Their Children ............................................................................................................................... 10
VI. PARENT, CHILD, AND STATE ...................................................................................................................... 11
A.
Legal Disabilities of Childhood ............................................................................................................................................ 11
B.
Intra-Family Immunities ..................................................................................................................................................... 11
C.
Claims for Loss of Consortium............................................................................................................................................. 12
D.
Right to Control the Child’s Upbringing .............................................................................................................................. 12
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VII. ADOPTION ............................................................................................................................................... 12
A.
Severance of Parental Rights .............................................................................................................................................. 12
B.
Parental Consent ................................................................................................................................................................ 12
VIII. ALTERNATIVES TO ADOPTION................................................................................................................. 13
A.
Artificial Insemination by Donor ......................................................................................................................................... 13
B.
Surrogacy Arrangements .................................................................................................................................................... 13
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Family Law
I.
Getting Married
A.
Controversies Arising in Anticipation of Marriage
1.
B.
Common Controversies
< 1.0% Appearance Rate
~
a)
Fraudulent Inducement to Marry. If the consent of either party to a marriage was
fraudulently obtained, the marriage will be void from the time its invalidity is declared
by a court.
b)
Premarital Gifts Conditioned on Marriage. Under the traditional rule, a gift conditioned
on marriage (e.g., the engagement ring) was returned to the donor if the donor was
NOT at “fault” for the break-up. Under the modern view, such gifts are returned to the
donor regardless of fault.
c)
Contracts Restraining or Promoting Marriage. Contracts that restrain or promote
marriage are disfavored because the right to marry is a fundamental right. Complete
restraints on the right to marry are invalid; however, partial restraints may be valid if
they are reasonable under the circumstances.
Limitations on Who May Marry
1.
Bigamous Marriage
a)
2.
6.1% Appearance Rate
~
NO state recognizes the validity of a bigamous marriage (being married to more than
one person at the same time). However, there are two marriage saving doctrines that
apply to bigamous marriages:
(1)
Removal of Impediment. Under the Uniform Marriage and Divorce Act
(UDMA), an invalid marriage (e.g., a bigamous marriage) may be validated upon
the removal of the impediment (e.g., an earlier marriage). The marriage
becomes valid as of the date that the impediment is removed.
(2)
Presumption of Validity. Under the presumption of validity, the last of several
marriages will be presumed to be valid. This presumption may only be rebutted
with strong evidence that the prior marriage still persists.
Other Common Limitations
< 1.0% Appearance Rate
~
a)
Same-Sex Marriage. The Supreme Court has determined that same-sex marriage is a
constitutional right. Therefore, same-sex marriage is permitted in every state.
b)
Incestuous Marriage. Marriages determined to be incestuous (marriages between
relatives) are treated as void. Jurisdictions are fairly evenly split regarding whether
cousins may marry. Under the UDMA, persons may NOT marry their:
c)
(1)
Ancestors or descendants;
(2)
Siblings (regardless of whether whole/half blood or adoption); OR
(3)
Uncles, aunts, nieces, or nephews.
Minors. In nearly every state, persons must be 18 years of age to marry. However,
some states allow 16 or 17 year olds to marry with parental consent or judicial approval.
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Family Law
1
C.
d)
Physical Incapacity. A marriage is voidable if one party is physically unable to
consummate the marriage and the other party was unaware of the problem at the time
of solemnization.
e)
Fraudulent Marriage. A marriage is voidable for fraud if a party makes a material
misrepresentation that affects the essentials of the marriage (e.g., concealing
impotency, concealing a pregnancy by another, lying about religious beliefs).
Procedural and State of Mind Requirements
1.
Marriage Requirements
a)
D.
A valid marriage requires that:
(1)
The parties obtain a marriage license prior to the solemnization ceremony;
(2)
The marriage is solemnized by a ceremony that is conducted by an authorized
clergyman or judge; AND
(3)
Both parties consent.
(a)
Under the traditional approach, courts will find consent if the parties
participated in a valid ceremony and sought to obtain at least some of
the benefits of marriage.
(b)
Under the modern approach, courts will find consent if the parties
intended to take on the usual obligations of marriage (slightly higher
standard).
Common Law Marriage
1.
Common Law Marriage
a)
b)
E.
2.0% Appearance Rate
~
10.2% Appearance Rate
~
Most states have abolished common law marriage. In jurisdictions that recognize
common law marriage, the proponent of the marriage must prove that the parties:
(1)
Cohabitated (i.e., lived together) for the statutory period;
(2)
Held themselves out as married; AND
(3)
Intended to be married.
Most states will recognize a common law marriage if it was validly obtained in a
jurisdiction that permits common law marriages UNLESS doing so contradicts a powerful
public policy of the jurisdiction with the greatest interest in the marriage of the parties.
Premarital Contracts
1.
Premarital Contracts
a)
14.3% Appearance Rate
~
Most states will enforce a premarital agreement as a valid contract if it is:
(1)
In writing and signed by both parties;
(2)
Executed after full disclosure of the property and financial obligations of both
parties; AND
(3)
Voluntary – courts will consider the following factors to determine whether an
agreement was voluntary:
(a)
The presence of independent legal counsel;
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Family Law
2
b)
2.
3.
II.
(b)
The length of time between the agreement and the marriage;
(c)
The sophistication of the parties; AND
(d)
The presence of other pressing reasons to proceed with the marriage
(e.g., a pregnancy).
Under the Uniform Premarital Agreement Act (UPAA), the party against whom
enforcement is sought must prove that the agreement was:
(1)
NOT voluntary; OR
(2)
Unconscionable when it was executed AND that he or she did not receive or
waive fair and reasonable disclosure AND did not have, or reasonably could not
have had, an adequate knowledge of the other’s assets and obligations.
Child Custody and Support in Premarital Contracts
14.3% Appearance Rate
~
a)
Child Custody. Most courts decide custody according to the best interests of the child
at the time of the custody hearing, regardless of any premarital agreements.
b)
Child Support. Parents have an absolute obligation to support their children. A
premarital contract CANNOT adversely affect a child’s right to support under any
circumstance. Such agreements are NOT binding on the court and are unenforceable.
Spousal Support in Premarital Contracts
4.1% Appearance Rate
~
a)
During the Marriage. Premarital agreements that limit a spouse’s support during
marriage are generally void as against public policy.
b)
After the Marriage. In some jurisdictions, premarital agreements that limit a spouse’s
support after the marriage ends are void as against public policy. Under the Uniform
Premarital Agreement Act (UPAA), modification or elimination of spousal support is
permitted so long as such provisions do not make the former spouse eligible for public
support (e.g., welfare).
Being Married
A.
Rights and Responsibilities of Spouses
1.
Property Rights
a)
2.
2.0% Appearance Rate
~
Under the common law’s unity theory of marriage, the legal identity of the wife
disappeared and the husband controlled virtually all of the property. Today, both
spouses retain full rights to their own property during and after marriage.
Necessaries Doctrine
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a)
At common law, husbands were legally responsible for supporting their wives. Under
the necessaries doctrine, the wife could purchase necessaries (e.g., food, clothing,
shelter, etc.) on credit and charge them to her husband. The creditor who furnished the
necessaries to the wife could then recover fair market value for the goods or services
even though the husband did not enter into the contract.
b)
Today, most states have modified the necessaries doctrine holding both spouses liable
to creditors for necessaries purchased by the other spouse.
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III.
Annulment, Divorce, and Dissolution
A.
Grounds and Defenses
1.
Annulment
a)
b)
2.
B.
2.0% Appearance Rate
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Annulment is a judicial declaration that a marriage never existed and was invalid from
when the parties entered into it. A marriage can be annulled if it is void or voidable.
Common grounds for an annulment include:
(1)
Lack of capacity to consent at the time of the marriage (e.g., mental incapacity,
influence of drugs or alcohol, inducement by force/duress/fraud, etc.);
(2)
Lack of capacity to physically consummate the marriage by sexual intercourse;
(3)
Underage minors without parental consent or judicial approval; AND
(4)
Marriages prohibited by law (e.g., bigamy, incest, etc.).
Ratification may be a defense to an annulment action involving voidable marriages. A
void marriage (e.g., bigamy or incest) can never be ratified. Generally, ratification
occurs when the party seeking annulment fails to bring the annulment action within a
reasonable amount of time after discovering the defect.
Divorce
4.1% Appearance Rate
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a)
Traditionally, divorce was only permitted if one party was determined to be at fault
(e.g., cruelty, adultery, abandonment, incapacity, substance addiction, felony
convictions).
b)
Today, some states have completely abolished fault as a ground for divorce; however,
every state has adopted a form of no-fault divorce. Common grounds for a no-fault
divorce are:
(1)
A minimum duration of separation (usually 6 months to 1 year); AND/OR
(2)
Irreconcilable differences.
(3)
NOTE. Some states require both a separation and irreconcilable differences,
while others only require one or the other.
Jurisdiction and Recognition of Decrees
1.
Marital Action Jurisdiction
12.2% Appearance Rate
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a)
Jurisdiction over marital actions is vested solely in the state courts (federal courts
do not have subject matter jurisdiction over domestic relation matters).
b)
Annulment. Under the majority view, a state where either party is domiciled has
jurisdiction to enter an annulment decree. Ex parte annulments (an annulment action
where only one party is appearing before the court) are allowed in the state where
either party is domiciled.
c)
Divorce. Under the Full Faith and Credit Clause, a divorce validly granted in one state is
entitled to full faith and credit in other states. Generally, a divorce is valid and must be
recognized by other states if the petitioning party:
(1)
Was domiciled in the state that granted the divorce (regardless of whether that
court had personal jurisdiction over the other spouse); AND
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(2)
d)
C.
Provided adequate notice of the proceeding to the other spouse.
Divisible Divorce. Under the concept of divisible divorce, a distinction is made between
the marriage and the marital property. A state does NOT have jurisdiction to divide
marital property that is located in another state in the absence of personal jurisdiction
over the defendant spouse.
Division of Property
1.
Property Division at Divorce
a)
b)
At divorce, courts divide marital property between spouses pursuant to state law. Some
states follow the community property approach; however, most states have adopted
the equitable distribution approach for division of property at divorce. The analysis is
relatively similar under both approaches:
(1)
Categorize the property as separate or marital; THEN
(2)
Determine an equitable distribution of the marital property between the
spouses.
Categorization. At divorce, under either approach, the court must categorize all
property owned by the spouses as either separate property of each spouse or marital
property owned jointly by both spouses. Generally, a court CANNOT divide separate
property at divorce.
(1)
(2)
Separate Property. Separate property generally includes:
(a)
All property acquired by either spouse BEFORE marriage;
(b)
All property acquired by a spouse during marriage by gift, bequest,
devise, or descent;
(c)
All property either spouse acquires with the proceeds of the spouse’s
separate property; AND
(d)
All passive appreciation of separate property (appreciation in value due
to the passage of time rather than the efforts of either spouse).
Marital Property. Marital property generally includes all property acquired
during marriage (regardless of who holds title) that is NOT separate property.
Active appreciation (appreciation in value due to the efforts of either spouse) of
separate property is usually categorized as marital property.
(a)
c)
24.5% Appearance Rate
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Professional Degrees and Licenses. In almost every state, professional
degrees and licenses are considered separate property not subject to
distribution at divorce. However, reimbursement may be available for
any support provided by a spouse that contributed to the other
spouse’s degree or license.
Distribution. Once the court categorizes the property as either separate or marital, the
court will then equitably distribute the marital property between both spouses.
Courts are afforded significant discretion in determining the equitable distribution of
martial property at divorce. General factors include:
(1)
The income, property, and liabilities of each party;
(2)
The duration of the marriage;
(3)
The obligations for support arising out of a prior marriage;
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2.
The lifestyle each spouse is accustomed to;
(5)
The contributions made by each spouse toward the accumulation of marital
property (including contributions as a homemaker).
(6)
NOTE. In most states, the marital “fault” of either spouse (e.g., adultery) is NOT
a factor considered in the division of marital property.
Modification of Property Division
a)
D.
(4)
4.1% Appearance Rate
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Generally, courts may NOT modify a property division award (whether it results from a
divorce settlement agreement or judicial determination) UNLESS exceptional
circumstances exist (e.g., fraud).
Maintenance or Alimony
1.
Spousal Support
a)
At divorce, spousal support (sometimes called maintenance or alimony) is awarded if a
spouse’s separate property is insufficient for their maintenance. Courts are afforded
significant discretion in making this determination and usually examine a spouse’s
needs under the totality of the circumstances.
b)
Under the UDMA, a spouse is eligible for spousal support if the spouse seeking support:
c)
2.
4.1% Appearance Rate
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(1)
Lacks property sufficient for his or her reasonable needs and is unable to
support himself through appropriate gainful employment; OR
(2)
Is the custodian of a child such that it would be inappropriate for him to work.
Once the court determines that a spouse is eligible for support, the court will then
determine the appropriate amount to award. General factors include:
(1)
The financial resources of the party seeking maintenance;
(2)
The time necessary for the spouse seeking support to obtain an appropriate job
(includes time needed for education or training);
(3)
The duration of the marriage;
(4)
The standard of living established during the marriage;
(5)
The age and physical/emotional condition of the spouse seeking maintenance;
(6)
The ability of the spouse paying support to meet her own needs while meeting
those of the spouse seeking support.
(7)
NOTE. In most states, the marital “fault” of either spouse (e.g., adultery) is NOT
a factor considered in determining the amount of spousal support to be
awarded.
Modification of Spousal Support
6.1% Appearance Rate
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a)
In most states, a spousal support order can only be modified when there is a substantial
change in circumstances of either party making the prior order unreasonable. Under
the UDMA, a modification of spousal support is allowed only upon a showing of changed
circumstances so substantial and continuing to make the terms unconscionable.
b)
Some courts will NOT permit a modification of spousal support if the change in
circumstances was anticipated or voluntary.
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E.
Child Support
1.
Child Support
a)
2.
IV.
6.1% Appearance Rate
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Parents have an absolute obligation to support their children. Federal law requires
every state to provide guidelines to determine the proper amount of child support owed
by a non-custodial parent. These guidelines must:
(1)
Consider the income of the non-custodial parent;
(2)
Provide for the child’s healthcare needs; AND
(3)
Be based on specifically descriptive numeric criteria (i.e., a formula).
b)
Education Expenses. Some states require support for the child’s continuing education.
In such states, a child may lose their support if the child fails to follow the obligor
parent’s reasonable instructions.
c)
Rebuttable Presumption. In all states, there is a rebuttable presumption that the
amount of support produced by the state’s formula is proper.
d)
Duration. Child support obligations generally last until the child reaches the age of
majority or is otherwise emancipated (e.g., becomes married, enters the military, etc.).
Modification of Child Support
10.2% Appearance Rate
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a)
In most states, a child support order can only be modified when there is a substantial
change in circumstances of either party making the prior order unreasonable. Under
the UDMA, a modification of child support is allowed only upon a showing of changed
circumstances so substantial and continuing to make the terms unconscionable.
b)
Some courts will NOT permit a modification of child support if the change
in circumstances was anticipated or voluntary. If the obligor voluntarily made this
change, courts usually require that the obligor prove the change occurred in good faith,
rather than to punish the obligee or deprive the child of support (e.g., voluntarily
quitting a job to reduce income in order to pay less child support is usually not allowed).
c)
The state that originally issued the child support order has continuing exclusive
jurisdiction to modify the order so long as that state remains the residence of the
obligee, child, or obligor (i.e., no other court can attempt to modify a child support
order if the obligee, child, or obligor remains a resident of the state that issued the
order).
d)
Federal law:
(1)
Bars courts from retroactively modifying child support orders; AND
(2)
Requires states to give full faith and credit to child support awards from other
states.
Child Custody
A.
Standards for Decision
1.
Best Interests Standard
a)
14.3% Appearance Rate
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Generally, courts determine child custody based on the best interests of the child. A
parent’s misconduct (e.g., adultery) generally may NOT be considered unless it causes
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significant harm to the child. Courts consider multiple factors to determine what
custody order will serve the child’s best interests. General factors include:
(1)
The needs of the child for a meaningful relationship with both parents;
(2)
The ability and willingness of the parents to actively perform their functions as
mother and father for the child’s needs;
(3)
The interaction and interrelationship of the child with parents, siblings, and any
other person who may affect the child’s best interests;
(4)
The child’s adjustment to the child’s home, school, and community;
(5)
The mental and physical health of all involved individuals;
(6)
The intention of either parent to relocate the principal residence of the child;
(7)
The wishes of the child’s parents as to custody; AND
(8)
The wishes of the child as to the child’s custodian.
(a)
b)
B.
When determining child custody between a parent and a third party, it is presumed that
custody with the parent is in the best interest of the child.
Visitation
1.
Parental Visitation Rights
a)
2.
4.1% Appearance Rate
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When one parent is granted custody of a child, the other parent is usually always
entitled to visitation rights UNLESS the court determines that visitation would seriously
endanger the child’s wellbeing (e.g., the parent has been convicted of violent crimes).
Third Party Visitation Rights
a)
4.1% Appearance Rate
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In a minority of states, courts may order visitation for a nonparent if:
(1)
The nonparent has a substantial relationship with the child; AND
(2)
The visitation is in the child’s best interests.
(a)
C.
In some states, if a child has reached sufficient age, the court must
award custody as the child wishes. However, most courts consider a
child’s wishes as a factor, and, as the age and maturity of the child
increases, the wishes are given greater weight.
In order to be constitutional, great weight must be given to the parent’s
wishes in regard to the nonparent when determining the best interests
of the child.
Joint Custody
1.
Joint Custody
a)
2.0% Appearance Rate
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When parents are awarded joint custody, they BOTH participate in decision-making
regarding the upbringing of the child. Generally, a court must determine that joint
custody is in the child’s best interests in order to award the parents joint custody. Thus,
joint custody is usually only an option for cooperative parents, as it may be harmful to
the child if the parents are hostile toward each other.
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D.
Modification
1.
Modification of Child Custody
a)
b)
E.
(1)
Circumstances have substantially changed; AND
(2)
The modification would be in the child’s best interests.
The state that issued the child custody order has continuing exclusive jurisdiction to
modify the order so long as that state remains the residence of any party involved.
Relocation
a)
b)
2.0% Appearance Rate
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Most courts will permit a custodial parent to move with the child if:
(1)
The motives for moving are NOT vindictive; AND
(2)
The move is in the child’s best interests.
Some courts balance the impact on the noncustodial parent’s visitation rights against
the benefits of the move to the child and the custodial parent.
Mediation
1.
V.
In order to modify a child custody order, the parent must show that:
Moving the Child
1.
F.
8.2% Appearance Rate
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Mediator’s Role
2.0% Appearance Rate
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a)
In some states, a court has authority to order mediation of custody disputes. In others,
mediation is mandated by statute under certain circumstances.
b)
The mediator must attempt to reach a settlement that is in the best interests of the
child. However, a settlement agreement may be set aside for mediator misconduct
(e.g., failure to be impartial or fully inform the participants of the law and their rights).
Rights of Unmarried Cohabitants
A.
Rights of Cohabitants Inter Se
1.
Economic Sharing
6.1% Appearance Rate
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a)
Express Contracts. In most states, an express agreement (written or oral) between
unmarried cohabitants to share property or otherwise engage in forms of economic
sharing is enforceable, so long as the economic sharing is NOT intended as payment for
sexual services. However, some states refuse to recognize such contracts between
unmarried cohabitants as against public policy.
b)
Implied-in-Fact Contracts. Some states also allow unmarried cohabitants to seek
a remedy based on an implied-in-fact contract theory. An implied-in-fact contract is
formed by the conduct of the parties rather than express statements (e.g., commingling
funds).
c)
Equitable Remedies. Some states also allow unmarried cohabitants to seek
equitable remedies based on the following theories:
(1)
Resulting Trust. To make a claim to property titled in another’s name, the party
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seeking the resulting trust must have paid money to acquire the property with
the intent to retain an ownership interest, rather than making a gift.
B.
(2)
Constructive Trust. A constructive trust is imposed to prevent a party from
being unjustly enriched by obtaining title to property through wrongful conduct.
(3)
Quantum Meruit. A quantum meruit claim requires another to pay the fair
market value of services rendered to avoid unjust enrichment.
Unmarried Parents and Their Children
1.
Establishing Paternity
a)
Paternity actions typically arise when a man wishes to avoid child support obligations by
denying paternity of the child. A mother or government agency may bring a paternity
action to establish the father’s paternity. Once paternity is established, the law imposes
all rights, privileges, duties, and obligations on the father.
b)
Under the Uniform Parentage Act (UPA), the father-child relationship is established
between a man and a child by:
c)
d)
2.
6.1% Appearance Rate
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(1)
An effective acknowledgement of paternity by the man UNLESS the
acknowledgement has been rescinded or successfully challenged;
(2)
A valid adoption of the child by the man; OR
(3)
An adjudication of the man’s paternity.
Under the UPA, a man is presumed to be the father of the child if:
(1)
He and the child’s mother are or have been married to each other and the child
is born during the marriage, or within 300 days after the marriage is terminated;
(2)
Before the child’s birth, he and the child’s mother attempted to marry in
apparent compliance with law, although the attempted marriage is or could be
declared invalid, and the child is born during the invalid marriage or within 300
days after its termination; OR
(3)
While the child is under the age of majority, he receives the child into his home
and openly holds out the child as his own.
(4)
NOTE. A presumption of paternity under the UPA may only be rebutted by clear
and convincing evidence. Generally, there is a very high burden on challenging
paternity because society favors the family relationship. Some courts even have
the authority to exclude valid evidence that would rebut the presumption if
rebutting the presumption would be contrary to the child’s best interests.
Equitable Estoppel. Under equitable estoppel, a man who is not the biological father
will be estopped from denying paternity if:
(1)
He has held himself out as the father; AND
(2)
Paid support.
Legitimation
a)
6.1% Appearance Rate
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Legitimation by Petition. In contrast to a paternity action, legitimation is a legal action
brought by a biological father to establish his rights concerning his child born out of
wedlock. To establish his rights, the father may file a petition seeking to legitimate his
child. Generally, the father must show that he has:
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b)
VI.
(1)
Assumed parental responsibilities; AND
(2)
Established a substantial parent-child relationship.
Legitimation by Marriage. The marriage of the mother and biological father renders
the nonmarital child legitimate so long as the father recognizes the child as his child.
Upon valid legitimation (by petition or marriage), the father stands in the same position
as any other parent regarding parental and custodial rights with respect to the child.
Parent, Child, and State
A.
Legal Disabilities of Childhood
1.
Parental Consent for Child’s Medical Procedures
a)
b)
2.0% Appearance Rate
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A doctor who performs surgery on a minor child without a parent’s consent is liable in
tort, UNLESS any of the following exceptions apply:
(1)
Emergency. Parental consent is not necessary in emergency situations when
there is not enough time to obtain consent from a parent.
(2)
Public Health Concerns. Parental consent may not be necessary for certain
types of medical care related to public health concerns (e.g., treatment for
especially contagious diseases such as venereal disease).
(3)
Age of Child. Some states make an exception to the parental consent
requirement for children near the age of majority undergoing relatively minor
medical procedures.
Parens Patriae. Under the parens patriae authority of the state, a state can intervene
to protect children when their parents deny them needed medical care (usually based
on abuse or neglect grounds). However, the concept of need is interpreted narrowly. In
order to decide whether the medical care is needed, courts will:
(1)
Examine whether a condition is life threatening or whether it can be postponed
until the child reaches the age of majority; AND
(2)
Weigh the risks and benefits of the treatment.
If a parent denies their child needed medical care based on religious beliefs, many states
will still order the needed medical care but exempt the parents from criminal liability.
B.
Intra-Family Immunities
1.
Lawsuits Against Family Members
2.0% Appearance Rate
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a)
Inter-Spousal Immunity. Historically, spouses could not sue each other in tort. Today,
most jurisdictions have abolished inter-spousal immunity.
b)
Parent-Child Immunity. Historically, minor children could not sue their parents in tort.
Today, most jurisdictions have abolished parent-child immunity. In jurisdictions that still
have parent-child immunity, there is usually an exception for willful or wanton conduct
as opposed to mere negligence.
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Family Law 11
C.
Claims for Loss of Consortium
1.
Loss of Consortium Claims
a)
D.
Loss of consortium is a claim in damages intended to compensate a spouse for loss of
companionship, sexual relations, or affection. Damages for loss of consortium are
typically only available to the legally recognized spouse of the injured party.
Right to Control the Child’s Upbringing
1.
Parental Right to Direct Child’s Upbringing
a)
VII.
2.0% Appearance Rate
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4.1% Appearance Rate
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Parents have a fundamental right to direct their child’s upbringing, which includes
a right to control their child’s religious education. Generally, courts will not interfere
with parental decisions regarding their child’s upbringing and education UNLESS the
child’s wellbeing is endangered.
Adoption
A.
Severance of Parental Rights
1.
Adoption
a)
B.
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Adoption is a statutory procedure that terminates the rights of the biological parents
and establishes the rights of the adoptive parents. In most states, the biological parents
lose the right to visit their child after the adoption. However, some states will permit
visitation if it is in the child’s best interests.
Parental Consent
1.
Parental Consent in Adoption
6.1% Appearance Rate
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a)
Generally, the consent of BOTH parents is required to place a child up for adoption.
However, if the child is born out of wedlock, consent of the father is only required when
he has assumed parental responsibility. Moreover, an unwed father who knew of his
child’s pending birth is NOT entitled to notice of the adoption if he did not take steps to
establish a parent-child relationship with the child.
b)
Challenge to Validity of Consent. A biological parent may challenge the validity of
his/her consent to an adoption on the ground that his/her consent:
(1)
Was procured by fraud or duress (mere stress is insufficient, the duress must be
extreme); OR
(2)
Failed to comply with statutory formalities.
(a)
c)
Some states require two witnesses to consent to an adoption. Most
states declare pre-birth adoptions invalid (e.g., a mother cannot give
consent for an adoption until 72 hours after birth in some states).
Revocation of Valid Consent. Generally, there are three different statutory approaches
to a biological parent’s revocation of valid consent to an adoption:
(1)
Consent is revocable until the final adoption decree is entered with the court;
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(2)
Consent is revocable at the court’s discretion up to a specified amount of time
so long as the revocation is in the child’s best interests; OR
(3)
Absent fraud or duress, consent is NOT revocable.
VIII. Alternatives to Adoption
A.
Artificial Insemination by Donor
1.
Artificial Insemination
a)
Generally, if a mother is married, the mother’s husband is presumed to be the father
of a child born from artificial insemination if:
(1)
He consented in writing; AND
(a)
(2)
b)
B.
4.1% Appearance Rate
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If no writing exists, some courts will find that implied oral consent is
sufficient.
A medical doctor performed the procedure.
Most states extinguish any parental rights the sperm donor may have as the biological
father of the child upon successful artificial insemination.
Surrogacy Arrangements
1.
Surrogacy
2.0% Appearance Rate
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a)
Surrogacy arrangements typically arise when a couple wants a baby, but the woman is
unable to carry a baby to term. In a surrogacy contract, the surrogate mother, generally
in return for financial compensation, agrees to bear and give birth to another party’s
child (usually through artificial insemination or in vitro fertilization) permitting the other
party to raise the child.
b)
Treatment by the Courts. Some states hold parties that enter into a surrogacy contract
criminally liable. Other states treat surrogacy contracts as void against public policy
without imposing criminal liability. Still, other states permit surrogacy contracts so long
as the birth mother is given a period of time to change her mind after the child is born.
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Family Law 13
REAL PROPERTY
Studicata UBE/MEE Attack Outline
TABLE OF CONTENTS
I.
OWNERSHIP OF REAL PROPERTY ................................................................................................................ 1
A.
Present Estates and Future Interests ....................................................................................................................................1
II. COTENANCY ................................................................................................................................................ 2
A.
Tenancy in Common and Joint Tenancy ................................................................................................................................2
B.
Rights and Obligations of Cotenants .....................................................................................................................................3
III. LANDLORD-TENANT LAW ............................................................................................................................ 4
A.
The Leasehold.......................................................................................................................................................................4
B.
Types of Leaseholds ..............................................................................................................................................................4
C.
Possession and Rent .............................................................................................................................................................5
D.
Habitability and Suitability ...................................................................................................................................................6
E.
Assignments and Subleases ..................................................................................................................................................6
F.
Termination of Leases ..........................................................................................................................................................7
IV. RIGHTS IN LAND .......................................................................................................................................... 7
A.
Real Covenants and Equitable Servitudes .............................................................................................................................7
B.
Easements, Profits, and Licenses ..........................................................................................................................................9
C.
Fixtures............................................................................................................................................................................... 10
V. REAL ESTATE CONTRACTS ......................................................................................................................... 11
A.
Creation and Merger .......................................................................................................................................................... 11
B.
Marketable Title ................................................................................................................................................................. 11
C.
Fitness and Suitability......................................................................................................................................................... 12
D.
Equitable Conversion and Risk of Loss ................................................................................................................................ 12
VI. MORTGAGES ............................................................................................................................................. 12
A.
In General ........................................................................................................................................................................... 12
B.
Types of Mortgages ............................................................................................................................................................ 13
C.
Equitable Mortgages .......................................................................................................................................................... 13
D.
Transfers ............................................................................................................................................................................ 13
E.
Foreclosure......................................................................................................................................................................... 14
VII. TITLES ........................................................................................................................................................ 14
A.
Adverse Possession ............................................................................................................................................................ 14
B.
Transfer by Deed ................................................................................................................................................................ 15
C.
Competeing Claims to Title ……………………………………………………………………………………………………………………………………………. 16
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Real Property
I.
Ownership of Real Property
A.
Present Estates and Future Interests
1.
Fee Simple
a)
4.2% Appearance Rate
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In present estates, fee simple is the default estate. A fee simple is created when the
grantor uses any of the following language:
(1)
“O to A”
(2)
“O to A and his/her heirs”
(3)
“O to A forever”
b)
A defeasible fee is a conveyance in fee simple in which the grantor places express
conditions on the conveyance (e.g., “O to A on the condition that . . .”). A defeasible fee
is capable of lasting forever, but may be terminated by the occurrence of an event.
c)
A defeasible fee gives the grantee a present possessory interest in the property, but
reserves a future interest in the property in the favor of the grantor or a third party.
There are three main types of defeasible fees:
(1)
(2)
(3)
Fee Simple Determinable. A fee simple determinable is a conditional
conveyance in which the grantor retains a possibility of reverter. The possibility
of reverter vests automatically when the condition fails (i.e., the grantor does
not have to reclaim the property, the interest automatically vests back to him).
A fee simple determinable is created when the grantor uses durational
language, such as:
(a)
“While the property is used for farming”
(b)
“During the property’s use as a farm”
(c)
“Until the property is no longer used as a farm”
Fee Simple Subject to Condition Subsequent. A fee simple subject to condition
subsequent is a conditional conveyance in which the grantor retains a right of
entry. The right of entry does NOT vest automatically when the condition fails
(i.e., the grantor must reclaim the property). A fee simple subject to condition
subsequent is created when the grantor uses conditional language, such as:
(a)
“Provided that the property is used for farming”
(b)
“On the condition that the property is used as a farm”
Fee Simple Subject to Executory Interest. A fee simple subject to executory
interest is a conditional conveyance in which a third party (not the grantor) is
granted an executory interest in the property. An executory interest is a future
interest that divests (i.e., terminates) an earlier interest. For example:
(a)
“O conveys Greenacre to A and his heirs, but if Greenacre is no longer
used as a farm, then to B and her heirs.” A has a fee simple subject to
an executory interest. B has an executory interest, because B is a third
party (not the grantor) and her interest divests A’s interest.
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2.
Life Estate
a)
A life estate is a present possessory estate that is limited by a person’s life (terminates
when the measuring life dies). A life estate is created when the grantor uses the
following language:
(1)
“O to A for A’s life” (A is the measuring life – life estate terminates when A dies)
(2)
“O to A for B’s life” (B is the measuring life – life estate terminates when B dies)
b)
A life estate is transferable. The transferee’s interest in the property terminates upon
the death of the measuring life.
c)
Similar to fee simple, a future interest can follow a life estate. If possession of the land
goes back to the grantor after the life estate terminates, then the grantor retains a
reversion. If possession of the land goes to a third party after the life estate terminates,
then the third party takes a remainder. A remainder can be vested or contingent:
(1)
(2)
II.
4.2% Appearance Rate
~
A vested remainder is a future interest that is both:
(a)
Given to an ascertained (i.e., readily identifiable) grantee; AND
(b)
NOT subject to a condition precedent (i.e., a condition that must be
satisfied in order for the interest to vest).
A contingent remainder is a future interest that fails either of the two above
elements. For example:
(a)
“O conveys Greenacre to A for life, then to A’s firstborn child. At
the time of conveyance, A has no children.” A’s firstborn child has a
contingent remainder, because the firstborn child is not an
ascertainable grantee.
(b)
“O conveys Greenacre to A for life, then to B on the condition that B
survives A.” B has a contingent remainder. B is an ascertainable
grantee; however, B’s interest is subject to a condition precedent (B
must survive A).
Cotenancy
A.
Tenancy in Common and Joint Tenancy
1.
Tenancy In Common
4.2% Appearance Rate
~
a)
A tenancy in common is the default estate created by a conveyance of real property to
two or more people. The grantor need NOT use any type of explicit language to create
a tenancy in common (e.g., “O to A and B”).
b)
Each tenant in common has:
(1)
A separate but undivided interest in the property (i.e., the property does not
have to be physically divided);
(2)
The right to possess and enjoy the entire property; AND
(3)
The right to transfer their interest in the property freely during their lifetime or
at death (i.e., NO right of survivorship).
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2.
Joint Tenancy and the Right of Survivorship
a)
A joint tenancy is a conveyance of real property to two or more people that is
distinguished by a right of survivorship, whereby the surviving joint tenants
automatically take the deceased tenant’s property interest. Thus, joint tenants
CANNOT pass their property interest by will or intestate succession (at death, their
property interest automatically passes to the other joint tenants).
b)
A joint tenancy is created by a conveyance of real property to two or more people if the
grantor:
c)
3.
(1)
Makes a clear expression of intent to create a joint tenancy; AND
(2)
Uses survivorship language (e.g., “as joint tenants with a right of survivorship”).
Additionally, the “four unities” (P.I.T.T.) must be in place to create a joint tenancy:
(1)
Possession. Each joint tenant must have an equal right to posses and enjoy the
whole property (also required for tenants in common).
(2)
Interest. Each joint tenant must have an equal share of the same type of
interest (e.g., two joint tenants each have a 50% share in fee simple).
(3)
Time. Joint tenants must receive their property interests at the same time.
(4)
Title. Joint tenants must receive their property interest in the same instrument
of title.
Severance of the Joint Tenancy
a)
4.2% Appearance Rate
~
If any of the four unities (P.I.T.T.) are severed (i.e., destroyed), then the joint tenancy is
terminated and the cotenants hold the property as tenants in common. There are two
main situations where this happens:
(1)
(2)
B.
4.2% Appearance Rate
~
When a joint tenant conveys her interest to a third party, that party takes the
property as a tenant in common (clearly destroys the time and title unities).
(a)
If there were originally two joint tenants, the conveyance converts the
estate into a tenancy in common (i.e., the two tenants are now tenants
in common with no right of survivorship).
(b)
If there were originally three or more joint tenants, the joint tenancy
remains among the other joint tenants not involved in the conveyance
while the third party is a tenant in common.
When a joint tenant grants a mortgage interest in the joint tenancy to a
creditor, the effect will depend on the jurisdiction:
(a)
In a lien theory jurisdiction (majority view), the mortgage is treated as a
lien and does NOT terminate the joint tenancy.
(b)
In a title theory jurisdiction (minority view), the mortgage will
terminate the joint tenancy, and the tenants will then hold the property
as tenants in common.
Rights and Obligations of Cotenants
1.
Cotenant Division of Expenses, Payments, and Costs
a)
< 1.0% Appearance Rate
~
Operating expenses are divided based on the ownership interests of each cotenant.
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Operating expenses consist of necessary charges (e.g., taxes and mortgage payments).
2.
b)
Rent payments received from a third party’s possession of the property, minus
operating expenses, are divided based on the ownership interests of each cotenant.
c)
Repair costs (even if the repairs are necessary) are NOT divided between the cotenants
(i.e., there is no right for reimbursement for necessary repair costs). However, the
cotenant who pays for the repairs can get credit for the repairs in a partition action.
d)
Improvement costs are NOT divided between the cotenants (i.e., there is no right for
reimbursement for improvement costs). However, the cotenant who pays for the
improvements can get credit for the repairs in a partition action.
Ouster
a)
3.
Each cotenant (whether a joint tenant or tenant in common) has the right to possess
ALL of the property, regardless of ownership share. An ouster occurs if a cotenant
denies another cotenant access to the property. If this occurs, the ousted tenant can:
(1)
Get an injunction granting access to the property; AND/OR
(2)
Recover damages for the value of the use while ousted.
Partition
a)
III.
< 1.0% Appearance Rate
~
< 1.0% Appearance Rate
~
A partition action is an equitable remedy that is available unilaterally to joint tenants
and tenants in common. There are two types of partition actions:
(1)
A partition in kind physically divides the property into distinct portions. Courts
have a preference for physical divisions of property over forced sales.
(2)
A partition by sale involves selling the property and dividing the proceeds from
the sale among each cotenant based on their ownership interests. Courts will
order a partition by sale if a partition in kind is:
(a)
NOT practicable; OR
(b)
NOT fair to all parties.
Landlord-Tenant Law
A.
The Leasehold
1.
Leasehold Interest
a)
B.
8.3% Appearance Rate
~
The relationship between a landlord and a tenant can create four types of possessory
estates (tenancy for years, periodic tenancy, tenancy at will, and tenancy at sufferance).
This relationship is generally governed by a contract (the “lease”), which contains the
covenants of the parties. Generally, each party must perform his promises pursuant to
the lease whether or not the other party performs his promises.
Types of Leaseholds
1.
Tenancy for Years
a)
4.2% Appearance Rate
~
A tenancy for years is an interest that lasts for a fixed and ascertainable amount of time
(e.g., Landlord leases Greenacre to Tenant for 6 months). If the term is longer than one
year, then the agreement must be in writing because of the statute of frauds. A
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tenancy for years automatically terminates when the term expires.
2.
3.
Periodic Tenancy
a)
A periodic tenancy is a repetitive and ongoing interest that continues for a set period of
time UNTIL it is terminated by proper notice from either party (e.g., month-to-month
lease, year-to-year lease, etc.).
b)
Proper notice requires the terminating party to give notice before the start of what will
be the last term. The notice is effective on the last day of the term (e.g., Landlord
leases Greenacre to Tenant on a month-to-month basis. If Tenant gives proper notice of
termination on June 11, the termination will be effective on July 31).
c)
The parties must intend to create a periodic tenancy. Intent can be:
(1)
Express (e.g., a specific term in the signed lease agreement); OR
(2)
Implied (e.g., ongoing payment of rent).
Tenancy at Will
A tenancy at will continues until it is terminated by either party. It may be terminated at
any time for any reason, and may be terminated without notice. If either party dies, the
tenancy at will is terminated.
b)
The parties must intend to create a tenancy at will. Intent can be:
(2)
Express (e.g., a specific term in the signed lease agreement gives either party or
both parties the “right to terminate at will”); OR
(a)
If the agreement gives only the landlord the right to terminate at will,
the tenant also gets the right to terminate implicitly.
(b)
If the agreement gives only the tenant the right to terminate at will, the
landlord is NOT given the right to terminate at will.
Implied (e.g., ongoing payment of rent at will).
Tenancy at Sufferance
a)
C.
4.2% Appearance Rate
~
a)
(1)
4.
4.2% Appearance Rate
~
< 1.0% Appearance Rate
~
A tenancy at sufferance is created when the tenant refuses to vacate the premises after
his lease has terminated. This situation creates a temporary tenancy, where the terms
of the prior lease control, until:
(1)
The landlord evicts the tenant;
(2)
The landlord re-leases the property to the tenant; OR
(3)
The tenant voluntarily vacates.
Possession and Rent
1.
Duty to Pay Rent
4.2% Appearance Rate
~
a)
The tenant has a contractual duty to pay rent to the landlord in exchange for his
possessory interest in the landlord’s property. If the tenant fails to pay rent, the
landlord may evict the tenant or sue the tenant for breach of contract.
b)
However, there are three main situations where the duty to pay rent is suspended:
(1)
The premises are destroyed (so long as the tenant did not cause the damage);
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D.
(2)
The landlord completely or partially evicts the tenant; OR
(3)
The landlord materially breaches on the lease (e.g., violates the implied
warranty of habitability).
Habitability and Suitability
1.
Implied Warranty of Habitability
a)
A warranty of habitability is implied in every residential lease (NOT commercial leases).
The implied warranty of habitability requires landlords to maintain their property such
that it is reasonably suitable for basic human needs (failure to comply with applicable
housing codes constitutes a breach). The tenant CANNOT waive habitability protection.
b)
If the landlord breaches the implied warrant of habitability, the tenant may:
(1)
Vacate the premises and terminate the lease;
(a)
(2)
E.
Note that the tenant is NOT required to vacate the premises.
Withhold or reduce the rent;
(a)
2.
4.2% Appearance Rate
~
If the tenant chooses to withhold rent, the tenant must first notify the
landlord of the problem and give the landlord a reasonable opportunity
to correct the problem.
(3)
Remedy the defect and offset the costs against the rent; OR
(4)
Defend against eviction.
Implied Covenant of Quiet Enjoyment
4.2% Appearance Rate
~
a)
Every lease (commercial and residential) includes an implied covenant of quiet
enjoyment, which prevents the landlord from taking action that makes the premises
wholly or substantially unsuitable for their intended purposes resulting in the
constructive eviction of the tenant.
b)
The implied covenant of quiet enjoyment is breached (tenant may withhold rent or seek
damages) if the tenant is constructively evicted. A constructive eviction occurs if the:
(1)
Landlord caused the premises to be unsuitable for their intended purposes;
(2)
Tenant notified the landlord of the problem;
(3)
Landlord did NOT correct the problem; AND
(4)
Tenant vacates the premises after a reasonable amount of time passed.
Assignments and Subleases
1.
Assignments
a)
2.
An assignment is a complete transfer of the tenant’s entire remaining term under the
lease. In an assignment, the landlord can collect rent from the:
(1)
Assignee (because there is privity of estate); OR
(2)
Original tenant (because there is privity of contract).
Subleases
a)
8.3% Appearance Rate
~
< 1.0% Appearance Rate
~
A sublease is a transfer of less than the tenant’s entire remaining term under the
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lease. In a sublease, the landlord can ONLY collect rent from the original tenant
(because there is privity of contract and estate). The subtenant ONLY has rent
obligations to the original tenant.
F.
Termination of Leases
1.
Surrender
a)
2.
IV.
A surrender terminates the lease agreement and ends the landlord-tenant relationship
between both parties (releases both parties from their duties and obligations under the
lease agreement). A surrender occurs when:
(1)
A tenant returns possession of the leased premises to the landlord before the
expiration of the lease; AND
(2)
The landlord consents.
Abandonment
a)
3.
4.2% Appearance Rate
~
8.3% Appearance Rate
~
An abandonment occurs when the tenant unilaterally returns possession of the leased
premises before the lease expires WITHOUT the landlord’s consent. Here, the tenant
will have to continue paying rent until the landlord is able to find a replacement tenant.
If the tenant refuses to pay rent, the landlord is entitled to damages for the difference
between the original rent and the rent received from the replacement tenant.
Duty to Mitigate
8.3% Appearance Rate
~
a)
Under the majority rule, the landlord has a duty to mitigate damages if the tenant
abandons the property early or is evicted by making reasonable efforts to re-rent the
property to another tenant. The landlord is entitled to damages for the difference
between the original rent and the rent received from the replacement tenant.
b)
Under the minority rule, the landlord does NOT have to mitigate damages (more
common in cases involving commercial leases).
Rights in Land
A.
Real Covenants and Equitable Servitudes
1.
Real Covenants
< 1.0% Appearance Rate
~
a)
A real covenant is a promise concerning the use of the land that runs to successors of
the promise. It typically requires the holder to either do something OR refrain from
doing something to the land.
b)
The benefit of the covenant is the ability to enforce the covenant. The burden of the
covenant is being subject to it or bound by it.
c)
In order for a benefit to run to successors, the following four elements must be present:
(1)
Writing. The covenant must be included in writing in the original conveyance
(i.e., must satisfy the statute of frauds).
(2)
Intent. The original parties must have intended for the covenant to run with the
land.
(3)
Touch and Concern. The covenant must touch and concern the land (i.e., the
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Real Property
7
benefit of the covenant must affect both the promisee and promisor as owners
of the land – usually by increasing the value of the land).
(4)
d)
2.
3.
Relaxed Vertical Privity. The successor need only take an interest that is carved
out of the original party’s estate (i.e., the successor can take less than the
original party’s entire interest in the property – e.g., the successor takes a life
estate from a fee simple).
In order for a burden to run to successors, the following six elements must be present:
(1)
Writing. The covenant must be included in writing in the original conveyance
(i.e., must satisfy the statute of frauds).
(2)
Intent. The original parties must have intended for the covenant to run with the
land.
(3)
Touch and Concern. The covenant must touch and concern the land (i.e., the
burden of the covenant must affect both the promisee and promisor as owners
of the land – usually by increasing the value of the land).
(4)
Strict Vertical Privity. The successor must take the original party’s entire
interest.
(5)
Horizontal Privity. The instrument used in the conveyance of the property
between the original parties must contain the estate and the covenant (e.g., the
deed contains the covenant).
(6)
Notice. The new owner must have notice of the covenant. Notice may be either
actual or constructive (i.e., record notice). Inquiry notice may suffice for
equitable servitudes (e.g., an inspection of the land would reveal the servitude).
Equitable Servitudes
< 1.0% Appearance Rate
~
a)
An equitable servitude operates like a real covenant with easier requirements. The
main difference between a real covenant and an equitable servitude is in the remedy.
The remedy for a breach of a real covenant is money damages – the remedy for a
breach of an equitable servitude is injunctive relief.
b)
For equitable servitudes, there is NO privity requirement. In order to bind a successor,
the following four elements must be present:
(1)
Writing. The servitude must be included in writing in the original conveyance
(i.e., must satisfy the statute of frauds).
(2)
Intent. The original parties must have intended for the servitude to run with
the land.
(3)
Touch and Concern. The servitude must touch and concern the land (i.e., the
servitude must affect both the promisee and promisor as owners of the land –
usually by increasing the value of the land).
(4)
Notice. The new owner must have notice of the servitude. Notice may be either
actual, constructive, or inquiry.
Implied Reciprocal Servitudes
a)
< 1.0% Appearance Rate
~
Implied reciprocal servitudes arise in planned subdivisions. Most jurisdictions impose
the following requirements to enforce an implied reciprocal servitude:
(1)
There must be intent to create a servitude on all plots (i.e., a common scheme);
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b)
B.
(2)
The servitude must be negative (i.e., a promise to refrain from doing
something); AND
(3)
The party against whom enforcement of the servitude is sought must have
actual, constructive, or inquiry notice.
NOTE. Reciprocal negative servitudes are implied from the common scheme (i.e., a
writing is NOT required for an equitable servitude created by implication).
Easements, Profits, and Licenses
1.
Express Easement
a)
2.
3.
(1)
By Grant. An express easement by grant arises when it is affirmatively created
by the parties in a writing that satisfies the statue of frauds.
(2)
By Reservation. An express easement by reservation is created when a grantor
conveys land but reserves an easement right in that land for his own use.
(1)
A single tract of land is divided by a common owner and a piece of the land is
conveyed to another;
(2)
Before the division, the common owner used the single tract of land as if there
was an easement on it;
(3)
After the division, the common owner’s use of the conveyed land must be
continuous and apparent; AND
(4)
Such use must be reasonably necessary for the owner’s use and enjoyment.
b)
< 1.0% Appearance Rate
~
An implied easement by necessity is created when:
(1)
A single tract of land is divided by a common owner and a piece of the land is
conveyed to another; AND
(2)
Necessity arose when the land was divided into two separate estates where one
of the properties became virtually useless without the easement.
Implied Easement by Prescription
a)
4.2% Appearance Rate
~
An implied easement by implication is created when:
Implied Easement by Necessity
a)
4.
An easement is a right held by one person to use another’s land. An express easement
can be created by grant or by reservation:
Implied Easement by Implication
a)
< 1.0% Appearance Rate
~
< 1.0% Appearance Rate
~
An implied easement by prescription is created when a landowner allows a trespasser to
use his land continuously for the statutory period. The trespasser’s use must be:
(1)
Hostile (i.e., without permission from the owner of the land);
(2)
Open and notorious (i.e., not hidden); AND
(3)
Continuous for the statutory period.
NOTE. Unlike adverse possession, the use need NOT be exclusive (e.g., a public
easement to access a beach).
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5.
Termination of an Easement
a)
6.
C.
An easement may be terminated by any of the following:
(1)
Release. An easement is terminated if the holder expressly releases it. The
release must be in writing and satisfy the statute of frauds.
(2)
Merger. An easement is terminated if the holder acquires fee title to the
underlying estate – the easement merges into the title.
(3)
Abandonment. An easement is terminated if the holder demonstrates an intent
to never use the easement again through physical action (i.e., requires more
than non-use or statements).
(4)
Prescription. An easement is terminated if the holder fails to protect against
trespassers for the statutory period.
(5)
Sale to a Bona Fide Purchaser. An easement may be terminated if the
landowner sells the property.
(6)
Estoppel. An easement is terminated if the landowner reasonably relies to his
detriment on the easement holder’s assurance that the easement will no longer
be used.
(7)
End of Necessity. An easement by necessity lasts as long as the easement is
necessary – if it is no longer necessary, the easement terminates.
Profits and Licenses
a)
8.3% Appearance Rate
~
< 1.0% Appearance Rate
~
The following two interests are NOT easements:
(1)
A profit is a right to enter another’s land to remove a specific natural resource.
(2)
A license is a revocable permission to use another’s land (e.g., a ticket to a
music concert).
Fixtures
1.
Fixtures
a)
b)
4.2% Appearance Rate
-
A fixture is tangible personal property (i.e., chattel) that is attached to real property in
such a manner that it is treated as part of the real property when determining its
ownership. Generally, a chattel is considered a fixture if the owner of real property
intends for the chattel to become a fixture by attaching it to the real property. Such
intent is judged by applying an objective, reasonable person standard that examines
such factors as:
(1)
The importance of the chattel to the real property;
(2)
Whether the chattel was specially designed for use on the real property; AND
(3)
The amount of damage that removal of the chattel would cause to the real
property.
NOTE. Structures built on real property (e.g., walls) and materials incorporated into a
structure (e.g., bricks used in making a wall) become part of the real property. The
owner of the real property is generally also the owner of any structures on the real
property (including the materials incorporated into the structures).
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Real Property 10
V.
Real Estate Contracts
A.
Creation and Merger
1.
Land Sale Contract Requirements
a)
b)
A valid contract for the sale of land must satisfy the statute of frauds. Generally, the
contract must:
(1)
Be in writing and signed by the party to be charged; AND
(2)
Contain all of the essential terms (i.e., parties, property description, terms of
price and payment).
There are two main exceptions to the writing requirement:
(1)
Partial performance by either the seller or buyer is treated as evidence that the
land sale contract existed. This is a valid exception to the writing requirement in
many jurisdictions if any two of the following three are met:
(a)
(b)
(c)
(2)
2.
B.
< 1.0% Appearance Rate
~
Possession by the purchaser;
Payment of all or part of the purchase price; AND/OR
Improvements to the land made by the purchaser.
Promissory Estoppel/Detrimental Reliance operates as a valid exception where
a party reasonably and foreseeably relied on the land sale contract to his
detriment and would suffer hardship if the contract is not enforced.
Merger
4.2% Appearance Rate
~
a)
Covenants under the land sale contract are merged into the deed and CANNOT be
enforced unless the covenant is also in the deed.
b)
Merger breaks the land sale contract down into two stages:
(1)
Contract Stage. Prior to closing (i.e., the date that the ownership of the
property is transferred to the buyer), any liability must be based on a provision
in the land sale contract.
(2)
Deed Stage. After closing (i.e., the date that the ownership of the
property is transferred to the buyer), any liability must be based on a deed
warranty.
Marketable Title
1.
Implied Covenant of Marketable Title
a)
4.2% Appearance Rate
~
In every land sale contract, the seller has a duty to convey marketable title to the buyer
at closing. Marketable title is title that is free from an unreasonable risk of litigation.
Defects in title that render title unmarketable include:
(1)
Title acquired by adverse possession that has not yet been quieted (i.e.,
supported by a judicial decree).
(2)
Future interest holders that have not agreed to the transfer;
(3)
Private encumbrances (e.g., mortgage, covenant, option, or easement);
(4)
Violation of a zoning ordinance; OR
(5)
Significant physical defect (encroachment on the land that is incurable).
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Real Property 11
C.
b)
If there is a defect in title rendering title unmarketable, it must be fixed or cured
BEFORE closing (at which point the contract and deed merge and the deed controls). If
the seller cannot deliver marketable title at closing, the buyer can rescind the contract
without penalty.
c)
The purchaser may choose to waive the requirement that the seller deliver marketable
title. However, a seller CANNOT cancel a land sale contract for failure to deliver
marketable title if the buyer chooses to waive the requirement.
Fitness and Suitability
1.
Implied Warranty of Fitness or Suitability
2.
a)
The implied warranty of fitness or suitability applies to defects in new construction. It
protects against latent defects (i.e., defects that are not discoverable from a reasonable
inspection) and warrants that the new construction is safe and fit for human habitation.
b)
In most jurisdictions, both the initial purchaser and subsequent purchasers may recover
damages. In other jurisdictions, only the initial purchaser can enforce this warranty.
Duty to Disclose Defects
a)
b)
D.
< 1.0% Appearance Rate
~
Most jurisdictions impose a duty on the seller to disclose material defects to the buyer.
Material defects are defects that substantially impact the:
(1)
Value of the property;
(2)
Desirability of the property; OR
(3)
Health and safety of its occupants.
General disclaimers (e.g., “as is”) do NOT satisfy the seller’s duty to disclose defects.
Equitable Conversion and Risk of Loss
1.
Equitable Conversion and Risk of Loss
a)
b)
VI.
8.3% Appearance Rate
~
4.2% Appearance Rate
~
In the majority of jurisdictions, the purchaser holds equitable title during the period
between the execution of the contract and the closing and delivery of the deed. During
this period:
(1)
The purchaser is responsible for any damages to the property; AND
(2)
The seller, as holder of legal title, has the right to possess the property.
A minority of jurisdictions follow the Uniform Vendor and Purchaser Risk Act. This
places the risk of loss on the seller until closing and the delivery of the deed.
Mortgages
A.
In General
1.
The Mortgage
a)
< 1.0% Appearance Rate
~
A mortgage is a security device used to secure repayment of a debt. There are two
components to a mortgage:
(1)
The Note. The note is the borrower’s promise to repay the debt or loan.
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(2)
B.
Types of Mortgages
1.
Purchase-Money and Future-Advance Mortgages
a)
C.
The Mortgage. The mortgage is the device that provides security to the note by
allowing the lender to force a foreclosure sale to recover the outstanding debt if
the borrower defaults on the loan.
There are two main types of mortgages:
(1)
Purchase-Money Mortgage. A purchase-money mortgage is a mortgage where
the borrower takes out a loan for the purpose of purchasing property.
(2)
Future-Advance Mortgage. A future-advance mortgage is a line of credit used
for home equity, construction, business, and commercial loans (often called a
“second mortgage”).
Equitable Mortgages
1.
Alternative Security Devices
a)
4.2% Appearance Rate
~
There are three main alternatives used instead of mortgages as security devices:
(1)
Deed of Trust. A deed of trust operates like a mortgage, but involves three
parties:
(a)
(b)
(c)
D.
4.2% Appearance Rate
~
The borrower;
The lender; AND
A third-party trustee who holds title of the property until the loan is
paid off.
(2)
Installment Land Contract. The seller finances the purchase in an installment
land contract retaining title until the buyer makes the final payment on the
installment plan.
(3)
Absolute Deed. An absolute deed is an instrument used by the borrower to
transfer the deed to the property instead of conveying a security interest in
exchange for a loan.
Transfers
1.
Borrower Transfers and Liability
a)
4.2% Appearance Rate
~
The borrower may transfer the property by deed (i.e., selling), will, or intestate
succession. The borrower remains personally liable after the transfer unless:
(1)
The lender releases the borrower from his obligation; OR
(2)
The lender modifies the transferee’s obligation.
b)
If the transferee assumes the mortgage, the transferee is primarily liable upon default
while the original borrower is secondarily liable. If the transferee takes title subject to
the mortgage, the transferee is NOT personally liable upon default while the original
borrower remains liable (this is the default/presumed option).
c)
Acceleration Clauses. A due-on-sale clause allows the lender to demand immediate
full payment from the borrower upon transfer. A due-on-encumbrance clause allows
the lender to demand accelerated payments from the borrower when the borrower
obtains a second mortgage or otherwise encumbers the property.
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Real Property 13
E.
Foreclosure
1.
VII.
Priority
4.2% Appearance Rate
~
a)
A foreclosure is a forced sale of an asset where the proceeds of the sale are used to pay
off the debt. If the proceeds are not enough to cover the debt, the lender may seek a
deficiency judgment against the borrower. If there are excess proceeds, the money will
be used to satisfy other creditors in the following order of priority.
b)
Generally, interests acquired before the interest that is being foreclosed (senior
interests) survive the foreclosure while interests acquired after the interest that is being
foreclosed (junior interests) are extinguished by the foreclosure.
c)
First in Time Rule. All surviving debts MUST be satisfied in chronological order starting
with the oldest and moving down, unless any of the following exceptions apply:
(1)
Purchase-Money Mortgages. A purchase-money mortgage has priority over all
other mortgages, even those earlier in time, that arose prior to the borrower’s
acquisition of the property.
(2)
Unrecorded Senior Mortgages. A junior mortgage that is properly recorded
may take priority over an unrecorded senior mortgage.
(3)
Subordination Agreements. A senior lender can agree to subordinate its
interest to a junior interest.
(4)
Mortgage Modifications. A senior lender and borrower can agree to modify the
mortgage. If the modification is more burdensome on the borrower, the senior
lender subordinates its interest. However, only the modification subordinates
(the original mortgage remains senior).
Titles
A.
Adverse Possession
1.
Adverse Possession
a)
8.3% Appearance Rate
~
Adverse possession allows a trespasser in unlawful possession of land owned by another
to acquire title to that land if their possession is:
(1)
(2)
Continuous for the statutory period;
(a)
Seasonal or infrequent use will suffice if the use is consistent with the
type of property being possessed.
(b)
Tacking. An adverse possessor can tack on the time of possession of a
prior adverse possessor to meet the statutory period requirement if the
adverse possessors are in privity with one another (i.e., the transfer of
land was voluntarily agreed upon).
(c)
Disabilities. The statutory period will not run against a true owner who
had a disability (e.g., insanity, imprisonment, etc.) at the time the
adverse possession begun.
Open and notorious;
(a)
The adverse possessor must use the property as if they were a true
owner (i.e., the trespasser’s possession of the property cannot be
hidden from the true owner).
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Real Property 14
(3)
Exclusive; AND
(a)
(4)
Hostile.
(a)
B.
The adverse possessor cannot share possession of the property with the
true owner.
The adverse possessor cannot have the true owner’s consent to possess
or use the property (i.e., the possession must be adverse to the true
owner’s interest).
Transfer by Deed
1.
Deed Requirements
a)
2.
A valid deed must:
(1)
Satisfy the statute of frauds (i.e., be in writing + signed by the grantor);
(2)
Identify the parties (i.e., the grantor and grantee);
(3)
Describe the property sufficiently; AND
(4)
Be delivered and accepted.
Deed Types
a)
b)
4.2% Appearance Rate
~
(a)
Delivery. A deed is delivered when the grantor demonstrates a present
intent to transfer the property (physical transfer of a deed is not
required – present intent can be demonstrated orally). A deed is NOT
delivered if the delivery is revocable (e.g., “I will transfer you this
property in 3 weeks, unless I change my mind before then”). A grantor
can make a valid delivery to an agent (e.g., a grantor can deliver a deed
to his attorney with clear instructions to deliver it to the grantee).
(b)
Acceptance. Acceptance is generally presumed provided that the
transfer is for value.
12.5% Appearance Rate
~
After closing, the land sale contract merges into the deed. Subsequently, any liability
must arise out of the deed rather than the contract. There are three kinds of deeds:
(1)
General Warranty Deed. General warranty deeds provide the greatest amount
of title protection. The grantor warrants title against all defects, EVEN IF the
grantor did not cause the defects.
(2)
Special Warranty Deed. Special warranty deeds provide less title protection
than general warranty deeds. The grantor warrants titles against defects caused
by the grantor.
(3)
Quitclaim Deed. Quitclaim deeds provide the least amount of title protection.
The grantor makes no warranties as to the health of the title.
There are six implied covenants (three present covenants + three future covenants) in
general warranty and special warranty deeds. The three present covenants are:
(1)
Covenant of Seisin. Warrants that the deed describes the land in question and
that the grantor is the rightful owner.
(2)
Covenant of the Right to Convey. Warrants that the grantor has the right to
convey the property.
(3)
Covenant Against Encumbrances. Warrants that there are no undisclosed
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Real Property 15
encumbrances on the property that could limit its value (e.g., easements,
mortgages, etc.).
The three future covenants are:
C.
(4)
Covenant of Quiet Enjoyment. Grantor promises to defend against future
challenges to the grantee’s title to the property.
(5)
Covenant of Warranty. Grantor promises to defend against future
developments that extend into the grantee’s property boundary.
(6)
Covenant of Further Assurances. Grantor promises to do what is reasonably
necessary to cure future problems with title.
Competing Claims to Title
1.
Recording Statutes and Notice
a)
First in Time, First in Right. Under the common law, if a grantor transfers the same
piece of property to multiple grantees, the first grantee to receive the deed acquires
rightful title. In the absence of a recording statute, the common law rule controls.
b)
However, every state has adopted a recording statute that modifies the common law
rule for competing claims to title. The concept of notice is crucial to apply these
modified recording statues. There are three types of notice:
(1)
Actual Notice. A subsequent purchaser has actual notice when he has personal
knowledge of a prior interest.
(2)
Constructive Notice. A subsequent purchaser is on constructive notice when
the prior interest is recorded (i.e., validly recording a deed by publicly
registering it automatically puts the entire public on notice).
(a)
(3)
c)
2.
8.3% Appearance Rate
~
Inquiry Notice. A subsequent purchaser has inquiry notice when a reasonable
investigation would have revealed the existence of prior claims (e.g., someone is
clearly living on the property in question).
There are three types of recording statues that have been adopted by the states to
resolve competing claims to title:
(1)
Race Statutes. The first grantee to record acquires title, regardless of notice.
(2)
Notice Statutes. A subsequent purchaser acquires title if the purchase is made
WITHOUT notice of a prior unrecorded conveyance.
(3)
Race-Notice Statutes. A subsequent purchaser acquires title if:
(a)
The purchase is made WITHOUT notice of a prior unrecorded
conveyance; AND
(b)
The subsequent purchaser records first.
The Shelter Rule
a)
If a deed is not recorded properly, it is considered a wild deed. A wild
deed does NOT put subsequent purchasers on constructive notice.
8.3% Appearance Rate
~
A person who is transferred property from a bona fide purchaser (BFP) has the same
recording statute protections as the BFP (i.e., the transferee “takes shelter” in the status
of the BFP transferor). A BFP is a person who pays valuable consideration (i.e., not an
heir, devisee, or donee) for real property without notice of a prior interest.
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Real Property 16
TORTS
Studicata UBE/MEE Attack Outline
TABLE OF CONTENTS
I.
INTENTIONAL TORTS ................................................................................................................................... 1
A.
Requirements .......................................................................................................................................................................1
B.
Harms to the Person .............................................................................................................................................................1
C.
Harms to Property Interests .................................................................................................................................................3
D.
Defenses to Intentional Torts ...............................................................................................................................................4
II. NEGLIGENCE ................................................................................................................................................ 5
A.
Requirements .......................................................................................................................................................................5
B.
Duty......................................................................................................................................................................................5
C.
Particular Standards of Care .................................................................................................................................................5
D.
Proof of Fault........................................................................................................................................................................7
E.
Causation .............................................................................................................................................................................8
F.
Vicarious Liability and Special Rules of Liability ....................................................................................................................8
G.
Liability of Multiple Defendants ...........................................................................................................................................9
H.
Defenses to Negligence ...................................................................................................................................................... 10
III. STRICT LIABILITY AND PRODUCTS LIABILITY ............................................................................................. 11
A.
Animals and Abnormally Dangerous Activity ...................................................................................................................... 11
B.
Defective Products ............................................................................................................................................................. 12
IV. OTHER TORTS ............................................................................................................................................ 13
A.
Harm to Reputation ............................................................................................................................................................ 13
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Torts
NOTE: Examinees are to assume that there is no applicable statute unless otherwise specified. Examinees should assume joint and
several liability, with pure comparative negligence, is the relevant rule unless otherwise indicated.
I.
Intentional Torts
A.
Requirements
1.
Elements
a)
In order to establish a prima facie case for an intentional tort, the plaintiff must prove
the following three elements:
(1)
Voluntary Act. The defendant’s actions must be voluntary (e.g., not a reflex).
(2)
Intent. The defendant must have specific or general intent.
(3)
2.
(a)
Specific Intent. An actor has specific intent when the actor acts with
the purpose of causing the consequence.
(b)
General Intent. An actor has general intent when the actor knows that
the consequence is substantially certain to occur.
(c)
NOTE. The actor need NOT intend the specific injury that results from
her actions to be liable for an intentional tort (e.g., Defendant punches
Plaintiff in the shoulder breaking Plaintiff’s arm – it is irrelevant whether
Defendant intended to break Plaintiff’s arm, only that Defendant
intended to cause the contact that resulted in injury).
Causation. Causation is satisfied if the defendant’s conduct was a substantial
factor in bringing about the harm.
Transferred Intent
a)
b)
B.
8.3% Appearance Rate
~
< 1.0% Appearance Rate
~
The transferred intent doctrine allows the defendant to be held liable when the
defendant intends to commit an intentional tort against one person but instead
commits:
(1)
A different intentional tort against the same person;
(2)
The same intentional tort against a different person; OR
(3)
A different intentional tort against a different person.
The transferred intent doctrine applies to the intentional torts of assault, battery, false
imprisonment, trespass to land, and trespass to chattels.
Harms to the Person
1.
Battery
a)
8.3% Appearance Rate
~
A battery occurs when the defendant:
(1)
Causes or is a substantial factor in bringing about;
(2)
Harmful or offensive contact;
(a)
Harmful Contact. Contact is harmful when it causes injury, pain, or
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Torts
1
illness.
(a)
(3)
To the plaintiff’s person; AND
(a)
(4)
2.
The plaintiff’s person includes anything connected to the plaintiff (e.g.,
kicking someone’s cane out from under them)
Has specific or general intent (See Page 1 in Torts for explanation of intent).
Assault
a)
< 1.0% Appearance Rate
~
An assault occurs when the defendant:
(1)
Causes or is a substantial factor in bringing about;
(2)
Reasonable apprehension in the plaintiff;
(3)
(a)
Bodily contact is NOT required for an assault, only a reasonable
apprehension of such contact.
(b)
The plaintiff MUST be aware of the defendant’s actions in order to have
reasonable apprehension (e.g., a plaintiff cannot have reasonable
apprehension of harmful or offensive contact if she is unconscious).
(c)
Generally, mere words do NOT constitute an assault.
Of imminent harmful or offensive bodily contact to the plaintiff’s person; AND
(a)
(4)
3.
Offensive Contact. Contact is offensive when a person of ordinary
sensibility would find the contact offensive (e.g., spitting on someone).
The plaintiff must be apprehensive that she is about to become the
victim of an immediate battery. There cannot be a significant delay
(e.g., threats of future harm are not sufficient).
Has specific or general intent (See Page 1 in Torts for explanation of intent).
False Imprisonment
a)
A false imprisonment occurs when the defendant:
(1)
Causes or is a substantial factor in bringing about;
(a)
(2)
(3)
b)
4.2% Appearance Rate
~
The defendant may cause confinement of the plaintiff through the use
of physical barriers, force, threats, invalid use of authority, duress, or
failure to provide a safe means of escape.
The confinement of the plaintiff within fixed boundaries; AND
(a)
Confinement within fixed boundaries exists when the plaintiff’s
movement is limited in all directions, such that there is no reasonable
means of escape known to the plaintiff.
(b)
The plaintiff MUST be aware of the confinement or be harmed by it.
Has specific or general intent (See Page 1 in Torts for explanation of intent).
Shopkeeper’s Privilege. A shopkeeper can detain a suspected shoplifter so long as the
detainment is reasonable in both time and manner.
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Torts
2
4.
Intentional Infliction of Emotional Distress (IIED)
a)
Intentional infliction of emotional distress occurs when the defendant:
(1)
Acts with extreme or outrageous conduct;
(a)
Conduct is considered extreme or outrageous if a reasonable person
would regard the conduct as intolerable in a civilized society.
(2)
Which causes or is a substantial factor in bringing about;
(3)
Severe emotional distress; AND
(4)
Has intent to cause severe emotional distress OR acts with recklessness as to
the risk of causing severe emotional distress.
(a)
C.
< 1.0% Appearance Rate
~
Unlike other intentional torts, reckless conduct will satisfy the intent
requirement. However, transferred intent does NOT apply to IIED.
Harms to Property Interests
1.
Trespass to Land
a)
A trespass to land occurs when the defendant:
(1)
Causes or is a substantial factor in bringing about;
(2)
A physical invasion of the plaintiff’s real property; AND
(a)
(3)
The defendant need only intend to enter the land or cause the physical
Invasion (i.e., its irrelevant whether the defendant believed the land
belonged to him – mistake of fact is not a defense to trespass).
Trespass to Chattels
a)
< 1.0% Appearance Rate
~
A trespass to chattels occurs when the defendant:
(1)
Causes or is a substantial factor in bringing about;
(2)
An interference with the plaintiff’s right of possession in a chattel; AND
(3)
3.
The invasion may be by a person or an object (e.g., throwing a rock on
another’s land).
Has specific or general intent (See Page 1 in Torts for explanation of intent).
(a)
2.
< 1.0% Appearance Rate
~
(a)
Interference by Intermeddling. Intermeddling occurs when the
defendant directly damages the chattel.
(b)
Interference by Dispossession. Dispossession occurs when the
defendant deprives the plaintiff of his lawful right of possession of the
chattel.
Has specific or general intent (See Page 1 in Torts for explanation of intent).
Conversion
a)
< 1.0% Appearance Rate
~
A conversion occurs when the defendant:
(1)
Causes or is a substantial factor in bringing about;
(2)
An interference with the plaintiff’s right of possession in a chattel;
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Torts
3
(3)
Where the interference is so serious, it deprives the plaintiff entirely of the use
of the chattel; AND
(a)
(4)
D.
Unlike trespass to chattels, the interference MUST be so serious; it
warrants requiring the defendant to pay the chattel’s full value.
Has specific or general intent (See Page 1 in Torts for explanation of intent).
Defenses to Intentional Torts
1.
Consent
a)
b)
2.
The plaintiff’s consent to the defendant’s conduct is a defense to intentional torts (not
crimes), provided that:
(1)
The consent was valid (e.g., no fraud, incapacity, etc.); AND
(2)
The defendant’s conduct remained within the boundaries of the plaintiff’s
consent (e.g., cannot use a knife in a boxing match).
The plaintiff’s consent may be express or implied through words or conduct.
Self-Defense and Defense of Others
a)
3.
8.3% Appearance Rate
~
< 1.0% Appearance Rate
~
A defendant is NOT liable for harm to the plaintiff if:
(1)
The defendant reasonably believed that that the plaintiff was going to harm
him or another; AND
(2)
The defendant used only the amount of force that was reasonably necessary
and proportionate to protect himself or another.
b)
A reasonable mistake as to the existence of danger to the defendant or the person the
defendant is attempting to protect is allowed.
c)
The defendant is NOT permitted to claim self-defense if the defendant was the initial
aggressor, unless the other party responded to nondeadly force with deadly force.
d)
A defendant may use reasonable force if he believes it is reasonably necessary to
prevent tortious harm to his property. However, deadly force cannot be used to
prevent harm to property.
Necessity
< 1.0% Appearance Rate
~
a)
The defense of necessity is available to a defendant that enters onto the plaintiff’s land
or interferes with the plaintiff’s personal property, provided that the defendant does so
to prevent an injury or some other severe harm.
b)
Private Necessity. A necessity defense is private when the defendant’s act is done to
benefit a limited number of people. Under private necessity, the defendant MUST pay
for the actual damages that he caused. However, the landowner may NOT use force to
exclude the defendant (a landowner may usually use reasonable force to exclude a
trespasser)
c)
Public Necessity. A necessity defense is public when the defendant’s act is done for the
public good. Under public necessity, the defendant is NOT liable for property damage
that he caused.
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Torts
4
II.
Negligence
A.
Requirements
1.
Elements
a)
B.
45.8% Appearance Rate
-
The elements of the prima facie case for negligence are as follows:
(1)
The defendant owed a duty to the plaintiff to conform to a specific standard of
care;
(2)
The defendant breached that duty;
(3)
The breach was the actual and proximate cause of the plaintiff’s injuries; AND
(4)
The plaintiff sustained actual damages or loss.
Duty
1.
To Whom a Duty is Owed
a)
2.
A duty of care is owed to all foreseeable plaintiffs that may be harmed by the
defendant’s breach of the applicable standard of care. There are two separate views:
(1)
Under the majority view (Cardozo), the defendant is only liable to plaintiffs
within the foreseeable zone of danger.
(2)
Under the minority view (Andrews), the defendant owes a duty to everyone
harmed.
Affirmative Duty to Act
a)
8.3% Appearance Rate
~
In general, there is NO affirmative duty to act affirmatively or help others. However, a
duty to act affirmatively will arise if the defendant:
(1)
Places the plaintiff in danger;
(2)
Has a special relationship with the plaintiff (e.g., common carrier/passenger,
innkeeper/guest, family members, etc.);
(3)
Has a duty to act affirmatively imposed by law; OR
(4)
Begins to administer aid or attempt to rescue the plaintiff.
(a)
C.
4.2% Appearance Rate
~
If a person chooses to rescue or aid another, he is liable for injuries
caused by his failure to exercise reasonable care in the performance of
that aid or rescue.
Particular Standards of Care
1.
The Reasonable Person Standard
16.7% Appearance Rate
-
a)
The standard of care owed by the defendant to the plaintiff is that of a reasonably
prudent person under the circumstances as measured by an objective standard. The
defendant is presumed to have average mental abilities and knowledge.
b)
Physical Disabilities. Particular physical disabilities may be taken into account (e.g.,
blindness, deafness, etc.). E.g., the standard of care for a blind person would be that of
a reasonably prudent blind person under the circumstances as measured by an objective
standard.
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Torts
5
2.
c)
Intoxication. Intoxicated people are held to the same standard as sober people UNLESS
the intoxication was involuntary.
d)
Community Customs. Community customs may be relevant in determining
reasonableness, but they are NOT dispositive.
e)
NOTE. The reasonable person standard is the default standard of care. It should be
applied unless a special standard of care applies (e.g., children, professionals, physicians,
landowners, negligence per se, etc.).
Children
a)
3.
4.
8.3% Appearance Rate
~
Children are held to the standard of care of a reasonably prudent child of similar age,
experience, and intelligence under the circumstances (more subjective). However, if
the child is engaged in adult activity (e.g., operating a crane), the court will NOT take
the child’s age into account (i.e., the child will be held to an “adult” standard).
Professionals, Physicians, and Psychotherapists
8.3% Appearance Rate
-
a)
Professionals. A professional (e.g., nurses, lawyers, accountants, engineers, architects,
etc.) is expected to exhibit the knowledge and skill of a member of the profession in
good standing in similar communities.
b)
Physicians. Physicians are held to a national standard of care and have a duty to
disclose the risks of treatment to enable a patient to give informed consent. This duty
is only breached if an undisclosed risk was so serious that a reasonable person in the
patient’s position would not have consented upon learning of the risk.
c)
Psychotherapists. In the majority of states, psychotherapists have a duty to warn
potential victims of a patient’s serious threats of harm if the patient has the apparent
intent and ability to carry out such threats and the potential victim is readily identifiable.
Landowners/Land Possessors
a)
4.2% Appearance Rate
~
Under the traditional approach, the standard of care that landowners owe to
entrants upon their land varies depending on the status of the entrant. There are three
types of entrants to consider:
(1)
(2)
Trespassers. A trespasser is a person who enters the landowner’s property
without valid consent or necessity. There are two types of trespassers:
(a)
Discovered or anticipated trespassers enter the land without consent,
but may be expected by the landowner. The landowner owes a duty to
discovered/anticipated trespassers to warn of (or make safe) hidden
dangers on the land that pose a risk of death or serious bodily harm
(only applies to artificial conditions that the landowner is aware of).
(b)
Undiscovered trespassers enter the land without consent, and are NOT
expected by the landowner. The landowner owes NO duty to
undiscovered trespassers.
Licensees. A licensee is a person who lawfully enters the landowner’s
property for her own purpose or benefit, rather than for the landowner’s
benefit (e.g., social guests). The landowner has NO duty to inspect his property
for licensees. However, the landowner does owe a duty to licensees to warn of
(or make safe) hidden dangers on the land that pose an unreasonable risk of
harm (applies to both artificial and natural conditions that the landowner is
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6
aware of).
(3)
b)
5.
4.2% Appearance Rate
~
A landowner owes a duty to child trespassers to warn of (or make safe) artificial
conditions on the land, provided that:
(1)
The artificial condition exists in a place where the landowner knows or has
reason to know that children are likely to trespass;
(2)
The landowner knows or has reason to know that the artificial condition poses
an unreasonable risk of death or serious bodily harm;
(3)
The children, due to their age, do NOT appreciate the danger involved; AND
(4)
The risk of harm outweighs the expense of making the condition safe.
Negligence Per Se
a)
D.
Several states have rejected the traditional approach distinctions between licensees
and invitees simply applying a reasonable person standard to landowners. In these
states, landowners owe the same duty of reasonable care to ALL entrants on their land
regardless of their status as invitees or licensees (although, status of the entrant may
still be relevant to determine reasonableness under the circumstances).
Attractive Nuisance Doctrine
a)
6.
Invitees. An invitee is a person who is invited on the property for the owner’s
own benefit or mutual benefit with the invitee (e.g., a customer shopping in a
store that is open to the public). The landowner owes a duty to the invitee to
reasonably inspect the land for hidden dangers (artificial or natural) that pose
an unreasonable risk of harm, and if discovered, make them safe (e.g., installing
a warning sign, fixing the hidden danger, etc.).
16.7% Appearance Rate
-
When a statute imposes upon any person a specific duty for the benefit or protection
of others, a violation of the statute will constitute negligence per se if the plaintiff:
(1)
Is in the class of people meant to be protected by the statute; AND
(2)
Suffers the type of harm the statute was designed to protect against.
b)
The defendant will only be liable under negligence per se if his violation of the statute
was the proximate cause of the plaintiff’s injury.
c)
NOTE. If a statute is given to you in the fact pattern of a torts essay question, you MUST
discuss negligence per se as the applicable standard of care.
Proof of Fault
1.
Res Ipsa Loquitur
a)
b)
8.3% Appearance Rate
~
Res ipsa loquitur (“the thing speaks for itself”) is applied when an element of negligence
is difficult to prove, but the circumstances make it obvious that the defendant’s
negligence was the most likely cause of the harm. In order for res ipsa loquitur to apply,
the plaintiff must show that the accident resulting in the harm was:
(1)
Of a kind that ordinarily does not occur in the absence of negligence; AND
(2)
Caused by an agent or instrumentality within the defendant’s exclusive control.
Some jurisdictions also require that the injury was NOT due to any action on the part of
the plaintiff.
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E.
Causation
1.
Actual and Proximate Cause
a)
In order to prove negligence, the plaintiff must show that the defendant’s conduct was
BOTH the actual AND proximate cause of the plaintiff’s injury.
b)
Actual Cause. To prove actual cause, the plaintiff must show that her injury would not
have occurred BUT FOR the defendant’s breach.
(1)
c)
Substantial Factor Test. However, if traditional "but for" causation cannot be
shown, most courts are willing to implement a "substantial factor" test. Under a
substantial factor test, actual cause can be established if the defendant's breach
was a substantial factor in bringing about the plaintiff's harm.
Proximate Cause. To prove proximate cause, the plaintiff must show that her injury was
a foreseeable result of the defendant’s conduct. An intervening cause is an outside
force or action that contributes to the plaintiff’s harm after the defendant’s breach has
occurred. If the intervening cause is unforeseeable, it is a superseding cause and the
defendant’s liability to the plaintiff will be cut off from that point forward. Further
negligent acts are considered foreseeable (e.g., medical malpractice). Criminal acts,
intentional torts, and nature-induced "acts of god" are considered unforeseeable.
(1)
For Example: Vic breaks his wrist in a car accident that was caused by Don’s
negligent driving. Minutes after the accident, Vic loses his arm when he is
struck by a falling meteorite. The meteorite falling from the sky is a superseding
cause (because it is unforeseeable) that cuts off Don’s liability.
(2)
NOTE. Courts have long held that injuries sustained when running from danger
are foreseeable and that injuries sustained to the rescuer during a rescue
attempt are foreseeable (“danger invites rescue”).
(a)
2.
Fireman’s Rule. However, the fireman’s rule generally bars lawsuits by
police officers and firefighters from collecting on damages that occur in
the course of their duties even if the injuries were a clear result of the
other party’s negligence.
Eggshell Plaintiff Rule
a)
F.
16.7% Appearance Rate
~
12.5% Appearance Rate
-
Under the eggshell plaintiff rule (“take your victim as you find him rule”), the defendant
is liable for ALL harm suffered by the plaintiff, even if the plaintiff suffered from an
unforeseeable, preexisting mental or physical condition that aggravates the harm.
Vicarious Liability and Special Rules of Liability
1.
Respondeat Superior
a)
25.0% Appearance Rate
~
Under the doctrine of respondeat superior, an employer (principal) may be liable for
torts committed by an employee (agent) if:
(1)
An employer-employee relationship exists (NOT an independent contractor
relationship); AND
(a)
In determining whether an employer-employee relationship exists, the
most important consideration is the extent of control that the principal
exercises over the details of the agent’s work (the more control the
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8
principal exercises over the agent, the higher the likelihood that the
agent will be considered an employee as opposed to an independent
contractor).
(2)
The employee’s commission of the tort occurs within the scope of employment.
(a)
2.
(i)
A function for which the employee was hired to perform;
(ii)
Within the employer’s authorized time and space limits;
(iii)
Conducted to serve the employer; AND
(iv)
Foreseeable to the employer.
b)
The employer remains liable during an employee’s detour (i.e., a minor deviation from
the scope of employment), even if the detour is mainly for the employee’s own personal
reasons. However, the employer does NOT remain liable during an employee’s frolic
(i.e., a major deviation from the scope of employment).
c)
Generally, employers are NOT liable for the intentional torts of employees UNLESS:
(1)
The intentional tort was authorized by the employer; OR
(2)
Force is within the scope of employment in the employee’s work (e.g., security
guards).
Business Partners
a)
3.
Activity is within the scope of employment when the employee’s
conduct is of the same general nature as that authorized, or incidental
to the conduct authorized by the employer. In making this
determination, courts examine whether the employee’s conduct was:
8.3% Appearance Rate
~
The negligence of one business partner can be imputed on other business partners if it
is committed within the scope of the business’s purpose.
Negligent Infliction of Emotional Distress (NIED)
a)
8.3% Appearance Rate
~
Generally, there are three ways that the plaintiff can recover for NIED:
(1)
(2)
Zone of Danger. The plaintiff can recover for NIED if:
(a)
The defendant negligently caused a threat of physical impact;
(b)
The plaintiff was within the “zone of danger” of the threatened physical
impact; AND
(c)
The threat of physical impact caused emotional distress.
Bystander Recovery. The plaintiff bystander can recover for NIED if:
(a)
The defendant negligently inflicted bodily injury to another;
(b)
The plaintiff is closely related to the person injured by the defendant;
(c)
The plaintiff was present at the scene of the injury; AND
(d)
The plaintiff personally observed the injury.
(e)
SOME jurisdictions also require that the plaintiff manifest physical
symptoms after witnessing the injury.
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(3)
G.
(a)
The defendant negligently mishandles a corpse; OR
(b)
The defendant negligently provides false medical information (e.g., the
plaintiff is told that she has terminal cancer when she is, in fact,
perfectly healthy).
Liability of Multiple Defendants
1.
2.
Joint and Several Liability
3.
8.3% Appearance Rate
~
a)
When two or more parties are jointly and severally liable, each party is independently
liable for the full extent of the damages stemming from the tortious act. Thus, if a
plaintiff wins a money judgment against jointly and severally liable defendants, the
plaintiff may collect the full value of the judgment from any one of them.
b)
Contribution. Contribution allows a defendant who pays more than his share of the
total liability to recover from the other liable defendants (cannot recover more than the
other liable defendant’s percentage share of fault – based on a pure comparative fault
theory).
Alternative Liability
a)
H.
Special Relationship. The plaintiff can recover for NIED in certain circumstances
where a pre-existing relationship exists between the defendant and plaintiff
(e.g., doctor/patient). This commonly arises when:
8.3% Appearance Rate
~
If a plaintiff cannot identify with specificity which among multiple defendant’s caused
his harm, alternative liability allows the plaintiff to shift the burden of proving causation
to the defendants (even though only one of them could have been responsible).
Indemnification
4.2% Appearance Rate
~
a)
In torts, indemnification usually arises in situations involving vicarious liability or strict
liability. Indemnification allows a passive tortfeasor who was forced to pay damages to
recover a complete reimbursement from an active tortfeasor.
b)
For Example: An employer is held vicariously liable for an employee’s negligence under
respondeat superior and is required to pay the full amount of damages. The employer
could seek indemnification from the employee because the employee was the active
tortfeasor (the employee actively committed the negligent act), and the employer was
the passive tortfeasor (the employer is only liable vicariously).
Defenses to Negligence
1.
Contributory Negligence
a)
b)
8.3% Appearance Rate
~
In a contributory negligence jurisdiction, a plaintiff CANNOT recover damages if his own
negligence contributed to his injury in any way, UNLESS the defendant:
(1)
Was engaged in wanton and willful misconduct; OR
(2)
Had the last clear chance to avoid injuring the plaintiff, but failed to do so.
Contributory negligence is NOT a valid defense for intentional torts.
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2.
Comparative Fault
a)
3.
In a comparative fault jurisdiction, the plaintiff’s own negligence limits recovery but is
NOT necessarily a complete bar to recovery. Jurisdictions have adopted two different
approaches to comparative fault:
(1)
Pure Comparative Negligence. Under pure comparative negligence, the
plaintiff’s recovery is limited by the percentage of fault the jury attributes to the
plaintiff’s own negligence (e.g., if the jury finds the plaintiff is 95% at fault, the
plaintiff can recover 5% of her damages).
(2)
Modified Comparative Negligence. Under modified comparative negligence,
the plaintiff’s recovery is limited by the percentage of fault the jury attributes to
the plaintiff’s own negligence. HOWEVER, if the plaintiff is MORE at fault than
the defendant, the plaintiff’s recovery is completely barred.
(a)
For Example: If the jury finds the plaintiff is 51% at fault, the plaintiff
is completely barred from recovery. However, if the jury finds that the
plaintiff is 50% at fault, the plaintiff can recover 50% of her damages.
(b)
In some jurisdictions, if the plaintiff and defendant are equally at fault,
the plaintiff’s recovery is completely barred (e.g., if the jury finds the
plaintiff is 50% at fault, the plaintiff’s recovery is completely barred).
Assumption of Risk
a)
III.
12.5% Appearance Rate
~
< 1.0% Appearance Rate
~
Assumption of risk is a defense to negligence that applies when a party knowingly and
willingly embraces a risk for some purpose of his own (similar to consent in intentional
torts). Assumption of risk may be express or implied.
Strict Liability and Products Liability
A.
Animals and Abnormally Dangerous Activity
1.
Strict Liability
a)
2.
16.7% Appearance Rate
-
Under strict liability, a defendant will be liable for damages REGARDLESS of how careful
they were (i.e., negligence is NOT required to be held liable). Generally, there are three
categories of strict liability:
(1)
Animals;
(2)
Abnormally dangerous activities; AND
(3)
Defective products.
Animals
< 1.0% Appearance Rate
~
a)
Domestic Animals. Domestic animals are animals that have been trained over time to
live and breed in a tame condition (e.g., dogs, cats, farm animals, etc.). An owner of a
domestic animal will NOT be strictly liable for harm caused by the animal UNLESS the
owner knows or has reason to know of the animal’s dangerous propensity.
b)
Wild Animals. Wild animals are animals that, as a species or class, are not customarily
kept in the service of mankind (e.g., tigers, monkeys, etc.). An owner of a wild animal is
strictly liable for any harm caused by the animal regardless of safety precautions taken
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by the owner. However, owners are generally NOT strictly liable for harm caused to
trespassers.
3.
Abnormally Dangerous Activities
a)
B.
4.2% Appearance Rate
~
A defendant is strictly liable for damages caused to the plaintiff if he is engaged in
abnormally dangerous activities. An abnormally dangerous activity is one that is:
(1)
Inherently dangerous;
(2)
Inappropriate for the location chosen;
(3)
Virtually impossible to make safe; AND
(4)
Of little value to the community.
Defective Products
1.
Products Liability
a)
b)
c)
d)
2.
12.5% Appearance Rate
-
A strict liability claim under products liability requires the plaintiff to show:
(1)
The product was defective in manufacture, design, or failure to warn;
(2)
The defect existed when the product left the defendant’s control; AND
(3)
The defect caused the plaintiff’s injury when the product was used in a
foreseeable way.
Manufacture Defects. A defect in manufacture requires the plaintiff to show that the
product:
(1)
Deviated from its intended design; AND
(2)
Fails to conform to the manufacturer’s own design.
Design Defects. There are two tests for a defect in design:
(1)
Under the consumer expectation test, the plaintiff must show that the product
is less safe than the ordinary consumer would expect.
(2)
Under the risk-utility test, the plaintiff must show that the product’s risks
outweigh its benefits AND that there is a reasonable alternative design.
Failure to Warn. A failure to warn defect requires the plaintiff to show:
(1)
The plaintiff was NOT warned of the risks regarding the use of the product;
(2)
The risks are NOT obvious to an ordinary user; AND
(3)
The designer/manufacturer was in fact aware of such risks.
Scope of Products Liability
12.5% Appearance Rate
-
a)
Plaintiffs. Any person foreseeably injured by a defective product (e.g., purchasers,
other users, bystanders, etc.) may pursue a products liability claim.
b)
Defendants. A strict liability claim under products liability may ONLY be brought against
a merchant (i.e., a person or entity who routinely deals in goods of the type) who is in
the chain of distribution (e.g., manufacturer  wholesaler  retailer).
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IV.
Other Torts
A.
Harm to Reputation
1.
Defamation
a)
4.2% Appearance Rate
~
Defamation occurs when the defendant:
(1)
Publishes;
(a)
(2)
A defamatory statement;
(a)
(3)
b)
A reasonable person must believe that the defamatory statement
referred to this particular plaintiff.
Causing damage to the plaintiff’s reputation.
Fault Requirements. The standard required to prove defamation varies depending on
whether the plaintiff is a public or private individual.
(1)
Public Officials and Public Figures. A public official is a person who has control
over government office (includes political candidates). A general purpose
public figure is a person of persuasive power and influence in society. A limited
purpose public figure is a person who has injected himself into a public
controversy.
(a)
(2)
c)
The statement must be false and NOT an opinion. It usually contains
language that diminishes respect toward the plaintiff or deters others
from associating with the plaintiff.
Of or concerning the plaintiff;
(a)
(4)
The statement must be communicated to a third party who understands
the content of the statement. A person who merely repeats a
defamatory statement may still be held liable for defamation.
Actual Malice Standard. If the plaintiff is a public official or a public
figure, the plaintiff must prove actual malice. This requires the plaintiff
to show that the person who made the defamatory statement either
knew it was false or acted with reckless disregard for the truth.
Private Individuals. A private individual is any person that is not a public official
or public figure. If the plaintiff is a private individual AND the defamatory
statement is a matter of public concern, the plaintiff need only prove that the
statement was false and the speaker was at least negligent.
Limitations on Damages. If the plaintiff is a public official or public figure, the plaintiff
can only recover actual proven damages (no punitive or presumed damages). If the
plaintiff is a private individual and it is a matter of public concern, the plaintiff can only
recover actual damages UNLESS the plaintiff shows actual malice.
(1)
Libel vs. Slander. Libel is a written, printed, or recorded statement (e.g.,
television/radio broadcasts). If the defamatory statement is libel, the plaintiff
may recover general damages (recovery is allowed without proof of concrete,
measurable harm). Slander is a spoken statement that is not recorded. If the
defamatory statement is slander, the plaintiff may only recover special damages
(requires a more concrete showing of actual economic loss). However, if
slander per se applies, the plaintiff is not limited to special damages. There are
four slander per se categories rooted in the common law:
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(a)
Statements that impugn the business integrity or skill of the plaintiff;
(b)
Statements of unchastity about an unmarried woman;
(c)
Statements of the plaintiff having a loathsome disease; AND
(d)
Statements attributing a crime of moral turpitude to the plaintiff.
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Torts 14
TRUSTS AND ESTATES
Studicata UBE/MEE Attack Outline
TABLE OF CONTENTS
DECEDENTS' ESTATES
I.
INTESTACY ................................................................................................................................................... 1
A.
Intestate Succession .............................................................................................................................................................1
B.
Intestate Distribution ...........................................................................................................................................................1
C.
Advancements and Simultaneous Death ..............................................................................................................................2
II. WILLS .......................................................................................................................................................... 3
A.
Execution Requirements.......................................................................................................................................................3
B.
Integration of Wills ...............................................................................................................................................................4
C.
Codicils .................................................................................................................................................................................4
D.
Revocation and Revival ........................................................................................................................................................5
E.
Construction Problems .........................................................................................................................................................6
F.
Contractual Wills ..................................................................................................................................................................9
G.
Will Contests ...................................................................................................................................................................... 10
H.
Non-Probate Transfers ....................................................................................................................................................... 11
I.
Powers and Duties of Personal Representatives ................................................................................................................. 12
III. LIVING WILLS AND DURABLE HEALTH CARE POWERS ............................................................................... 12
A.
Advance Health Care Directives .......................................................................................................................................... 12
B.
Authority of Agent .............................................................................................................................................................. 13
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Decedent’s Estates
I.
Intestacy
A.
Intestate Succession
1.
B.
Intestate Succession
14.3% Appearance Rate
~
a)
Any property that does NOT pass by will upon the decedent’s death will be distributed
according to the state’s applicable intestacy statutes.
b)
In most states, if the decedent is survived by ONLY a spouse (no descendants), the
surviving spouse will inherit the entire estate. However, some states provide that a
certain portion of the estate will be given to the decedent’s parents and the parents’
issues.
c)
In most states, if the decedent is survived by a spouse AND descendants, the surviving
spouse will inherit one-half or one-third of the decedent’s estate with the surviving
descendants inheriting the rest. Under the Uniform Probate Code (UPC), the surviving
spouse will inherit the entire estate IF ALL of the descendants are descendants of the
surviving spouse.
d)
In most states, if the decedent is NOT survived by a spouse, the decedent’s surviving
descendants will inherit the entire estate equally.
e)
In most states, if the decedent is NOT survived by a spouse OR descendants, the
decedent’s surviving parents will inherit the entire estate equally. If there are NO
surviving parents, the descendants of the decedent’s parents will inherit the estate (i.e.,
the decedent’s brothers/sisters, nieces/nephews, and their descendants down the line).
Intestate Distribution
1.
Child Predeceases Intestate Parent
a)
4.1% Appearance Rate
~
A complicated issue arises when a child predeceases a parent who later dies intestate.
Three rules address how to distribute an intestate estate under these circumstances:
(1)
Strict Per Stirpes. Under the common law strict per stirpes approach, the estate
is divided by the number of members in the first generation of children who are
either alive or survived by descendants. Each member who is alive takes their
share, and the shares of the deceased members drop to the next generation.
This process is repeated for the next generations until every share is taken.
(2)
Modern Per Stirpes. The modern per stirpes approach works exactly like the
strict per stirpes approach, except that the estate is divided equally among the
living and deceased at the first generation that has a living taker.
(3)
Per Capita at Each Generation. Under the UPC per capita at each generation
approach, the estate is divided at the closest generation to the decedent in
which one or more of the descendants are alive (similar to modern per stirpes).
However, shares of the deceased descendants on each level are added together
and divided equally among all representatives of the deceased descendants in
the next generation level (shares are dropped by “pooling” method).
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1
2.
Inheritance Rights of Children
a)
Adopted Children. At common law, ONLY blood relatives inherited from an intestate
decedent. Today, adopted children are entitled to receive the same share, under
intestacy laws, as biological children.
(1)
(2)
C.
8.2% Appearance Rate
~
Equitable Adoption. In some states, a child may be informally adopted through
adoption by estoppel when a person takes a child in and assumes parental
responsibilities. If such a surviving child can establish an adoption by estoppel,
equity holds that she can inherit from the decedent as if she were a legally
adopted child. Courts consider several factors when determining whether a
relationship constitutes an adoption by estoppel:
(a)
The parent’s bestowal of love and affection on the child;
(b)
The parent’s performance of parental duties toward the child;
(c)
The child’s obedience and companionship toward the parent;
(d)
The child’s reliance on the relationship; AND
(e)
The parent’s holding out the child as their own.
Generally, adoption in fact or by estoppel terminates the adopted child’s right
to inherit from her biological parents. However, a child adopted by her
stepparent may usually inherit from her biological parents as well.
b)
Children Born Out-Of-Wedlock. At common law, a child born out-of-wedlock was
prohibited from inheriting from an intestate decedent. Today, non-marital children may
inherit from either parent so long as the facts establish a legal parent-child relationship
(non-marital children inheriting from a father must first establish paternity).
c)
Half-Blood Children. At common law, ONLY full-blood children were entitled to inherit
from an intestate decedent. Today, in almost every state, half-blood children (i.e., two
people who share one parent, but not the other) are treated equally as whole-blood
children. In a minority of jurisdictions, they are treated less favorably and sometimes
excluded if whole-blood kin exist.
Advancements and Simultaneous Death
1.
2.
Advancements
10.2% Appearance Rate
~
a)
At common law, gifts to heirs during a testator’s lifetime were considered
advancements on the heir’s intestate share of the estate, and were automatically
deducted from the heir’s share of the estate.
b)
Today, gifts to heirs during a testator’s lifetime are NOT considered advancements on
the heir’s intestate share of the estate UNLESS:
(1)
The decedent declared his intent to make the gift an advancement in a
contemporaneous writing; OR
(2)
The heir acknowledged the gift to be an advancement in writing.
Simultaneous Death
a)
4.1% Appearance Rate
~
Under the initial version of the Uniform Simultaneous Death Act (USDA), where title to
property depends upon priority of death – evidence of survivorship, no matter how brief
in duration, is sufficient to establish a sequence of death.
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b)
II.
Under the UPC and Revised Uniform Simultaneous Death Act (RUSDA), a beneficiary is
only treated as having survived the testator if there is clear and convincing evidence
that the beneficiary survived the testator by 120 hours (5 days).
Wills
A.
Execution Requirements
1.
2.
Governing Law
a)
Generally, the law in the jurisdiction of the decedent’s domicile at death governs the
disposition of his personal property, while the law in the jurisdiction in which the
decedent’s real property is located governs the disposition of his real property.
However, a decedent may select which state law governs in the terms of his will.
b)
Under the common law, wills are invalid if they do not meet the specific requirements of
the state. However, some states will find a will is valid if the decedent substantially
complied with the state’s requirements.
c)
Harmless Error Rule. Under the UPC, a will that is NOT properly executed will still be
valid if the party seeking to have it validated proves by clear and convincing evidence
that the decedent intended the writing to be his will.
Will Execution Requirements
a)
12.2% Appearance Rate
~
A will is valid if the specific formalities provided by state law are met. Generally, these
formalities require a valid will to be:
(1)
In writing;
(2)
Signed by the testator; AND
(a)
(3)
3.
6.1% Appearance Rate
~
If the testator is incapable of signing his will, then he must have
another sign his name in his presence and by his direction. Any mark
intended to validate the will constitutes a valid signature.
Signed by at least two witnesses.
(a)
The witnesses must sign the will in the testator’s presence within a
reasonable amount of time after witnessing the signing of the will.
Under the UPC, a valid notary can satisfy the dual-witness requirement.
(b)
Under the traditional view, a witness signs the will in the testator’s
presence if she signs the will within the testator’s line of sight (e.g.,
cannot be in another room down the hall from the testator). Under the
modern view, a witness signs the will in the testator’s presence if she
signs the will within the testator’s range of senses (e.g., may be in
another room down the hall if the testator can still hear the witness).
Interested Witnesses
6.1% Appearance Rate
~
a)
Under the common law, the signing of the will MUST be witnessed by two disinterested
witnesses (individuals who do NOT receive any benefits under the will).
b)
However, virtually every state has abolished this common law rule and allow interested
witnesses to validly witness the signing of a will. In a minority of states, the interested
witness forfeits his inheritance UNLESS two additional disinterested witnesses serve as
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3
valid witnesses to the will. Still, some states only allow interested witnesses to inherit
their intestate share of the estate.
4.
Holographic Wills
a)
B.
A holographic will is a handwritten will that is NOT witnessed. Most states do NOT
recognize holographic wills. However in states that do recognize holographic wills, the
holographic will is only valid if the testator signs it personally (no proxy signatures are
permitted). No precise words are required to make a holographic will valid; however,
the will must contain operative words legally sufficient to validly devise the property.
Integration of Wills
1.
Integration of Documents
a)
2.
3.
2.0% Appearance Rate
~
Integration of documents usually arises when pages or portions of a will become
separated. A document will be integrated into the will if:
(1)
The testator intended the document to be part of the will; AND
(2)
The document was physically present at the time of the will’s execution.
Incoporation by Reference
a)
C.
6.1% Appearance Rate
~
16.3% Appearance Rate
~
Incorporation by reference deals with the incorporation of extrinsic documents into the
will (rather than pages or portions of the original will). In most states, a document or
writing may be incorporated into a will by reference if:
(1)
The testator intended to incorporate the document into the will;
(2)
The document was in existence at the time the will was executed; AND
(3)
The document is sufficiently described in the will.
Facts of Independent Significance
2.0% Appearance Rate
~
a)
A court may give effect to events that would change the disposition of a testator’s
estate after the testator has executed his will IF those events have significance apart
from a change in the testator’s testamentary scheme.
b)
Devises to persons named in an unattested memorandum, not properly incorporated
by reference, are invalid on the basis that the memorandum has NO independent
significance apart from the will (e.g., The will states, “I leave my diamond wedding ring
to the person designated in a memorandum that I shall leave in my safety deposit box.”)
Codicils
1.
Codicils
6.1% Appearance Rate
~
a)
A codicil is a supplement or addition to a will that is made after a will is executed. A
codicil can explain, modify, amend, or revoke provisions of an existing will. A codicil
MUST satisfy the same formalities as a will in order to be valid.
b)
At the time a person executes a codicil, the original will is treated as republished and is
deemed to have been executed on the date the codicil is executed. Republication can
cure defects in a will that might affect the validity of specific devises (e.g., in a
jurisdiction that prohibits devises to interested witnesses, republication by a codicil that
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4
is properly witnessed could save the devise). However, most courts hold that a codicil
CANNOT republish an invalid will as a whole.
2.
D.
Holographic Codicils
2.0% Appearance Rate
~
a)
In states that recognize holographic wills, a valid holographic codicil (i.e., handwritten
and not witnessed) can validate a will that was not originally valid because it failed to
meet statutory requirements.
b)
A valid holographic codicil revokes any earlier valid will to the extent it conflicts with
the holographic codicil.
Revocation and Revival
1.
Revocation by Physical Act
a)
Three physical acts can revoke a will:
(1)
Subsequent Written Instrument. A will can be revoked by either:
(a)
A subsequent written instrument that is executed for the sole purpose
of revoking the prior will; OR
(b)
A subsequent will/codicil containing a revocation clause or provisions
that are inconsistent with those of the prior will (only revokes to the
extent it conflicts with the prior will).
(2)
Cancellation. A will is revoked if the testator, or another person in his presence
and at his direction burns, tears, obliterates, or destroys the will WITH the
intent to revoke the will. Under the common law, words of cancellation are
valid ONLY IF they come in physical contact with the words of the will (e.g.,
words of cancellation are written over the original terms of the will). Under the
UPC, words of cancellation need NOT touch any of the words of the will, but
they must be somewhere on the will to validly revoke.
(3)
Partial Revocation. In most states, when marks of cancellation (e.g., putting a
line through terms in the will) are found on a will known to last have been in
the testator’s possession, a presumption arises that such marks were made by
the testator with the intent to revoke. The burden to overcome this
presumption is on the party claiming that the devise has not been revoked.
(a)
2.
12.2% Appearance Rate
~
If a devise is revoked, it passes as part of the residuary estate. However,
some states do NOT permit partial revocations.
Revocation by Divorce
4.1% Appearance Rate
~
a)
In certain circumstances, dispositions made under a will are revoked by operation of
law. At common law, divorce did NOT revoke a testator’s devise to a former spouse by
operation of law. Today, a divorce revokes provisions in a will that devise property to
the testator’s former spouse (usually also includes relatives of the former spouse) by
operation of law UNLESS the will or court expressly provides otherwise. However, the
devise may be revived if the spouses remarry.
b)
If a provision in favor of the former spouse is revoked by operation of law, the devise
passes as if the former spouse predeceased the testator.
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3.
4.
E.
Dependent Relative Revocation (DRR)
8.2% Appearance Rate
~
a)
Under DRR, the valid revocation of a will may be ignored if the will was revoked under
the testator’s mistaken belief of law or fact that the testator could revive an earlier will,
or modify his disposition of property by codicil or new will.
b)
DRR ONLY applies when the court can determine that the testator would have preferred
the disposition in the revoked will over the disposition resulting from a finding that the
testator died intestate.
Revival
6.1% Appearance Rate
~
a)
Under the common law, the revocation of a subsequent will automatically revives the
prior will (i.e., no intent requirement).
b)
Under the modern view, most states permit revival of a revoked will if:
(1)
It is evident that the testator intended the revoked will to take effect as
executed; OR
(2)
The testator republishes the revoked will with a subsequent will or codicil that
complies with the statutory formalities for execution.
Construction Problems
1.
Lapsed Legacies
a)
If a beneficiary named in a will predeceases the testator, absent an alternate
disposition of the devise specified by the testator, the devise lapses into the estate’s
residue UNLESS the jurisdiction’s anti-lapse statute preserves the devise for the
beneficiary’s descendants.
b)
Under an anti-lapse statute, devises will vest in the descendants of the predeceased
beneficiary if the predeceased beneficiary:
c)
2.
10.2% Appearance Rate
~
(1)
Is a blood relative of the testator; AND
(2)
Has descendant(s) who survive the testator.
Residue of a Residue. At common law, an invalidated residuary devise passed to the
testator’s heirs through intestate succession. Under the modern view, if the residue is
devised to two or more persons, an invalidated residuary devise will pass to the other
residuary beneficiaries rather than the testator’s heirs.
Ademption
12.2% Appearance Rate
~
a)
Under the doctrine of ademption, if the subject matter of a specific devise is NOT in the
estate at the time of the testator’s death, the devise to the beneficiary adeems or fails
(e.g., the testator leaves her diamond ring to her daughter in her will; however, before
the testator dies she sells the ring to a pawn shop – the specific devise to her daughter
adeems upon the testator’s death).
b)
At common law, the testator’s intentions were irrelevant. However, in most
jurisdictions today, a specific devise will adeem ONLY IF the testator intended the
devise to fail. If the testator did not intend for a specific devise to fail, the beneficiary is
entitled to:
(1)
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Any property in the testator’s estate, which the testator acquired as a
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replacement for the specific devise; OR
(2)
c)
3.
b)
6.
8.2% Appearance Rate
~
A person who feloniously and intentionally kills the decedent is barred from claiming a
share of the decedent’s estate as either an heir or a beneficiary under the decedent’s
will. Generally, the decedent’s estate is distributed as if the killer had predeceased the
decedent.
Disclaimers
a)
5.
Generic Descriptions. Any property described in generic terms is interpreted under the
circumstances existing at the time of the testator’s death, rather than when the will is
executed (e.g., a devise of “my car” is interpreted as a devise of the testator’s car at the
time of death, not the testator’s car at the time of will execution).
Slayer Statutes
a)
4.
A monetary devise equal to the value of the specific devise.
12.2% Appearance Rate
~
A beneficiary under a will can disclaim or renounce his interest under a testator’s will
causing the disclaimed property to pass as if the disclaiming party predeceased the
testator. A valid disclaimer must:
(1)
Be in writing and signed by the person making the disclaimer;
(2)
Describe the interest being disclaimed sufficiently; AND
(3)
Be delivered or filed.
Timing. Under the common law, a disclaimer must be made within a reasonable
amount of time. Some states require a disclaimer to be made within 9 months after the
testator’s death. Under the UPC, a disclaimer may be made at any time.
Classification of Devises
2.0% Appearance Rate
~
a)
Specific Devises. A devise is specific if the subject matter of the devise is specific
personal or real property (e.g., a devise of a specific diamond ring or parcel of land).
b)
General Devises. A devise is general if it can be satisfied with any of the estate’s assets
(e.g., a devise of a specific dollar amount is general, because it can be funded with cash
or other property of equal value).
c)
Demonstrative Devises. A devise is demonstrative if the testator makes a general
devise AND specifies a specific source that the general devise should come from (e.g., a
devise of a specific dollar amount that is payable from a designated bank account).
Abatement
8.2% Appearance Rate
~
a)
Beneficiaries under wills are entitled only to the net value of estate assets. The net
value represents what remains of the decedent’s assets at death after the payments of
debts, expenses, and taxes. If there are more claims against an estate from creditors
than there are assets to cover all of the devises made under the will, the devises abate.
b)
Creditors of the estate ALWAYS have priority to assets of the estate over beneficiaries.
Absent provisions in the will, the testator’s property abates on a pro-rata basis in the
following order to pay for debts, expenses, and taxes:
(1)
Property not disposed of by will (passing by intestacy)
(2)
Residuary devises
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7.
9.
General devises
(4)
Specific devises
Exoneration
a)
8.
(3)
2.0% Appearance Rate
~
At common law, a specific devise of encumbered real property was entitled to have the
mortgage on the property paid from the estate as a debt of the decedent. Today, a
beneficiary of real property assumes the mortgage, regardless of a general directive in
the will to pay debts.
Stock Splits and Dividends
6.1% Appearance Rate
~
a)
Most publicly traded corporations issue quarterly dividends to shareholders through
cash payments. Shareholders may participate in dividend reinvestment programs that
automatically reinvest the quarterly dividends into buying more shares of the
corporation’s stock. Consequently, a testator can accumulate a large amount of
additional stock through dividends from the time of execution of the will until death.
b)
Under the common law (still followed in some states), a stock dividend constitutes a
property interest that is separate from shares of stock received through a specific
devise. Under this rule, the beneficiary of the underlying shares of stock does NOT
receive the additional shares that were obtained through stock dividends.
c)
Under the majority view, beneficiaries are entitled to additional shares owned by the
testator that were acquired as a result of stock splits or dividends.
Devises to Classes
14.3% Appearance Rate
~
a)
A testator may devise property to a class of individuals (e.g., “I leave $20,000 to be
divided equally among all my children.”). A class may increase or decrease in number
until the testator’s death. If a member of the class predeceases the testator, her share
is split evenly among the remaining members of the class (i.e., it does NOT lapse into
the residue).
b)
NOTE. If there is a devise to a group of individuals, and at least one of those individuals
predeceases the testator, then you must determine whether the group constitutes a
class. If the group constitutes a class, the predeceased member’s share is split evenly
among the remaining members of the class. If the group does NOT constitute a class,
the predeceased member’s share lapses into the residue.
(1)
(2)
c)
For Example: Tom (the testator) leaves “$20,000 to be divided evenly among
Ann, Beth, Chris, and Doug” under his will. Ann, Beth, Chris, and Doug are all
Tom’s children. This provision can be interpreted as either:
(a)
A devise to a class (Tom’s children); OR
(b)
Four separate individual devises of $5,000.
BOTH interpretations have merit and should be discussed on an exam if any of
the children predecease Tom. This finding will determine whether the
predeceased beneficiary’s share is split among the remaining class members or
lapses into the residue.
NOTE. A devise to a class member who qualifies under an anti-lapse statute would
pass to her descendants.
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10.
11.
F.
Devises to Children and Issue
6.1% Appearance Rate
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a)
Distribution. A testator may devise property to her “children” or “heirs” or “issue.”
Under these circumstances, a court will likely look to the jurisdiction’s intestacy statutes
to determine how the devise should be distributed (e.g., per stirpes, per capita, etc.).
b)
Disinheritance. A child that is intentionally omitted from a will is NOT entitled to a
share of the decedent’s estate. In most states, a general disinheritance clause is NOT
sufficient to show intent to omit a child from the will.
c)
Pretermitted Children. A pretermitted child is a child who is unintentionally omitted
from a will. This commonly occurs when a child is born or adopted after the execution
of a will, or is thought to be dead but is later found alive. Pretermitted children are
entitled to the share that they would have received had the testator died intestate so
long as the testator did NOT intend to omit the child from his will (if the testator’s intent
cannot be determined from his will, a court may evaluate extrinsic evidence to
determine intent).
d)
“Children” as a Class. At common law, only biological, full-blood children born in
wedlock were included as members in the class. Today (in most jurisdictions), adopted
children, half-blood children, and children born out-of-wedlock are included in the class.
Other Construction Problems
2.0% Appearance Rate
~
a)
Generally, conditions on devises that prohibit marriage are VOID as against public
policy.
b)
In most states, when the term “surviving” is used in a will, it requires the beneficiary to
survive the date of distribution of the testator’s estate. However, some states only
require the beneficiary to outlive the testator.
Contractual Wills
1.
Contractual Wills
a)
6.1% Appearance Rate
~
Valid contracts (i.e., mutual assent + consideration + no defenses to formation) to make
wills are generally enforceable and may take numerous forms:
(1)
A contract to execute mutual or joint wills;
(a)
Mutual wills are separate wills of at least two people which contain
similar or reciprocal provisions.
(b)
A joint will is a single document executed by at least two people
(usually spouses) which contain similar or reciprocal provisions.
(2)
A contract to make a certain devise by will;
(3)
A contract not to revoke a will or a provision included in the will; OR
(4)
A contract to refrain from executing a will.
b)
Writing Requirement. In most states, contracts to make a will must be in writing.
Jurisdictions that do not expressly address this matter in their probate codes usually
come to the same conclusion by applying the Statute of Frauds.
c)
Damages. If a party breaches a valid contract to make a will, the court will usually
probate the new will and impose a constructive trust in favor of the original intended
beneficiaries under the contractual agreement.
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G.
Will Contests
1.
Capacity
a)
b)
2.
b)
(1)
The nature and extent of his property;
(2)
The persons who are the natural objects of his bounty; OR
(3)
The disposition he was making of his property.
Generally, there is a rebuttable presumption that the testator had mental capacity.
8.2% Appearance Rate
~
A will is invalid if the testator executed the will while under undue influence. Undue
influence occurs when a person exerts such control and influence over the mind of the
testator as to overcome the testator’s free will. To prevail in a will contest for undue
influence, the contestant must prove that:
(1)
The testator was susceptible to undue influence (e.g., health, finances, etc.);
(2)
The wrongdoer had the opportunity to exert undue influence over the testator;
(3)
The wrongdoer actively participated in drafting the will; AND
(4)
The will evidences a result that appears to be the effect of undue influence
(e.g., an unnatural result occurred).
Generally, there is a rebuttable presumption of undue influence if a confidential
relationship existed between the alleged wrongdoer and the testator such that the
circumstances surrounding the drafting of the will were suspicious (e.g., a close relative,
attorney, or caretaker was involved in drafting the testator’s will).
Fraud
a)
b)
4.
A will is invalid if the testator lacked mental capacity when the will was executed. To
prevail in a will contest for lack of capacity, the contestant must prove that the testator
did NOT know or understand:
Undue Influence
a)
3.
6.1% Appearance Rate
~
2.0% Appearance Rate
~
A will is invalid if the will reflects the testator’s belief in false information arising from
another person’s fraudulent misrepresentation. To prevail in a will contest for fraud,
the contestant must prove:
(1)
A misrepresentation of a material fact was made to the testator;
(2)
The misrepresentation was made to induce reliance by the testator; AND
(3)
The testator relied on the misrepresentation in disposing of his property by will.
Fraud may occur in the inducement or execution of a will:
(1)
Fraud in the Inducement occurs when a person misrepresents a fact related to
the instrument (usually regarding property or beneficiaries).
(2)
Fraud in the execution occurs when a person misrepresents the contents or
nature of the instrument executed by the testator.
Mistake
a)
2.0% Appearance Rate
~
Most courts will permit modification of a will to conform to the testator’s intent if there
is clear and convincing evidence of a mistake (e.g., testator mistakenly leaves out an
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intended clause, typographical errors, etc.). Some courts may modify an unambiguous
term to reflect the testator’s intent; however, most will NOT admit extrinsic evidence to
do so (i.e., intent must be determined by the testator’s words and acts).
5.
No-Contest Clauses
a)
6.
The purpose of a no-contest clause is to discourage potential will contestants by forcing
them to choose either:
(1)
The gift bestowed to them in the will if no contest action is filed; OR
(2)
Nothing if their contest action fails.
b)
A minority of jurisdictions wholly enforce no-contest clauses while others strictly
prohibit no-contest clauses as a matter of public policy.
c)
Under the majority view, a no-contest clause is unenforceable IF probable cause exists
for initiating the will contest action (i.e., contestant has a good faith and reasonable
belief in challenging the will).
Standing to Contest
a)
H.
2.0% Appearance Rate
~
4.1% Appearance Rate
~
Generally, only those who have a pecuniary interest in an estate have standing to
contest it. This includes any person who:
(1)
Is a beneficiary of the will;
(2)
Should be a beneficiary of the will; OR
(3)
Would benefit if the decedent died without a will.
Non-Probate Transfers
1.
Inter Vivos Gifts
a)
A gift inter vivos means that the gift is given by a living person to another living person.
A valid transfer of property as an inter vivos gift occurs when:
(1)
The donor has intent to make a gift;
(2)
The donor delivers the gift; AND
(3)
(a)
Actual delivery of property qualifies as valid delivery (e.g., physically
handing the gift to the donee).
(b)
Constructive and symbolic delivery of property (e.g., handing over the
key to a safe that contains the gift) are valid methods of
delivery if the subject matter of the gift cannot be physically delivered
to the donee at the time the donor wishes to complete the gift.
The donee accepts gift.
(a)
2.
2.0% Appearance Rate
~
Acceptance of an inter vivos gift is presumed if the subject matter of the
gift is something of value.
Joint Tenant Bank Accounts
a)
2.0% Appearance Rate
~
Generally, a surviving joint tenant is entitled to the money in a joint bank account when
the other joint tenant on the account dies (right of survivorship), UNLESS the account
was set up merely for the convenience of the parties.
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b)
3.
4.
Totten Trusts
A Totten trust is created when a person opens a bank account for himself as trustee for
another. Absent clear and convincing evidence of a different intent, the trustee is the
sole owner of the account throughout his lifetime. Upon the trustee’s death, the
remaining funds pass to the designated beneficiary free and clear of the trust.
b)
Totten trusts are revocable both by will (revocation must be made expressly clear) and
during the trustee’s lifetime if the trustee:
(1)
Withdraws all funds from the account; OR
(2)
Delivers a signed revocation in writing to the bank naming a new beneficiary.
Life Insurance
4.1% Appearance Rate
~
Life insurance is a contract made between a policyholder and an insurance company.
Usually, life insurance contracts prohibit the change of a beneficiary under the policy by
execution of a will. Most courts uphold such limitations that are set out in the insurance
contract; however, some courts permit a policyholder to change a beneficiary by will if
his insurance company does not object.
Powers and Duties of Personal Representatives
1.
III.
2.0% Appearance Rate
~
a)
a)
I.
Creditors. Under the common law, the deceased joint tenant’s creditors have NO claim
to the money in the joint bank account. Under the UPC, if a decedent’s estate is
insufficient to pay the claims of creditors, the creditors’ claims to funds in the joint bank
account are superior to the rights of the surviving joint tenant.
Personal Representatives
2.0% Appearance Rate
~
a)
A personal representative (i.e., executor of the estate) handles all matters associated
with probate (e.g., filing paperwork, gathering and managing the decedent’s property
until distribution, notifying devisees, creditors, and other necessary parties, etc.).
b)
If a decedent does NOT name a personal representative in his will, the court will appoint
one (usually a surviving spouse or heir of the decedent – if there are no heirs, a creditor
may be appointed).
Living Wills and Durable Health Care Powers
A.
Advance Health Care Directives
1.
Living Will and Durable Power of Attorney
4.1% Appearance Rate
~
a)
Living Will. A living will is a document in which one specifies which life-prolonging
measures one does, and does not, want to be taken if one becomes incapacitated.
b)
Durable Power of Attorney. A durable health care power of attorney is a document
that enables an individual to designate an agent to act on his behalf in the event that
the individual becomes incapacitated. Generally, the agent is immunized from civil
liability for health care decisions that are made in good faith.
c)
Execution Requirements. Generally, both the living will and durable power of attorney
must be signed, in writing, and witnessed by at least two persons or notarized (similar
to executing a will).
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B.
Authority of Agent
1.
Family Consent Laws
4.1% Appearance Rate
~
a)
Family consent laws permit close relatives, typically in the order listed by statute, to act
as a surrogate decision maker for an incapacitated patient if there is no authorized
agent acting under durable power of attorney.
b)
Under typical family consent laws, the priority in which a close relative may act as a
surrogate decision maker is as follows:
c)
(1)
Spouse (unless legally separated)
(2)
Adult child
(3)
Parent
(4)
Adult brother/sister
NOTE. Generally, if there are multiple members in the same class, a majority of those
members must agree on what health care decisions are made.
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TRUSTS AND ESTATES
Studicata UBE/MEE Attack Outline
TABLE OF CONTENTS
TRUSTS AND FUTURE INTERESTS
I.
TRUSTS ........................................................................................................................................................ 1
A.
Introduction .........................................................................................................................................................................1
B.
Classification ........................................................................................................................................................................1
C.
Creation of Express Trusts ....................................................................................................................................................1
D.
Types of Trusts .....................................................................................................................................................................2
E.
Protective Trusts...................................................................................................................................................................3
F.
Rights of Creditors and Alienability ......................................................................................................................................4
G.
Powers of Invasion ...............................................................................................................................................................4
H.
Modifications of Trusts .........................................................................................................................................................5
I.
Termination of Trusts ...........................................................................................................................................................5
J.
Powers and Duties of Trustees .............................................................................................................................................6
II. FUTURE INTERESTS ..................................................................................................................................... 7
A.
Classifications of Reversions and Executory Interests ...........................................................................................................7
B.
Life Estates and Vested and Contingent Remainders ............................................................................................................8
C.
Powers of Appointment........................................................................................................................................................8
D.
Acceleration of Future Interests ...........................................................................................................................................9
E.
Rule Against Perpetuities .....................................................................................................................................................9
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Trusts and Future Interests
I.
Trusts
A.
Introduction
1.
Definitions
a)
b)
B.
A trust is a fiduciary relationship between the trustee(s) and the trust beneficiaries.
When a trust is created, title to property is divided between legal and equitable title:
(1)
Legal Title. The trustee holds legal title to the property and becomes the owner
of record for the property.
(2)
Equitable Title. The beneficiary holds equitable title to the property and is
entitled to the financial benefits of the property.
There are three main parties involved in the creation of a trust:
(1)
Settlor. The settlor is the person who creates the trust (usually the person who
places the original assets into the trust).
(2)
Trustee. The trustee is the person who holds the assets of the trust for the
benefit of the beneficiaries. The trustee manages the trust and its assets under
the terms of the trust.
(3)
Beneficiary. The beneficiary is the person who is entitled to the assets or profits
of the trust.
Classification
1.
Express vs Implied Trusts
a)
C.
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Trusts are classified as either express or implied:
(1)
An express trust is created when a person has the intent to create a trust and
complies with the requisite formalities to create that trust.
(2)
An implied trust is created by conduct, regardless of whether there was intent
to create a trust (e.g., constructive trusts imposed by courts).
Creation of Express Trusts
1.
Elements
a)
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A valid express trust is created if the following five elements are met:
(1)
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The settlor has intent to create the trust;
(a)
The settlor’s intent may be determined by written and spoken words or
conduct. There are NO specific words required to create a trust. The
settlor need only intend to create the legal relationship and duties of a
trust (i.e., the settlor need not know what a legal trust is to create one).
(b)
Precatory Language. Precatory language merely expresses the settlor’s
wishes regarding his property, not his intent (e.g., “I convey Greenacre
to Tom with the hope that Tom uses it for the benefit of Ben.”).
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(c)
(2)
(3)
There is trust property (i.e., the res);
(a)
The res refers to the property that makes up the trust as a whole (e.g.,
money, land, stocks, bonds, jewelry, etc.). Just about anything that can
be owned and transferred can make up the res.
(b)
The res must either be:
D.
Specifically described with certainty; OR
(ii)
Ascertainable with certainty from the description of it.
At the time of trust creation, the settlor must either:
(i)
Specifically identify the beneficiary by name; OR
(ii)
Sufficiently describe how the beneficiary is to be identified (e.g.,
“my children” is sufficient –– “my friends” is not sufficient).
(b)
The beneficiary must be able to possess title to property (e.g., an animal
cannot be a trust beneficiary). However, the beneficiary need not have
capacity to manage the property.
(c)
Settlors and trustees can also be beneficiaries; however, a sole trustee
cannot be the sole beneficiary of the trust.
The trust has a trustee; AND
(a)
(5)
(i)
An ascertainable beneficiary exists;
(a)
(4)
Capacity. The settlor must have capacity in order to create a trust
(same analysis as capacity under will contests).
Although, a trust must have a named trustee, the trust will not fail
solely for lack of one – a court may appoint a trustee if the settlor did
not name a trustee or if the trustee dies, resigns, or is removed.
All parties comply with the requisite formalities.
(a)
The creation of a trust involving real property must comply with the
Statute of Frauds, while the creation of a trust involving personal
property (without real property) need not comply with the Statute of
Frauds.
(b)
Testamentary Trusts. A testamentary trust is a trust that enters into
existence upon the death of a person and disposes of their property.
Such trusts must be executed with the same formalities of a will.
Types of Trusts
1.
2.
Revocable and Irrevocable Trusts
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a)
Under the common law (majority view), a trust is irrevocable UNLESS the settlor
expressly retains the right to revoke or amend the trust.
b)
Under the Uniform Trust Code (minority view), a trust is revocable UNLESS the trust
expressly provides otherwise.
Testamentary Trusts
a)
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A testamentary trust is created through provisions of the settlor’s will and does not
come into existence until the settlor dies (must meet the same formalities as the will).
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3.
Pourover Provisions
a)
4.
E.
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A pourover provision in a will devises property to a previously existing trust under the
terms of that trust. A pourover provision is distinguishable from a testamentary trust,
as a pourover provision does NOT create a trust; it transfers property to a trust already
in existence. Therefore, a pourover provision CANNOT devise property to a
testamentary trust (because a testamentary trust does not come into existence until the
settlor dies).
Charitable Trusts
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a)
A charitable trust is a trust that has the purpose of accomplishing a substantial amount
of social benefit to the public at large or to a reasonably large class.
b)
The beneficiary of a charitable trust may be indefinite, named, or contain a class of
persons described by the trust. The rule against perpetuities does NOT apply to
charitable trusts.
c)
A charitable trust will NOT be invalidated for failure to state a specific charitable
purpose or beneficiary. Generally, courts will select a purpose or beneficiary that is
consistent with the settlor’s intent if the settlor had a general charitable intent. The Cy
Pres doctrine may be applied to continue the charitable trust in a manner consistent
with the settlor’s general charitable intent.
d)
However, if the settlor names a specific charitable beneficiary, the trust will terminate
upon that charity’s termination.
Protective Trusts
1.
Discretionary Trusts
a)
2.
3.
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A discretionary trust grants the trustee absolute power and discretion to make good
faith determinations regarding when and how much of the trust property should be
distributed to the beneficiaries of the trust. Courts may interfere if the trustee is
making such determinations in bad faith.
Support Trusts
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a)
A support trust is a trust that contains a provision directing the trustee to pay to the
beneficiary as much of the income or principal as is necessary for the beneficiary’s
education and support. Support trusts can be pure or discretionary (see above rule).
b)
Pure support trusts limit the trustee’s discretion. The trustee is obligated to spend only
so much of the available trust property as is necessary for the education and
maintenance of the beneficiary.
Spendthirft Trusts
a)
b)
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Spendthrift trusts contain provisions designed to protect beneficiaries from their own
carelessness. Generally, spendthrift provisions serve two main functions:
(1)
The beneficiary is NOT permitted to sell or assign his beneficial interest; AND
(2)
The beneficiary’s creditors CANNOT reach the beneficiary’s beneficial interest.
However, creditors are generally able to reach the beneficiary’s beneficial interest if:
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F.
The settlor is the beneficiary of the spendthrift trust (i.e., self-settled trust);
(2)
The creditor is seeking reimbursement for providing necessaries; OR
(3)
The creditor has an order for child support or spousal support.
Rights of Creditors and Alienability
1.
2.
Rights of Creditors
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a)
The creditors of the beneficiary of a trust have NO greater rights in the trust property
than the rights of the beneficiary. If the trust prevents a beneficiary from receiving the
trust principal, then his creditors have no right to reach the trust principal either.
b)
However, absent a spendthrift provision, the beneficiary’s creditors are able to reach
the beneficiary’s interest by attachment of the interest income to the beneficiary (i.e.,
generally, creditors cannot go after the principal, but they may go after the interest
income if there are no spendthrift provisions).
c)
Whether or not the trust contains a spendthrift provision, creditors can reach the
beneficiary’s interest once it is distributed to the beneficiary. Once trust income is
paid to the beneficiary, a creditor may initiate appropriate proceedings to reach that
income in order to satisfy a claim.
Alienability of Trust Interests
a)
G.
(1)
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Trust interests are alienable, devisable, and descendible unless the terms of the trust
provide otherwise (e.g., a spendthrift clause that prevents transfer).
Powers of Invasion
1.
Invasion of Trust Principal
a)
Generally, an income beneficiary is only entitled to trust income UNLESS the trust
authorizes the trustee to invade the trust principal.
(1)
b)
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For Example: Sam (the settlor) creates a trust and places $100 million dollars in
the trust as the principal. Tom (the trustee) manages the $100 million principal,
and successfully invests it generating around $5 million in income annually. Ben
and Bob (the beneficiaries) are only entitled to the $5 million dollars in annual
income unless the trust authorizes Tom to invade the $100 million principal.
This arrangement protects the principal, so the trust fund can last perpetually.
However, a trustee may be allowed to invade the trust principal if:
(1)
Only one beneficiary exists;
(2)
The beneficiary will ultimately receive the trust principal (usually not
permitted if the invasion would be inconsistent with the settlor’s express
directions in creating the trust);
(3)
There is a significant change in circumstances (e.g., the beneficiary suffers a
traumatic injury and the trust income can no longer support the beneficiary’s
health); OR
(4)
The trust grants the trustee discretion to invade the principal (can be express or
implied through the settlor’s words or conduct).
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H.
Modifications of Trusts
1.
Judicial Modification
a)
In some instances, a court may need to modify a trust instrument in order to conform
the trust to the settlor’s wishes or intent. This may be accomplished through deviation
or the Cy Pres Doctrine.
b)
Deviation. Trustees and beneficiaries can request that the court permit a deviation
from administrative provisions in the trust instrument. Generally, a court will permit a
deviation if the purposes of the trust:
c)
(1)
Have been satisfied;
(2)
Have become unlawful; OR
(3)
Are impossible to carry out.
Cy Pres Doctrine. If it becomes unlawful, impossible, or impracticable to carry out the
purpose of a charitable trust, the Cy Pres doctrine allows the court to modify the terms
of the charitable trust “as near as possible” to the original intention of the settlor in
order to prevent the trust from failing. The Cy Pres doctrine is applicable only if:
(1)
Property is placed in a trust for a charitable purpose that has become unlawful,
impossible, or impracticable to carry out; AND
(2)
The settlor manifested a general charitable intent to devote the property to
charitable purposes (the majority of courts presume general charitable intent).
(a)
2.
The absence of a reverter clause is evidence of the settlor’s general
charitable intent. However, if there is a reverter clause, the court will
likely revert the trust property to the parties specified in the reverter
clause when it becomes unlawful, impossible, or impracticable to carry
out the purpose of the trust.
Modification by the Parties
a)
I.
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Generally, a trust is irrevocable and CANNOT be modified unless the settlor retained the
right to do so in the terms of the trust instrument. However, in a minority of
jurisdictions, the settlor is free to modify or revoke the trust instrument WITHOUT
express authorization to do so.
Termination of Trusts
1.
Termination
a)
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Generally, a trust may be terminated if:
(1)
The trust is revoked or expires pursuant to its terms;
(2)
The material purpose of the trust has been satisfied or becomes unlawful,
contrary to public policy, or impossible to carry out;
(3)
The settlor and all of the beneficiaries unanimously agree to terminate;
(4)
All of the beneficiaries agree AND no material purposes for the trust remain;
(5)
Termination will further the purpose of the trust due to circumstances that
were not foreseen by the settlor; OR
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(6)
b)
J.
The court or trustee determines that the value of the trust property is
too low to justify the cost of administration.
If a trust is validly terminated, the trust property generally vests in the beneficiaries who
may distribute the property in any manner they choose. However, the trustee may
retain a reasonable amount of the trust property to cover debts, expenses, and taxes.
Powers and Duties of Trustees
1.
Fiduciary Requirements
a)
2.
3.
4.
A trustee is a fiduciary holding legal title to the trust property. As a fiduciary, the
trustee MUST:
(1)
Manage the trust property exclusively for the benefit of ALL the trust’s
beneficiaries; AND
(2)
Administer the trust in good faith pursuant to the terms and purposes of the
trust.
Duty of Care
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a)
The trustee possesses a duty to exercise the degree of care and skill as a person of
ordinary prudence would exercise in dealing with his own property. In making this
determination, the focus is on the trustee’s conduct, not the results of such conduct.
b)
Exculpatory Clauses. Under the majority view, the settlor may limit the potential
liability of a trustee by including an exculpatory clause in the trust instrument.
However, exculpatory clauses do not excuse the trustee for acts done in bad faith.
c)
Uniform Prudent Investor Act (UPIA). The UPIA requires the trustee to exercise the
degree of care and skill as an investor of ordinary prudence would exercise in investing
his own property (e.g., diversifying investments, avoiding risky investments and
speculation, etc.).
Duty of Loyalty
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a)
The trustee owes a duty of loyalty to the beneficiaries where the trustee may NOT
obtain any personal gain from administering the trust, except for fees.
b)
Self-Dealing. Self-dealing is a per se breach of the duty of loyalty. Self-dealing includes
any transaction involving the trust property that the trustee enters into for his own gain.
c)
Waiver. The settlor may expressly waive the trustee’s duty of loyalty in the trust
instrument. However, a waiver will not excuse the trustee for acts done in bad faith.
Duty to Act Impartially
a)
5.
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The trustee possesses a duty to be impartial with respect to ALL the beneficiaries of the
trust when investing, managing, and distributing the trust property (i.e., cannot favor
one beneficiary over another).
Principal and Income Allocations
a)
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The following newly acquired assets generally must be allocated to the trust income:
(1)
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Receipt of rental payments from trust property; AND
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(2)
b)
II.
Corporate distributions (e.g., cash dividends, return on investments, etc.).
The following newly acquired assets generally must be allocated to the trust principal:
(1)
Funds received from the sale of trust property; AND
(2)
Repayment of loan principal.
Future Interests
A.
Classifications of Reversions and Executory Interests
1.
Fee Simple
a)
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In present estates, fee simple is the default estate. A fee simple is created when the
grantor uses the following language:
(1)
“O to A”
(2)
“O to A and his/her heirs”
(3)
“O to A forever”
b)
A defeasible fee is a conveyance in fee simple in which the grantor places express
conditions on the conveyance (e.g., “O to A on the condition that . . .”). A defeasible fee
is capable of lasting forever, but may be terminated by the occurrence of an event.
c)
A defeasible fee gives the grantee a present possessory interest in the property, but
reserves a future interest in the property in the favor of the grantor or a third party.
There are three main types of defeasible fees:
(1)
(2)
(3)
Fee Simple Determinable. A fee simple determinable is a conditional
conveyance in which the grantor retains a possibility of reverter. The possibility
of reverter vests automatically when the condition is not met (i.e., the grantor
does not have to reclaim the property, the interest automatically vests back to
him). A fee simple determinable is created when the grantor uses durational
language, such as:
(a)
“While the property is used for farming”
(b)
“During the property’s use as a farm”
(c)
“Until the property is no longer used as a farm”
Fee Simple Subject to Condition Subsequent. A fee simple subject to condition
subsequent is a conditional conveyance in which the grantor retains a right of
entry. The right of entry does NOT vest automatically when the condition is not
met (i.e., the grantor must reclaim the property). A fee simple subject to
condition subsequent is created when the grantor uses conditional language,
such as:
(a)
“Provided that the property is used for farming”
(b)
“On the condition that the property is used as a farm”
Fee Simple Subject to Executory Interest. A fee simple subject to executory
interest is a conditional conveyance in which a third party (not the grantor) is
granted an executory interest in the property. An executory interest is a future
interest that divests (i.e., terminates) an earlier interest. For example:
(a)
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“O conveys Greenacre to A and his heirs, but if Greenacre is no longer
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used as a farm, then to B and her heirs.” A has a fee simple subject to
an executory interest. B has an executory interest, because B is a third
party (not the grantor) and her interest divests A’s interest.
(4)
Springing vs. Shifting Executory Interest. A springing executory interest divests
the grantor, while a shifting executory interest divests a prior grantee.
(a)
B.
Life Estates and Vested and Contingent Remainders
1.
Life Estate
a)
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A life estate is a present possessory estate that is limited by a person’s life (terminates
when the measuring life dies). A life estate is created when the grantor uses the
following language:
(1)
“O to A for A’s life” (A is the measuring life – life estate terminates when A dies)
(2)
“O to A for B’s life” (B is the measuring life – life estate terminates when B dies)
b)
A life estate is transferable. The transferee’s interest in the property terminates upon
the death of the measuring life.
c)
Similar to fee simple, a future interest can follow a life estate. If possession of the land
goes back to the grantor after the life estate terminates, then the grantor retains a
reversion. If possession of the land goes to a third party after the life estate terminates,
then the third party takes a remainder. A remainder can be vested or contingent:
(1)
(2)
C.
“O conveys Greenacre to A and his heirs, but if Greenacre is no longer
used as a farm, then to B and her heirs.” B has a shifting executory
interest, because B’s interest divests A’s interest (prior grantee).
A vested remainder is a future interest that is both:
(a)
Given to an ascertained (i.e., readily identifiable) grantee; AND
(b)
NOT subject to a condition precedent (i.e., a condition that must be
satisfied in order for the interest to vest).
A contingent remainder is a future interest that fails either of the two above
elements. For example:
(a)
“O conveys Greenacre to A for life, then to A’s firstborn child. At
the time of conveyance, A has no children.” A’s firstborn child has a
contingent remainder, because the firstborn child is not an
ascertainable grantee.
(b)
“O conveys Greenacre to A for life, then to B on the condition that B
survives A.” B has a contingent remainder. B is an ascertainable
grantee; however, B’s interest is subject to a condition precedent (B
must survive A).
Powers of Appointment
1.
Powers of Appointment
a)
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A power of appointment is usually conveyed by will or trust from the donor (i.e., the
decedent) to the donee (usually a trustee) granting the donee the right to appoint or
distribute property left by the donor. The holder of a power of appointment does NOT
receive full title to the donor’s property, only the power to appoint or distribute it.
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b)
c)
D.
(1)
A general power of appointment is granted when the donor does NOT leave
any restrictions as to the appointment of the property. Thus, the donee is free
to appoint the property to himself, his creditors, or any others he chooses.
(2)
A special power of appointment is granted when the donor leaves restrictions
as to the appointment of the property. Generally, the donee may not exercise a
special power of appointment for his own benefit.
A power of appointment may be exercised in a general residuary clause of a will (e.g.,
“I leave the remainder of my estate including any property I possess a power of
appointment over, to my spouse”) only if:
(1)
The power of appointment is a general power; OR
(2)
The testator’s will manifests an intention to include the property subject to the
power.
Acceleration of Future Interests
1.
Acceleration
a)
b)
E.
A power of appointment can either be general or special:
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A future interest may be accelerated, allowing the future interest holder to take
possession immediately if the present interest holder:
(1)
Loses title or his legal right to the property; OR
(2)
Disclaims the property.
For Example: O conveys Greenacre to A for A’s life, then to B. If A disclaims Greenacre,
B does not have to wait for A’s life to end in order to take possession. B’s future interest
will accelerate allowing him to take possession of Greenacre immediately.
Rule Against Perpetuities
1.
Rule Against Perpetuities
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a)
Common Law. Under the common law, a future interest MUST vest within 21 years of
the death of a life in being. If there is ANY possibility that the future interest will not
vest within this time period, the interest will be invalidated.
b)
Wait and See. In many jurisdictions, courts will “wait and see” if the future interest
actually does fail to vest within 21 years after the death of a life in being, rather than
invalidating the interest for any possibility that it will fail to vest within the time period.
c)
Modern Trend. Under a modern trend, some courts will reduce age contingencies
exceeding 21 years to validate a conveyance that otherwise violates the common law
rule against perpetuities.
(1)
d)
For Example: O conveys Greenacre to A for life, then to A’s children who reach
the age of 30. This conveyance would be invalidated under the common law,
because there is a possibility that the interest would not vest within 21 years
after A’s death. However, the modern trend allows courts to rewrite the
conveyance to: O conveys Greenacre “to A for life, then to A’s children who
reach the age of 21.”
Video Explanation. https://youtu.be/2XdmY_3QAe4
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9
UCC SECURED TRANSACTIONS
Studicata UBE/MEE Attack Outline
TABLE OF CONTENTS
I.
APPLICABILITY AND DEFINITIONS ............................................................................................................... 1
A.
Subject Matter of Article 9....................................................................................................................................................1
B.
Definitions ............................................................................................................................................................................1
II. ATTACHMENT OF THE SECURITY INTEREST ................................................................................................. 2
A.
Attachment ..........................................................................................................................................................................2
B.
Security Agreement Issues....................................................................................................................................................2
III. PERFECTION OF THE SECURITY INTEREST .................................................................................................... 3
A.
Methods of Perfection ..........................................................................................................................................................3
IV. PRIORITIES .................................................................................................................................................. 4
A.
Priority Rules ........................................................................................................................................................................4
B.
Exceptions to the Priority Rules ............................................................................................................................................5
V. DEFAULT ..................................................................................................................................................... 6
A.
Secured Party’s Rights ..........................................................................................................................................................6
B.
Debtor’s Rights .....................................................................................................................................................................6
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UCC Secured Transactions
NOTE: Examinees are to assume that the 2001 text of Article 1 has been adopted. Article 2, Sales of Goods, is included under the
Contracts specifications. Examinees are to assume that the 2010 Amendments to Article 9 have been adopted.
I.
Applicability and Definitions
A.
Subject Matter of Article 9
1.
B.
Scope and Mechanics of Article 9
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a)
Article 9 of the UCC applies to ANY transaction intended to create a security interest in
personal property or fixtures (not mortgages on real property). A security interest gives
a creditor the right to sell a debtor’s property in order to satisfy a debt.
b)
Generally, in an Article 9 transaction, personal property or fixtures secure the payment
of a debt or insure performance of a contract obligation with the property serving as
collateral.
c)
There are three main parties to an Article 9 transaction:
(1)
Secured Party. The secured party is the creditor who possesses the benefit of
the security interest.
(2)
Debtor. The debtor is the party who has an ownership interest or other
sufficient interest in the personal property securing the obligation.
(3)
Obligor. The obligor is the party held responsible for the underlying obligation
(usually also the debtor, but could be a type of guarantor).
Definitions
1.
Collateral
a)
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Collateral refers to the property in which a security interest is created, and it extends to
identifiable proceeds from the property that serves as collateral. Article 9 defines
different types of collateral as follows:
(1)
Goods. Goods are all things that are movable when a security interest attaches.
(2)
Consumer Goods. Consumer goods are goods that are used mainly for
personal, family, or household purposes.
(3)
Inventory. Inventory includes goods that are kept by a person for sale or lease
(does not include goods that are only being held for repair).
(4)
Accounts. A security interest in a debtor’s “accounts” covers any right to
payment of a monetary obligation, whether or not earned by performance, for
property that has been or is to be sold (i.e., accounts receivable). A secured
party can collect directly from the person who owes the debtor if the debtor
defaults.
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II.
Attachment of the Security Interest
A.
Attachment
1.
Elements
a)
51.0% Appearance Rate
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Attachment is essentially how a security interest is created. Once a security interest
attaches, it becomes enforceable. A valid attachment requires that:
(1)
There is a valid security agreement memorializing the security interest;
(a)
(2)
The debtor possesses rights in collateral; AND
(a)
(3)
2.
The debtor must have rights in collateral beyond mere possession,
however the debtor need not possess good title to the property (e.g.,
the debtor may be a lessee of the property).
The creditor extends value to the debtor (almost any consideration will suffice).
Consignment
a)
b)
2.0% Appearance Rate
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A consignment is a transaction in which a person delivers goods to a merchant for the
purpose of sale in which:
(1)
B.
Generally, the debtor must authenticate the security agreement by
providing the creditor with a reasonable description of the collateral in
writing. Signature, thumbprint, initials, mechanical reproductions, etc.,
are all adequate proof of authentication so long as the debtor possessed
the intent to authenticate the writing.
The merchant:
(a)
Deals in goods of that kind under a name other than the name of the
person making delivery;
(b)
Is NOT an auctioneer; AND
(c)
Is NOT generally known by its creditors to be substantially engaged in
selling the goods of others.
(2)
The aggregate value of the goods is $1,000 or more at the time of each delivery;
(3)
The goods are NOT consumer goods immediately before delivery; AND
(4)
The transaction does NOT create a security interest that secures an obligation.
Article 9 provides that in order to determine the rights of a consignee’s creditor, the
consignee (the debtor) has rights and title to the goods identical to those of the
consignor. Under a consignment, the consignee possesses the full ownership interest of
the consignor in the goods, such that as the security interest of the consignee’s creditor
will attach to them.
Security Agreement Issues
1.
Future Advances
a)
4.1% Appearance Rate
~
A security agreement may provide that collateral secures future advances, whether or
not the advances are mandatory, so long as the security agreement explicitly includes a
future advances clause.
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2.
3.
4.
After-Acquired Property
a)
After-acquired property clauses may be included in security agreements and are
generally enforceable allowing the after-acquired property to be secured in favor of the
secured party (does not apply to consumer goods unless the debtor acquires rights in
them within 10 days after the secured party gives value).
b)
For Example: S loans D $10,000 secured by D’s diamond ring with a security agreement
that includes an after-acquired property clause. Here, S will possess a security interest
in the diamond ring and the property that D acquires after the parties enter into the
security agreement.
Specification Clauses
Default. The parties may specifically define what constitutes a default. If left
undefined, non-payment generally constitutes a default.
b)
Acceleration. The parties may provide for the acceleration of payments upon the
happening of a specified event (e.g., full balance becomes due if payment is 7 days late).
c)
Covenants. The parties may covenant certain things to each other regarding the
collateral (e.g., the secured party may require the debtor to maintain insurance covering
the collateral property).
Use or Disposition of Collateral by a Debtor
III.
2.0% Appearance Rate
~
A security agreement will NOT be invalid because the debtor possesses a right to use or
dispose of the property serving as collateral.
Collateral in Secured Party’s Possession
a)
6.
2.0% Appearance Rate
~
a)
a)
5.
4.1% Appearance Rate
~
2.0% Appearance Rate
~
A secured party must use reasonable care in the custody and preservation of collateral
in the secured party’s possession.
Accessions and Commingled Goods
2.0% Appearance Rate
~
a)
Accessions. An accession is collateral that does NOT lose its identity when physically
united with other goods (e.g., a jet engine serving as collateral does not lose its identity
when it is installed into a jet). A security interest may be created in the property that
does not lose its identity and continues in the accession collateral.
b)
Commingled Goods. A commingled good is collateral that loses its identity when
physically united with other goods (e.g., 100 pounds of flour serving as collateral loses
its identity when physically united with other ingredients to form cake products). If
collateral becomes commingled with other goods, a security interest attaches to the
product that results.
Perfection of the Security Interest
A.
Methods of Perfection
1.
Perfection
a)
51.0% Appearance Rate
-
Once the security interest attaches, it is enforceable. Perfection of the interest only
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enhances the secured party’s rights to the property serving as collateral (e.g., a
perfected interest will obtain priority in a bankruptcy proceeding). However, if the
security interest does not attach, then it CANNOT be perfected no matter what the
creditor does.
b)
Generally, there are three different methods in which a security interest may be
perfected:
(1)
Filing. The filing of a “financing statement” or the security agreement with the
state is the primary method of perfection. The filing MUST be filed by an
authorized party (authorization is presumed by the debtor’s authentication of
the security agreement). Minor errors will not invalidate the financing
statement unless the error makes it seriously misleading. The filing must
contain:
(a)
The debtor’s name;
(i)
IV.
If the debtor is a registered organization, the financing
statement must provide the official registered name of the
organization.
(b)
The secured party’s name;
(c)
An adequate description of the collateral; AND
(d)
The filing fee.
(2)
Taking Possession. A secured party may perfect a security interest in negotiable
documents, goods, instruments, or money by taking mere possession of such
items.
(3)
Automatic Perfection. The following security interests are perfected
automatically when they attach:
(a)
A purchase-money security interest in consumer goods; AND
(b)
An assignment of accounts which does NOT by itself or in conjunction
with other assignments to the same assignee transfer a significant part
of the assignor’s outstanding accounts.
Priorities
A.
Priority Rules
1.
Perfected vs. Unperfected Interests
a)
2.
20.4% Appearance Rate
-
A perfected security interest has priority over a conflicting unperfected security
interest in the same collateral (even if the unperfected interest is a purchase-money
security interest in inventory).
Multiple Perfected Creditors
20.4% Appearance Rate
~
a)
Between multiple perfected creditors, the first to file obtains priority (even if a party
files before they perfect for priority purposes).
b)
Some collateral is not subject to the state filing system or cannot otherwise be filed. In
these instances, the first to perfect obtains priority.
c)
Generally, knowledge of a prior unperfected interest will not prevent a potential
secured party from filing first to obtain priority.
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3.
Lien Creditors
a)
B.
4.1% Appearance Rate
~
Lien creditors possess virtually the same status as perfected secured creditors.
Accordingly, if a party becomes a lien creditor before a secured party files or perfects,
the lien creditor will enjoy priority over that party. Their priority also extends to future
advances secured:
(1)
Before the lien arose;
(2)
Within 45 days of the lien; OR
(3)
Without knowledge of the lien.
Exceptions to the Priority Rules
1.
Buyers in the Ordinary Course of Business
a)
b)
2.
3.
Buyers in the ordinary course of business are protected even though their interest in the
property is created after the attachment or perfection of a security interest. Buyers in
the ordinary course of business take the collateral free of the security interest created
by the seller. A buyer in the ordinary course of business is a person who:
(1)
In good faith and without knowledge that the sale to him is in violation of the
security interest of a third party;
(2)
Buys in the ordinary course from a person in the business of selling goods of
that kind.
Shelter Principle. The protected buyer may sell the purchased collateral to a third-party
free of the secured party’s security interest.
Consumers Buying from Consumers
a)
b)
6.1% Appearance Rate
~
A buyer of consumer goods take the goods free of a security interest, even if perfected,
if the buyer buys:
(1)
Without knowledge of the security interest;
(2)
For value;
(3)
Primarily for the buyer’s personal, family, or household purposes; AND
(4)
Before the filing of a financing statement covering the goods.
Purchase-Money Security Interest (PMSI)
a)
18.4% Appearance Rate
-
22.4% Appearance Rate
~
Generally, PMSIs have priority over prior perfected security interests if the PMSI is
properly executed. A PMSI is either:
(1)
A security interest held by the seller of collateral to secure payment of all or
part of the price; OR
(2)
A security interest of a person that gives value to a debtor so that the debtor
may acquire rights in or the use of collateral.
Inventory. A PMSI in inventory collateral has priority over a conflicting security interest
in the same collateral if the PMSI is perfected at the time the debtor receives
possession and notice is provided to prior creditors. However, an unperfected PMSI in
inventory will NOT have priority over a perfected security interest in the same collateral.
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V.
c)
Non-Inventory. A PMSI in non-inventory collateral (e.g., regular goods) has priority over
a conflicting security interest in the same collateral if the PMSI is perfected at the time
the debtor receives possession of the collateral or within 20 days thereafter (i.e., the
creditor has a 20-day grace period to file upon receipt of the collateral).
d)
Consumer Goods. Remember, a PMSI in consumer goods perfects automatically upon
attachment (no filing required).
Default
A.
Secured Party’s Rights
1.
Right to Repossess
a)
2.
3.
Upon default, the secured party may attempt to take possession of the collateral
without judicial process so long as they do not commit a breach of the peace. Article 9
does not define what actions constitute a breach of the peace; however, breaking into
locked property will generally suffice. Some case law suggests that ANY opposition to
the entry or seizure, however slight, normally results in a breach of the peace.
Right to Dispose of Collateral
10.2% Appearance Rate
~
a)
Upon default, a secured party may sell, lease, license, or otherwise dispose of any or all
of the collateral in its present condition or in any commercially reasonable manner.
b)
Sale (Non-Judicial Foreclosure). Upon default, a secured party may dispose of collateral
in its possession by way of a sale so long as it is commercially reasonable as to method,
manner, time, place, and terms. Article 9 requires the secured party to send reasonable
notification of the time and place of any public sale to the debtor and any secondary
obligor in a timely manner such that the debtor and any secondary obligor have
sufficient time to take appropriate steps to protect their interests (e.g., by taking part in
the sale).
c)
Strict Foreclosure (Purchase Rules). Unless otherwise agreed, a secured party may
purchase the collateral at a public or private sale ONLY IF the collateral is of a kind that
is customarily sold on a recognized market (e.g., stock market) or the subject of widely
distributed standard price quotations.
Right to Collect Directly
a)
B.
8.2% Appearance Rate
~
6.1% Appearance Rate
~
Upon default, a secured party has the right to collect directly from the account debtor
(the person who owes the debtor on the account). To exercise this right, the secured
party must send an authenticated notification to the account debtor informing the
account debtor that the amount due has been assigned and that the payment is to be
made to the assignee. Upon receipt of proper notification, the account debtor may
discharge its payment obligation ONLY by payment to the assignee (the secured party).
Debtor’s Rights
1.
Non-Complying Disposition of Collateral
a)
10.2% Appearance Rate
~
When a creditor makes a non-complying disposition of collateral under Article 9, the
debtor can:
(1)
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Recover actual damages;
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(a)
(2)
(3)
Recover statutory damages; OR
(a)
If the collateral involved is consumer goods, the amount of minimum
statutory damages must be at least: the credit loan interest amount +
10% of the loan’s principal amount.
(b)
$500 in statutory damages is also recoverable for each violation of
certain Article 9 provisions.
Be subject to judicially mandated disposition of the collateral.
(a)
2.
If the creditor is attempting to improperly dispose of collateral, a court
may order or restrain collection, enforcement, or disposition of the
collateral on appropriate terms and conditions (e.g., the court could
order the creditor to allow the debtor to redeem the collateral, conduct
a public sale, etc.).
Right of Redemption
a)
3.
Actual damages are those reasonably calculated to put an eligible
claimant in the position that it would have occupied had no violation
occurred.
6.1% Appearance Rate
~
Generally, a debtor or any secondary obligor has the right to redeem (i.e., reclaim)
collateral until the secured party has disposed of it or entered into a contract for its
disposition. To redeem collateral, the debtor must:
(1)
Fulfill all obligations secured by the collateral; AND
(2)
Pay the reasonable expenses and attorney’s fees.
Surplus and Deficiency
10.2% Appearance Rate
~
a)
Generally, when a secured party sells or disposes of collateral, the amount collected
varies from the amount of the obligation. If the sale brings in MORE than the underlying
obligation, the secured party must pay the debtor for any surplus. Conversely, when
the sale brings in LESS than the underlying obligation, the obligor is liable for any
deficiency. However, neither side is liable for any surplus or deficiency if the underlying
transaction involves the sale of accounts, chattel paper, payment intangibles, or
promissory notes.
b)
Article 9 does not expressly address the right of a creditor to recover any deficiency
in a consumer goods transaction after violating Article 9. Different jurisdictions have
adopted the following two rules to address this issue:
(1)
Absolute Defense. Some jurisdictions deny the secured creditor ANY deficiency
if they violate Article 9.
(2)
Rebuttable Presumption Rule. In some jurisdictions, if the secured creditor
violates Article 9, it is presumed that the proceeds from the disposition (i.e.,
sale) are equal to the debt owed. In order to rebut, the secured creditor then
has the burden to show that even at a complying disposition, the collateral is
worth less than the amount owed by the debtor.
(a)
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For non-consumer goods transactions, Article 9 expressly applies the
rebuttable presumption rule.
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