July 2021
PDF
Flashcards
Uniform Bar Exam / Multistate Essay Exam
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
Studicata UBE/MEE Flashcards
Copyright 2021 Studicata
All rights reserved. No part of this document may be reproduced in
any form or by any means without express consent of Studicata.
Contact Information
Please email any questions, comments, or concerns to:
info@studicata.com
© 2021 Studicata | www.studicata.com
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
Printing Instructions
Step 1: Print the PDF.
Step 2: Fold each page down the
middle along the dotted vertical line.
Step 3: Cut the solid horizontal lines.
Step 4: Have fun!
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
An agency relationship is created when:
CREATION OF AGENCY
TERMINATION OF AGENCY
BY THE PARTIES
1. The parties voluntarily consent to
enter into an agency relationship; AND
2. The agent is subject to the principal's
control.
The agency relationship may be terminated by
the parties if the:
1. Agent or principal manifests to the other the
desire to cease the agency relationship;
2. Express terms of the agency expire; OR
3. Purpose of the agency relationship is fulfilled.
The agency relationship may be
terminated by operation of law if the:
TERMINATION OF AGENCY
BY OPERATION OF LAW
AUTHORITY OF AGENT TO
BIND PRINCIPAL
1. Agent or principal dies;
2. Agent or principal loses capacity; OR
3. Agent materially breaches a fiduciary
duty owed to the principal.
An agent may bind a principal to a
contract if the agent is acting within his
actual or apparent authority. Once a
principal is validly bound to a contract
by his agent, the principal is liable
under the terms of the contract.
An agent acts with actual express authority when
the principal directs him to engage in a specific task.
ACTUAL AUTHORITY
Express vs. Implied
An agent acts with actual implied authority when
the agent believes, based on a reasonable
interpretation of the principal's words or conduct,
that the principal wishes him to act on the principal's
behalf.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
An agent acts with apparent authority when:
APPARENT AUTHORITY
INHERENT AGENCY POWER
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.
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 damage.
An employer (principal) may be liable for
torts committed by an employee (agent) if:
RESPONDEAT SUPERIOR
INDEPENDENT
CONTRACTORS AND
PRINCIPAL LIABILITY
1. An employer-employee relationship exists;
AND
2. The employee's commission of the tort
occurs within the scope of employment.
Generally, a principal is not liable in tort for the unauthorized conduct
of an independent contractor. The principal's amount of control over
the agent 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, etc.);
5. The length of the employment; AND
6. How the parties characterize the transaction.
An agent owes the following fiduciary duties to the
principal:
FIDUCIARY DUTIES OF THE
AGENT
1. The duty to act with reasonable care and skill;
2. The duty to act loyally for the principal's sole
benefit; AND
3. The duty to act obediently within the principal's
control.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
GENERAL PARTNERSHIP [GP]
FORMATION
LIMITED PARTNERSHIP [LP]
FORMATION
LIMITED LIABILITY
PARTNERSHIP [LLP]
FORMATION
TORT LIABILITY OF THE
PARTNERSHIP
TORT LIABILITY OF GENERAL
PARTNERS
A GP is a type of partnership that has
no limited personal liability. A GP is
formed when:
1. Two or more person;
2. Associate as co-owners;
3. To carry on a business for profit.
An LP consists of one or more general
partners and one or more limited
partners. An LP is formed when a
written certificate of limited partnership
is executed in substantial compliance
with state law and filed with the
secretary of state.
An LLP limits a partner's potential liability for
professional malpractice that is committed by
another partner. Any partnership may become
an LLP upon the:
1. Approval of the partners by vote; AND
2. Filing a statement of qualification with the
secretary of state.
A general partnership, limited partnership, or
limited liability partnership 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.
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
TORT LIABILITY OF LIMITED
PARTNERS
CONTRACT LIABILITY OF THE
PARTNERSHIP
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.
The actions of every partner that are made within the
ordinary course of business to carry on the
partnership's business 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.
General partners are jointly and severally liable
for all debts and obligations of the partnership.
CONTRACT LIABILITY OF THE
PARTNERS
TRANSFER OF A PARTNER'S
INTEREST
PARTNERS' RIGHTS TO
MANAGE AND CONTROL
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.
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.
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
Absent an agreement to the contrary, a partner
may only use partnership property:
USE OF PARTNERSHIP
PROPERTY
1. On behalf of the partnership; OR
2. To carry on the business of the partnership.
Any personal use of partnership property
requires the consent of the other partners.
PARTNER ACCESS TO BOOKS
AND RECORDS
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.
Absent an agreement to the contrary, each
partner is generally:
PARTNER SHARING OF
PROFITS AND LOSSES
THE PARTNERS' DUTY OF
CARE
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.
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.
Each partner owes a fiduciary duty of loyalty to the partnership
and other partners, which requires that each partner:
THE PARTNERS' DUTY OF
LOYALTY
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 competing with the partnership or 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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
DISSOLUTION VS. "WINDING
UP"
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.
There are three main causes of dissolution:
PARTNERSHIP DISSOLUTION
CAUSES
DISASSOCIATION OF A
PARTNER
Under The Uniform Partnership
Act [UPA]
DISASSOCIATION OF A
PARTNER
Under The Revised Uniform
Partnership Act [RUPA]
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).
Under the UPA, any change in
partner membership automatically
triggers dissolution of the
partnership unless there is an
agreement to the contrary.
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:
1. The partnership is an at-will partnership; OR
2. There is an occurrence of an event that the partners specified
in the partnership agreement that would cause dissolution (e.g.,
term partnerships).
Under RUPA, a term partnership may be dissolved
before its term expires if:
TERM PARTNERSHIP
DISSOLUTION
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, bankruptcy, becoming
incapacitated, or wrongful disassociation; OR
2. All of the partners agree to amend the partnership
agreement by expressly agreeing for dissolution.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
CORPORATION FORMATION
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).
AMENDING THE ARTICLES
OF INCORPORATION
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.
CORPORATE BYLAWS
Corporate bylaws are written rules of conduct that
must be initially adopted by the incorporators or
board of directors. The bylaws may contain any
provision for managing the business and regulating
the affairs of the corporation to the extent that is
consistent with the law and articles of incorporation.
If there is a conflict between the articles and bylaws,
the articles of incorporation govern.
AMENDING CORPORATE
BYLAWS
Corporate 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.
PROMOTER LIABILITY
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 transaction
know that the corporation has not yet been formed, unless:
1. There is a novation where the parties agree to release the promoter
from liability in favor of holding the corporation solely liable; OR
2. The promoter is able to obtain indemnity from the corporation.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
A corporation is not bound by any pre-incorporation
contracts that were entered into by promoters unless
the corporation adopts such contracts.
CORPORATE ADOPTION
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).
Courts will allow a creditor to pierce the corporate veil
and hold a shareholder personally liable for the debts
of a corporation when:
PIERCING THE CORPORATE
VEIL
COMMON STOCK
1. The shareholder has dominated the corporation to the
extent that the corporation may be considered the
shareholder's alter ego;
2. The shareholder failed to follow corporate formalities;
3. The corporation was undercapitalized; OR
4. There is fraud or illegality present.
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 that have been
paid in full).
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:
PREFERRED STOCK
AUTHORIZED SHARES
1. Entitled to receive payment of dividends before any payment
of dividends to another class of stockholders [e.g., common
stockholders]; OR
2. Entitled, in the event of liquidation or dissolution, to receive
any payments or distributions before another class of
stockholders (e.g., common stockholders).
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
OUTSTANDING SHARES
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.
TREASURY STOCK
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.
STOCK OPTIONS
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.).
SHARE RIGHTS WITHIN A
CLASS OF STOCK
All shares within a class of
stock must have identical
rights and preferences unless
the shares within a class are
divided into separate series.
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.
PREEMPTIVE RIGHTS
Unless otherwise set forth in the articles, preemptive rights do not
exist for:
1. Preferred shares that cannot be converted to common stock;
2. Shares sold for a consideration other than cash; OR
3. Shares issued by majority shareholder vote to directors, officers, or
employees.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
DIVIDEND AND
DISTRIBUTION RIGHTS
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.
ISSUANCE OF
CONSIDERATION FOR
SHARES
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.). Absent fraud or bad faith,
the judgment of the board of directors as to the
consideration received for the shares issues is
conclusive.
ANNUAL AND SPECIAL
MEETINGS
NOTICE OF SHAREHOLDER
MEETINGS
SHAREHOLDER QUORUM
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).
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).
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
NON-VOTING SHARES
The articles of incorporation
may provide that holders of
certain types of shares cannot
vote unless specific conditions
are satisfied.
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.
ELECTION OF DIRECTORS
Shareholders elect directors either directly (each
share equals one vote) or cumulatively. 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.
Cumulative voting is usually a more favorable
method to represent the interests of minority
shareholders.
VOTE BY PROXY
CORPORATE INSPECTION OF
BOOKS AND RECORDS
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. A proxy is freely revocable by the shareholder
unless the recipient of the proxy has an economic
interest in the shares.
A shareholder possesses the right to inspect corporate books
and records during regular business hours 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.
Generally, a shareholder must make a written demand to
inspect corporate books and records and allow the corporation
a reasonable amount of time to respond (usually 5 days).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
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.
AUTHORITY OF DIRECTORS
AUTHORITY OF OFFICERS
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.
The board of directors generally delegates day-today 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.
Directors and officers owe the corporation a fiduciary
duty of care. This duty includes:
DIRECTOR AND OFFICER
DUTY OF CARE
BUSINESS JUDGMENT RULE
[BJR]
CONFLICTING INTEREST
TRANSACTIONS
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.
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.
Directors and officers have a duty to avoid implicating their
personal conflicting 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:
1. 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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
A director/officer that enters into a conflicting interest transaction
may be protected from liability if:
SAFE HARBORS
CORPORATE OPPORTUNITY
DOCTRINE
MERGERS AND
CONSOLIDATIONS
SHORT-FORM MERGERS
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.
The corporate opportunity doctrine
prohibits directors and officers from
usurping business opportunities that
rightfully belong to the corporation for
their own benefit.
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.
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.
After a merger or consolidation takes place,
dissenting shareholders opposed to the merger
or consolidation may either:
DISSENTERS' RIGHTS
1. Challenge the action; OR
2. Receive payment determined at the fair
market value of their shares immediately before
the merger/consolidation took effect.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
SHAREHOLDER APPROVAL
FOR SUBSTANTIAL SALE OF
CORPORATE ASSETS
DERIVATIVE CLAIMS
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).
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.
If successful, the proceeds go to the corporation. However, if the
award to the corporation benefits the defendants, the court may
order that damages be paid directly to the shareholder who
brought the action.
DERIVATIVE CLAIMS
DEMAND REQUIREMENT
DIRECT CLAIMS
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.
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).
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
FEDERAL QUESTION JURISDICTION
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.
WELL-PLEADED COMPLAINT RULE
For federal question jurisdiction to apply,
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.
A federal court has SMJ under diversity jurisdiction
if:
DIVERSITY JURISDICTION
INDIVIDUALS' CITIZENSHIP FOR
DIVERSITY PURPOSES
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; AND
2. The amount in controversy exceeds $75,000.
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.
Corporations hold dual citizenship:
CORPORATIONS' CITIZENSHIP FOR
DIVERSITY PURPOSES
1. The state or country of incorporation; AND
2. The state or country of its principal place
of business (i.e., the "nerve center" - usually
where corporate headquarters are located).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
UNINCORPORATED
ASSOCIATIONS' CITIZENSHIP FOR
DIVERSITY PURPOSES
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.
SUPPLEMENTAL JURISDICTION
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).
COMPULSORY COUNTERCLAIMS
A compulsory counterclaim is a
counterclaim 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.
PERMISSIVE COUNTERCLAIMS
A permissive counterclaim is a counterclaim 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).
REMOVAL
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. In diversity actions,
there is an additional requirement - the defendant may
remove 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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
If any of the following 4 traditional bases are
satisfied, the court will have personal jurisdiction
over the defendant:
TRADITIONAL BASES
STATE LONG-ARM STATUTES
1. Domicile (D is domiciled in the forum state)
2. Physical Presence (D is served in the forum state)
3. Consent (D consents to PJ)
4. Waiver (D waives his objections to PJ)
If none of the traditional bases are satisfied, a court may
still obtain personal jurisdiction over the defendant 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; AND
2. The exercise of such jurisdiction does NOT offend
traditional notions of fair play and substantial justice.
GENERAL JURISDICTION
General Jurisdiction is present when the
defendant is "essentially at home" in the forum
state (usually limited to the locations where the
defendant is a citizen). 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).
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:
SPECIFIC JURISDICTION
SERVICE OF PROCESS
1. The defendant purposefully availed himself of the benefits
of the forum state; AND
2. The defendant knew or reasonably should have anticipated
that his activities in the forum state made it foreseeable that
he may be "haled into court" there.
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
An individual within a judicial district of the United States may be
served by:
SERVING AN INDIVIDUAL WITHIN
THE UNITED STATES
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:
SERVING AN INDIVIDUAL IN A
FOREIGN COUNTRY
SERVING A CORPORATION,
PARTNERSHIP, OR ASSOCIATION
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.
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 determines the judicial district in which a lawsuit may be
filed or commenced. Venue is proper in a judicial district where:
VENUE
INDIVIDUALS' RESIDENCE FOR
VENUE PURPOSES
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.
An individual is deemed to reside in
the judicial district where he is
domiciled.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
BUSINESS ENTITIES' RESIDENCE
FOR VENUE PURPOSES
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.
FOREIGN DEFENDANTS'
RESIDENCE FOR VENUE PURPOSES
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.
CHANGE OF 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).
If venue is improper, the court MUST:
CHANGE OF IMPROPER VENUE
CHOICE OF LAW IN A CHANGE OF
PROPER VENUE
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).
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. If the transferor
court had proper venue:
1. In a diversity case, the transferee court must apply the law
that would have been applied in the district court that
transferred the case.
2. In a federal question case, the transferee court must apply
the federal law as interpreted by its own federal court of
appeals.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
CHOICE OF LAW IN A CHANGE OF
IMPROPER VENUE
ABSTENTION
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. If the transferor court had improper
venue:
1. In a diversity case, the transferee court must apply the choice-oflaw rules of the state in which it is located, as opposed to the state law
of the district court that transferred the case.
2. In a federal question case, the transferee court must apply the
federal law as interpreted by its own federal court of appeals.
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.
A preliminary injunction preserves the status quo of the parties
until a final judgment on the merits can be reached. A plaintiff
seeking a preliminary injunction must establish that:
PRELIMINARY INJUNCTIONS
NOTICE REQUIREMENT FOR
PRELIMINARY INJUNCTIONS
TEMPORARY RESTRAINING
ORDERS (TROs)
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.
The non-moving party MUST be
given notice and an opportunity to
oppose the preliminary injunction at
a hearing before the court.
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. 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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
The court may issue a TRO without written or oral notice
to the non-moving party ONLY IF:
EX PARTE NOTICE FOR
TEMPORARY RESTRAINING
ORDERS (TROs)
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.
The complaint is the first pleading filed by the
plaintiff - it commences the lawsuit. A complaint
MUST state:
THE COMPLAINT
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.
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:
THE PRE-ANSWER MOTION
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.
After the complaint is filed, the defendant may file a pre-answer
motion or respond with the answer. The answer MUST state:
THE ANSWER
AMENDMENTS TO PLEADINGS BY
RIGHT
1. A specific denial or admission of each allegation in the
complaint OR a general denial of all allegations with specific
admissions if necessary (a failure to deny an allegation
constitutes an admission); AND
2. Any affirmative defenses that the respondent has (or that
defense is deemed waived).
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:
1. The service of the responsive pleading; OR
2. Being served with a Rule 12(b) motion.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
AMENDMENTS TO PLEADINGS BY
LEAVE OF THE COURT
RELATION BACK DOCTRINE FOR
NEW CLAIMS
RELATION BACK DOCTRINE FOR
NEW PARTIES
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:
1. Is not subject to dismissal under Rule 12(b); AND
2. Would NOT result in undue prejudice to the
opposing party.
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.
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.
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. 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:
1. It asserts a claim that arose out of the same transaction or occurrence set
out in the original pleading;
2. The party to be brought in by amendment receives notice of the action
within 120 days after the filing of the original complaint such that he will not
be prejudiced in defending his case on the merits; AND
3. 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.
A plaintiff MUST join an absent party or face dismissal of his lawsuit if:
COMPULSORY JOINDER
(INDISPENSABLE PARTIES)
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.
Parties MAY join as plaintiffs or be joined as
defendants when:
PERMISSIVE JOINDER
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
INTERPLEADER BY A PLAINTIFF
Interpleader allows a plaintiff or defendant to initiate a lawsuit
in order to compel two or more other parties to litigate a
dispute. 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:
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.
INTERPLEADER BY A DEFENDANT
Interpleader allows a plaintiff or
defendant to initiate a lawsuit in order
to compel two or more other parties to
litigate a dispute. A defendant exposed
to similar liability may seek interpleader
through a cross-claim or counterclaim.
Intervention permits a nonparty to intervene in an
action. Intervention is available as of right when:
INTERVENTION AS OF RIGHT
PERMISSIVE INTERVENTION
1. the applicant claims an interest in the property or
transaction that is the subject matter of the action;
AND
2. the disposition of the action without him may impair
his ability to protect that interest.
Intervention permits a nonparty to intervene in an
action. Intervention is permissive when the
applicant's claim or defense and the main action
have a question of law or fact in common. Permissive
intervention must be supported by its own
jurisdictional grounds and is discretionary with the
court.
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:
CLASS ACTIONS
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
Once a class action is determined to be proper, the class will be
certified if:
CERTIFICATION OF A CLASS IN A
CLASS ACTION
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.
Under Rule 26(f), the parties must confer as soon as it is practicable to:
PRETRIAL CONFERENCES
1. Consider their claims and defenses, the possibility of settlement,
initial disclosures, 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.
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:
INITIAL DISCLOSURES
SCOPE OF DISCOVERABLE
INFORMATION
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;
3. A computation of damages claimed by the disclosing party and copies of materials
upon which the computation is based; AND
4. Copies of insurance agreements under which an insurer might be liable for all or part of
any judgment that might be entered.
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.
On motion or on its own, the court is required to limit the
frequency or extent of discovery if the court determines
that:
LIMITATIONS ON DISCOVERY
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
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 order otherwise.
INTERROGATORIES
Any party may serve no more than 25 written
interrogatories on any other party. Interrogatories
may NOT be used on nonparties.. 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
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.
ATTORNEY WORK-PRODUCT
DOCTRINE
PRETRIAL CONFERENCE
SANCTIONS
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.
The court may direct counsel and unrepresented parties
to appear for pretrial conferences (to expedite the trial,
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
FAILURE TO PARTICIPATE IN THE
FRAMING OF A DISCOVERY PLAN
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) SIGNATURE
REQUIREMENT
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.
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:
RULE 11(b) REPRESENTATIONS TO
THE COURT
RULE 11(b) SANCTIONS
FAILURE TO PRESERVE
ELECTRONICALLY STORED
INFORMATION
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.
The court (on motion or on its own) may issue sanctions for
failing to comply with the Rule 11(b) signature and representations
to the court 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.
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
RULE 12(b)(6) MOTION TO DISMISS
FOR FAILURE TO STATE A CLAIM
UPON WHICH RELIEF CAN BE
GRANTED
MOTION FOR SUMMARY
JUDGMENT (MSJ)
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:
1. First, the court must identify and reject legal conclusions
unsupported by factual allegations; THEN
2. 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.
A MSJ may be filed at any time until 30 days after the
close of discovery. 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:
1. No genuine dispute of material fact exists; AND
2. The moving party is entitled to judgment as a
matter of law.
MOTION FOR JUDGMENT AS A
MATTER OF LAW (JMOL)
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. 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.
RENEWED MOTION FOR
JUDGMENT AS A MATTER OF LAW
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.
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.
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:
MOTION FOR A NEW TRIAL
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
6. A verdict that is excessive or inadequate.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
FINAL JUDGMENT RULE
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.
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:
RES JUDICATA (CLAIM
PRECLUSION)
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.
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:
COLLATERAL ESTOPPEL (ISSUE
PRECLUSION)
EFFECT OF A DEFAULT JUDGMENT
APPEAL OF INTERLOCUTORY
ORDERS
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.
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.
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:
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
The doctrine of collateral order allows a party to appeal
interlocutory rulings if the ruling decides a claim or
issue:
COLLATERAL ORDER DOCTRINE
MANDAMUS REVIEW
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.
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
VESTED RIGHTS APPROACH
GOVERNMENTAL INTEREST
APPROACH
MOST SIGNIFICANT
RELATIONSHIP APPROACH
EXPRESS CHOICE OF LAW
CLAUSES IN CONTRACTS
VESTED RIGHTS APPROACH
IN CONTRACTS
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).
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:
1. The policies behind the respective laws in the forum
and the other jurisdiction; AND
2. Whether it is reasonable for the respective
jurisdictions to assert an interest in the application of
those policies under the circumstances.
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:
1. Relevant policies of the forum and other interested
jurisdictions;
2. Relevant policies underlying the field of law at issue;
3. Uniformity of result; AND
4. Ease of application of the law to be applied.
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. 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.
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
MOST SIGNIFICANT
RELATIONSHIP APPROACH
IN CONTRACTS
VESTED RIGHTS APPROACH
IN TORTS
MOST SIGNIFICANT
RELATIONSHIP APPROACH
IN TORTS
CHOICE OF LAW
APPLICATION IN REAL
PROPERTY
CHOICE OF LAW
APPLICATION IN
DECEDENTS' ESTATES
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:
1. The place where the contract was formed;
2. The place where the contract was negotiated;
3. The place of performance;
4. The location of the subject matter of the contract; AND
5. The connection of the parties to the forum (e.g., domicile,
residence, place of incorporation, etc.).
Under the traditional vested
rights approach, the court will
apply the law of the
jurisdiction where the injury
occurred.
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:
1. The place of the injury;
2. The place where the conduct that caused the injury occurred;
3. The connection of the parties to the forum (e.g., domicile,
residence, place of incorporation, etc.); AND
4. The place where the relationship between the parties is
centered.
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 the case than the jurisdiction where
the real property is located.
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
Generally, courts use their own law for
procedural issues and the law of other
jurisdictions (if necessary) for substantive issues.
SUBSTANCE VS. PROCEDURE
ERIE DOCTRINE
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).
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.
Choice of law issues are considered substantive;
therefore, a federal court sitting in diversity must apply
the forum state's choice of law rules.
FULL FAITH AND CREDIT
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. A court is not required to enforce the
judgment of another court if:
1. The other court lacked valid jurisdiction;
2. The other court's judgment was procured by fraud;
3. The other court's judgment was not entered on the merits; OR
4. The other court's judgment was not final ( judgments on
appeal).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
The 11th Amendment is a jurisdictional bar that
prohibits:
STATE SOVEREIGN IMMUNITY
(11th AMENDMENT)
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.
The following are exceptions to the application of the 11th Amendment:
11TH AMENDMENT EXCEPTIONS
1. Consent. A state may consent to a suit by waiving its 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 will have to pay.
4. Congressional Authorization. Congress may abrogate state immunity
from liability it is clearly and expressly acting to enforce rights created by
the 14th Amendment.
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:
STANDING
TAXPAYER STANDING
1. 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.
2. Causation. The injury must be fairly traceable to the challenged action (i.e.,
the the defendant's conduct caused the injury).
3. Redressability. It must be likely that a favorable court decision will redress
an injury suffered by the plaintiff.
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.
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 third party if:
THIRD PARTY STANDING
1. The third party would experience difficulty or is unable to
assert their own rights;
2. There is a special relationship between the plaintiff and the
third party; OR
3. The plaintiff's injury adversely affects the plaintiff's relationship
with the third party.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
ORGANIZATIONAL STANDING
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.
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.
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).
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).
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
MOOTNESS IN 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.
ADVISORY OPINIONS
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 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.
NECESSARY AND PROPER
POWER
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.
Congress has the power to tax, and
most taxes will be upheld if:
TAXING POWER
1. They bear some reasonable
relationship to revenue production; OR
2. Congress has the power to regulate
the activity taxed.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
SPENDING POWER
Congress may spend to "provide
for the common defense and
general welfare." Spending may
be for any public purpose.
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:
COMMERCE POWER
13th, 14th, AND, 15th AMENDMENT
ENFORCEMENT POWER
1. Channels of interstate commerce;
2. Instrumentalities of interstate commerce and persons
and things in interstate commerce; OR
3. Activities that have a substantial effect on interstate
commerce.
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.
Legislative power may generally be delegated
to the executive or judicial branch provided that:
DELEGATION OF LEGISLATIVE
POWER
1. Intelligible standards are set to the guide the
delegation; AND
2. The power is NOT uniquely confined to
Congress (e.g., power to declare war).
The President has the power to:
THE PRESIDENT'S DOMESTIC
POWERS
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
VETO 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.
LINE ITEM VETO
The President may NOT exercise a
line item veto (refusing part of a
bill and approving the rest).
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:
SCOPE OF PRESIDENTIAL POWER
THE PRESIDENT'S FOREIGN
POWERS
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.
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.
Treaties. The President has the exclusive power to negotiate treaties,
although a treaty may only be ratified with the concurrence of twothirds of the Senate.
Executive Agreements. The President has the power to enter into
executive agreements (e.g., trade agreements) with foreign nations
without approval the Senate.
EXECUTIVE PRIVILEGE
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
EXECUTIVE IMMUNITY
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
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.
EXCLUSIVE FEDERAL POWERS
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). 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).
EXCLUSIVE STATE 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.
FEDERAL REGULATION OF
STATES
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, it may encourage state
action through the use of its taxing and spending
powers.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
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:
DORMANT COMMERCE CLAUSE
1. Discriminate against out-of-state commerce;
2. Unduly burden interstate commerce; OR
3. 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.
SUPREMACY CLAUSE
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.
Federal law expressly preempts state law when:
EXPRESS PREEMPTION
1. The Constitution makes the federal power
exclusive; OR
2. Congress has enacted legislation that
explicitly prohibits state regulation in the same
area.
Federal law implicitly preempts state law when:
IMPLIED PREEMPTION
STATE ACTION REQUIREMENT
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.
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).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
PROCEDURAL DUE PROCESS
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 take a person's life, liberty, or property. Only
intentional (not negligent) deprivation of these rights violates the Due
Process Clause. 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.
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. Fundamental rights, triggering strict scrutiny, include:
SUBSTANTIVE DUE PROCESS
STANDARD OF REVIEW: STRICT
SCRUTINY
1. The right to interstate travel;
2. The right to vote; AND
3. The right to privacy (includes: right to marry; right of married persons to
use contraceptives; right of adults to engage in non-commercial, consensual
sex; right of parents to make decisions regarding the care, custody, and
control of their children; the right of related persons to live together in a
single household)
The government must prove that
the regulation is the least
restrictive means to achieve a
compelling government interest
(very difficult to prove).
STANDARD OF REVIEW:
INTERMEDIATE SCRUTINY
The government must prove that
the regulation is substantially
related to an important
government interest.
STANDARD OF REVIEW:
RATIONAL BASIS
The challenger must prove that
the regulation is not rationally
related to any legitimate
government interest (very difficult
to prove).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
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:
EQUAL PROTECTION CLAUSE
GOVERNMENTAL INTENT IN
EQUAL PROTECTION
AFFIRMATIVE ACTION
TAKINGS CLAUSE
1. 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).
2. 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).
3. For all other classifications (e.g., age, disability, and wealth classifications),
the rational basis standard applies.
For strict or intermediate scrutiny to be applied in an equal
protection analysis, 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.
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.
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;
3. With just compensation (fair market value).
Generally, a governmental regulation that adversely affects a person's
property interest is not a taking; however, it is possible for a regulation to
rise to level of a taking (requiring just compensation). In determining whether
a regulation constitutes a taking, the following factors are considered:
REGULATORY TAKINGS
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).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
A governmental regulation clearly results in
a taking when the regulation results in a:
PER SE TAKINGS
1. Permanent physical occupation of the
property; OR
2. Permanent total loss of the property's
economic value.
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:
EXACTION AS A TAKING
PRIVILEGES AND IMMUNITES
CLAUSE
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.
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.). However, discrimination against out-ofstate 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.
EX POST FACTO LAWS
BILLS OF ATTAINDER
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.
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
FREEDOM NOT TO SPEAK
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).
OVERBREADTH DOCTRINE
Under the 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.
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)
CONTENT-BASED SPEECH
REGULATIONS
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).
Speech regulations are content-based if
they prohibit communication of specific
ideas. 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.).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
Content-neutral speech regulations
generally must:
CONTENT-NEUTRAL SPEECH
REGULATIONS
CONDUCT-BASED TIME, PLACE,
AND MANNER SPEECH
REGULATIONS
CONDUCT-BASED SPEECH
REGULATIONS IN PUBLIC
FORUMS
CONDUCT-BASED SPEECH
REGULATIONS IN NONPUBLIC
FORUMS
1. Advance important interests unrelated
to the suppression of speech; AND
2. Not burden substantially more speech
than necessary to further those interests.
The government has power to regulate
the conduct associated with speech
(time, place, and manner), although the
breadth of this power depends on
whether the forum involved is a public
or nonpublic forum.
Public property that has historically been open to speech-related activity is
called a public forum (e.g., streets, sidewalks, and public parks). 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). The government may regulate speech in public forums and
designated public forums with reasonable time, place, and manner
regulations that:
1. Are content-neutral (i.e., are subject matter and viewpoint neutral)
2. Are narrowly tailored to serve an important government interest; AND
3. Leave open alternative channels of communication.
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). 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.). The government may regulate speech in limited
public forums and nonpublic forums if the regulations are:
1. Viewpoint neutral; AND
2. Reasonably related to a legitimate government purpose
CATEGORIES OF UNPROTECTED
SPEECH
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:
1. Inciting imminent lawless action;
2. Fighting words;
3. Obscenity;
4. Defamatory speech; AND
5. Some commercial speech
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
INCITING IMMINENT LAWLESS
ACTION
Speech can be restricted if it creates a
clear and present danger of imminent
lawless action. It must be shown that
that:
1. Imminent illegal conduct is likely; AND
2. The speaker intended to cause it.
FIGHTING WORDS
Speech 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. 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).
Obscene speech is not protected. Speech is
obscene if it describes or depicts sexual conduct
that, taken as a whole, by the average person:
OBSCENITY
COMMERCIAL SPEECH
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.
Generally, commercial speech (e.g., advertising) 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:
1. Serves a substantial government interest;
2. Directly advances that interest; AND
3. Is narrowly tailored to serve that interest.
FREEDOM OF ASSOCIATION
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. 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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
FREE EXERCISE CLAUSE
The Free Exercise Clause prohibits government from
punishing someone on the basis of her religious
beliefs or interfering with her exercise of religion.
However, the government can deny benefits or
impose a restriction on someone based on her
religious beliefs so long as there is a compelling
interest that satisfies strict scrutiny (the Supreme
Court has never found an interest so compelling that
it justifies such action).
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:
ESTABLISHMENT CLAUSE
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
COMMON LAW vs. UCC
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 real estate or services;
2. The UCC governs if a contract deals with
goods.
MIXED CONTRACTS: PREDOMINATE
PURPOSE TEST
For mixed contracts (contracts that have elements of
both services and goods,) the predominant purpose
of the contract determines whether the common law
or UCC governs.
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.
A traditional, enforceable contract is formed
when there is:
CONTRACT FORMATION
REQUIREMENTS
1. Mutual assent (an offer + valid acceptance of
that offer);
2. Consideration; AND
3. No defenses to formation that would
invalidate the otherwise valid contract.
To form an offer, the offeror must:
THE OFFER
ADVERTISEMENTS AS OFFERS
1. Manifest a willingness to enter into an
agreement; AND
2. Create a power of acceptance in the
offeree.
An advertisement is usually considered an
invitation to deal rather than an offer. This is
because an advertisement usually fails 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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
TERMS REQUIRED IN THE OFFER
UNDER THE COMMON LAW
TERMS REQUIRED IN THE OFFER
UNDER THE UCC
REQUIREMENTS AND OUTPUT
CONTRACTS
Under the common law, all essential terms must
be specified in the offer. Generally, this includes
the following four terms:
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 must be specified in the offer:
1. Parties;
2. Subject; AND
3. Quantity.
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.
There are seven main ways that the offer can be terminated:
TERMINATING THE OFFER
OPTION CONTRACTS
1. The offeror can revoke the offer by express communication to
the offeree at any time before acceptance;
2. The offeree learns that the offeror has taken an action that is
absolutely inconsistent with a continuing ability to contract;
3. The offeree rejects the offer;
4. The offeree makes a counteroffer;
5. The offeror dies; OR
6. A reasonable amount of time passes.
7. The subject matter of the offer becomes illegal or is
destroyed.
The offeror is normally free to revoke his offer at
any time prior to acceptance; however, option
contracts are irrevocable. An option contract is
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.").
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
FIRM OFFERS
The offeror is normally free to revoke his offer at any time prior
to acceptance; however, firm offers are irrevocable. Under the
UCC, a merchant can make a firm offer to buy or sell goods,
which 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:
1. Be in writing;
2. Contain an explicit promise not to revoke; AND
3. Be signed by the merchant.
IRREVOCABLE OFFER: DETRIMENTAL
RELIANCE
An offer cannot be revoked if the
offeree reasonably and detrimentally
relies on the offer in a foreseeable
manner.
ACCEPTANCE
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).
MASTER OF THE OFFER
The offeror is the master of the offer,
which means that the offeree MUST
accept the offer according to the rules
of the offer.
An ACCEPTANCE that is sent by mail, email, or fax is valid at the moment of
dispatch (not when the letter is received), UNLESS:
MAILBOX RULE
1. The offeree-sender uses the wrong address or has improper postage;
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
5. The offeror detrimentally relies on a termination BEFORE he receives the
acceptance letter.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
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).
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:
UCC § 2-207(1)
UCC § 2-207(2)
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.
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 (nonconflicting terms) will govern the
contract if BOTH parties are merchants UNLESS:
1. The initial offer expressly limited acceptance to its terms;
2. The additional terms materially alter the deal; OR
3. The offeror objects to the additional terms within a reasonable
amount of time.
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.
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).
THE KNOCKOUT RULE
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.
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:
CONSIDERATION
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
2. The promise induces the detriment AND the detriment induces
the promise (i.e., a "bargained-for exchange").
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
GIFT PROMISES AND CONDITIONAL
GIFTS
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.).
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 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.).
PRETENSE OF CONSIDERATION
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.).
ILLUSORY PROMISES
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 bargained-for
consideration.).
PAST CONSIDERATION
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.).
CONTRACT MODIFICATION UNDER
THE COMMON LAW
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 you are
already legally obligated to do (by contract
or otherwise) is NOT consideration.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
CONTRACT MODIFICATION UNDER
THE UCC
Under the UCC, there is no
consideration requirement to modify a
contract. A contract modification is valid
if it is made in good faith.
Promises that lack consideration may still be enforced
under the doctrine of promissory estoppel if:
PROMISSORY ESTOPPEL
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.
Contracts that lack consideration may be enforced
to avoid unfair results if:
QUASI-CONTRACT
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.
MORAL OBLIGATION + SUBSEQUENT
PROMISE
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.
INCAPACITY
A party must have capacity to enter into a contract.
Minors (under 18) generally lack capacity per se.
Intoxicated persons receive protection only if the other
side had reason to know of their intoxication. If a party
to a contract lacks capacity, the contract is voidable.
However, if the contract involves the purchase of
necessaries, the party lacking capacity must still pay fair
value for the necessaries. A party lacking capacity can
ratify the deal by keeping the benefits of the contract
after capacity is obtained.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
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:
MUTUAL MISTAKE
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 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:
UNILATERAL MISTAKE
MISREPRESENTATION
DURESS
UNDUE INFLUENCE
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.
A misrepresentation is a statement made at the time of
contracting that is not true. It can be intentional (fraudulent) or
accidental. To assert this defense to contract formation, the party
must show:
1. A misrepresentation of a present fact (not opinion);
2. That is material OR fraudulent (knowingly/reckless]) AND
3. That is made under circumstances in which it is justifiable to
rely on the representation.
Duress is an improper threat that
deprives a party from making a
meaningful choice to contract.
Contracts induced by duress are
generally voidable.
Undue influence arises when a party's
assent is induced due to his
susceptibility to pressure and the other
side's excessive use of pressure (usually
voidable).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
ILLEGALITY
If the consideration or performance
under a contract is illegal or contrary to
public policy, the contract is void and
will not be enforced. However, a legal
contract entered in furtherance of an
illegal purpose may still be enforced.
UNCONSCIONABILITY
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. Some courts require both
procedural unconscionability (defects in the
bargaining process) and substantive
unconscionability (terms of the deal are grossly
one-sided) to refuse to enforce a contract.
The following contracts are not valid unless they satisfy the
statue of frauds:
TRIGGERING THE STATUTE OF FRAUDS
1. A contract made in consideration of marriage;
2. A contract promising to guarantee the debt of another;
3. A contract that by its terms cannot be performed within one
year from its making;
4. A contract involving the purchase or sale of goods for $500
or more; AND
5. A contract to transfer, receive, or create an interest in real
estate.
A writing will satisfy the statute of frauds if
the writing:
SATISFYING THE STATUTE OF FRAUDS
WITH A WRITING
SATISFYING THE STATUTE OF FRAUDS
WITH PERFORMANCE OF A SERVICES
CONTRACT
1. Is signed by the party to be charged;
2. Shows that a contract was formed; AND
3. Contains all the requisite terms of the
deal.
Full performance of a services contract
by either side satisfies the statute of
frauds.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
SATISFYING THE STATUTE OF FRAUDS
WITH PERFORMANCE OF A REAL
ESTATE CONTRACT
SATISFYING THE STATUTE OF FRAUDS
WITH PERFORMANCE OF A GOODS
CONTRACT
Part performance of a real estate contract can
satisfy the statute of frauds if any two of the
following three are met:
1. Buyer takes possession of the property;
2. Buyer makes payment in full or part; AND/OR
3. Buyer makes substantial improvements to the
land.
Part performance on a goods contract
satisfies the statute of frauds, BUT ONLY
for the quantity received and accepted.
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:
PAROL EVIDENCE RULE (PER)
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.
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.
MERGER CLAUSES
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 for
parol evidence purposes.
The PER does NOT apply if any of the following exceptions exist:
EXCEPTIONS TO THE PAROL
EVIDENCE RULE (PER)
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
EXPRESS WARRANTIES
Under the UCC, an express warranty is created
when the seller makes any affirmation of fact or
promise, description, or uses a sample or model
as part of the basis of the bargain with the
buyer. Disclaimers that grossly conflict with
express warranties are unenforceable. A seller is
liable for breach of contract if she violates an
express warranty.
IMPLIED WARRANTY OF
MERCHANTABILITY
Under the UCC, all merchants make an implied warranty (unless disclaimed)
that the goods being sold are fit for their ordinary commercial purposes. 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 this warranty. The disclaimer may be made orally so long as the
term "merchantability" is used. 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. Merchants are liable for breach of contract if the
implied warranty of merchantability is violated.
IMPLIED WARRANTY OF FITNES FOR A
PARTICULAR PURPOSE
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. 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. A party is liable for breach of contract if she
violates the implied warranty of fitness for a particular purpose.
IMPLIED OBLIGATION OF GOOD
FAITH AND FAIR DEALING
PERFORMANCE UNDER THE
COMMON LAW
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.
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
PERFORMANCE UNDER THE UCC
Under the UCC, perfect tender is required, which means that a
seller must deliver perfectly conforming goods in accordance
with the terms of the contract. The smallest nonconformity is a
breach that allows the buyer to reject all or a portion of the
goods. If the seller fails to tender perfect goods, the buyer must
give the seller a chance to cure the nonconformity if:
1. The time for performance under the contract has not yet
expired; OR
2. The seller has reasonable grounds to believe that the buyer
would accept a replacement for the nonconformity.
PERFORMANCE OF INSTALLMENT
CONTRACTS UNDER THE UCC
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.
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:
REVOCATION OF ACCEPTANCE OF
NONCONFORMING GOODS UNDER
THE UCC
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.
A party's duty to perform under a contract is discharged if:
IMPOSSIBILITY AND
IMPRACTICABILITY
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: (a) performance becomes
illegal after the contract is formed; (b) the subject matter of the
contract is destroyed; or (c) there is a services contract to hire a
"uniquely skilled" individual who dies or becomes incapacitated.
A party's duty to perform under a contract is discharged
if:
FRUSTRATION OF PURPOSE
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
A party is discharged from their obligations under a valid
contract when there has been an accord and satisfaction.
ACCORD AND SATISFACTION
An accord is an agreement between two contracting parties to
accept alternate
performance to discharge a preexisting duty between them.
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.
NOVATION
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 discharged from performance
(the substitute becomes 100% liable for
the performance).
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). When an anticipatory
repudiation occurs, the non-repudiating party may:
ANTICIPATORY REPUDIATION UNDER
THE COMMON LAW
RETRACTION OF ANTICIPATORY
REPUDIATION UNDER THE COMMON
LAW
ANTICIPATORY REPUDIATION UNDER
THE UCC
1. Treat the repudiation as a breach and sue immediately for damages
(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); OR
2. Ignore the repudiation, urge performance, and see what happens
(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).
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: (a) the buyer or seller makes an
unequivocal refusal to perform; or (b) 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. When an anticipatory repudiation occurs,
the non-repudiating party may:
1. Treat the repudiation as a breach and sue immediately for damages (however, if the date
of performance has not passed and the only performance left is payment, the nonrepudiating party must wait until performance is due and the actual breach occurs before
filing suit); OR
2. Ignore the repudiation, urge performance, and see what happens (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).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
RETRACTION OF ANTICIPATORY
REPUDIATION UNDER THE UCC
Under the UCC, anticipatory
repudiation may be retracted until the
non-repudiating party cancels the
contract or materially changes his
position.
EXPECTATION DAMAGES
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.
RELIANCE DAMAGES
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.
RESTITUTION
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.
LIQUIDATED DAMAGES
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
PUNITIVE DAMAGES
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.
SPECIFIC PERFORMANCE
Specific performance is awarded ONLY
when monetary damages are considered
inadequate to compensate the injured party.
Specific performance is presumptively
available for real estate transactions, and is
presumptively NOT available for contracts of
personal service.
RESCISSION
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)
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.
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.
DUTY TO MITIGATE DAMAGES
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
THIRD-PARTY BENEFICIARY
CONTRACTS
ASSIGNMENT
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.
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.
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. 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. If the contract invalidates assignments, then the assignment is
VOID and the assignee cannot enforce the assignment or recover. An
assignee has the right to sue the obligor for non-performance. However, any
defense to enforcement that could be used against the assignor may also
be used against the assignee. An assignee also has the right to sue the
assignor for wrongful revocation of assignment or breach of an implied
warranty.
A delegation of duties occurs when a party
"outsources" her duties under a contract to a third party.
This is generally acceptable provided that:
DELEGATION OF DUTIES
1. The contract does not prohibit delegation; AND
2. The other party does not have some special interest
in having a specific individual perform.
Generally, a delegatee is not liable for breach unless
she receives consideration from the delegating party.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
Almost all crimes require proof of the following four core elements:
ESSENTIAL ELEMENTS OF A
CRIME
SPECIFIC INTENT
1. Actus Reus. The defendant must have either performed a voluntary
physical act or failed to act under circumstances imposing a legal duty to
act.
2. 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.
Specific intent 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
specific intent. Specific intent crimes include:
solicitation, attempt, conspiracy, 1st degree murder,
assault, larceny, robbery, burglary, false pretenses,
and embezzlement.
INTENT NECESSARY FOR MALICE
CRIMES
The intent necessary for malice
crimes require a reckless disregard
of an obvious or high risk that the
particular harmful result will occur.
Malice crimes include common law
murder and arson.
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: 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 are NOT available for strict liability
crimes (e.g., statutory rape).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
The model penal code adopts the following four categories of intent:
MENTAL STATE REQUIREMENTS
UNDER THE MODEL PENAL
CODE
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.
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.
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:
COMMON LAW MURDER
1. Intent to kill;
2. Intent to inflict great bodily injury;
3. Reckless indifference to an unjustifiably high risk to human life
("depraved heart murder"); OR
4. Intent to commit a felony (felony murder rule).
Voluntary manslaughter is a killing that would be murder BUT
FOR the existence of adequate provocation. Provocation is
adequate only if:
VOLUNTARY MANSLAUGHTER
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; AND
2. There was not sufficient time between the provocation and the
killing for passions of a reasonable person to cool off.
Involuntary manslaughter is an unintentional killing
committed:
INVOLUNTARY MANSLAUGHTER
1. With criminal negligence; OR
2. In the commission of a misdemeanor or in the
commission of a felony that is not statutorily treated
as 1st or 2nd degree murder.
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:
FIRST AND SECOND DEGREE
MURDER
1. Premeditation. 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, it is 1st degree murder.
2. Felony Murder. 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.
3. Heinous Murder. Some states make killings that are performed in a certain
way (e.g., torture, mutilation, etc.) 1st degree murder.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
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:
FELONY MURDER 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;
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.
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:
HOMICIDE CAUSATION
1. 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. 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).
Battery is the:
BATTERY
1. Unlawful (without legal excuse);
2. Application of force;
3. To the person of another;
4. That results in bodily harm or
offensive contact.
Assault is either:
ASSAULT
1. An attempt to commit a battery; OR
2. Intentionally placing another in
apprehension of imminent bodily harm.
False Imprisonment consists of:
FALSE IMPRISONMENT
1. Unlawful (without legal excuse);
2. Confinement of a person;
3. Without valid consent.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
KIDNAPPING
Modern statutes define kidnapping
as unlawful confinement of a person
that involves either:
1. Some movement of the victim; OR
2. Hiding the victim.
Larceny consists of:
LARCENY
1. A taking;
2. And carrying away;
3. Of the personal property of another;
4. By trespass (without consent);
5. With intent to permanently deprive.
Embezzlement consists of:
EMBEZZLEMENT
1. The fraudulent conversion;
2. Of the personal property of another;
3. By a person in lawful possession of
that property.
False pretenses consists of:
FALSE PRETENSES
1. Obtaining TITLE;
2. To the personal property of another;
3. By an intentional false representation;
4. Of a material past or present fact (not
opinion);
5. With intent to defraud.
Larceny by trick consists of:
LARCENY BY TRICK
1. Obtaining POSSESSION or CUSTODY;
2. To the personal property of another;
3. By an intentional false representation;
4. Of a material past or present fact (not
opinion);
5. With intent to defraud.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
Robbery consists of:
ROBBERY
1. A taking and carrying away;
2. Of the personal property of another;
3. From the other's person or presence;
4. By force or threat of force;
5. With intent to permanently deprive.
Receipt of stolen property consists of:
RECEIPT OF STOLEN PROPERTY
1. Receiving possession and control;
2. Of stolen personal property;
3. Known to have been obtained in an unlawful
manner;
4. By another person;
5. With the intent to permanently deprive the owner
of the property.
Common law burglary consists of:
BURGLARY
1. A breaking;
2. And entry;
3. Of the dwelling of another;
4. At nighttime;
5. With the intent to commit a felony in the
structure (at the time of entry).
Common law arson consists of:
ARSON
1. The malicious;
2. Burning;
3. Of the dwelling of another.
An attempt requires:
ATTEMPT
1. The specific intent to perpetrate a crime; AND
2. An overt act beyond mere preparation that
falls short of completing the crime (most states
require a "substantial step" toward completion of
the crime).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
WITHDRAWAL OF AN
ATTEMPTED CRIME
Under the common law, abandonment or
withdrawal is not a defense to attempt.
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 consists of:
SOLICITATION
WITHDRAWAL OF A
SOLICITATION
1. Requesting another to commit a
crime;
2. With the intent that the person
solicited commit the crime.
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.
Under the common law, a conspiracy consists of:
COMMON LAW CONSPIRACY
1. An agreement between two or more persons;
2. To accomplish a criminal objective;
3. With the intent to enter into the agreement; AND
4. With the intent to commit the criminal objective.
Under the common law, a conspiracy consists of:
OVERT ACT REQUIREMENT IN A
CONSPIRACY
1. An agreement between two or more persons;
2. To accomplish a criminal objective;
3. With the intent to enter into the agreement; AND
4. With the intent to commit the criminal objective.
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
PINKERTON LIABILITY
WITHDRAWAL FROM A
CONSPIRACY
TERMINATION OF A
CONSPIRACY
A conspirator may be held liable for
crimes committed by their coconspirators if the crimes were:
1. Committed in furtherance of the
conspiracy's criminal objective; AND
2. Foreseeable.
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;
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.
A conspiracy terminates upon
completion of the conspiracy's
criminal objective. All acts or
statements made after termination
are inadmissible against a
conspirator.
Under modern statutes, there are generally three potential
parties to a crime:
PARTIES TO A CRIME
LIABILITY OF THE ACCESSORY
AFTER THE FACT
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.
An accessory after the fact is a person who aids
another to escape knowing that he has
committed a felony.
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).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
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.
ACCOMPLICE 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.
A criminal defendant must be competent to stand
trial. To be competent, under the Dusky test, the
defendant must have:
FITNESS TO STAND TRIAL
INSANITY DEFENSE UNDER THE
M'NAGHTEN RULE
INSANITY DEFENSE UNDER THE
IRRESISTIBLE IMPULSE TEST
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.
Under the M'Naghten Rule, a defendant
is entitled to acquittal if, because of a
mental illness, he did not know:
1. The nature and quality of the unlawful
act; OR
2. The wrongfulness of the unlawful act.
Under the Irresistible Impulse Test, a
defendant is entitled to acquittal if, because
of a mental illness, he lacked the capacity:
1. For self-control and free choice; OR
2. To conform his conduct to the
requirements of the law.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
INSANITY DEFENSE UNDER THE
MODEL PENAL CODE TEST
Under the Model Penal Code, a defendant is
entitled to acquittal if, because of a mental
illness, he did not have substantial capacity:
1. To appreciate the wrongfulness of the unlawful
act; OR
2. To conform his conduct to the requirements of
the law.
INSANITY DEFENSE UNDER THE
DURHAM TEST
Under the Durham Test, a defendant
is entitled to acquittal if the unlawful
act would not have been committed
BUT FOR the defendant's mental
illness.
VOLUNTARY INTOXICATION AS A
CRIMINAL DEFENSE
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.
INVOLUNTARY INTOXICATION
AS A CRIMINAL DEFENSE
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.
A person without fault may use nondeadly force in self-defense if she:
SELF-DEFENSE WITH NONDEADLY FORCE
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
A person without fault may use deadly
force in self-defense if she:
SELF-DEFENSE WITH DEADLY
FORCE
DUTY TO RETREAT BEFORE
USING DEADLY FORCE
1. Is confronted with unlawful force; AND
2. Reasonably believes that she is
threatened with imminent death or great
bodily harm.
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.
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.
DEFENSE OF OTHERS WITH
FORCE
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.
DURESS AS A CRIMINAL
DEFENSE
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. 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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
MISTAKE OF FACT AS A
CRIMINAL DEFENSE
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
4th AMENDMENT SEARCHES
PLACES WHERE THERE IS A
REASONABLE EXPECTATION OF
PRIVACY
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. Absent
an exception, a warrantless search
performed by the government is unlawful.
Places where there is a reasonable
expectation of privacy:
1. Homes
2. Hotel rooms
3. Offices
4. Backyard of the home (curtilage)
5. Luggage
Places where there is NOT a reasonable expectation of
privacy:
PLACES WHERE THERE IS NOT A
REASONABLE EXPECTATION OF
PRIVACY
1. Public streets
2. Open fields (even if the open field is private property)
3. Garbage left out in the street
4. Abandoned property
5. Anything visible from public airspace
6. Anything that can be seen inside one's home from
public space.
A search warrant must:
SEARCH WARRANT
REQUIREMENTS
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.
Law enforcement officers may conduct a
search without a warrant if:
SEARCH WARRANT EXCEPTION:
EXIGENT CIRCUMSTANCES
1. 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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
SEARCH WARRANT EXCEPTION:
SEARCH INCIDENT TO A
LAWFUL ARREST
SEARCH WARRANT EXCEPTION:
CONSENT
SEARCH WARRANT EXCEPTION:
AUTOMOBILES
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).
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.
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).
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).
Law enforcement officers may seize evidence
without a warrant if:
SEARCH WARRANT EXCEPTION:
PLAIN VIEW
SEARCH WARRANT EXCEPTION:
ADMINISTRATIVE SEARCHES
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.
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 to meet legitimate
objectives while limiting the discretion of the officer.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
SEARCH WARRANT EXCEPTION:
STOP AND FRISK [TERRY STOPS]
ARREST REQUIREMENTS
ARREST WARRANTS
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.
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.
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.
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. 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).
2. 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.
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:
MIRANDA RIGHTS
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
MIRANDA 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.
INVOCATION OF THE 5th
AMENDMENT RIGHT TO
REMAIN SILENT
The police MUST cease their
interrogation if the party being
questioned affirmatively invokes her
right to remain silent. After a substantial
period of time, police can go back to the
suspect, give Miranda warnings again,
and seek to interrogate her further.
INVOCATION OF THE 5th
AMENDMENT RIGHT TO
COUNSEL
The police MUST cease their interrogation if
the party being questioned affirmatively
invokes her right to counsel. 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.
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:
MIRANDA VIOLATIONS
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.
There are three main exceptions to the Miranda
requirement. The police are NOT required to give
Miranda warnings before questioning a suspect:
MIRANDA EXCEPTIONS
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
HARMLESS ERROR RULE
INVOLUNTARY STATEMENTS
UNDER THE 5th AMENDMENT
USE OF FORCE IN POLICE
INTERROGATIONS
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.
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 (e.g., force, trickery, etc.); AND
4. The character of the person being interrogated (e.g., age,
experience, state of health, education level, sophistication,
intoxication, mental condition, etc.)
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.
USE OF TRICKERY IN POLICE
INTERROGATIONS
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.
ADMISSIBILITY OF
INVOLUNTARY STATEMENTS
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
6th AMENDMENT RIGHT TO
COUNSEL
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 must be affirmatively
invoked by the defendant (does NOT automatically
attach).
6th AMENDMENT RIGHT TO
COUNSEL VIOLATIONS
Once a defendant's 6th Amendment 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 are free to question the defendant about
unrelated offenses without his attorney present.
6th AMENDMENT RIGHT TO
COUNSEL WAIVER
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.
INEFFECTIVE ASSISTANCE OF
COUNSEL
6th AMENDMENT RIGHT TO
COUNSEL FOR PHOTO ARRAYS
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.
Neither the defendant nor his
attorney has the right to be
present, but the police must turn
over the photo array to the
defendant.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
6th AMENDMENT RIGHT TO
COUNSEL FOR PREINDICTMENT LINEUPS
The defendant does NOT have a
6th Amendment right to have
counsel present during a preindictment lineup.
6th AMENDMENT RIGHT TO
COUNSEL FOR POSTINDICTMENT 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.
EXCLUSIONARY RULE AND
FRUIT OF THE POISONOUS
TREE
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. These exclusionary rules do
NOT apply to Miranda violations; they only
apply to 4th, 5th, and 6th Amendment violations.
The exclusionary rule does NOT apply if:
EXCEPTIONS TO THE
EXCLUSIONARY RULE
6th AMENDMENT RIGHT TO A
JURY TRIAL
1. The police had an independent source for the evidence that
was distinct from 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) existing law that
was later declared unconstitutional; or (b) a warrant that, while
facially valid, is later found to be defective.
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
JURY POOL IN CRIMINAL CASES
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.
REMOVAL OF POTENTIAL
JURORS
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.
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:
GUILTY PLEAS
BURDEN OF PROOF IN
CRIMINAL CASES
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.
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.
Double jeopardy ensures that the defendant is
protected against:
DOUBLE JEOPARDY
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
MOTION FOR JUDGMENT OF
ACQUITTAL
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).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
Evidence must be relevant in order to be admissible.
Evidence is relevant if it is both:
LOGICAL RELEVANCE
1. Probative (evidence is probative if it has any
tendency to make a fact more or less probable);
AND
2. Material (evidence is material if it is a fact of
consequence in determining the outcome of the
action).
LEGAL RELEVANCE
The court may exclude relevant evidence if
its probative value is substantially
outweighed by a danger of one or more of
the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay,
wasting time, or needlessly presenting
cumulative evidence.
POLICY EXCLUSION: SUBSEQUENT
REMEDIAL MEASURES
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 negligence, defective
product design, or culpable conduct. However,
subsequent remedial measures are admissible to
show agency, ownership, or control of property or
for impeachment purposes.
POLICY EXCLUSION:
COMPROMISE OFFERS OR
SETTLEMENT NEGOTIATIONS
Offers, conduct, or statements made
during negotiations to settle or
compromise are NOT admissible to
prove a disputed claim, to prove an
amount, or for impeachment
purposes.
POLICY EXCLUSION: OFFERS TO
PAY MEDICAL EXPENSES
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).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
Absent a knowing and voluntary waiver from the defendant, the
following are NOT admissible against the defendant:
POLICY EXCLUSION: GUILTY
PLEAS
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.
POLICY EXCLUSION: LIABILITY
INSURANCE
THREE FORMS OF CHARACTER
EVIDENCE
APPLICATION OF CHARACTER
EVIDENCE IN CIVIL CASES
CHARACTER IS AN ESSENTIAL
ELEMENT OF THE CLAIM OR
DEFENSE IN A CIVIL CASE
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 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.")
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
2. The case is based on the defendant's sexual misconduct.
If character is an essential element of a claim
or defense in a civil case (e.g., defamation,
negligent hiring, negligent entrustment,
child custody, etc.), character evidence is
admissible for propensity purposes. It may
be shown by reputation, opinion testimony,
or specific instances of conduct.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
CIVIL CASES BASED ON THE
DEFENDANT'S SEXUAL
MISCONDUCT
APPLICATION OF CHARACTER
EVIDENCE IN CRIMINAL CASES
PRESENTING CHARACTER
EVIDENCE OF A VICTIM
EVIDENCE OFFERED TO PROVE A
VICTIM'S SEXUAL BEHAVIOR
M.I.M.I.C.
If a civil case is based on the
defendant's sexual misconduct,
character evidence is admissible for
propensity purposes. The defendant's
propensity for sexual misconduct may
be shown by evidence of a past sexual
assault by the defendant.
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 so long as it is: (1) pertinent to the crime charged; 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. The prosecution can:
1. Call its own character witness (the witness is limited to reputation) or opinion testimony
(not specific instances of conduct); OR
2. Cross-examine the defendant's character witness (on cross-examination, the prosecution
can introduce evidence of specific instances so long as it relates to the same character
trait in question).
A criminal defendant may introduce reputation or
opinion testimony of the victim's character if it is relevant
to one of the defenses asserted (with an exception for
cases involving rape). 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.
In criminal 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.
Specific instances of conduct are generally NOT admissible to show
propensity, but are admissible to show (M.I.M.I.C.): motive or
opportunity, intent, absence of mistake, identity, or 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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
HABIT AND ROUTINE PRACTICES
IMPEACHMENT BY CHARACTER
EVIDENCE OF UNTRUTHFULNESS
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.
A witness's credibility may be attacked by introducing character
evidence of the witness's untruthfulness through reputation or
opinion testimony. A witness's credibility CANNOT be bolstered
[evidence of truthful character may not be introduced until credibility
has first been attacked]. On cross-examination, a witness's credibility
may be attacked with specific instances of conduct, provided that:
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.
IMPEACHMENT BY PRIOR
CONVICTIONS
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]. Evidence of a prior felony [crime is
punishable by death or imprisonment for more than 1 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]. 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
conviction substantially outweighs the danger of unfair prejudice.
IMPEACHMENT BY PRIOR
INCONSISTENT STATEMENTS
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. 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).
IMPEACHMENT BY SENSORY
COMPETENCE
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., vision
loss, memory loss, etc.) that is not
collateral (i.e., must be a relevant
matter).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
IMPEACHMENT OF A HEARSAY
DECLARANT
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 crossexamination.
If a witness is NOT testifying as an expert (i.e,. a lay
witness), testimony in the form of an opinion is limited to
one that is:
LAY WITNESS TESTIMONY
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 requirements for an
expert witness.
Expert witnesses may testify in the form of an opinion or otherwise if:
EXPERT WITNESS TESTIMONY
SPOUSAL IMMUNITY
CONFIDENTIAL MARITAL
COMMUNICATIONS
1. The expert witness is qualified by possessing sufficient knowledge, skill,
experience, training, or education;
2. 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;
3. The testimony is based on sufficient facts or data;
4. The testimony is the product of reliable principles and methods; AND
5. The expert has reliably applied the principles and methods to the facts of
the case.
A witness in a valid marriage may
refuse to testify against his or her
spouse in any criminal proceeding
(including a grand jury).
Communications between spouses are privileged,
and may be asserted by either spouse in both
criminal and civil proceedings (even if the parties are
no longer married), if the communications were:
1. Made during the course of a valid marriage; AND
2. Intended to be confidential.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
ATTORNEY-CLIENT PRIVILEGE
Communications (not sought to further a crime
or fraud) 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.
WAIVER OF ATTORNEY-CLIENT
PRIVILEGE
The client holds the attorney-client 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.
AUTHENTICATION
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.). Authentication requires that a
party show that the item being introduced as
evidence is what the party claims it to be.
AUTHENTICATION OF PHYSICAL
EVIDENCE
Physical evidence (e.g., weapons, clothing,
videotapes, etc.) may be authenticated
through a witness with personal knowledge
of the object or a witness that can establish a
chain of custody for the object (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 stipulation (both parties agree), witness
testimony, or handwriting verification.
AUTHENTICATION OF
DOCUMENTARY EVIDENCE
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. 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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
The following documents are self-authenticating and do NOT require
extrinsic proof of authenticity:
SELF-AUTHENTICATING
DOCUMENTS
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;
6. 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.
A party MUST provide the original document [applies to
writings, recordings, photographs, electronic documents, x-rays,
and videos] or an accurate duplicate when:
BEST EVIDENCE RULE (ORIGINAL
DOCUMENT RULE)
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 IN GENERAL
NON-HEARSAY: OUT-OF-COURT
STATEMENTS NOT OFFERED TO
PROVE THE TRUTH OF THE MATTER
ASSERTED
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. A "statement"
includes a person's oral assertions, written
assertions, or nonverbal conduct if the person
intended the conduct as an assertion (e.g., head
nod, thumbs up, etc.).
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.
Prior inconsistent statements are admissible for substantive purposes
if:
NON-HEARSAY: PRIOR
INCONSISTENT STATEMENTS
1. The declarant is testifying at trial and is subject to cross-examination;
2. The statements were previously made under penalty of perjury (i.e.,
under oath); AND
3. 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).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
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:
NON-HEARSAY: PRIOR
CONSISTENT STATEMENTS
NON-HEARSAY: PRIOR
STATEMENTS OF IDENTIFICATION
NON-HEARSAY: ADMISSIONS BY A
PARTY OPPONENT
1. The declarant is testifying at trial and is subject to
cross-examination; AND
2. The prior consistent statement was made before
the declarant had a motive to fabricate the
statement.
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.
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. 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. 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.
A declarant is deemed to be unavailable as a witness if the declarant:
THE UNAVAILABILITY
REQUIREMENT FOR HEARSAY
EXCEPTIONS
HEARSAY EXCEPTIONS THAT
APPLY ONLY IF THE DECLARANT IS
DEEMED UNAVAILABLE
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
4. Forfeiture by wrongdoing.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
Former testimony is admissible if:
HEARSAY EXCEPTION: FORMER
TESTIMONY
1. The declarant is unavailable;
2. The statement was prior testimony given at a trial
hearing or deposition [not a grand jury]; AND
3. The opposing party had an opportunity and similar
motive to develop the testimony through cross or
direct examination.
A statement is admissible if:
HEARSAY EXCEPTION: DYING
DECLARATION
1. The declarant is unavailable;
2. The declarant believed that her death was
imminent when she made the statement;
3. The statement pertains to the cause or
circumstances of her death; AND
4. The action involved is a civil case or homicide.
A statement is admissible if:
HEARSAY EXCEPTION: STATEMENT
AGAINST INTEREST
1. The declarant is unavailable;
2. The statement is against the declarant's selfinterest; AND
3. A reasonable person would NOT have made
the statement unless he believed it to be true.
HEARSAY EXCEPTION: FORFEITURE
BY WRONGDOING
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. 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 EXCEPTION: PRESENT
SENSE IMPRESSION
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
HEARSAY EXCEPTION: EXCITED
UTTERANCE
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.
HEARSAY EXCEPTION: STATE OF
MIND
A statement of the declarant's thenexisting 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.
HEARSAY EXCEPTION: MEDICAL
DIAGNOSIS OR TREATMENT
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 record may be read into evidence [only opposing counsel can
decide to enter it as an exhibit into evidence] if the witness cannot
recall events or information provided that:
RECORDED RECOLLECTION
PRESENT RECOLLECTION
REFRESHED
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.
Present recollection refreshed 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).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
A business record is admissible as a valid exception
to the hearsay rule if the record is:
HEARSAY EXCEPTION: BUSINESS
RECORDS
6th AMENDMENT
CONFRONTATION CLAUSE
1. Kept in the course of regularly conducted
business; AND
2. 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).
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).
The use of an out-of-court statement 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 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.
Judicial notice allows a court to accept indisputable facts as
true without requiring formal proof if the facts are:
JUDICIAL NOTICE
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
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.
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.
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.
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:
BIGAMOUS MARRIAGE
1. 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. 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.
SAME-SEX MARRIAGE
The Supreme Court has determined
that same-sex marriage is a
constitutional right. Therefore, samesex marriage is permitted in every
state.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
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:
1. Ancestors or descendants;
2. Siblings (regardless of whether whole/half blood or
adoption); OR
3. Uncles, aunts, nieces, or nephews.
UNDERAGE MARRIAGE
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.
PHYSICAL INCAPACITY AND
MARRIAGE
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.
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).
A valid marriage requires that:
MARRIAGE REQUIREMENTS
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
COMMON LAW MARRIAGE
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 enforce a premarital agreement as a valid contract if it is:
PREMARITAL CONTRACTS
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;
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).
CHILD CUSTODY IN PREMARITAL
CONTRACTS
Most courts decide custody
according to the best interests of
the child at the time of the custody
hearing, regardless of any premarital
agreements.
CHILD SUPPORT IN PREMARITAL
CONTRACTS
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.
Premarital agreements that limit a spouse's support during
marriage are generally void as against public policy.
SPOUSAL SUPPORT IN
PREMARITAL CONTRACTS
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
MARITAL PROPERTY RIGHTS
NECESSARIES DOCTRINE
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.
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.
Today, most states have modified the necessaries doctrine
holding both spouses liable to creditors for necessaries
purchased by the other spouse.
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:
ANNULMENT
RATIFICATION DEFENSE
DIVORCE
1. Lack of capacity to consent at the time of the marriage;
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.
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.
Every state has adopted a form of nofault 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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
ANNULMENT JURISDICTION
DIVORCE JURISDICTION
PROPERTY DIVISION AT DIVORCE
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.
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;
AND
2. Provided adequate notice of the proceeding to the
other spouse.
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.
Generally, marital property includes all property acquired during
the marriage that is not separate property. Separate property
includes:
CATEGORIZATION OF PROPERTY
AS SEPARATE OR MARITAL
EQUITABLE DISTRIBUTION OF
MARITAL PROPERTY
1. All property acquired by either spouse before the marriage;
2. All property acquired by a spouse during marriage by gift,
bequest, devise, or descent;
3. All property either spouse acquires with the proceeds of the
spouse's separate property; AND
4. All passive appreciation of separate property.
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;
4. The lifestyle each spouse is accustomed to; AND
5. The contributions made by each spouse toward the accumulation of
marital property.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
MODIFICATION OF PROPERTY
DIVISION AT DIVORCE
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).
Under the UDMA, a spouse is eligible for spousal
support if the spouse seeking support:
SPOUSAL SUPPORT ELIGIBILITY
MODIFICATION OF SPOUSAL
SUPPORT
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.
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.
Some courts will NOT permit a modification of spousal support
if the change in circumstances was anticipated or voluntary.
CHILD SUPPORT
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.
MODIFICATION OF CHILD
SUPPORT
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.
Some courts will NOT permit a modification of child support if
the change in circumstances was anticipated or voluntary.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
Generally, courts determine child custody based on the best interests of the child. Courts
consider multiple factors to determine what custody order will serve the child's best
interests. General factors include:
CHILD CUSTODY
PARENTAL VISITATION RIGHTS
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.
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.
In a minority of states, courts may order visitation for a
nonparent if:
THIRD PARTY CHILD VISITATION
RIGHTS
1. The nonparent has a substantial relationship with the
child; AND
2. The visitation is in the child's best interests.
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
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.
In order to modify a child custody
order, the parent must show that:
MODIFICATION OF CHILD
CUSTODY
1. Circumstances have substantially
changed; AND
2. The modification would be in the
child's best interests.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
Most courts will permit a custodial
parent to move with the child if:
CUSTODIAL PARENT'S
RELOCATION OF THE CHILD
MEDIATION OF CUSTODY
DISPUTES
1. The motives for moving are NOT
vindictive; AND
2. The move is in the child's best
interests.
In some states, a court has authority to order
mediation of custody disputes. In others, mediation is
mandated by statute under certain circumstances.
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.
UNMARRIED COHABITANTS
EXPRESS CONTRACTS FOR
ECONOMIC SHARING
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.
UNMARRIED COHABITANTS
IMPLIED-IN-FACT CONTRACTS
FOR ECONOMIC SHARING
Some states allow unmarried
cohabitants to seek a remedy for
economic sharing based on an impliedin-fact contract theory. An implied-infact contract is formed by the conduct
of the parties rather than express
statements (e.g., commingling funds).
Under the Uniform Parentage Act (UPA), the fatherchild relationship is established between a man and
a child by:
ESTABLISHING PATERNITY
BETWEEN MAN AND CHILD
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
Under the Uniform Parentage Act (UPA), a man is presumed to be the father
of the child if:
PARENTAGE PRESUMPTION
UNDER THE UPA
EQUITABLE ESTOPPEL OF
PARENTAGE DENIAL
LEGITIMATION BY PETITION
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 each
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.
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 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:
1. Assumed parental responsibilities; AND
2. Established a substantial parent-child relationship.
LEGITIMATION BY MARRIAGE
PARENTAL CONSENT FOR CHILD'S
MEDICAL PROCEDURES
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,
the father stands in the same position as any
other parent regarding parental and
custodial rights with respect to the child.
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 situations;
2. Public health concerns; AND
3. Children near the age of majority undergoing
relatively minor medical procedures.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
PARENS PATRIAE
INTER-SPOUSAL IMMUNITY
PARENT-CHILD IMMUNITY
LOSS OF CONSORTIUM CLAIMS
PARENTAL RIGHT TO DIRECT
CHILD'S UPBRINGING
Under the parens patriae authority of the state, a state
can intervene to protect children when their parents
deny them needed medical care. 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.
Historically, spouses could not sue
each other in tort. Today, most
jurisdictions have abolished interspousal 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
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.
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
ADOPTION
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 IN
ADOPTION
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.
A biological parent may challenge the validity of his/her
consent to an adoption on the ground that his/her consent:
ADOPTION CONSENT
CHALLENGES
1. Was procured by fraud or duress; OR
2. Failed to comply with statutory formalities.
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).
Generally, there are three different statutory
approaches to a biological parent's revocation of valid
consent to an adoption:
REVOCATION OF CONSENT TO
ADOPTION
1. Consent is revocable until the final adoption decree is
entered with the court;
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.
Generally, if a mother is married, the mother's husband is
presumed to be the father of a child born from artificial
insemination if:
ARTIFICIAL INSEMINATION
1. He consented in writing; AND
2. 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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
SURROGACY ARRANGEMENTS
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
FEE SIMPLE
DEFEASIBLE FEE
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"
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. 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. Fee Simple Determinable
2. Fee Simple Subject to Condition Subsequent
3. Fee Simple Subject to Executory Interest
FEE SIMPLE DETERMINABLE
A fee simple determinable is a conditional
conveyance in which the grantor retains a future
interest as 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: "while,"
"during," or "until."
FEE SIMPLE SUBJECT TO CONDITION
SUBSEQUENT
A fee simple subject to condition subsequent is a
conditional conveyance in which the grantor retains
a future interest as 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:
"provided that," or "on the condition that."
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
LIFE ESTATE
TRANSFERABILITY OF A LIFE ESTATE
REVERSION
VESTED AND CONTINGENT
REMAINDERS
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).
A life estate is transferable. The
transferee's interest in the property
terminates upon the death of the
measuring life.
If possession of the land goes back to
the grantor after a life estate terminates,
then the grantor retains a reversion.
If possession of the land goes to a third party after a life estate
terminates, then the third party takes a remainder. A remainder
can be vested or contingent: A vested remainder is a future
interest that is both:
1. Given to an ascertained (i.e., readily identifiable) grantee; AND
2. NOT subject to a condition precedent (i.e., a condition that
must be satisfied in order for the interest to vest).
If either of the two above elements fail, the remainder is
contingent.
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"). Each tenant in common has:
TENANCY IN COMMON
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).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
JOINT TENANCY
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). To create a joint tenancy, the grantor must clearly
express his intent to create a joint tenancy by using survivorship language (e.g., "as joint
tenants with a right of survivorship"). Additionally, the "four unities" 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
BY CONVEYANCE
If any of the four unities are severed, then the joint tenancy is
terminated and the cotenants hold the property as tenants in
common. 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). 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). 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:
SEVERANCE OF THE JOINT TENANCY
BY MORTGAGE
1. In a lien theory jurisdiction (majority view), the mortgage is
treated as a lien and does NOT terminate the joint tenancy.
2. 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.
COTENANT DIVISION OF OPERATING
EXPENSES AND RENT PAYMENTS
Operating expenses are divided based on the
ownership interests of each cotenant. Operating
expenses consist of necessary charges (e.g.,
taxes and mortgage payments). 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.
COTENANT DIVISION OF REPAIR
COSTS AND IMPROVEMENT COSTS
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. 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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
OUSTER
Each cotenant (whether a joint tenant or tenant in
common) has the right to possess and enjoy 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 IN KIND
PARTITION BY SALE
A partition action is an equitable
remedy that is available unilaterally to
joint tenants and tenants in common. A
partition in kind physically divides the
property into distinct portions. Courts
have a preference for physical divisions
of property over forced sales.
A partition action is an equitable remedy that is available
unilaterally to joint tenants and tenants in common. 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:
1. NOT practicable; OR
2. NOT fair to all parties.
LEASEHOLD INTEREST
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.
A tenancy for years is an interest that
lasts for a fixed and ascertainable
amount of time. If the term is longer
TENANCY FOR YEARS
than one year, then the agreement must
be in writing because of the statute of
frauds. A tenancy for years
automatically terminates when the term
expires
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
PERIODIC TENANCY
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.). The
parties must intend to create a periodic tenancy. Intent
can be express (e.g., a specific term in the signed lease
agreement) or 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. The parties must intend to create a
tenancy at will. Intent can be express (e.g., a specific term in the
signed lease agreement gives either party or both parties the
"right to terminate at will") or implied (e.g., ongoing payment of
rent at will). If the agreement gives only the landlord the right to
terminate at will, the tenant also gets the right to terminate
implicitly. If the agreement gives only the tenant the right to
terminate at will, the landlord is not given the right to terminate
at will.
TENANCY AT SUFFERANCE
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.
THE TENANT'S DUTY TO PAY RENT
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. 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);
2. The landlord completely or partially evicts the tenant; OR
3. The landlord materially breaches on the lease.
IMPLIED WARRANTY OF HABITABILITY
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. If the landlord
breaches the implied warrant of habitability, the tenant may:
1. Vacate the premises and terminate the lease (the tenant is not required to
vacate the premises);
2. Withhold or reduce the rent (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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
IMPLIED COVENANT OF QUIET
ENJOYMENT
Every lease (commercial and residential) includes an implied covenant
of quiet enjoyment. 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.
LEASE ASSIGNMENTS
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 assignee or
the original tenant.
SUBLEASES
A sublease is a transfer of less than the
tenant's entire remaining term under the
lease. In a sublease, the landlord can
only collect rent from the original
tenant. The subtenant only has rent
obligations to the original tenant.
LEASE SURRENDER
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 a tenant
returns possession of the leased premises to the
landlord before the expiration of the lease and
the landlord consents.
LEASE ABANDONMENT
An abandonment occurs when the tenant
unilaterally returns possession of the leased premises
before expiration of the lease 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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
LANDLORD'S DUTY TO MITIGATE
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. Under the minority rule, the
landlord does not have to mitigate damages.
A real covenant is a promise concerning the use of the land that runs to successors to the
promise. The benefit of the covenant is the ability to enforce the covenant. In order for a
benefit to run to successors, the following four elements must be present:
REAL COVENANTS: BENEFIT RUN
1. Writing. The covenant must be included in writing in the original conveyance.
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 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. 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).
A real covenant is a promise concerning the use of the land that runs to successors to the
promise. The burden of the covenant is being subject to it or bound by it. In order for a
burden to run to successors, the following six elements must be present:
REAL COVENANTS: BURDEN RUN
1. Writing. The covenant must be included in writing in the original conveyance.
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 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. 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).
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 while the remedy for a breach
of an equitable servitude is injunctive relief. In order to bind a successor, the following
four elements must be present:
EQUITABLE SERVITUDES
1. Writing. The servitude must be included in writing in the original conveyance.
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 (i.e., record notice), or inquiry.
Implied reciprocal servitudes arise in planned subdivisions
(implied from the common scheme). Most jurisdictions impose
the following requirements to enforce an implied reciprocal
servitude:
IMPLIED RECIPROCAL SERVITUDES
1. There must be intent to create a servitude on all plots (i.e., a
common scheme);
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
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:
EXPRESS EASEMENT
1. An express easement by grant arises when it is
affirmatively created by the parties in a writing that
satisfies the statue of frauds.
2. An express easement by reservation is created when
a grantor conveys land but reserves an easement right
in that land for his own use.
An easement is a right held by one person to use another's land.
An implied easement by implication is created when:
IMPLIED EASEMENT BY IMPLICATION
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.
An easement is a right held by one person to use
another's land. An implied easement by necessity is
created when:
IMPLIED EASEMENT BY NECESSITY
IMPLIED EASEMENT BY
PRESCRIPTION
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.
An easement is a right held by one person to use another's land.
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.
Unlike adverse possession, the use need NOT be exclusive (e.g.,
a public easement).
An easement may be terminated by any of the following:
TERMINATION OF AN EASEMENT
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 terminates if it is no longer necessary.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
The following two interests are NOT easements:
PROFITS AND LICENSES
FIXTURES
STRUCTURES BUILT ON REAL
PROPERTY
LAND SALE CONTRACT
REQUIREMENTS
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).
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.
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).
A valid contract for the sale of land must satisfy the statute of frauds.
Generally, the contract must be in writing, signed by the party to be charged,
and contain all essential terms (e.g., parties, property description, price).
However, promissory estoppel 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. Also, partial
performance by either the seller or buyer is treated as a valid exception to
the writing requirement in many jurisdictions if any two of the following three
are met:
1. Possession by the purchaser;
2. Payment of all or part of the purchase price; OR
3. Improvements to the land made by the purchaser.
DEED MERGER
Covenants under the land sale contract
are merged into the deed and cannot be
enforced unless the covenant is also in
the deed. Prior to closing, any liability
must be based on a provision in the land
sale contract. After closing, any liability
must be based on a deed warranty.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
IMPLIED COVENANT OF MARKETABLE
TITLE
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. 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.
Defects in title that render title unmarketable include:
DEFECTS IN TITLE THAT RENDER TITLE
UNMARKETABLE
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).
WAIVER OF THE IMPLIED COVENANT
OF MARKETABLE TITLE
The land sale purchaser may choose to
waive the requirement that the seller
deliver marketable title at closing.
However, a seller CANNOT cancel a
land sale contract for failure to deliver
marketable title if the buyer chooses to
waive the requirement.
NEW CONSTRUCTION IMPLIED
WARRANTIES
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. 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 PROPERTY
DEFECTS
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
EQUITABLE CONVERSION AND RISK
OF LOSS
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, the
purchaser is responsible for any damages to the
property while the seller, as holder of legal title, has
the right to possess the property. In a minority of
jurisdictions, the risk of loss is on the seller until
closing and delivery of the deed.
THE MORTGAGE AND THE NOTE
A mortgage is a security device used to secure
repayment of a debt. The note is the borrower's
promise to repay the debt or loan. 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.
PURCHASE-MONEY MORTGAGE
A purchase-money mortgage is a
mortgage where the borrower takes out
a loan for the purpose of purchasing
property.
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").
DEED OF TRUST
A deed of trust is an alternative used instead of a
mortgage as a security device. A deed of trust
operates like a mortgage, but involves three
parties:
1. The borrower;
2. The lender; AND
3. A third-party trustee who holds title of the
property until the loan is paid off.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
INSTALLMENT LAND CONTRACT
An installment land contract is an
alternative used instead of a mortgage
as a security device. The seller finances
the purchase in an installment land
contract retaining title until the buyer
makes the final payment on the
installment plan.
ABSOLUTE DEED
An absolute deed is an alternative used
instead of a mortgage as a security
device. It 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.
MORTGAGE TRANSFER BY THE
BORROWER
The borrower may transfer the property by deed (i.e., selling),
will, or intestate succession. The borrower remains personally
liable after the transfer unless the lender releases the borrower
from his obligation or the lender modifies the transferee's
obligation. 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).
ACCELERATION CLAUSES
A due-on-sale clause allows the lender to
demand immediate full payment from the
borrower upon transfer of the property. A dueon-encumbrance clause allows the lender to
demand accelerated payments from the
borrower when the borrower obtains a second
mortgage or otherwise encumbers the property.
FORECLOSURE
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
CREDITOR PRIORITY AFTER
FORECLOSURE
If there are excess proceeds after a foreclosure sale, the money will be used to satisfy other creditors.
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. 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).
Adverse possession allows a trespasser in unlawful possession of land
owned by another to acquire title to that land if their possession is:
ADVERSE POSSESSION
ADVERSE POSSESSION STATUTORY
PERIOD ISSUES: TACKING AND
DISABILITIES
1. Continuous for the statutory period (seasonal or infrequent use will
suffice if the use is consistent with the type of property being possessed).
2. Open and notorious (the adverse possessor must use the property as if
they were a true owner - their possession cannot be hidden from the true
owner);
3. Exclusive (the adverse possessor cannot share possession of the land
with the true owner); AND
4. Hostile (the adverse possessor cannot have the true owner's consent to
possess or use the property).
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).
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.
A valid deed must:
DEED REQUIREMENTS
DELIVERY AND ACCEPTANCE OF A
DEED
1. Satisfy the statute of frauds;
2. Identify the parties and describe the property;
3. Be delivered (a deed is delivered when the grantor
demonstrates a present intent to transfer the
property to the grantee or his agent - physical
transfer of a deed is not required); AND
4. Be accepted (acceptance is generally presumed).
A valid deed must be delivered and accepted. 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). Acceptance is generally presumed provided that
the transfer is for value.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
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:
GENERAL WARRANTY, SPECIAL
WARRANTY, AND QUITCLAIM 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 three present covenants implied in general and
special warranty deeds:
PRESENT COVENANTS IMPLIED IN
GENERAL AND SPECIAL WARRANTY
DEEDS
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 encumbrances on the property that could limit its
value.
There are three future covenants implied in general and special
warranty deeds:
FUTURE COVENANTS IMPLIED IN
GENERAL AND SPECIAL WARRANTY
DEEDS
COMPETING CLAIMS TO TITLE AND
THE RECORDING STATUTES
1. Covenant of Quiet Enjoyment. Grantor promises to defend
against future challenges to the grantee's title to the property.
2. Covenant of Warranty. Grantor promises to defend against
future developments that extend into the grantee's property
boundary.
3. Covenant of Further Assurances. Grantor promises to do
what is reasonably necessary to cure future problems with title.
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.
However, 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 the
purchase is made without notice of a prior unrecorded conveyance and the
subsequent purchaser records first.
There are three types of notice:
ACTUAL, CONSTRUCTIVE, AND
INQUIRY NOTICE OF THE
SUBSEQUENT PURCHASER
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).
3. 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).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
WILD DEEDS
THE SHELTER RULE
If a deed is not recorded properly, it is
considered a wild deed. A wild deed
does NOT put subsequent purchasers
on constructive notice.
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
SPECIFIC INTENT IN
INTENTIONAL TORTS
An actor has specific intent when the actor acts with
the purpose of causing the consequence. 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).
GENERAL INTENT IN
INTENTIONAL TORTS
An actor has general intent when the actor knows
that the consequence is substantially certain to
occur. 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).
TRANSFERRED INTENT
The transferred intent doctrine applies to the
intentional torts of assault, battery, false imprisonment,
trespass to land, and trespass to chattels. It 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
A battery occurs when the defendant:
BATTERY
1. Causes or is a substantial factor in
bringing about;
2. Harmful or offensive contact;
3. To the plaintiff's person; AND
4. Has specific or general intent.
An assault occurs when the defendant:
ASSAULT
1. Causes or is a substantial factor in bringing
about;
2. Reasonable apprehension in the plaintiff;
3. Of imminent harmful or offensive bodily
contact to the plaintiff's person; AND
4. Has specific or general intent.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
A false imprisonment occurs when the defendant:
FALSE IMPRISONMENT
1. Causes or is a substantial factor in bringing about;
2. The confinement of the plaintiff within fixed
boundaries (the plaintiff must be aware of the
confinement or harmed by it); AND
3. Has specific or general intent.
Intentional infliction of emotional distress occurs
when the defendant:
INTENTIONAL INFLICTION
OF EMOTIONAL DISTRESS
1. Acts with extreme or outrageous conduct;
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 trespass to land occurs when the defendant:
TRESPASS TO LAND
1. Causes or is a substantial factor in bringing
about;
2. A physical invasion of the plaintiff's real
property; AND
3. Has specific or general intent.
A trespass to chattels occurs when the
defendant:
TRESPASS TO CHATTELS
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. Has specific or general intent.
A conversion occurs when the defendant:
CONVERSION
1. Causes or is a substantial factor in bringing about;
2. An interference with the plaintiff's right of
possession in a chattel;
3. Where the interference is so serious, it deprives the
plaintiff entirely of the use of the chattel; AND
4. Has specific or general intent.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
CONSENT AS A DEFENSE TO
INTENTIONAL TORTS
The plaintiff's consent (express or implied) to the
defendant's conduct is a defense to intentional torts
if:
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).
Generally, a defendant is not liable for harm to the
plaintiff if:
SELF-DEFENSE AS A DEFENSE
TO INTENTIONAL TORTS
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.
PRIVATE NECESSITY
The defense of necessity is available to a defendant that enters
onto the plaintiff's land or interferes with the plaintiff's personal
property to prevent an injury or some other severe harm. 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).
PUBLIC NECESSITY
The defense of necessity is available to a
defendant that enters onto the plaintiff's land or
interferes with the plaintiff's personal property
to prevent an injury or some other severe harm.
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.
The elements of the prima facie case for negligence
are as follows:
NEGLIGENCE ELEMENTS
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
TO WHOM A DUTY OF CARE
IS OWED
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.
In general, there is NO affirmative duty to act affirmatively or
help others. However, a duty to act affirmatively will arise if the
defendant:
AFFIRMATIVE DUTY TO ACT
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.
STANDARD OF CARE: THE
REASONABLE PERSON
The default 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.
STANDARD OF CARE:
CHILDREN
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, the court will
not take the child's age into account (i.e., the
child will be held to an "adult" standard).
STANDARD OF CARE:
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
STANDARD OF CARE:
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.
PSYCHOTHERAPISTS' DUTY
TO WARN
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.
STANDARD OF CARE:
LANDOWNERS TO
DISCOVERED/ANTICIPATED
TRESPASSERS UNDER THE
TRADITIONAL APPROACH
Under the traditional approach, the standard of care that
landowners owe to entrants upon their land varies
depending on the status of the entrant. For
discovered/anticipated trespassers (discovered or
anticipated trespassers enter the land without consent,
but may be expected by the landowner), the landowner
owes a duty to 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).
STANDARD OF CARE:
LANDOWNERS TO
UNDISCOVERED
TRESPASSERS UNDER THE
TRADITIONAL APPROACH
Under the traditional approach, the standard of
care that landowners owe to entrants upon their
land varies depending on the status of the
entrant. The landowner owes NO duty to
undiscovered trespassers (undiscovered
trespassers enter the land without consent, and
are not expected by the landowner).
STANDARD OF CARE:
LANDOWNERS TO LICENSEES
UNDER THE TRADITIONAL
APPROACH
Under the traditional approach, the standard of care that
landowners owe to entrants upon their land varies depending on
the status of the entrant. 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 + natural
conditions that the landowner is aware of).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
STANDARD OF CARE:
LANDOWNERS TO INVITEES
UNDER THE TRADITIONAL
APPROACH
Under the traditional approach, the standard of care that
landowners owe to entrants upon their land varies
depending on the status of the entrant. 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.
STANDARD OF CARE:
LANDOWNERS UNDER THE
MODERN APPROACH
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).
A landowner owes a duty to child trespassers to warn of (or make
safe) artificial conditions on the land, provided that:
ATTRACTIVE NUISANCE
DOCTRINE
NEGLIGENCE PER SE
RES IPSA LOQUITUR
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.
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.
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
ACTUAL CAUSE
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. To prove actual
cause, the plaintiff must show that her
injury would not have occurred but for
the defendant's negligence.
PROXIMATE CAUSE
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. 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
act or omission 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.
EGGSHELL PLAINTIFF RULE
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.
Under the doctrine of respondeat superior, an
employer may be liable for torts committed by
an employee if:
RESPONDEAT SUPERIOR
RESPONDEAT SUPERIOR:
SCOPE OF EMPLOYMENT
1. An employer-employee relationship exists (not
an independent contractor relationship); AND
2. The employee's commission of the tort occurs
within the scope of employment.
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:
1. A function for which the employee was hired to perform;
2. Within the employer's authorized time and space limits;
3. Conducted to serve the employer; AND
4. Foreseeable to the employer.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
BUSINESS PARTNERS
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.
The plaintiff can recover for NIED if:
NEGLIGENT INFLICTION OF
EMOTIONAL DISTRESS
[NIED]: ZONE OF DANGER
NEGLIGENT INFLICTION OF
EMOTIONAL DISTRESS
(NIED): BYSTANDER
RECOVERY
NEGLIGENT INFLICTION OF
EMOTIONAL DISTRESS
(NIED): SPECIAL
RELATIONSHIP
JOINT AND SEVERAL
LIABILITY
1. The defendant negligently caused a threat of
physical impact;
2. The plaintiff was within the "zone of danger"
of the threatened physical impact; AND
3. The threat of physical impact caused
emotional distress.
The plaintiff bystander can recover for NIED if:
1. The defendant negligently inflicted bodily injury to another;
2. The plaintiff is closely related to the person injured by the
defendant;
3. The plaintiff was present at the scene of the injury; AND
4. The plaintiff personally observed the injury.
5. Some jurisdictions also require that the plaintiff manifest
physical symptoms after witnessing the injury.
The plaintiff can recover for NIED in certain
circumstances where a pre-existing relationship exists
between the defendant and plaintiff. This commonly
arises when:
1. The defendant negligently mishandles a corpse; OR
2. The defendant negligently provides false medical
information (e.g., healthy plaintiff is told that she has
terminal cancer).
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
CONTRIBUTION ACTION
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
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
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.
CONTRIBUTORY
NEGLIGENCE
COMPARATIVE FAULT: PURE
COMPARATIVE NEGLIGENCE
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.
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).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
COMPARATIVE FAULT:
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. In some modified comparative negligence jurisdictions,
the plaintiff's recovery is completely barred if the plaintiff and
defendant are equally at fault.
ASSUMPTION OF RISK
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.
THREE CATEGORIES OF
STRICT LIABILITY
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.
STRICT LIABILITY: 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.
STRICT LIABILITY: 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 by the owner. However,
owners are generally NOT strictly liable for
harm caused to trespassers.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
STRICT LIABILITY:
ABNORMALLY DANGEROUS
ACTIVITIES
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.
A strict liability claim under products liability
requires the plaintiff to show:
STRICT LIABILITY: PRODUCTS
LIABILITY
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.
A defect in manufacture requires the
plaintiff to show that the product:
PRODUCTS LIABILITY:
MANUFACTURE DEFECTS
1. Deviated from its intended design;
AND
2. Fails to conform to the manufacturer's
own design.
There are two tests for a defect in design:
PRODUCTS LIABILITY:
DESIGN DEFECTS
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.
A failure to warn defect requires the plaintiff to show:
PRODUCTS LIABILITY:
FAILURE TO WARN
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
SCOPE OF PRODUCTS
LIABILITY
Any person foreseeably injured by a
defective product (e.g., purchasers, other
users, bystanders, etc.) may pursue a
products liability claim. However, a strict
liability claim under products liability may
only be brought against a merchant who is in
the chain of distribution (e.g., manufacturer ⇨
wholesaler ⇨ retailer).
Defamation occurs when the defendant:
DEFAMATION
1. Publishes (the statement must be communicated to
a third party who understands the content of it);
2. A defamatory statement (the statement must be
false and not an opinion);
3. Of or concerning the plaintiff;
4. Causing damage to the plaintiff's reputation.
DEFAMATION OF 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. 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.
DEFAMATION OF 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 (no actual malice requirement).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
INTESTATE SUCCESSION:
DECEDENT IS SURVIVED BY
ONLY A SPOUSE
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.
INTESTATE SUCCESSION:
DECEDENT IS SURVIVED BY A
SPOUSE AND DESCENDANTS
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.
In most states, if the decedent is
INTESTATE SUCCESSION:
NOT survived by a spouse, the
DECEDENT IS NOT SURVIVED BY decedent's surviving
A SPOUSE
descendants will inherit the entire
estate equally.
INTESTATE SUCCESSION:
DECEDENT IS NOT SURVIVED BY
A SPOUSE OR DESCENDANTS
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).
When a child predeceases a parent who later dies
intestate:
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
When a child predeceases a parent who later dies
intestate:
MODERN PER STIRPES
Under the modern per stirpes approach, the estate is
divided equally among the living and deceased at the
first generation that has a living taker. 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.
When a child predeceases a parent who later dies intestate:
PER CAPITA AT EACH
GENERATION
INHERITANCE RIGHTS OF
ADOPTED CHILDREN
EQUITABLE ADOPTION
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. 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).
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.
Generally, adoption 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.
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.
Generally, adoption 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.
INHERITANCE RIGHTS OF NONMARITAL CHILDREN
At common law, a child born out-ofwedlock 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 parentchild relationship (non-marital children
inheriting from a father must first establish
paternity).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
INHERITANCE RIGHTS OF HALFBLOOD 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.
Today, gifts to heirs during a testator's lifetime are
NOT considered advancements on the heir's intestate
share of the estate UNLESS:
ADVANCEMENTS
SIMULTANEOUS DEATH
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.
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.
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).
GOVERNING JURISDICTION OF
THE WILL
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.
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
WILL EXECUTION
REQUIREMENTS
TWO WITNESS REQUIREMENT:
LINE OF SIGHT vs. RANGE OF
SENSES
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
3. Signed by at least two witnesses.
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.
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).
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).
INTERESTED WITNESSES
HOLOGRAPHIC WILLS
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 valid witnesses to the will. Still, some states only allow
interested witnesses to inherit their intestate share of the estate.)
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
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 documents usually arises when
pages or portions of a will become separated.
A document will be integrated into the will if:
INTEGRATION OF DOCUMENTS
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
INCORPORATION BY
REFERENCE
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
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.
CODICILS
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.
However, most courts hold that a codicil CANNOT republish an
invalid will as a whole.
A will can be revoked by either:
REVOCATION OF THE WILL BY A
SUBSEQUENT WRITTEN
INSTRUMENT
1. A subsequent written instrument that is executed
for the sole purpose of revoking the prior will; OR
2. 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).
REVOCATION OF THE WILL BY
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.
PARTIAL REVOCATION OF THE
WILL
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.
However, some states do NOT permit partial
revocations.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
REVOCATION OF THE WILL BY
DIVORCE
DEPENDENT RELATIVE
REVOCATION [DRR] OF THE
WILL
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.
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.
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.
Under the common law, the revocation of a subsequent will
automatically revives the prior will. Under the modern view,
most states permit revival of a revoked will if:
REVIVAL OF THE WILL AFTER
REVOCATION
LAPSED LEGACIES
ANTI-LAPSE STATUTES
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.
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.
Under an anti-lapse statute, devises will vest
in the descendants of the predeceased
beneficiary if the predeceased beneficiary:
1. Is a blood relative of the testator; AND
2. Has descendant(s) who survive the
testator.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
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.
ADEMPTION
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. Any property in the testator's estate, which the testator acquired as a
replacement for the specific devise; OR
2. A monetary devise equal to the value of the specific devise.
GENERIC DESCRIPTIONS OF
PROPERTY IN THE WILL
SLAYER STATUTES
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).
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
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:
BENEFICIARY DISCLAIMERS
SPECIFIC DEVISES
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.
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).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
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).
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
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.
EXONERATION
STOCK SPLITS AND DIVIDENDS
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.
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.
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
DEVISES TO CLASSES
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).
DISINHERITANCE OF A CHILD
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.
PRETERMITTED CHILDREN
A pretermitted child is a child who is
unintentionally omitted from a will.
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.
Valid contracts to make wills are generally
enforceable and may take numerous forms:
CONTRACTUAL WILLS
WILL CONTEST FOR LACK OF
CAPACITY
1. A contract to execute mutual or joint wills;
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.
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:
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
WILL CONTEST FOR UNDUE
INFLUENCE
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;
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.
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:
WILL CONTEST FOR FRAUD
WILL CONTEST FOR MISTAKE
NO-CONTEST CLAUSES IN
WILLS
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.
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. If a will is
ambiguous, courts allow extrinsic evidence to
resolve the ambiguity (i.e., the facts and
circumstances surrounding the execution of the
will may be considered to resolve the
ambiguous term).
The purpose of a no-contest clause is to discourage
potential will contestants by forcing them to choose
the gift bestowed to them in the will if no contest
action is filed or nothing if their contest action fails.
A minority of jurisdictions wholly enforce no-contest
clauses while others strictly prohibit no-contest
clauses as a matter of public policy.
Generally, only those who have a pecuniary
interest in an estate have standing to contest it.
This includes any person who:
STANDING TO CONTEST A WILL
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
LIVING WILLS
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.
Generally, a living will must be signed, in writing,
and witnessed by at least two persons or
notarized (similar to executing a will).
DURABLE POWER OF ATTORNE
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.
Generally, a durable power of attorney must be signed, in
writing, and witnessed by at least two persons or notarized
(similar to executing a will).
FAMILY CONSENT LAWS
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. Under typical family consent
laws, the priority in which a close relative may act as a surrogate
decision maker is as follows:
1. Spouse (unless legally separated)
2. Adult child
3. Parent
4. Adult brother/sister
TRUST CREATION AND TITLE
DIVISION
THE SETTLOR
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. The trustee holds legal title to the property and
becomes the owner of record for the property.
2. The beneficiary holds equitable title to the property
and is entitled to the financial benefits of the property.
The settlor is the person who
creates the trust (usually the
person who places the original
assets into the trust).
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
THE 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.
THE BENEFICIARY
The beneficiary is the person who
is entitled to the assets or profits
of the trust.
EXPRESS TRUST vs. IMPLIED
TRUST
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.
An implied trust is created by conduct,
regardless of whether there was intent to create
a trust (e.g., constructive trusts imposed by
courts).
A valid express trust is created if the following five
elements are met:
EXPRESS TRUST ELEMENTS
REVOCABLE vs. IRREVOCABLE
TRUSTS
1. The settlor has intent to create the trust;
2. There is trust property (i.e., the res);
3. An ascertainable beneficiary exists;
4. The trust has a trustee; AND
5. All parties comply with the requisite formalities.
Under the common law (majority view), a trust is
irrevocable UNLESS the settlor expressly retains
the right to revoke or amend the trust.
Under the Uniform Trust Code (minority view), a
trust is revocable UNLESS the trust expressly
provides otherwise.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
TESTAMENTARY TRUSTS
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).
POUROVER PROVISIONS
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
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. 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.
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.
DISCRETIONARY TRUSTS
SUPPORT TRUSTS
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.
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.
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
Spendthrift trusts contain provisions designed to protect
beneficiaries from their own carelessness. Generally, spendthrift
provisions serve two main functions:
SPENDTHRIFT TRUSTS
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 unless: (a) the settlor is the beneficiary of the
spendthrift trust (i.e., self-settled trust); (b) the creditor is seeking
reimbursement for providing necessaries; or (c) the creditor has
an order for child support or alimony.
The creditors of the beneficiary of a trust have NO greater rights
in the trust property than the rights of the beneficiary.
RIGHTS OF CREDITORS IN
TRUST PROPERTY
ALIENABILITY OF TRUST
INTERESTS
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. Whether or
not the trust contains a spendthrift provision, creditors can reach
the beneficiary's interest once it is distributed to the beneficiary.
Trust interests are alienable,
devisable, and descendible
unless the terms of the trust
provide otherwise.
Generally, an income beneficiary is only entitled to trust income
(not the trust principal) UNLESS:
INVASION OF TRUST PRINCIPAL
DEVIATION FROM THE TRUST
1. Only one beneficiary exists;
2. The beneficiary will ultimately receive the trust principal;
3. There is a significant change in circumstances; OR
4. The trust grants the trustee discretion to invade the principal
(can be express or implied through the settlor's words or
conduct).
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:
1. Have been satisfied;
2. Have become unlawful; OR
3. Are impossible to carry out.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
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.
MODIFICATION OF THE TRUST
BY THE PARTIES
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.
Generally, a trust may be terminated if:
TERMINATION OF TRUSTS
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
6. The court or trustee determines that the value of the trust property is too
low to justify the cost of administration.
A trustee is a fiduciary holding legal title to the
trust property. As a fiduciary, the trustee MUST:
FIDUCIARY REQUIREMENTS OF
THE TRUSTEE
THE TRUSTEE'S DUTY OF CARE
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.
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.
The Uniform Prudent investor Act requires the trustee to
exercise the degree of care and skill as an investor of
ordinary prudence would exercise in investing his own
property.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
EXCULPATORY CLAUSES
THE TRUSTEE'S DUTY OF
LOYALTY
THE TRUSTEE'S DUTY TO ACT
IMPARTIALLY
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.
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.
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.
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).
The following newly acquired assets generally
must be allocated to the trust income:
TRUST INCOME ALLOCATIONS
TRUST PRINCIPAL
ALLOCATIONS
1. Receipt of rental payments from trust
property; AND
2. 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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
SCOPE OF ARTICLE 9
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.
SECURED PARTY
The secured party is the creditor
who possesses the benefit of the
security interest.
DEBTOR
The debtor is the party who has
an ownership interest or other
sufficient interest in the personal
property securing the obligation.
OBLIGOR
The obligor is the party held
responsible for the underlying
obligation (usually also the
debtor, but could be a type of
guarantor).
COLLATERAL
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
ARTICLE 9 "GOODS"
Article 9 defines "goods" as all
things that are moveable when a
security interest attaches.
ARTICLE 9 "CONSUMER
GOODS"
Article 9 defines "consumer
goods" as goods that are used
mainly for personal, family, or
household purposes.
ARTICLE 9 "INVENTORY"
Article 9 defines "inventory" as
goods that are kept by a person
for sale or lease (does not
include goods that are only
being held for repair).
ARTICLE 9 "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.
ATTACHMENT
Attachment is essentially how a security interest is
created. A security interest attaches to collateral when it
becomes enforceable against the debtor with respect to
the collateral, unless an agreement expressly postpones
the time of attachment. A valid attachment requires that:
1.
The secured party extends value to the debtor
(almost any consideration will suffice);
2. The debtor has rights in the collateral or the power
to transfer rights in the collateral to a secured party; AND
3. A UCC § 9-203(b)(3) condition is met.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
Once the security interest attaches, it is enforceable. Perfection
of the interest only enhances the secured party's rights to the
property serving as collateral. Generally, there are three different
methods in which a security interest may be perfected:
PERFECTION
1. The filing of a financing statement or the security agreement
with the state by an authorized party;
2. Taking mere possession of a security interest in negotiable
documents, goods, instruments, or money; OR
3. Automatic perfection.
The following security interests are perfected
automatically when they attach:
AUTOMATIC PERFECTION
1. A purchase-money security interest in
consumer goods; AND
2. An assignment of accounts that does not
transfer a significant part of the assignor's
outstanding accounts.
A consignment is a transaction in which a person delivers goods to a
merchant for the purpose of sale in which:
CONSIGNMENT
RIGHTS OF THE
CONSIGNOR/CONSIGNEE
FUTURE ADVANCES
1. 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
(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.
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
DEFAULT CLAUSES
The parties may specifically
define what constitutes a default.
If left undefined, non-payment
generally constitutes a default.
ACCELERATION CLAUSES
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).
COVENANTS REGARDING
COLLATERAL
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 DEBTOR
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 secured party must use
reasonable care in the custody
and preservation of collateral in
the secured party's possession.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
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.
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.
PRIORITY OF PERFECTED vs.
UNPERFECTED INTERESTS
PRIORITY OF MULTIPLE
PERFECTED CREDITORS
PRIORITY OF LIEN CREDITORS
Generally, a perfected security
interest has priority over a
conflicting unperfected security
interest in the same collateral.
Between multiple perfected creditors, the
first to file obtains priority. Some collateral is
not subject to the state filing system or
cannot otherwise be filed. In these
instances, the first to perfect obtains priority.
Generally, knowledge of a prior
unperfected interest will not prevent a
potential secured party from filing first to
obtain priority
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
PRIORITY OF BUYERS IN THE
ORDINARY COURSE OF
BUSINESS
A buyer in the ordinary course of business is a person who
buys in the ordinary course from a person in the business
of selling goods of that kind. A buyer in the ordinary
course of business takes the item free of a security
interest created by the buyer's seller even if the security
interest is perfected and the buyer knows of its existence.
The protected buyer may sell the purchased collateral to a
third-party free of the secured party's security interest.
A buyer of consumer goods take the goods free of
a security interest, even if perfected, if the buyer
buys:
PRIORITY OF BUYERS OF
CONSUMER GOODS
PRIORITY OF PURCHASEMONEY SECURITY INTERESTS
(PMSIs)
PRIORITY OF PURCHASEMONEY SECURITY INTERESTS IN
INVENTORY COLLATERAL
SECURED PARTY'S RIGHT TO
REPOSSESS
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.
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.
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.
A PMSI in non-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 of the collateral or within 20 days
thereafter (i.e., the debtor has a 20-day grace period to file upon
receipt of the collateral).
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379
SECURED PARTY'S RIGHT TO
DISPOSE OF COLLATERAL
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.
SECURED PARTY'S RIGHT TO
COLLECT DIRECTLY FROM THE
ACCOUNT DEBTOR
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).
CREDITOR'S NON-COMPLYING
DISPOSITION OF COLLATERAL
DEBTOR'S RIGHT OF
REDEMPTION
SURPLUS AND DEFICIENCY
When a creditor makes a non-complying disposition
of collateral under Article 9, the debtor can:
1. Recover actual damages;
2. Recover statutory damages; OR
3. Be subject to judicially mandated disposition of the
collateral.
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.
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.
Prepared exclusively for Ana Tui'one, asena.tuione@gmail.com. Tracking Code: 14379